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CRIMINAL JUSTICE LEGISLATION AMENDMENT (SEXUAL OFFENCES) BILL 2023

Serial 93
Criminal Justice Legislation Amendment (Sexual Offences) Bill 2023
Mr Paech

A Bill for an Act to amend the Criminal Code, the Child Protection (Offender Reporting and Registration) Act 2004, the Information Act 2002, the National Disability Insurance Scheme (Worker Clearance) Regulations 2021 and the Sentencing Act 1995 and for related purposes

NORTHERN TERRITORY OF AUSTRALIA

CRIMINAL JUSTICE LEGISLATION AMENDMENT (SEXUAL OFFENCES) ACT 2023

____________________

Act No. [ ] of 2023

____________________

Table of provisions

72A Meaning of act of piracy
125B Production, possession etc. of child abuse material

125C Publishing indecent articles

125D Using child for production of child abuse material or pornographic or abusive performance

125E Criminal liability of executive officer of body corporate – legal burden of proof on defence
Division 2A Offence relating to human remains

126 Interference with or indignity to human remains
208AAB Recording or capturing intimate image without consent
Part VIA Sexual offences

Division 1 Interpretation

208G Definitions

208GA Consent

208GB Indecent and grossly indecent

208GC Meaning of position of authority

208GD Meaning of sexually involved with

208GE Meaning of touches

Division 2 Sexual acts committed without consent

208H Sexual intercourse – without consent

208HA Compelling sexual intercourse or penetration – without consent

208HB Gross indecency – without consent

208HC Indecent touching or act – without consent

208HD Compelling indecent touching or act – without consent

208HE Recklessness in sexual offences

208HF Attempt to commit sexual offence and recklessness

Division 3 Sexual acts committed against children under 16 years

208J Sexual intercourse – child under 16 years

208JA Causing sexual intercourse or penetration – child under 16 years

208JB Gross indecency – child under 16 years

208JC Indecent touching or act – child under 16 years

208JD Causing indecent touching or act – child under 16 years

208JE Exposure to indecent thing or act – child under 16 years

208JF Recording or capturing indecent image – child under 16 years

208JG Engaging in conduct to procure sexual activity – child under 16 years

208JH Grooming to engage in sexual activity – child under 16 years

208JI Repeated sexual abuse – child under 16 years

208JJ Charge for offence of repeated sexual abuse

208JK No defence of consent

208JL No defence of belief in marriage or de facto relationship

208JM Proceeding against child

Division 4 Sexual acts committed against young persons by persons in positions of authority

208K Sexual intercourse – young person

208KA Causing sexual intercourse or penetration – young person

208KB Gross indecency – young person

208KC Indecent touching or act – young person

208KD No defence of consent

208KE Defence – marriage or de facto relationship

Division 5 Sexual acts committed against cognitively impaired persons by carers

208L Meaning of cognitive impairment

208LA Person responsible for care of person with cognitive impairment

208LB Sexual intercourse – person with cognitive impairment

208LC Causing sexual intercourse or penetration – person with cognitive impairment

208LD Gross indecency – person with cognitive impairment

208LE Indecent touching or act – person with cognitive impairment

208LF Defence – consent

208LG Defence – marriage or de facto relationship

Division 6 Sexual acts committed against close family members

208M Meaning of close family member

208MA Incest

208MB No defence of consent

208MC Defence – compulsion

Division 7 Sexual acts committed against animal or in public

208N Sexual involvement with animal

208NA Public masturbation

Division 8 General matters

208P Increased penalty for aggravated offence

208PA Procedural and evidentiary provisions for aggravated offences

208PB Jury directions on consent

208PC Exception – medical, hygienic, veterinary or agricultural procedures

208PD Alternative verdicts

208PE Indecent images and related articles may be destroyed

208PF Article containing indecent images may be returned
Division 19 Criminal Justice Legislation Amendment (Sexual Offences) Act 2023

475 Offences – before and after commencement
Part 9 Transitional matters for Criminal Justice Legislation Amendment (Sexual Offences) Act 2023

105 Definitions

106 Application of amendments to Schedules if person is reportable offender

107 Application of amendments to Schedules if person is not reportable offender
Division 11 Transitional matter for Criminal Justice Legislation Amendment (Sexual Offences) Act 2023

149 Application of section 5
Schedule 3 Sexual offences

7 Disqualifying offences
Schedule 1 Violent acts and categories of compensable violent acts

Schedule 2 Category 1 offences for psychological or psychiatric disorder

NORTHERN TERRITORY OF AUSTRALIA

____________________

Act No. [ ] of 2023

____________________

An Act to amend the Criminal Code, the Child Protection (Offender Reporting and Registration) Act 2004, the Information Act 2002, the National Disability Insurance Scheme (Worker Clearance) Regulations 2021 and the Sentencing Act 1995 and for related purposes

[Assented to [ ] 2023]

[Introduced [ ] 2023]

The Legislative Assembly of the Northern Territory enacts as follows:

Part 1 Preliminary matters
1 Short title

This Act may be cited as the Criminal Justice Legislation Amendment (Sexual Offences) Act 2023.

2 Commencement

This Act commences on the day fixed by the Administrator by Gazette notice.

Part 2 Amendment of Criminal Code
3 Criminal Code amended

This Part amends the Criminal Code.

4 Section 1 amended (Definitions)

(1) Section 1

omit

Code, unless the contrary intention appears:

insert

Code:

(2) Section 1, definitions aggravated offence, law enforcement officer, sexual intercourse and vagina

omit

(3) Section 1

insert

act of piracy, for Part III, Division 6, see section 72A.

aggravated offence:

(a) for Part VI – see section 149B; or

(b) for Part VIA – see section 208G.

article, for Part VIA, see section 208G.

close family member, for Part VIA, Division 6, see section 208M.

cognitive impairment, for Part VIA, Division 5, see section 208L.

consent:

(a) for Part VI, Division 7A – see section 208AA; or

(b) for Part VIA – see section 208GA.

correctional services officer, see section 16 of the Correctional Services Act 2014.

genitals, for Part VIA, see section 208G.

historical offence, for Part VIA, see section 208G.

indecent, for Part VIA, see section 208GB(1).

law enforcement officer, for Part VI, see section 149B.

married, for Part VIA, see section 208G.

part of the body, for Part VIA, see section 208G.

penis, for Part VIA, see section 208G.

pirate, for Part III, Division 6, see section 72.

position of authority, for Part VIA, see section 208GC.

senior rank, for Part VIA, see section 208G.

sexual intercourse, for Part VIA, see section 208G.

sexually involved with, for Part VIA, see section 208GD.

touches, for Part VIA, see section 208GE.

5 Section 72 amended (Definitions)

(1) Section 72, definitions act of piracy and master

omit

(2) Section 72

insert

act of piracy, see section 72A.

6 Section 72A inserted

After section 72

insert

72A Meaning of act of piracy

(1) Subject to subsection (2), an act of piracy is any of the following acts on the high seas:

(a) an act that, if committed in the Territory, would constitute an offence against section 218(1);

(b) the boarding of a ship against the wishes or without the knowledge of the master for the purpose of committing on the ship an act that, if committed in the Territory, would constitute an offence against section 156, 181, 194, 195, 202, 208H, 208HA, 208HB, 241, 243 or 245;

(c) an act committed on a ship that, if committed in the Territory, would constitute an offence against section 156, 181, 194, 195, 202, 208H, 208HA, 208HB, 241, 243 or 245;

(d) the stealing of a ship;

(e) directly or indirectly taking control of a ship against the wishes of the master;

(f) the confining of the master of a ship against the master's will;

(g) an act of a person on board a ship intentionally disobeying a lawful direction of the master given for the purpose of ensuring the safety of the ship, the crew or the passengers.

(2) Neither of the following is an act of piracy:

(a) an act of war committed under the authority of the Commonwealth or the lawful government of a foreign state;

(b) the taking of control of a ship by a person against the wishes of the master if:

(i) the person is a member of the armed forces of, or is acting with the authority of, the Commonwealth or the lawful government of a foreign state; and

(ii) the master had control of the ship as a result of an act mentioned in subsection (1).

(3) In this section:

master, of a ship, means the person for the time being in control of the ship, whether or not that control was lawfully obtained.

