2010
2010
2010-09-18
act
government
publicspecial
act.reprint
act-1987-015
allinforce
2010-03-10
2010-03-10
0
2010-09-18
act-1987-015
2010
none
act-2010-009
79b07ba5-0a64-4c0e-b0c8-6b5afc291eb3
479fe670-932b-49b6-acf0-b0405ee4e1da
Repeal:
The Act was repealed by sec 30C of the Interpretation Act 1987 No 15 with
effect from 18.9.2010.
An Act to amend the Crimes
Act 1900 and other legislation to make further provision
with respect to the possession, production and dissemination of child
pornography and abuse material.
1Name of
Act
This Act is the Crimes Amendment
(Child Pornography and Abuse Material) Act
2010.
2Commencement
(1)
This Act commences on a day or days to be
appointed by proclamation, except as provided by subsection
(2).
(2)
Schedule 2 [4]–[6] and [10] commence on the
date of assent.
Schedule 1Amendment of Crimes Act 1900 No
40
[1]Section 61O Aggravated act of
indecency
Omit “pornography” from section 61O
(2A) (b) and (4) (a) wherever occurring.
Insert instead “abuse
material”.
[2]Section 61Q Alternative
verdicts
Omit “pornography” from the
heading to section 61Q (6).
Insert instead “abuse
material”.
[3]Part 3, Division 15A,
heading
Omit the heading. Insert instead:
Division 15AChild abuse
material
[4]Section 91FA
Definitions
Insert in alphabetical order:
child
abuse material—see section 91FB.
data includes:
(a)
information in any form, or
(b)
any program (or part of a
program).
[5]Section 91FA, definition of
“material”
Omit
“electronic”.
[6]Section
91FB
Insert after section 91FA:
91FBChild abuse
material—meaning
(1)
In this Division:
child
abuse material means material that depicts or describes, in
a way that reasonable persons would regard as being, in all the circumstances,
offensive:
(a)
a person who is, appears to be or is implied to
be, a child as a victim of torture, cruelty or physical abuse,
or
(b)
a person who is, appears to be or is implied to
be, a child engaged in or apparently engaged in a sexual pose or sexual
activity (whether or not in the presence of other persons),
or
(c)
a person who is, appears to be or is implied to
be, a child in the presence of another person who is engaged or apparently
engaged in a sexual pose or sexual activity, or
(d)
the private parts of a person who is, appears to
be or is implied to be, a child.
(2)
The matters to be taken into account in deciding
whether reasonable persons would regard particular material as being, in all
the circumstances, offensive, include:
(a)
the standards of morality, decency and propriety
generally accepted by reasonable adults, and
(b)
the literary, artistic or educational merit (if
any) of the material, and
(c)
the journalistic merit (if any) of the material,
being the merit of the material as a record or report of a matter of public
interest, and
(d)
the general character of the material (including
whether it is of a medical, legal or scientific
character).
(3)
Material that depicts a person or the private
parts of a person includes material that depicts a representation of a person
or the private parts of a person (including material that has been altered or
manipulated to make a person appear to be a child or to otherwise create a
depiction referred to in subsection (1)).
(4)
The private
parts of a person are:
(a)
a person’s genital area or anal area,
or
(b)
the breasts of a female
person.
[7]Section 91G Children not to be
used for production of child abuse material
Omit “for pornographic purposes” from
section 91G (1) (a) and (2) (a) wherever occurring.
Insert instead “for the production of child
abuse material”.
[8]Section 91G
(3)
Omit the subsection.
[9]Sections 91H and
91HA
Omit section 91H. Insert instead:
91HProduction, dissemination or
possession of child abuse material
(1)
In this section:
disseminate child abuse material,
includes:
(a)
send, supply, exhibit, transmit or communicate it
to another person, or
(b)
make it available for access by another person,
or
(c)
enter into any agreement or arrangement to do
so.
possess child abuse material
includes, in relation to material in the form of data, being in possession or
control of data (within the meaning of section 308F (2)).
produce child abuse material
includes:
(a)
film, photograph, print or otherwise make child
abuse material, or
(b)
alter or manipulate any image for the purpose of
making child abuse material, or
(c)
enter into any agreement or arrangement to do
so.
(2)
A person who produces, disseminates or possesses
child abuse material is guilty of an offence.
Maximum penalty: imprisonment for 10
years.
91HADefences
(1)Innocent production,
dissemination or possession
It is a defence in proceedings for an offence
against section 91H that the defendant did not know, and could not reasonably
be expected to have known, that he or she produced, disseminated or possessed
(as the case requires) child abuse material.
