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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Crimes Amendment (Child
Pornography) Bill 2004
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Crimes Act 1900 No 40 2
4 Amendment of other Acts 2
Schedule 1 Amendment of Crimes Act 1900 3
Schedule 2 Amendment of other Acts 7
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2004
New South Wales
Crimes Amendment (Child
Pornography) Bill 2004
Act No , 2004
An Act to amend the Crimes Act 1900 in connection with offences relating to child
pornography and use of children for pornographic purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Crimes Amendment (Child Pornography) Bill 2004
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Crimes Amendment (Child Pornography) Act 2004.
2 Commencement
(1) This Act commences on a day or days to be appointed by proclamation,
except as provided by subsection (2).
(2) Schedule 1 [11] and Schedule 2.3 [1] and [2] commence on the date of
assent to this Act.
3 Amendment of Crimes Act 1900 No 40
The Crimes Act 1900 is amended as set out in Schedule 1.
4 Amendment of other Acts
The Acts specified in Schedule 2 are amended as set out in that
Schedule.
Page 2
Crimes Amendment (Child Pornography) Bill 2004
Amendment of Crimes Act 1900 Schedule 1
Schedule 1 Amendment of Crimes Act 1900
(Section 3)
[1] Section 91C Definitions
Omit "For the purposes of sections 91C-91G".
Insert instead "For the purposes of this Division".
[2] Section 91C
Insert in alphabetical order:
material includes any film, printed matter, electronic data or any
other thing of any kind (including any computer image or other
depiction).
[3] Section 91G
Omit the section. Insert instead:
91G Children not to be used for pornographic purposes
(1) Any person who:
(a) uses a child who is under the age of 14 years for
pornographic purposes, or
(b) causes or procures a child of that age to be so used, or
(c) having the care of a child of that age, consents to the child
being so used or allows the child to be so used,
is guilty of an offence.
Maximum penalty: imprisonment for 14 years.
(2) Any person who:
(a) uses a child who is of or above the age of 14 years for
pornographic purposes, or
(b) causes or procures a child of that age to be so used, or
(c) having the care of a child of that age, consents to the child
being so used or allows the child to be so used,
is guilty of an offence.
Maximum penalty: imprisonment for 10 years.
(3) For the purposes of this section, a child is used by a person for
pornographic purposes if:
(a) the child is engaged in sexual activity, or
(b) the child is placed in a sexual context, or
Page 3
Crimes Amendment (Child Pornography) Bill 2004
Schedule 1 Amendment of Crimes Act 1900
(c) the child is subjected to torture, cruelty or physical abuse
(whether or not in a sexual context),
for the purposes of the production of pornographic material by
that person.
(4) For the purposes of this section, a person may have the care of a
child without necessarily being entitled by law to have the
custody of the child.
(5) Where on the trial of a person for an offence under subsection (1)
the jury is not satisfied that the accused is guilty of the offence
charged, but is satisfied on the evidence that the accused is guilty
of an offence under subsection (2), it may find the accused not
guilty of the offence charged but guilty of the latter offence, and
the accused is liable to punishment accordingly.
[4] Section 91H
Insert after section 91G:
91H Production, dissemination or possession of child pornography
(1) Definitions
In this section:
child pornography means material that depicts or describes, in a
manner that would in all the circumstances cause offence to
reasonable persons, a person under (or apparently under) the age
of 16 years:
(a) engaged in sexual activity, or
(b) in a sexual context, or
(c) as the victim of torture, cruelty or physical abuse (whether
or not in a sexual context).
disseminate child pornography, 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.
(2) Production or dissemination of child pornography
A person who produces or disseminates child pornography is
guilty of an offence.
Maximum penalty: imprisonment for 10 years.
Page 4
Crimes Amendment (Child Pornography) Bill 2004
Amendment of Crimes Act 1900 Schedule 1
(3) Possession of child pornography
A person who has child pornography in his or her possession is
guilty of an offence.
Maximum penalty: imprisonment for 5 years.
