Document ID: chunk:federal_register_of_legislation:C2010A00042:clause:1_4:p4
Version: federal_register_of_legislation:C2010A00042
Segment Type: clause
Provision Reference: sch 1 cl 4 (pt 4/14)
Character Range: 10628–13440

is under 16; and
 (c) the sexual activity is engaged in outside Australia.
Penalty: Imprisonment for 15 years.

Causing child to engage in sexual activity in presence of defendant
 (2) A person commits an offence if:
 (a) the person engages in conduct in relation to another person (the child); and
 (b) that conduct causes the child to engage in sexual activity (other than sexual intercourse) in the presence of the person; and
 (c) the child is under 16 when the sexual activity is engaged in; and
 (d) the sexual activity is engaged in outside Australia.
Penalty: Imprisonment for 15 years.
 (3) The fault element for paragraph (2)(b) is intention.
 (4) Absolute liability applies to paragraphs (1)(b) and (c) and (2)(c) and (d).
Note: For absolute liability, see section 6.2.

Defence—child present but defendant does not intend to derive gratification
 (5) It is a defence to a prosecution for an offence against subsection (1) or (2) if:
 (a) the conduct constituting the offence consists only of the child being in the presence of the defendant while sexual activity is engaged in; and
 (b) the defendant proves that he or she did not intend to derive gratification from the presence of the child during that activity.
Note 1: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.
Note 2: For a defence based on belief about age, see section 272.16.

272.10  Aggravated offence—child with mental impairment or under care, supervision or authority of defendant
 (1) A person commits an offence against this section (the aggravated offence) if:
 (a) the person commits an offence (the underlying offence) against one of the following provisions in relation to another person (the child):
 (i) subsection 272.8(1) (engaging in sexual intercourse with child outside Australia);
 (ii) subsection 272.8(2) (causing child to engage in sexual intercourse in presence of defendant outside Australia);
 (iii) subsection 272.9(1) (engaging in sexual activity (other than sexual intercourse) with child outside Australia);
 (iv) subsection 272.9(2) (causing child to engage in sexual activity (other than sexual intercourse) in presence of defendant outside Australia); and
 (b) either or both of the following apply at the time the person commits the underlying offence:
 (i) the child has a mental impairment;
 (ii) the person is in a position of trust or authority in relation to the child, or the child is otherwise under the care, supervision or authority of the person.
Penalty: Imprisonment for 25 years.
 (2) There is no fault element for the physical element described in paragraph (1)(a) other than the fault elements (however described), if any, for the underlying offence.
 (3) To avoid doubt, a person does not commit the underlying offence for the purposes of