(2)
It is a defence in proceedings for an offence
against section 91H not involving the production or dissemination of child
abuse material that the material concerned came into the defendant’s
possession unsolicited and the defendant, as soon as he or she became aware of
its nature, took reasonable steps to get rid of it.
(3)Public
benefit
It is a defence in proceedings for an offence
against section 91H that the conduct engaged in by the defendant:
(a)
was of public benefit, and
(b)
did not extend beyond what was of public
benefit.
(4)
Conduct is of public benefit if, and only if, the
conduct is necessary for or of assistance in:
(a)
enforcing or administering a law of the State, or
of another State, a Territory or the Commonwealth, or
(b)
monitoring compliance with, or investigating a
contravention of, a law of the State, or of another State, a Territory or the
Commonwealth, or
(c)
the administration of
justice.
(5)
The question of whether a person’s conduct
is of public benefit is a question of fact and the person’s motives for
engaging in the conduct are irrelevant.
(6)Law enforcement
officers
It is a defence in proceedings for an offence
against section 91H that:
(a)
the defendant was, at the time of the offence, a
law enforcement officer acting in the course of his or her duties,
and
(b)
the conduct of the defendant was reasonable in
the circumstances for the purpose of performing that
duty.
(7)Classified
material
It is a defence in proceedings for an offence
against section 91H that the material concerned was classified (whether before
or after the commission of the alleged offence) under the Classification
(Publications, Films and Computer Games) Act 1995 of the
Commonwealth, other than as refused classification (RC).
(8)Approved
research
It is a defence in proceedings for an offence
against section 91G or 91H that the conduct engaged in by the
defendant:
(a)
was necessary for or of assistance in conducting
scientific, medical or educational research that has been approved by the
Attorney General in writing for the purposes of this section,
and
(b)
did not contravene any conditions of that
approval.
Schedule 2Amendment of Criminal Procedure Act 1986 No
209
[1]Section 91 Witness may be
directed to attend
Omit “pornographic purposes” from
paragraph (c) of the definition of complainant in section 91
(9).
Insert instead “the production of child
abuse material”.
[2]Section 281B Sensitive
evidence—meaning
Insert “or child abuse material (within the
meaning of Division 15A of Part 3 of the Crimes Act
1900)” after “child pornography” in
section 281B (2) (c).
[3]Chapter 6, Part
4A
Insert after Part 4:
Part 4AUse of random sample
evidence
289ADefinitions
In this Part:
authorised analyst means any person,
or person of a class, authorised by the Attorney General or the Director of
Public Prosecutions to exercise the functions of an authorised analyst under
this Part.
child
abuse material and material have the same meanings as
they have in Division 15A of Part 3 of the Crimes Act
1900.
child
abuse material offence means an offence under Division 15A
of Part 3 of the Crimes Act
1900.
289BUse of random sample evidence
in child abuse material cases
(1)
An authorised analyst may, in connection with any
proceedings for a child abuse material offence, conduct an examination of a
random sample of the child abuse material or alleged child abuse material that
is the subject of the proceedings concerned.
(2)
In proceedings for the child abuse material
offence concerned, evidence adduced by the prosecutor of any findings of the
authorised analyst as to the nature and content of the random sample is
admissible as evidence of the nature and content of the whole of the material
from which the random sample was taken.
(3)
Accordingly, it is open to a court to find that
any type of child abuse material found by an authorised analyst to be present
in a particular proportion in the random sample is present in the same
proportion in the material from which the random sample was
taken.
(4)
A certificate of an authorised analyst, that
certifies any of the following matters, is admissible in proceedings for a
child abuse material offence as evidence of the matters certified:
(a)
that the authorised analyst conducted an
examination of a random sample of the material the subject of the
proceedings,
(b)
that the random sample was taken, and the
examination conducted, in accordance with any requirements of the
regulations,
(c)
the findings of the authorised analyst as to the
nature and content of the random sample.
(5)
A certificate signed by a person purporting to be
an authorised analyst is taken to be a certificate of an authorised analyst,
in the absence of evidence to the contrary.
(6)
Evidence is admissible under this section only if
the court is satisfied that the accused person, or an Australian legal
practitioner representing the accused person, has been given a reasonable
opportunity to view all of the child abuse material or alleged child abuse
material the subject of the proceedings concerned.
(7)
This section does not affect the provisions of
Part 2A, which restrict the access of an accused person to sensitive
evidence.