7 Sections 125B to 125E replaced

Sections 125B to 125E

repeal, insert

125B Production, possession etc. of child abuse material

(1) A person commits an offence if:

(a) the person intentionally produces, sells, distributes or possesses, or offers or advertises for sale or distribution, material; and

(b) the material is child abuse material and the person is reckless in relation to that circumstance.

Maximum penalty:

(a) for an individual – imprisonment for 10 years; or

(b) for a body corporate – 10 000 penalty units.

(2) It is a defence to a prosecution for an offence against subsection (1) if the defendant:

(a) is a member or officer of a law enforcement agency or a court who has child abuse material in the member's or officer's possession in the exercise of a power or performance of a function conferred or imposed on the member or officer by or under an Act or law; or

(b) has child abuse material in the defendant's possession in the exercise of a power, or performance of a function, relating to the classification of the material that is conferred or imposed on the defendant by or under an Act or law; or

(c) has child abuse material in the defendant's possession for legitimate medical or health research purposes.

(3) In a prosecution of a person for an offence against subsection (1), each of the following is evidence that material was in the person's possession:

(a) proof that the material was in or at a place of which the person was the occupier;

(b) proof that the material was in or at a place, the management or control of which the person was concerned in.

(4) Subsection (3) does not apply to a person if the person neither knew nor had reason to suspect that the material was in or on that place.

(5) In proceedings for an offence against subsection (1), a Commonwealth evidentiary certificate is admissible in any court of competent jurisdiction and is evidence that the film, publication or computer game mentioned in the certificate is child abuse material.

(6) A court that finds a person guilty of an offence against subsection (1):

(a) must order the forfeiture and destruction of any child abuse material in respect of which the offence was committed; and

(b) may order the forfeiture and destruction of any other articles seized at the same time as the child abuse material in respect of which the offence was committed.

(7) In this section:

Commonwealth evidentiary certificate means a certificate issued under section 87 of the Commonwealth Act that:

(a) purports to be signed by the Director of the Classification Board or the Deputy Director of the Classification Board; and

(b) states that a film, publication or computer game is classified RC on the basis that it describes or depicts, in a way that is likely to cause offence to a reasonable adult, a person who is, or appears to be, a child (whether the person is engaged in sexual activity or not).

Note for section 125B

See also section 208JF.

125C Publishing indecent articles

(1) A person commits an offence if:

(a) the person intentionally publishes an article; and

(b) the article is indecent and the person is reckless in relation to that circumstance.

Maximum penalty:

(a) for an individual – imprisonment for 2 years; or

(b) for a body corporate – 175 penalty units.

(2) It is a defence to a prosecution for an offence against subsection (1) if the defendant:

(a) published the indecent article for the purposes of an application for classification under the Commonwealth Act; or

(b) is a member or officer of a law enforcement agency and published the indecent article in the exercise of a power conferred, or performance of a function imposed, on the member or officer by or under an Act or law.

(3) For this section, an article may be indecent even if part of it is not indecent.

125D Using child for production of child abuse material or pornographic or abusive performance

A person commits an offence if:

(a) the person intentionally uses, offers or procures another person for the production of material or for a performance; and

(b) the other person is a child, or a person who appears to be a child, and the person is reckless in relation to that circumstance; and

(c) the material is child abuse material, or the performance is a pornographic or abusive performance, and the person is reckless in relation to that circumstance.

Maximum penalty:

(a) for an individual – imprisonment for 14 years; or

(b) for a body corporate – 15 000 penalty units.

125E Criminal liability of executive officer of body corporate – legal burden of proof on defence

(1) An executive officer of a body corporate commits an offence if the body corporate commits an offence against section 125B(1), 125C(1) or 125D (a relevant offence).

Maximum penalty: The maximum penalty that may be imposed on an individual for the commission of the relevant offence.

(2) An offence against subsection (1) is an offence of absolute liability.

(3) It is a defence to a prosecution for an offence against subsection (1) if the defendant:

(a) was not in a position to influence the conduct of the body corporate in relation to the commission of the relevant offence; or

(b) took reasonable steps to prevent the commission of the relevant offence; or

(c) did not know, and could not reasonably have been expected to know, that the relevant offence would be committed.

(4) The defendant has a legal burden of proof in relation to a matter mentioned in subsection (3).

(5) In deciding whether the defendant took (or failed to take) reasonable steps to prevent the commission of the relevant offence, a court must consider the following:

(a) any action the defendant took directed towards ensuring the following (to the extent the action is relevant to the commission of the relevant offence):

(i) the body corporate arranged regular professional assessments of the body corporate's compliance with the provision to which the relevant offence relates;

(ii) the body corporate implemented any appropriate recommendation arising from an assessment under subparagraph (i);

(iii) the body corporate's employees, agents and contractors had a reasonable knowledge and understanding of the requirement to comply with the provision to which the relevant offence relates;

(b) any action the defendant took when the defendant became aware that the relevant offence was, or could be, about to be committed.

(6) Subsection (5) does not limit the matters the court may consider.

(7) This section does not affect the liability of the body corporate.

(8) This section applies to an executive officer whether or not the body corporate is prosecuted for, or found guilty of, the relevant offence.

(9) Subsection (1) does not apply to an executive officer if the body corporate would have a defence to a prosecution for the relevant offence.

Note for subsection (9)

The defendant has an evidential burden in relation to the matters mentioned in subsection (9) (see section 43BU of the Criminal Code).

(10) In this section:

executive officer, of a body corporate, means a director or other person who is concerned with, or takes part in, the management of the body corporate.

8 Section 125F amended (Court proceedings)

Section 125F(1)(a)

omit

125E;

insert

125D;

9 Part V, Division 2, Subdivision 2 replaced

Part V, Division 2, Subdivision 2

repeal, insert

Division 2A Offence relating to human remains

126 Interference with or indignity to human remains

(1) A person commits an offence if:

(a) the person intentionally engages in conduct in relation to human remains, whether or not the remains are buried; and

(b) the conduct is an improper or indecent interference with, or an indignity to, the remains, according to the standards of ordinary people.

Maximum penalty: Imprisonment for 2 years.

(2) Absolute liability applies to subsection (1)(b).

(3) In a prosecution for an offence against subsection (1), the question of what is improper, indecent or an indignity is a matter for the trier of fact.

10 Section 188 amended (Common assault)

(1) Section 188(2)(k) and (3)

omit

(2) Section 188(2)(m)

omit

weapon,

insert

weapon;

(3) Section 188(2)(a) to (j), at the end

insert

or

11 Sections 192 to 192B repealed

Sections 192 to 192B

repeal

12 Section 208AAB inserted

After section 208AA

insert

208AAB Recording or capturing intimate image without consent

(1) A person commits an offence if:

(a) the person intentionally records or captures an image of another person; and

(b) the image is an intimate image and the person is reckless in relation to that circumstance; and

(c) the other person did not consent to the recording or capturing of the image at the time it was recorded or captured and the person is reckless in relation to that circumstance.

Maximum penalty: Imprisonment for 3 years.

(2) It is a defence to a prosecution for an offence against subsection (1) if the image:

(a) was recorded or captured by a law enforcement officer acting reasonably in the performance of the officer's duty; or

(b) was recorded or captured for the purpose of reporting unlawful conduct by the other person to a law enforcement officer; or

(c) is of a person incapable of giving consent and was recorded or captured:

(i) for a scientific, medical or educational purpose; or

(ii) in other circumstances that a reasonable person would regard as acceptable.

Example for subsection (2)(c)(ii)

Taking a photograph or video of a naked newborn relative.

(3) A person under 16 years of age is taken to be incapable of consenting to the recording or capturing of an intimate image of the person.

