Criminal Code Act 1995

A person commits an offence against this section if the person commits an offence (the underlying offence) against one or more of the following provisions in relation to the same person (the child) on 2 or more separate occasions during any period:

subsection 272.8(1) (engaging in sexual intercourse with child outside Australia);

subsection 272.8(2) (causing child to engage in sexual intercourse in presence of defendant outside Australia);

subsection 272.9(1) (engaging in sexual activity (other than sexual intercourse) with child outside Australia);

subsection 272.9(2) (causing child to engage in sexual activity (other than sexual intercourse) in presence of defendant outside Australia).

There is no fault element for any of the physical elements described in subsection (1) other than the fault elements (however described), if any, for the underlying offence.

To avoid doubt, a person does not commit the underlying offence for the purposes of subsection (1) if the person has a defence to the underlying offence.

For the purposes of subsection (1), it is immaterial whether the underlying offence, or the conduct constituting the underlying offence, is the same on each occasion.

In proceedings for an offence against this section, it is not necessary to specify or to prove the dates or exact circumstances of the occasions on which the conduct constituting the offence against this section occurred.

A charge of an offence against this section:

must specify with reasonable particularity the period during which the offence against this section occurred; and

must describe the nature of the separate offences alleged to have been committed by the person during that period.

In order for the person to be found guilty of an offence against this section:

the trier of fact must be satisfied beyond reasonable doubt that the evidence establishes at least 2 separate occasions during the period concerned on which the person engaged in conduct constituting an offence against subsection 272.8(1) or (2) or 272.9(1) or (2), of a nature described in the charge, in relation to the child; and

the trier of fact must be so satisfied about the material facts of the 2 such occasions, although the trier of fact need not be so satisfied about the dates or the order of those occasions; and

if the trier of fact is a jury and more than 2 such occasions are relied on as evidence of the commission of an offence against this section—all the members of the jury must be so satisfied about the same 2 occasions.

In proceedings for an offence against this section, the judge must warn the jury (if any) of the requirements of subsection (7).

A person who has been convicted or acquitted of an offence against this section may not be convicted of another offence against section 272.8, 272.9 or 272.10 that is alleged to have been committed in relation to the child in the period during which the person was alleged to have committed the offence against this section.

However, subsection (9) does not prevent an alternative verdict under section 272.28.

A person who has been convicted or acquitted of an offence against section 272.8, 272.9 or 272.10 in relation to a person (the child) may not be convicted of an offence against this section in relation to the child if any of the occasions relied on as evidence of the commission of the offence against this section includes the conduct that constituted the offence of which the person was convicted or acquitted.