For offences alleged to have been committed before 1 July 2017, s49 contained the offence of indecent act with a child aged 16 or 17.
This offence came into operation on 1 December 2006, replacing the former offence of indecent act with a child aged 16.
The offence applies to any acts committed on or after 1 December 2006 and before 1 July 2017.
Elements and defences
The offence of committing an indecent act with a 16 or 17 year old child is the same as that of committing an indecent act with a child under the age of 16 (s47), with four exceptions:
The child must be 16 or 17 years of age;
The child must be under the care, supervision or authority of the accused;
Consent is a defence if the accused believed on reasonable grounds that the child was aged 18 or older; and
An age gap of 2 years or less does not permit a defence of consent.
The elements and defence of the s49 offence mirror components of the offences contrary to s47 and s48 of the Crimes Act 1958.
Guidance in the interpretation of the s49 terms "indecent act", "wilfully" and "with or in the presence of" can thus be taken from the case law in relation to s47. See Indecent Act with a Child Under the Age of 16 for a summary of the relevant law in this area.
Similarly, the consideration of the terms "care, supervision or authority" in the s48 cases will offer guidance for their interpretation in the s49 context. See Sexual Penetration of a 16 or 17 Year Old Child for a summary of the law in this area.