13 Part VIA inserted

After section 208F

insert

Part VIA Sexual offences

Division 1 Interpretation

208G Definitions

In this Part:

aggravated offence means an offence against this Part to which a circumstance of aggravation mentioned in section 208P applies.

article includes any thing:

(a) that contains or embodies matter to be read or looked at; or

(b) that is to be looked at; or

(c) that is a record; or

(d) that can be used, either alone or as one of a set, for the production or manufacture of any thing referred to in paragraphs (a), (b) or (c).

close family member, for Division 6, see section 208M.

cognitive impairment, for Division 5, see section 208L.

consent, see section 208GA.

genitals includes internal and external genitals and any surgically constructed genitals.

historical offence means any of the following offences:

(a) an offence against section 127, 128, 130, 132, 134, 188(2)(k), 192 or 192B as in force before the commencement of this Part;

(b) an offence against section 129 or 135, as in force before the commencement of the Law Reform (Gender, Sexuality and De Facto Relationships) Act 2003;

(c) an offence against another repealed provision of an Act that is substantially similar to an offence mentioned in paragraph (a) or (b).

indecent, see section 208GB(1).

married means married according to the law of Australia.

part of the body includes a surgically constructed part of the body.

penis includes a surgically constructed penis.

position of authority, see section 208GC.

senior rank, in relation to a police officer, means a rank of or above the rank of Commander.

sexual intercourse means any of the following:

(a) the penetration (to any extent) of the genitals or anus of a person with any part of the body of a person or with anything controlled by a person;

(b) the penetration (to any extent) of the mouth of a person with the penis of a person;

(c) cunnilingus;

(d) fellatio;

(e) the continuation of an act mentioned in paragraphs (a) to (d).

Note for definition sexual intercourse

Section 208PC provides a general exception for an offence against this Part for engaging in sexual intercourse in the course of a procedure carried out in good faith for medical or hygienic purposes.

sexually involved with, see section 208GD.

touches, see section 208GE.

208GA Consent

(1) Consent, to a sexual act, means free and voluntary agreement to the act.

(2) Circumstances in which a person does not consent to a sexual act include circumstances in which:

(a) the person submits to the act because of force or the fear of force to the person or to someone else; or

(b) the person submits to the act because the person is unlawfully detained; or

(c) the person submits to the act because of a false representation as to the nature or purpose of the act; or

(d) the person is asleep or unconscious or is so affected by alcohol, a drug or another substance as to be incapable of consenting; or

(e) the person is incapable of understanding the sexual nature of the act; or

(f) the person is mistaken about the sexual nature of the act; or

(g) the person is mistaken about the identity of another person involved in the act; or

(h) the person consents to the act with a condom, but another person involved in the act does not use or intentionally disrupts or removes the condom without the person's consent.

Example for subsection (2)(f)

The person mistakenly believes the act is for medical or hygienic purposes.

(3) In this section:

sexual act means an act that constitutes an element of an offence against this Part.

Note for section 208GA

Section 208PB also requires that the Judge direct a jury, in a relevant case, as to the factors to which the jury may have regard in determining whether or not there was consent.

208GB Indecent and grossly indecent

(1) An act, including touching, an image or a thing is indecent if it is indecent according to the standards of ordinary people.

(2) In a prosecution for an offence against this Part, indecency or gross indecency is a matter for the trier of fact.

208GC Meaning of position of authority

(1) A person is in a position of authority in relation to a person who is 16 or 17 years of age (the young person) if, at the time of the conduct concerned:

(a) the person is a parent, step-parent, foster parent, legal guardian or legal custodian of the young person; or

(b) the person is a teacher at a school and the young person is enrolled at the school; or

(c) the person is an employer of the young person; or

(d) the person is a counsellor to the young person in a professional capacity; or

(e) the person is a health practitioner and the young person is the person's patient; or

(f) the person is a police officer, correctional services officer or community youth justice officer and the young person is in the person's care, custody, control or supervision as such an officer; or

(g) the person has authority over the young person because of the circumstances of the person's relationship with the young person, regardless of whether the authority is exercised lawfully; or

(h) the person has established a personal relationship with the young person in connection with the care, supervision or religious, sporting, musical or other instruction of the young person.

Example for subsection (1)(g)

The person supplies the young person with drugs.

Example for subsection (1)(h) of a person who has established a personal relationship in connection with the supervision of a young person

The person supervises the young person in the course of employment or training.

(2) In subsection (1):

community youth justice officer, see section 5(1) of the Youth Justice Act 2005.

health practitioner means a person registered under the Health Practitioner Regulation National Law to practise in a health profession (other than as a student).

208GD Meaning of sexually involved with

A person is sexually involved with an animal if any of the following occur:

(a) the person inserts (to any extent) any part of the person's body or a thing controlled by the person into the genitals or anus of the animal;

(b) the person inserts (to any extent) the person's penis into the mouth of the animal;

(c) the person touches the animal's genitals with any part of the person's mouth;

(d) the animal's penis is inserted (to any extent) into the person's genitals, anus or mouth;

(e) any part of the animal's mouth touches the person's genitals.

Note for definition sexually involved with

Section 208PC provides a general exception for an offence against this Part for acts done in the course of a procedure carried out in good faith for veterinary or agricultural purposes.

208GE Meaning of touches

A person touches another person if the person touches the other person with any part of the person's body or with anything controlled by the person.

Division 2 Sexual acts committed without consent

208H Sexual intercourse – without consent

(1) A person commits an offence if:

(a) the person intentionally engages in sexual intercourse with another person; and

(b) the other person does not consent to the sexual intercourse and the person is reckless in relation to the other person's lack of consent.

Maximum penalty: Imprisonment for life.

(2) The offence of attempting to commit an offence against subsection (1) is punishable by imprisonment not exceeding:

(a) 20 years; or

(b) for an aggravated offence – 25 years.

Note for subsection (2)

For the offence of attempting to commit the offence, see section 43BF.

208HA Compelling sexual intercourse or penetration – without consent

A person commits an offence if:

(a) the person intentionally compels, by force or otherwise, another person:

(i) to engage in sexual intercourse with someone else; or

(ii) to be sexually involved with an animal; or

(iii) to penetrate (to any extent) the other person's own genitals or anus; and

(b) the other person does not consent to engaging in the conduct and the person is reckless in relation to the other person's lack of consent.

Maximum penalty: Imprisonment for life.

208HB Gross indecency – without consent

(1) A person commits an offence if:

(a) the person intentionally performs an act on another person; and

(b) the act is grossly indecent; and

(c) the other person does not consent to the act being performed and the person is reckless in relation to the other person's lack of consent.

Maximum penalty: Imprisonment for 14 years or, for an aggravated offence, 17 years.

(2) A person commits an offence if:

(a) the person intentionally engages in conduct; and

(b) the conduct results in another person performing an act on the person and the person intends that result; and

(c) the act is grossly indecent; and

(d) the other person does not consent to performing the act and the person is reckless in relation to the other person's lack of consent.

Maximum penalty: Imprisonment for 14 years or, for an aggravated offence, 17 years.

(3) Absolute liability applies to subsections (1)(b) and (2)(c).

208HC Indecent touching or act – without consent

(1) A person commits an offence if:

(a) the person intentionally:

(i) touches another person; or

(ii) engages in an act directed at another person; and

(b) the touching or act is indecent; and

(c) the other person does not consent to the touching or act and the person is reckless in relation to the other person's lack of consent.

Maximum penalty: Imprisonment for 5 years or, for an aggravated offence, 7 years.

(2) A person commits an offence if:

(a) the person intentionally engages in conduct; and

(b) the conduct results in the person being touched by another person and the person intends that result; and

(c) the touching is indecent; and

(d) the other person does not consent to the touching and the person is reckless in relation to the other person's lack of consent.

Maximum penalty: Imprisonment for 5 years or, for an aggravated offence, 7 years.

(3) Absolute liability applies to subsections (1)(b) and (2)(c).

208HD Compelling indecent touching or act – without consent

(1) A person commits an offence if:

(a) the person intentionally compels, by force or otherwise, another person:

(i) to touch any part of the other person's own body; or

(ii) to touch, or to be touched by, someone else or an animal; or

(iii) to engage in an act; and

(b) the touching or act is indecent; and

(c) the other person does not consent to the touching or act and the person is reckless in relation to the other person's lack of consent.

Maximum penalty: Imprisonment for 5 years or, for an aggravated offence, 7 years.

(2) Absolute liability applies to subsection (1)(b).

208HE Recklessness in sexual offences

Despite section 43AK, for an offence against this Division:

(a) being reckless in relation to a lack of consent to sexual intercourse, engaging in conduct, the performance of an act, touching or an act includes not giving any thought to whether or not the other person consents to the sexual intercourse, engaging in the conduct, the performance of the act, the touching or the act; and

(b) the trier of fact must have regard to all the circumstances of the case including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, engaging in the conduct, the performance of the act, the touching or the act.

208HF Attempt to commit sexual offence and recklessness

(1) Despite section 43BF(4), if recklessness is a fault element for a physical element of an offence against this Division, recklessness is also a fault element for the same physical element in relation to an attempt to commit that offence.

