Federal Register of Legislation - Australian Government

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A Bill for an Act to amend the Criminal Code Act 1995 to protect minors by introducing offences about misrepresentation of age online
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Registered 22 Feb 2010
Introduced Senate 03 Feb 2010

 

2008‑2009‑2010

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2010

 

No.      , 2010

 

(Senator Xenophon)

 

 

 

A Bill for an Act to amend the Criminal Code Act 1995 to protect minors by introducing offences about misrepresentation of age online

  

  


Contents

1............ Short title............................................................................................ 1

2............ Commencement.................................................................................. 1

3............ Object................................................................................................. 2

4............ Schedule(s).......................................................................................... 2

Schedule 1—Amendment of the Criminal Code Act 1995                               3

 


A Bill for an Act to amend the Criminal Code Act 1995 to protect minors by introducing offences about misrepresentation of age online

The Parliament of Australia enacts:

1  Short title

                   This Act may be cited as the Criminal Code Amendment (Misrepresentation of Age to a Minor) Act 2010.

2  Commencement

                   This Act commences on the day after it receives the Royal Assent.

3  Object

                   The object of this Act is to make it a criminal offence for a person over 18 years to intentionally misrepresent their age in communications with a person they reasonably believe to be under 18 years of age, whether:

                     (a)  for the purpose of misrepresenting their age in and of itself; or

                     (b)  to make it easier to meet the person physically; or

                     (c)  with the intention of committing an offence.

4  Schedule(s)

                   Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.


 

Schedule 1Amendment of the Criminal Code Act 1995

1  The Schedule (at the end of Division 474 of the Criminal Code)

Add:

474.40  Misrepresenting age to persons under 18 years of age

             (1)  A person (the sender) commits an offence if:

                     (a)  the sender uses a carriage service to transmit a communication to another person (the recipient); and

                     (b)  the sender does this with the intention of misrepresenting his or her age; and

                     (c)  the recipient is someone who is, or who the sender believes to be, under 18 years of age; and

                     (d)  the sender is at least 18 years of age.

Penalty:  Imprisonment for 3 years.

             (2)  A person (the sender) commits an offence if:

                     (a)  the sender uses a carriage service to transmit a communication to another person (the recipient); and

                     (b)  the sender does this with the intention of misrepresenting his or her age; and

                     (c)  the sender does this with the intention of making it easier to meet the recipient physically; and

                     (d)  the recipient is someone who is, or who the sender believes to be, under 18 years of age; and

                     (e)  the sender is at least 18 years of age.

Penalty:  Imprisonment for 5 years.

             (3)  A person (the sender) commits an offence if:

                     (a)  the sender uses a carriage service to transmit a communication to another person (the recipient); and

                     (b)  the sender does this with the intention of misrepresenting his or her age; and

                     (c)  the sender does this with the intention of committing an offence, other than an offence under this section; and

                     (d)  the recipient is someone who is, or who the sender believes to be, under 18 years of age; and

                     (e)  the sender is at least 18 years of age.

Penalty:  Imprisonment for 8 years.

474.41  Provisions relating to offences against section 474.40

Age‑related issues

             (1)  For the purposes of an offence against section 474.40, absolute liability applies to the physical element of circumstance of the offence that the recipient is someone who is under 18 years of age.

Note 1:       For absolute liability, see section 6.2.

Note 2:       For a defence based on belief about age, see section 474.29.

             (2)  For the purposes of section 474.40, evidence that the recipient was represented to the sender as being under or of a particular age is, in the absence of evidence to the contrary, proof that the sender believed the recipient to be under or of that age.

             (3)  In determining for the purposes of section 474.40 how old a person is or was at a particular time, a jury or court may treat any of the following as admissible evidence:

                     (a)  the person’s appearance;

                     (b)  medical or other scientific opinion;

                     (c)  a document that is or appears to be an official or medical record from a country outside Australia;

                     (d)  a document that is or appears to be a copy of such a record.

             (4)  Subsection (3) does not make any other kind of evidence inadmissible, and does not affect a prosecutor’s duty to do all he or she can to adduce the best possible evidence for determining the question.

             (5)  If, on a trial for an offence against section 474.40, evidence may be treated as admissible because of subsection (3), the court must warn the jury that it must be satisfied beyond reasonable doubt in determining the question.

Fictitious recipient

             (6)  For the purposes of section 474.40, it does not matter that the recipient to whom the sender believes the sender is transmitting the communication is a fictitious person represented to the sender as a real person.

Attempt not offence

             (7)  It is not an offence to attempt to commit an offence against section 474.40.

474.42  Defences to offences against section 474.40

             (1)  It is a defence to a prosecution for an offence against section 474.40 that the defendant believed at the time the communication was transmitted that the recipient was not under 18 years of age.

Note:          A defendant bears an evidential burden in relation to the matter in this section, see subsection 13.3(3).

             (2)  In determining whether the defendant had the belief referred to in subsection (1), the jury may take into account whether the alleged belief was reasonable in the circumstances.

             (3)  A person is not criminally responsible for an offence against section 474.40 because of engaging in particular conduct if the conduct:

                     (a)  is of public benefit; and

                     (b)  does not extend beyond what is of public benefit.

In determining whether the person is, under this subsection, not criminally responsible for the offence, the question whether the conduct is of public benefit is a question of fact and the person’s motives in engaging in the conduct are irrelevant.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).

             (4)  For the purposes of subsection (3), conduct is of public benefit if, and only if, the conduct is necessary for or of assistance in:

                     (a)  enforcing a law of the Commonwealth, a State or a Territory; or

                     (b)  monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or a Territory; or

                     (c)  the administration of justice; or

                     (d)  conducting scientific, medical or educational research that has been approved by the Minister in writing for the purposes of this section.

             (5)  A person is not criminally responsible for an offence against section 474.40 if:

                     (a)  the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in the course of his or her duties; and

                     (b)  the conduct of the person is reasonable in the circumstances for the purpose of performing that duty.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).