(8)
The regulations may make further provision for or
with respect to the taking and admissibility of random sample evidence under
this section, including by providing for:
(a)
the circumstances or types of cases in which the
prosecutor may adduce evidence of the findings of an authorised analyst under
this section, and
(b)
the procedure for taking and examining random
samples of material, and
(c)
any further requirements as to the content and
service of a certificate of an authorised analyst.
[4]–[6]
[7]Section 306A
Definitions
Omit “pornographic purposes” from
paragraph (c) of the definition of complainant.
Insert instead “the production of child
abuse material”.
[8]Section 348 Offences in
respect of which an intervention program may be
conducted
Omit “dissemination or possession of child
pornography” from section 348 (2) (d).
Insert instead “dissemination or possession
of child pornography or child abuse material”.
[9]Schedule 2 Savings,
transitional and other provisions
Insert at the end of clause 1 (1):
Crimes Amendment
(Child Pornography and Abuse Material) Act
2010
[10]
sch 2: Am 1987 No 15,
sec 30C.
Schedule 3Amendment of other
legislation
3.1Children and Young Persons (Care and Protection) Act
1998 No 157
[1]Section 43 Removal of children
and young persons without warrant
Omit “pornographic purposes” from
section 43 (3) (b) (i) and (ii) wherever occurring.
Insert instead “the production of child
abuse material”.
[2]Section 43 (7), definition of
“pornographic purposes”
Omit the definition. Insert in alphabetical
order:
child
abuse material has the same meaning as it has in Division
15A of Part 3 of the Crimes Act
1900.
3.2Commission for Children and Young People Act
1998 No 146
[1]Section 33
Definitions
Insert after paragraph (a) of the definition of
reportable conduct in section 33
(1):
(aa1)
any offence or misconduct involving child abuse
material (within the meaning of Division 15A of Part 3 of the Crimes Act 1900),
or
[2]Section 33G Persons not
entitled to make review applications
Omit section 33G (1) (c). Insert instead:
(c)
an offence under section 91H (2) of the Crimes Act 1900, involving the
production of child abuse material, or a similar offence under that Act or a
law other than a law of New South Wales,
3.3Law
Enforcement (Powers and Responsibilities) Act 2002 No
103
[1]Section 46A Searchable
offences
Omit section 46A (1) (a) (iv). Insert
instead:
(iv)
a child abuse material
offence,
[2]Section 46A
(2)
Omit the definition of child
pornography offence. Insert instead:
child
abuse material offence means an offence under section 91H or
578C of the Crimes Act
1900.
3.4Ombudsman Act 1974 No
68
Section 25A
Definitions
Insert “or an offence involving child abuse
material (within the meaning of Division 15A of Part 3 of the Crimes Act 1900)” after
“child pornography offence” in paragraph (a) of the definition of
reportable conduct in section 25A
(1).
3.5Parliamentary Electorates and Elections Act 1912
No 41
Section 81K
Definitions
Insert “or an offence involving child abuse
material (within the meaning of Division 15A of Part 3 of the Crimes Act 1900)” after
“child pornography offence” wherever occurring in paragraphs (a)
and (b) of the definition of child
sexual offence in section 81K (1).
3.6Parliamentary Electorates and Elections Regulation
2008
[1]Schedule 1
Forms
Insert “or offences involving child abuse
material (within the meaning of Division 15A of Part 3 of the Crimes Act 1900)” after
“child pornography offences” in Form 6.
[2]Schedule 1, Form
6
Insert “or an offence involving child abuse
material (within the meaning of Division 15A of Part 3 of the Crimes Act 1900)” after
“child pornography offence” wherever
occurring.
3.7Victims Support and Rehabilitation Act 1996 No
115
Dictionary
Omit “pornographic purposes” from
paragraph (e) of the definition of sexual
assault and domestic violence.
Insert instead “the production of child
abuse material”.
Historical
notes
Table of amending
instruments
Crimes Amendment
(Child Pornography and Abuse Material) Act 2010 No 9.
Assented to 28.4.2010. Date of commencement, Sch 2 [4]–[6] and [10]
excepted, 17.9.2010, sec 2 (1) and 2010 (517) LW 10.9.2010; date of
commencement of Sch 2 [4]–[6] and [10], assent, sec 2
(2).
This Act has been amended by sec 30C of the
Interpretation Act 1987 No
15.
Table of
amendments
Sch
2
Am 1987 No
15, sec 30C.