(2) The fault element of recklessness mentioned in subsection (1) includes the fault element as extended by section 208HE.

Division 3 Sexual acts committed against children under 16 years

208J Sexual intercourse – child under 16 years

(1) A person commits an offence if:

(a) the person intentionally engages in sexual intercourse with another person; and

(b) the other person is under 14 years of age.

Maximum penalty:

(a) if the other person is under 10 years of age – imprisonment for life; or

(b) otherwise – imprisonment for 20 years or, for an aggravated offence, 25 years.

(2) Absolute liability applies to subsection (1)(b).

(3) A person commits an offence if:

(a) the person intentionally engages in sexual intercourse with another person; and

(b) the other person is 14 or 15 years of age.

Maximum penalty: Imprisonment for 16 years or, for an aggravated offence, 20 years.

(4) Strict liability applies to subsection (3)(b).

(5) It is a defence to a prosecution for an offence against subsection (3) if:

(a) the defendant is not more than 24 months older or younger than the person against whom the offence is alleged to have been committed; and

(b) the person consented to the sexual intercourse.

208JA Causing sexual intercourse or penetration – child under 16 years

(1) A person commits an offence if:

(a) the person intentionally causes another person:

(i) to engage in sexual intercourse with someone else; or

(ii) to be sexually involved with an animal; or

(iii) to penetrate (to any extent) the other person's own genitals or anus; and

(b) the other person is under 14 years of age.

Maximum penalty:

(a) if the other person is under 10 years of age – imprisonment for life; or

(b) otherwise – imprisonment for 20 years or, for an aggravated offence, 25 years.

(2) Absolute liability applies to subsection (1)(b).

(3) A person commits an offence if:

(a) the person intentionally causes another person:

(i) to engage in sexual intercourse with someone else; or

(ii) to be sexually involved with an animal; or

(iii) to penetrate (to any extent) the other person's own genitals or anus; and

(b) the other person is 14 or 15 years of age.

Maximum penalty: Imprisonment for 16 years or, for an aggravated offence, 20 years.

(4) Strict liability applies to subsection (3)(b).

208JB Gross indecency – child under 16 years

(1) A person commits an offence if:

(a) the person intentionally:

(i) performs an act on another person; or

(ii) causes or allows another person to perform an act on the person; and

(b) the act is grossly indecent; and

(c) the other person is under 14 years of age.

Maximum penalty: Imprisonment for 20 years or, for an aggravated offence, 25 years.

(2) A person commits an offence if:

(a) the person:

(i) intentionally performs an act on another person; or

(ii) intentionally causes or allows another person to perform an act on the person; and

(b) the act is grossly indecent; and

(c) the other person is 14 or 15 years of age.

Maximum penalty: Imprisonment for 16 years or, for an aggravated offence, 20 years.

(3) Absolute liability applies to subsections (1)(b) and (c) and (2)(b).

(4) Strict liability applies to subsection (2)(c).

208JC Indecent touching or act – child under 16 years

(1) A person commits an offence if:

(a) the person intentionally:

(i) touches another person; or

(ii) causes or allows another person to touch the person; or

(iii) engages in an act directed at another person; and

(b) the touching or act is indecent; and

(c) the other person is under 14 years of age.

Maximum penalty: Imprisonment for 14 years or, for an aggravated offence, 17 years.

(2) A person commits an offence if:

(a) the person intentionally:

(i) touches another person; or

(ii) causes or allows another person to touch the person; or

(iii) engages in an act directed at another person; and

(b) the touching or act is indecent; and

(c) the other person is 14 or 15 years of age.

Maximum penalty: Imprisonment for 10 years or, for an aggravated offence, 12 years.

(3) Absolute liability applies to subsections (1)(b) and (c) and (2)(b).

(4) Strict liability applies to subsection (2)(c).

208JD Causing indecent touching or act – child under 16 years

(1) A person commits an offence if:

(a) the person intentionally causes another person:

(i) to touch any part of the other person's own body; or

(ii) to touch, or to be touched by, someone else or an animal; or

(iii) to engage in an act; and

(b) the touching or act is indecent; and

(c) the other person is under 14 years of age.

Maximum penalty: Imprisonment for 14 years or, for an aggravated offence, 17 years.

(2) A person commits an offence if:

(a) the person intentionally causes another person:

(i) to touch any part of the other person's own body; or

(ii) to touch, or to be touched by, someone else or an animal; or

(iii) to engage in an act; and

(b) the touching or act is indecent; and

(c) the other person is 14 or 15 years of age.

Maximum penalty: Imprisonment for 10 years or, for an aggravated offence, 12 years.

(3) Absolute liability applies to subsections (1)(b) and (c) and (2)(b).

(4) Strict liability applies to subsection (2)(c).

208JE Exposure to indecent thing or act – child under 16 years

(1) A person commits an offence if:

(a) the person intentionally exposes another person to a thing or act; and

(b) the thing or act is indecent; and

(c) the other person is under 14 years of age.

Maximum penalty: Imprisonment for 14 years or, for an aggravated offence, 17 years.

(2) A person commits an offence if:

(a) the person intentionally exposes another person to a thing or act; and

(b) the thing or act is indecent; and

(c) the other person is 14 or 15 years of age.

Maximum penalty: Imprisonment for 10 years or, for an aggravated offence, 12 years.

(3) Absolute liability applies to subsections (1)(b) and (c) and (2)(b).

(4) Strict liability applies to subsection (2)(c).

(5) It is a defence to a prosecution for an offence against subsection (1) or (2) if the defendant has a reasonable excuse.

208JF Recording or capturing indecent image – child under 16 years

(1) A person commits an offence if:

(a) the person intentionally records or captures a visual image of another person; and

(b) the image is indecent; and

(c) the other person is under 14 years of age.

Maximum penalty: Imprisonment for 10 years or, for an aggravated offence, 12 years.

(2) A person commits an offence if:

(a) the person intentionally records or captures a visual image of another person; and

(b) the image is indecent; and

(c) the other person is 14 or 15 years of age.

Maximum penalty: Imprisonment for 8 years or, for an aggravated offence, 10 years.

(3) Absolute liability applies to subsections (1)(b) and (c) and (2)(b).

(4) Strict liability applies to subsection (2)(c).

(5) It is a defence to a prosecution for an offence against subsection (1) or (2) if the defendant has a reasonable excuse.

(6) In this section:

image means a moving or still image in any form.

Examples for definition image

1 A file stored on a computer.

2 A photo stored on a phone.

Note for section 208JF

See Part V, Division 2 for offences relating to child abuse material.

208JG Engaging in conduct to procure sexual activity – child under 16 years

(1) A person commits an offence if:

(a) the person engages in conduct in relation to another person (the child); and

(b) the person does so with the intention of procuring the child to engage in sexual activity with the person or another person; and

(c) the child is under 14 years of age.

Maximum penalty: Imprisonment for 14 years or, for an aggravated offence, 17 years.

(2) A person commits an offence if:

(a) the person engages in conduct in relation to another person (the child); and

(b) the person does so with the intention of procuring the child to engage in sexual activity with the person or another person; and

(c) the child is 14 or 15 years of age.

Maximum penalty: Imprisonment for 12 years or, for an aggravated offence, 15 years.

(3) Subsection (1)(b) is the fault element for the conduct in subsection (1)(a) and subsection (2)(b) is the fault element for the conduct in subsection (2)(a).

(4) Absolute liability applies to subsection (1)(c).

(5) Strict liability applies to subsection (2)(c).

(6) In this section:

sexual activity means sexual intercourse, an act of gross indecency, indecent touching or an indecent act.

208JH Grooming to engage in sexual activity – child under 16 years

(1) A person commits an offence if:

(a) the person engages in conduct in relation to another person (the child); and

(b) the person does so with the intention of making it easier to procure the child to engage in sexual activity with the person or another person; and

(c) the child is someone:

(i) who is under 14 years of age; or

(ii) who the person believes is under 14 years of age.

Maximum penalty: Imprisonment for 12 years or, for an aggravated offence, 15 years.

(2) A person commits an offence if:

(a) the person engages in conduct in relation to another person (the child); and

(b) the person does so with the intention of making it easier to procure the child to engage in sexual activity with the person or another person; and

(c) the child is someone:

(i) who is 14 or 15 years of age; or

(ii) who the person believes is 14 or 15 years of age.

Maximum penalty: Imprisonment for 10 years or, for an aggravated offence, 12 years.

(3) A person commits an offence if:

(a) the person engages in conduct in relation to a contact of a person (the child); and

(b) the person does so with the intention of making it easier to procure the child to engage in sexual activity with the person or another person; and

(c) the child is someone:

(i) who is under 14 years of age; or

(ii) who the person believes is under 14 years of age.

Maximum penalty: Imprisonment for 12 years or, for an aggravated offence, 15 years.

(4) A person commits an offence if:

(a) the person engages in conduct in relation to a contact of a person (the child); and

(b) the person does so with the intention of making it easier to procure the child to engage in sexual activity with the person or another person; and

(c) the child is someone:

(i) who is 14 or 15 years of age; or

(ii) who the person believes is 14 or 15 years of age.

Maximum penalty: Imprisonment for 10 years or, for an aggravated offence, 12 years.

(5) For subsections (1) to (4):

(a) subsection (1)(b) is the fault element for the conduct in subsection (1)(a); and

(b) subsection (2)(b) is the fault element for the conduct in subsection (2)(a); and

(c) subsection (3)(b) is the fault element for the conduct in subsection (3)(a); and

(d) subsection (4)(b) is the fault element for the conduct in subsection (4)(a).

(6) Absolute liability applies to subsections (1)(c)(i) and (3)(c)(i).

(7) Strict liability applies to subsections (2)(c)(i) and (4)(c)(i).

(8) A person may be found guilty of an offence against subsection (1), (2), (3) or (4) even if:

(a) it is impossible for the sexual activity mentioned in the subsection to take place; or

(b) the child is a fictitious person represented to the accused person as a real person; or

(c) without limiting section 43CA, the accused person and the child or contact, as the case may be, were both outside the Territory at the time at which some or all of the conduct constituting the offence against the subsection occurred, so long as the intended sexual activity would occur in the Territory.

(9) In this section:

contact, of a person, means any person who has a relationship of any type with the person.

Examples for definition contact, in relation to a child

A family member, babysitter, teacher or acquaintance of the child.

sexual activity means sexual intercourse, an act of gross indecency, indecent touching or an indecent act.

208JI Repeated sexual abuse – child under 16 years

(1) A person commits an offence if:

(a) the person intentionally engages in conduct with another person on 2 or more occasions at any time on or after 1 July 1978; and

(b) the conduct constitutes sexual activity; and

(c) the other person is under 16 years of age.

Maximum penalty: See subsection (7).

(2) Absolute liability applies to subsection (1)(b) and (c).

(3) It is a defence to a prosecution for an offence against subsection (1) if:

(a) on each occasion on which the conduct occurred:

(i) the defendant believed, on reasonable grounds, that the other person was 16 years of age or older; and

(ii) the other person was 14 or 15 years of age; or

(b) engaging in the conduct with a person who is under 16 years of age would not have constituted an offence at the time at which the conduct occurred.

(4) To avoid doubt, the offence in subsection (1) applies in relation to conduct that occurred at any time on or after 1 July 1978.

(5) For a person to be found guilty of an offence against subsection (1), all the members of the jury or, if section 368 applies in relation to the trial, the number of jurors required under that section for a majority verdict, must be satisfied beyond reasonable doubt that the evidence shows that the defendant engaged in conduct constituting sexual activity with the other person on 2 or more occasions.

(6) For this section:

(a) it is immaterial whether the sexual activity was of the same nature on each occasion; and

(b) it is immaterial whether any of the sexual activity occurred outside the Territory, as long as at least one occasion of the sexual activity occurred in the Territory; and

(c) the prosecution is not required to allege or prove the particulars of any sexual activity that would be necessary if the activity were charged as a separate offence; and

(d) the jury is not required to be satisfied of the particulars of any sexual activity of which it would have to be satisfied if the activity were charged as a separate offence; and

(e) despite subsection (5), all the members of the jury or, if section 368 applies in relation to the trial, the number of jurors required under that section for a majority verdict, are not required to be satisfied about the same sexual activity.

(7) The maximum penalty for an offence against subsection (1) is as follows:

(a) for an offence involving occasions of sexual activity all of which occurred after the commencement – imprisonment for life;

(b) for an offence involving occasions of sexual activity that occurred both before and after the commencement:

(i) if 2 or more occasions occurred after the commencement – imprisonment for life; or

(ii) otherwise – the penalty specified in item 3 of the Table;

(c) for an offence involving occasions of sexual activity all of which occurred before the commencement:

(i) if the occasions occurred during only one of the periods specified in the Table – the penalty specified in the Table for that period; or

(ii) if the occasions occurred during 2 or more of the periods specified in the Table and 2 or more occasions occurred during any of those periods – the higher of the penalties specified in the Table for the periods in which 2 or more occasions occurred; or

(iii) if the occasions occurred during 2 or more of the periods specified in the Table and only one occasion occurred during each of those periods – the lower of the penalties specified in the Table for those periods.

Table

(8) For the purposes of the Table, an occasion of sexual activity constitutes a historical offence if the sexual activity is the same as the act, omission or event that constitutes the historical offence, even if the particulars of the time and place at which the sexual activity took place are not sufficiently particularised to enable the defendant to be charged with or found guilty of the historical offence.

Note for subsection (8)

The mental element applying in relation to the historical offence is to be disregarded in determining whether the sexual activity constituted a historical offence.

(9) In this section:

commencement means the commencement of this section.

sexual activity means any of the following conduct, unless done in the course of a procedure carried out in good faith for medical or hygienic purposes:

(a) sexual intercourse;

(b) causing a person to be sexually involved with an animal;

(c) causing a person to penetrate (to any extent) the person's own genitals or anus;

(d) an act of gross indecency;

(e) indecent touching;

(f) an indecent act.

Note for definition sexual activity

Conduct amounting to an attempt to engage in any conduct specified in paragraphs (a) to (f) may be evidence of an attempt to commit an offence against subsection (1).

Table means the Table to subsection (7).

208JJ Charge for offence of repeated sexual abuse

(1) A person may be charged in one indictment with:

(a) an offence against section 208JI(1); and

(b) one or more other offences against this Part or a historical offence alleged to have been committed by the person in relation to the other person in the course of the alleged repeated sexual abuse.

(2) A person charged in one indictment may be found guilty of and punished for any or all of the offences charged.

(3) A proceeding for an offence against section 208JI(1) must not be started without the consent of the Director of Public Prosecutions.

(4) Despite subsection (3), a person may be arrested for or charged with, or remanded in custody or on bail in connection with, an offence against section 208JI(1) before the consent of the Director of Public Prosecutions is given.

208JK No defence of consent

Consent of the person against whom the offence is alleged to have been committed is not a defence to an offence against this Division, except as mentioned in section 208J(5).

208JL No defence of belief in marriage or de facto relationship

It is not a defence to an offence against this Division if the person charged with the offence believed the person:

(a) was married to the child concerned; or

(b) was the de facto partner of the child concerned.

208JM Proceeding against child

(1) A proceeding for the following offences must not be started without the consent of the Director of Public Prosecutions:

(a) an offence against section 208JG(1) or (2) or 208JH(1), (2), (3) or (4) alleged to have been committed by a child;

(b) an offence against another provision of this Division, other than section 208JI(1), alleged to have been committed by a child under 14 years of age.

(2) Despite subsection (1), a child mentioned in subsection (1) may be arrested for or charged with, or remanded in custody or on bail in connection with, the offence before the necessary consent is given.

Division 4 Sexual acts committed against young persons by persons in positions of authority

208K Sexual intercourse – young person

(1) A person commits an offence if:

(a) the person is in a position of authority in relation to another person and is reckless in relation to that circumstance; and

(b) the person intentionally engages in sexual intercourse with the other person; and

(c) the other person is 16 or 17 years of age.

Maximum penalty: Imprisonment for 8 years or, for an aggravated offence, 10 years.

(2) Strict liability applies to subsection (1)(c).

208KA Causing sexual intercourse or penetration – young person

(1) A person commits an offence if:

(a) the person is in a position of authority in relation to another person and is reckless in relation to that circumstance; and

(b) the person intentionally causes the other person:

(i) to engage in sexual intercourse with someone else; or

(ii) to be sexually involved with an animal; or

(iii) to penetrate (to any extent) the other person's own genitals or anus; and

(c) the other person is 16 or 17 years of age.

Maximum penalty: Imprisonment for 8 years or, for an aggravated offence, 10 years.

(2) Strict liability applies to subsection (1)(c).

208KB Gross indecency – young person

(1) A person commits an offence if:

(a) the person is in a position of authority in relation to another person and is reckless in relation to that circumstance; and

(b) the person intentionally:

(i) performs an act on the other person; or

(ii) causes or allows the other person to perform an act on the person; and

(c) the act is grossly indecent; and

(d) the other person is 16 or 17 years of age.

Maximum penalty: Imprisonment for 7 years or, for an aggravated offence, 9 years.

(2) Absolute liability applies to subsection (1)(c).

(3) Strict liability applies to subsection (1)(d).

208KC Indecent touching or act – young person

(1) A person commits an offence if:

(a) the person is in a position of authority in relation to another person and is reckless in relation to that circumstance; and

(b) the person intentionally:

(i) touches the other person; or

(ii) causes or allows the other person to touch the person; or

(iii) engages in an act directed at the other person; and

(c) the touching or act is indecent; and

(d) the other person is 16 or 17 years of age.

Maximum penalty: Imprisonment for 5 years or, for an aggravated offence, 7 years.

(2) Absolute liability applies to subsection (1)(c).

(3) Strict liability applies to subsection (1)(d).

208KD No defence of consent

Consent of the person against whom the offence is alleged to have been committed is not a defence to an offence against this Division.

208KE Defence – marriage or de facto relationship

A person who is in a position of authority in relation to another person is not criminally responsible for an offence against this Division in relation to conduct involving the other person if, at the time of the conduct:

(a) the person was married to, or honestly believed on reasonable grounds that the person was married to, the other person; or

(b) the person was the de facto partner of, or honestly believed on reasonable grounds that the person was the de facto partner of, the other person.

Division 5 Sexual acts committed against cognitively impaired persons by carers

208L Meaning of cognitive impairment

For this Division, a person has a cognitive impairment if:

(a) the person has one of the following impairments:

(i) an intellectual disability;

(ii) a developmental disorder (including an autistic spectrum disorder);

(iii) a neurological disorder;

(iv) dementia;

(v) a severe mental illness;

(vi) a brain injury; and

(b) the impairment results in the person requiring supervision or social habilitation in connection with daily life activities.

208LA Person responsible for care of person with cognitive impairment

(1) For this Division, a person is responsible for the care of a person with a cognitive impairment if the person provides care to that person, whether or not on a voluntary basis:

(a) at a facility at which persons with a cognitive impairment are detained, reside or attend; or

(b) at the home of that person as part of a service or program under which the operator of a facility mentioned in paragraph (a), or another government or community organisation or service provider, provides care to persons with a cognitive impairment.

(2) In subsection (1):

care includes health care, education and supervision.

208LB Sexual intercourse – person with cognitive impairment

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

(a) is responsible for the care of a person with a cognitive impairment; and

(b) intentionally engages in sexual intercourse with the person with a cognitive impairment.

Maximum penalty: Imprisonment for 8 years or, for an aggravated offence, 10 years.

(2) Strict liability applies to subsection (1)(a).

208LC Causing sexual intercourse or penetration – person with cognitive impairment

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

(a) is responsible for the care of a person with a cognitive impairment; and

(b) intentionally causes the person with a cognitive impairment:

(i) to engage in sexual intercourse with someone else; or

(ii) to be sexually involved with an animal; or

(iii) to penetrate (to any extent) the other person's own genitals or anus.

Maximum penalty: Imprisonment for 8 years or, for an aggravated offence, 10 years.

(2) Strict liability applies to subsection (1)(a).

208LD Gross indecency – person with cognitive impairment

(1) A person commits an offence if:

(a) the person is responsible for the care of a person with a cognitive impairment; and

(b) the person intentionally:

(i) performs an act on the person with a cognitive impairment; or

(ii) causes or allows the person with a cognitive impairment to perform an act on the person; and

(c) the act is grossly indecent.

Maximum penalty: Imprisonment for 7 years or, for an aggravated offence, 9 years.

(2) Strict liability applies to subsection (1)(a).

(3) Absolute liability applies to subsection (1)(c).

208LE Indecent touching or act – person with cognitive impairment

(1) A person commits an offence if:

(a) the person is responsible for the care of a person with a cognitive impairment; and

(b) the person intentionally:

(i) touches the person with a cognitive impairment; or

(ii) causes or allows the person with a cognitive impairment to touch the person; or

(iii) engages in an act directed at the person with a cognitive impairment; and

(c) the touching or act is indecent.

Maximum penalty: Imprisonment for 5 years or, for an aggravated offence, 7 years.

(2) Strict liability applies to subsection (1)(a).

(3) Absolute liability applies to subsection (1)(c).

208LF Defence – consent

(1) Consent of the person with a cognitive impairment concerned is not a defence to an offence against this Division, except as provided by subsection (2).

(2) A person who is responsible for the care of a person with a cognitive impairment is not criminally responsible for an offence against this Division in relation to conduct if, at the time of the conduct:

(a) the person with a cognitive impairment consented to the conduct; and

(b) the giving of the consent was not unduly influenced by the fact that the person was responsible for the care of the person with a cognitive impairment.

208LG Defence – marriage or de facto relationship

A person who is responsible for the care of a person with a cognitive impairment is not criminally responsible for an offence against this Division in relation to conduct if, at the time of the conduct:

(a) the person was married to, or honestly believed on reasonable grounds that the person was married to, the person with a cognitive impairment; or

(b) the person was the de facto partner of, or honestly believed on reasonable grounds that the person was the de facto partner of, the person with a cognitive impairment.

Division 6 Sexual acts committed against close family members

208M Meaning of close family member

A close family member of a person is someone who, from birth and not from marriage or adoption, is a grandparent, parent, sibling (including a half-brother or half-sister), child or grandchild of the person.

208MA Incest

A person commits an offence if:

(a) the person intentionally engages in sexual intercourse with another person; and

(b) the other person is a close family member of the person and the person has knowledge of that circumstance.

Maximum penalty: Imprisonment for 14 years.

208MB No defence of consent

Consent of the close family member concerned is not a defence to an offence against section 208MA.

208MC Defence – compulsion

A person is not criminally responsible for an offence against section 208MA if a close family member compelled, by force or otherwise, the person to engage in the conduct mentioned in section 208MA(a).

Division 7 Sexual acts committed against animal or in public

208N Sexual involvement with animal

A person commits an offence if the person is intentionally sexually involved with an animal.

Maximum penalty: Imprisonment for 7 years.

208NA Public masturbation

(1) A person commits an offence if:

(a) the person intentionally masturbates; and

(b) the conduct occurs in public or in a place that is visible to the public.

Maximum penalty: Imprisonment for 2 years.

(2) Strict liability applies to subsection (1)(b).

Division 8 General matters

208P Increased penalty for aggravated offence

(1) The following are circumstances of aggravation for an offence committed against this Part, and a maximum penalty specified in this Part for an aggravated offence applies if a circumstance of aggravation applies to the offence:

(a) the offence was committed during torture;

(b) the offence was committed by the use or threatened use of an offensive weapon;

(c) the offence was committed by a person in the company of another person;

(d) the offence was committed in circumstances that involved the victim being caused serious harm or being threatened with serious harm or death;

(e) the offence was committed against a child under 16 years of age, except in the case of an offence against Division 3;

(f) the offence was committed against a person in abuse of a position of trust, except in the case of an offence against Division 4 or 5;

(g) the offence was committed against a person in abuse of a position of authority, except in the case of an offence against Division 4.

(2) For subsection (1)(a), the offence was committed during torture if the person who committed it deliberately and systematically, over a period, inflicted severe pain on the person against whom it was committed.

208PA Procedural and evidentiary provisions for aggravated offences

(1) If the prosecution intends to prove an aggravated offence, the relevant circumstance of aggravation must be contained in the charge.

(2) In order to prove an aggravated offence, the prosecution must prove that the person who committed the offence was reckless in relation to the circumstance of aggravation.

208PB Jury directions on consent

(1) In a proceeding for an offence against this Part, the Judge must, in an appropriate case, direct the jury that a person must not be regarded as having consented to a particular sexual act merely because:

(a) the person did not say or do anything to indicate that the person did not consent; or

(b) the person did not protest or physically resist; or

(c) the person did not sustain physical injury; or

(d) during the period or on the occasion when the sexual act occurred, or on an earlier occasion, the person consented to engage in a sexual act (whether or not of the same type) with the person charged with the offence or with another person.

(2) In a proceeding for an offence against this Part, the Judge must, in an appropriate case, direct the jury that, in deciding whether the accused was under a mistaken belief that a person consented to a sexual act, the jury may consider whether the mistaken belief was reasonable in the circumstances.

Note for section 208PB

The Sexual Offences (Evidence and Procedure) Act 1983 contains further provisions about evidence and procedure for offences against this Part.

208PC Exception – medical, hygienic, veterinary or agricultural procedures

A person is not criminally responsible for an offence against this Part in relation to any sexual intercourse, touching or other act done in the course of a procedure carried out in good faith for medical, hygienic, veterinary or agricultural purposes.

208PD Alternative verdicts

(1) In a proceeding against a person charged with an offence against this Part (the prosecuted offence), the trier of fact may find the person not guilty of the prosecuted offence but guilty of another offence, or an attempt to commit another offence, against this Part (the alternative offence) if the trier of fact:

(a) is not satisfied beyond reasonable doubt that the person committed the prosecuted offence; and

(b) is satisfied beyond reasonable doubt that the person committed the alternative offence.

(2) Subsection (1) does not authorise the trier of fact to find a person guilty of an alternative offence for which the maximum penalty is greater than the maximum penalty for the prosecuted offence.

208PE Indecent images and related articles may be destroyed

(1) If any of the following things are seized by a police officer, a police officer of a senior rank may authorise the forfeiture and destruction by a police officer of the thing:

(a) an indecent image of a child;

(b) an article that contains an indecent image of a child;

(c) an article that a police officer of a senior rank believes on reasonable grounds contains an indecent image of a child.

(2) Subsection (1) has effect whether or not a person is charged, or is to be charged, with an offence in relation to the thing.

(3) The thing may be destroyed at the place at which it was forfeited or at any other place that a police officer of a senior rank thinks fit.

(4) If the operation of this section would, apart from this subsection, result in an acquisition of property from a person otherwise than on just terms:

(a) the person is entitled to receive from the Territory the compensation necessary to ensure the acquisition is on just terms; and

(b) a court of competent jurisdiction may decide the amount of compensation or make the orders it considers necessary to ensure the acquisition is on just terms.

208PF Article containing indecent images may be returned

(1) If an article that contains, or is believed to contain, an indecent image of a child is forfeited by a police officer under section 208PE, a police officer of a senior rank may authorise a police officer to return the article to the owner of the article.

(2) The authorisation must not be given unless the police officer of a senior rank is satisfied that all indecent images of children are removed from the article.

14 Sections 319 and 377 repealed

Sections 319 and 377

repeal

15 Part XI, Division 19 inserted

After section 474

insert

Division 19 Criminal Justice Legislation Amendment (Sexual Offences) Act 2023

475 Offences – before and after commencement

(1) The offence provisions, as inserted or amended by the Criminal Justice Legislation Amendment (Sexual Offences) Act 2023, apply only in relation to offences committed after the commencement.

(2) The offence provisions, as in force before the commencement, continue to apply in relation to offences committed before the commencement.

(3) Despite subsections (1) and (2):

(a) section 131A continues to apply in relation to an offence committed before the commencement only if the person is charged with the offence before the commencement; and

(b) section 208JI applies in relation to:

(i) an offence committed after the commencement; and

(ii) an offence committed before the commencement if the person is not charged, before the commencement, with an offence against section 131A.

(4) For this section, if any of the conduct constituting an offence occurred before the commencement, the offence is taken to have been committed before the commencement.

(5) In this section:

commencement means the commencement of Part 2 of the Criminal Justice Legislation Amendment (Sexual Offences) Act 2023.

offence provisions means the provisions of this Act that create or relate to offences, including provisions that relate to criminal responsibility, defences and penalties.

section 131A means section 131A as in force before the commencement.

16 Schedule 1 amended (Provisions of Code to which Part IIAA applies)

(1) Schedule 1, entry for Section 192

omit

(2) Schedule 1

insert (in numerical order)

Part V, Division 2 (Child abuse material and indecent articles) and Division 2A (Offence relating to human remains)

Part VIA (Sexual offences)

(3) Schedule 1, entry for Part VI, Division 7A

omit

(Distributing

insert

(Recording and distributing

17 Act further amended

Schedule 1 has effect.

Part 3 Amendment of Child Protection (Offender Reporting and Registration) Act 2004
18 Act amended

This Part amends the Child Protection (Offender Reporting and Registration) Act 2004.

19 Part 9 inserted

After section 104

insert

Part 9 Transitional matters for Criminal Justice Legislation Amendment (Sexual Offences) Act 2023

105 Definitions

In this Part:

amending Act means the Criminal Justice Legislation Amendment (Sexual Offences) Act 2023.

commencement means the commencement of Part 3 of the amending Act.

106 Application of amendments to Schedules if person is reportable offender

(1) Subsection (2) applies to a person if:

(a) immediately before the commencement the person was a reportable offender; and

(b) at any time before the commencement the person had committed an offence that, because of the amendments made by the amending Act, is a reportable offence.

(2) The person's reporting period does not increase, regardless of whether the person was sentenced before, or is sentenced after, the commencement for the offence mentioned in subsection (1)(b).

107 Application of amendments to Schedules if person is not reportable offender

(1) Subsection (2) applies to a person if:

(a) immediately before the commencement the person was not a reportable offender; and

(b) at any time before the commencement the person had committed an offence that, because of the amendments made by the amending Act, is a reportable offence.

(2) If, after the commencement, the person is sentenced by a Territory court for the offence mentioned in subsection (1)(b), the person becomes a Territory reportable offender as defined in section 7(1).

20 Schedules 1 and 2 replaced

Schedules 1 and 2

repeal, insert

Schedule 1 Class 1 offences

section 12(2)(a)

Schedule 2 Class 2 offences

section 12(3)(a)

Part 4 Amendment of Information Act 2002
21 Act amended

This Part amends the Information Act 2002.

22 Schedule 1 amended (Secrecy provisions)

Schedule 1

omit

insert

Part 5 Amendment of National Disability Insurance Scheme (Worker Clearance) Regulations 2021
23 Regulations amended

This Part amends the National Disability Insurance Scheme (Worker Clearance) Regulations 2021.

24 Regulation 6 amended (Disqualifying offences)

(1) Regulation 6(d)

omit

(b).

insert

(b);

(2) After regulation 6(d)

insert

(e) an offence committed before the commencement of a provision of an Act or Commonwealth Act mentioned in paragraph (a) that, if committed after that commencement, would have constituted an offence mentioned in paragraph (a).

25 Regulation 7 amended (Presumed disqualifying offences)

(1) Regulation 7(d)

omit

(b).

insert

(b);

(2) After regulation 7(d)

insert

(e) an offence committed before the commencement of a provision of an Act or Commonwealth Act mentioned in paragraph (a) that, if committed after that commencement, would have constituted an offence mentioned in paragraph (a).

26 Schedule 2 amended (Disqualifying offences)

Schedule 2, item 1

omit, insert

27 Schedule 3 amended (Presumed disqualifying offences)

Schedule 3, item 1

omit, insert

Part 6 Amendment of Sentencing Act 1995
28 Act amended

This Part amends the Sentencing Act 1995.

29 Section 5 amended (Sentencing guidelines)

After section 5(3)

insert

(3A) Despite subsection (2)(e), in sentencing an offender for an offence against Part V, Division 2 or Part VIA of the Criminal Code, a court must disregard the good character of the offender if:

(a) the person against whom the offence was committed was, at the time the offence was committed, under 18 years of age; and

(b) the court is satisfied that the offender's alleged good character was of assistance to the offender in the commission of the offence.

Examples for subsection (3A)(b)

1 The offender's good character was one reason the offender was selected to supervise children at a camp. The offender began to establish a relationship with children at the camp to obtain their compliance in sexual activities.

2 A child's parent trusted the offender to care for the child because of the offender's authority in their community. The offender held authority in the community in part due to the offender's good character. The offender sexually abused the child including while the child was in the offender's care.

30 Section 55 amended (Minimum non-parole period for certain sexual offences and drug offences)

Section 55(3), definition specified offence, paragraph (a)

omit, insert

(a) an offence against section 208H of the Criminal Code; or

(ab) an offence against section 192(3) of the Criminal Code, as in force before the commencement of Part 2 of the Criminal Justice Legislation Amendment (Sexual Offences) Act 2023; or

31 Section 55A amended (Fixed non-parole periods for offences against persons under 16 years)

Section 55A(1)(a)

omit, insert

(a) a court sentences an offender to be imprisoned for an offence against:

(i) section 177(a), 181, 184, 186, 186B, 188, 208H, 208HA, 208HB, 208J, 208JA, 208JB, 208JC, 208JD, 208JE, 208JF, 208JG, 208JH, 208JI, 208LB, 208LC, 208LD or 208MA of the Criminal Code; or

(ii) section 127, 130, 131, 131A, 132, 134, 188 or 192(4) of the Criminal Code as in force before the commencement of Part 2 of the Criminal Justice Legislation Amendment (Sexual Offences) Act 2023; and

32 Part 12, Division 11 inserted

After section 148

insert

Division 11 Transitional matter for Criminal Justice Legislation Amendment (Sexual Offences) Act 2023

149 Application of section 5

(1) Section 5, as amended by section 29 of the amending Act, applies only in relation to offences that are committed after the commencement of this section.

(2) For subsection (1), if any of the conduct constituting an offence occurred before the commencement of this section, the offence is taken to have been committed before the commencement of this section.

(3) In this section:

amending Act means the Criminal Justice Legislation Amendment (Sexual Offences) Act 2023.

33 Schedule 2 amended (Violent offences)

Schedule 2, entry for section 188

omit

all words after "assault"

34 Schedule 3 replaced

Schedule 3

repeal, insert

Schedule 3 Sexual offences

section 3(1)

1 An offence against section 125B or 125C of the Criminal Code if the offender is an individual.

2 An offence against a provision of Part VIA of the Criminal Code, other than section 208NA.

3 An offence against any of the following provisions of the Criminal Code, as in force before the commencement of Part 2 of the Criminal Justice Legislation Amendment (Sexual Offences) Act 2023:

(a) section 127, 128, 130, 131, 131A, 132, 134 or 138;

(b) section 188 if the circumstance mentioned in section 188(2)(k) applied;

(c) section 192 or 192B.

Part 7 Consequential amendments

Division 1 Care and Protection of Children (Screening) Regulations 2010
35 Regulations amended

This Division amends the Care and Protection of Children (Screening) Regulations 2010.

36 Schedule 3 amended (Disqualifying offences)

Schedule 3, entry for item 1

omit, insert

Division 2 Commercial Passenger (Miscellaneous) Regulations 1992
37 Regulations amended

This Division amends the Commercial Passenger (Miscellaneous) Regulations 1992.

38 Regulation 7 replaced

Regulation 7

repeal, insert

7 Disqualifying offences

For section 3(1) of the Act, definition disqualifying offence, paragraph (a), the following offences are prescribed:

(a) an offence against section 125B, 125D, 156, 165, 177, 181, 182, 194, 201, 202B, 202C, 202D, 208H, 208HA, 208HB, 208HC, 208HD, 208J, 208JA, 208JB, 208JC, 208JD, 208JE, 208JF, 208JG, 208JH, 208JI, 208K, 208KA, 208KB, 208LB, 208LC, 208LD or 218 of the Criminal Code;

(b) an offence against section 125C of the Criminal Code if the article is indecent because it depicts, describes or represents a child who is under, or who looks to be under, 16 years of age;

(c) an offence against section 12, 13 or 14 of the Sex Industry Act 2019.

39 Schedule 3 repealed

Schedule 3

repeal

Division 3 Education Regulations 2015
40 Regulations amended

This Division amends the Education Regulations 2015.

41 Schedule 1 amended (Disqualifying offences)

Schedule 1, item 1

omit, insert

Division 4 Serious Sex Offenders Act 2013
42 Act amended

This Division amends the Serious Sex Offenders Act 2013.

43 Schedule 1 amended (Serious sex offences)

Schedule 1, entry for Criminal Code

omit, insert

44 Schedule 2 amended (Offences of a sexual nature)

Schedule 2, entry for Criminal Code

omit, insert

Division 5 Summary Offences Act 1923
45 Act amended

This Division amends the Summary Offences Act 1923.

46 Section 47AC amended (Loitering by sexual offender)

(1) Section 47AC(1)

omit

(2) After section 47AC(3)

insert

(4) In this section:

sexual offence means:

(a) an offence against any of the following:

(i) Part V, Division 2 of the Criminal Code;

(ii) section 201, 208H, 208HA, 208HB or 208HC of the Criminal Code;

(iii) Part VIA, Divisions 3 to 7 of the Criminal Code;

(iv) Part V, Division 2 or section 188(2)(k), 192 or 192B of the Criminal Code as in force before the commencement of Part 2 of the Criminal Justice Legislation Amendment (Sexual Offences) Act 2023; or

(b) an offence of:

(i) attempting to commit an offence mentioned in paragraph (a); or

(ii) counselling or procuring an offence mentioned in paragraph (a); or

(iii) aiding or abetting the commission of an offence mentioned in paragraph (a); or

(iv) incitement to commit an offence mentioned in paragraph (a); or

(v) conspiring to commit an offence mentioned in paragraph (a); or

(vi) being an accessory after the fact to an offence mentioned in paragraph (a).

Division 6 Teacher Registration (Northern Territory) Regulations 2004
47 Regulations amended

This Division amends the Teacher Registration (Northern Territory) Regulations 2004.

48 Regulation 2A amended (Sexual offences)

(1) Regulation 2A(1)

omit, insert

(1) For section 4 of the Act, definition sexual offence, the following offences against the Criminal Code are prescribed:

(a) an offence against Part V, Division 2 or section 201, 202B, 202C, 202D, 208AAB, 208AB, 208AC or Part VIA, Division 2, 3, 4, 5, 6 or 7 of the Criminal Code;

(b) an offence against Part V, Division 2 or section 188(2)(k), 192 or 192B of the Criminal Code as in force before the commencement of Part 2 of the Criminal Justice Legislation Amendment (Sexual Offences) Act 2023.

(2) After regulation 2A(4)(b)

insert

(ba) incitement to commit;

Division 7 Victims of Crime Assistance Regulations 2007
49 Regulations amended

This Division amends the Victims of Crime Assistance Regulations 2007.

50 Regulation 3 amended (Definitions)

Regulation 3

insert

harm, see section 1A of the Criminal Code.

51 Regulation 4 amended (Violent acts – sexual offences)

(1) Regulation 4, before "For"

insert

(1)

(2) Regulation 4, after "3,"

insert

subject to any qualification specified opposite the offence,

(3) Regulation 4, note

omit

regulation 4

insert

subregulation (1)

(4) Regulation 4, at the end

insert

(2) To avoid doubt, despite section 43BJA of the Criminal Code, a reference in Schedule 1 to an offence does not include a reference to an offence of attempting, or of conspiracy or incitement, to commit the offence.

52 Regulation 15 amended (Categories of psychological and psychiatric disorders)

(1) Regulation 15(1)(b)

omit

2.

insert

2 to which the qualification specified opposite applies.

(2) After regulation 15(2)

insert

(3) To avoid doubt, despite section 43BJA of the Criminal Code, a reference in Schedule 2 to an offence does not include a reference to an offence of attempting, or of conspiracy or incitement, to commit the offence.

53 Schedules 1 and 2 replaced

Schedules 1 and 2

repeal, insert

Schedule 1 Violent acts and categories of compensable violent acts

regulations 4 and 14(1), (2) and (3)

Part 1 Category 1

Part 2 Category 2

Part 3 Category 3

Note for Part 3

Regulation 7 specifies the circumstances in which a factor of aggravation applies for an offence.

Schedule 2 Category 1 offences for psychological or psychiatric disorder

regulation 15(1)

Division 8 Other laws amended
54 Other laws amended

Schedule 2 amends the laws mentioned in it.

Part 8 Repeal of Act
55 Repeal of Act

This Act is repealed on the day after it commences.

Schedule 1 Act further amended

section 17

Schedule 2 Other laws amended

section 54

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