(4) Defences
It is a defence to any charge for an offence under subsection (2)
or (3):
(a) 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
pornography, or
(b) 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), or
(c) that, having regard to the circumstances in which the
material concerned was produced, used or intended to be
used, the defendant was acting for a genuine child
protection, scientific, medical, legal, artistic or other
public benefit purpose and the defendant's conduct was
reasonable for that purpose, or
(d) that the defendant was a law enforcement officer acting in
the course of his or her official duties, or
(e) that the defendant was acting in the course of his or her
official duties in connection with the classification of the
material concerned under the Classification (Publications,
Films and Computer Games) Act 1995 of the
Commonwealth.
(5) Defence to possession of child pornography
It is a defence to any charge for an offence under subsection (3)
that the material concerned came into the defendant's possession
unsolicited and the defendant, as soon as he or she became aware
of its pornographic nature, took reasonable steps to get rid of it.
[5] Section 578B Possession of child pornography
Omit the section.
[6] Section 578C Publishing indecent articles
Omit the definition of child pornography from section 578C (1).
Page 5
Crimes Amendment (Child Pornography) Bill 2004
Schedule 1 Amendment of Crimes Act 1900
[7] Section 578C (2)
Omit "(other than an indecent article that is child pornography)".
[8] Section 578C (2A), (2B), (2C) and (5A)
Omit the subsections.
[9] Section 578C (3A)
Insert after section 578C (3):
(3A) A person cannot be convicted of an offence against this section
and section 91H in respect of the same matter.
[10] Section 578D Police may enter and search premises for indecent articles
Omit "578B or" wherever occurring.
[11] Eleventh Schedule Savings and transitional provisions
Insert at the end of the Schedule with appropriate Part and clause numbers:
Part Crimes Amendment (Child Pornography)
Act 2004
Classification of films, publications or computer games
(1) In this clause, the amending Act means the Crimes Amendment
(Child Pornography) Act 2004.
(2) To avoid doubt, section 578B (4) (b) (as in force before its repeal
by the amending Act) does not prevent (and is taken never to have
prevented), in respect of an alleged offence against that section:
(a) a court attendance notice or other process being issued, or
(b) a court attendance notice or other process being served, or
(c) a person pleading guilty or a plea of guilty being accepted,
or
(d) sentence being passed for the offence on an offender who
has pleaded guilty to the offence,
without the film, publication or computer game concerned
having been classified under the Classification (Publications,
Films and Computer Games) Act 1995 of the Commonwealth.
(3) This clause extends to offences against section 578B in respect of
which anything mentioned in subclause (2) occurred before the
repeal of that section by the amending Act.
Page 6
Crimes Amendment (Child Pornography) Bill 2004
Amendment of other Acts Schedule 2
Schedule 2 Amendment of other Acts
(Section 4)
2.1 Child Protection (Offenders Registration) Act 2000 No 42
Section 3 Definitions
Insert "91H," after "section" wherever occurring in paragraph (d) of the
definition of Class 2 offence and paragraph (d) (ii) of the definition of
registrable person in section 3 (1).
2.2 Child Protection (Prohibited Employment) Act 1998 No 147
Section 5 Prohibited persons
Insert "91H," after "section" in paragraph (d) of the definition of serious sex
offence in section 5 (3).
2.3 Classification (Publications, Films and Computer Games)
Enforcement Act 1995 No 63
[1] Section 58 Evidence
Insert "or the Crimes Act 1900" after "this Act".
[2] Section 58 (2)
Insert at the end of section 58:
(2) Subsection (1) extends to a certificate (whether given before or
after the commencement of this subsection) that states a matter:
(a) at the time the certificate is given, or at any other earlier
specified time, or
(b) in respect of any specified period before the certificate is
given.
[3] Section 61 Forfeiture of films, publications and computer games on
conviction
Insert "or section 91H of the Crimes Act 1900" after "this Act".
2.4 Criminal Procedure Act 1986 No 209
[1] Section 348 Offences in respect of which an intervention program may
be conducted
Insert "91H (Production, dissemination or possession of child pornography),"
after "section" in section 348 (2) (d).
Page 7
Crimes Amendment (Child Pornography) Bill 2004
Schedule 2 Amendment of other Acts
[2] Schedule 1 Indictable offences triable summarily
Insert ", 91H" after "91B" in clause 2.
2.5 Law Enforcement (Powers and Responsibilities) Act 2002
No 103
Section 47 Power to apply for warrant for particular offences
Insert "91H," after "section" in the definition of child pornography offence in
section 47 (4).
2.6 Summary Offences Act 1988 No 25
Section 11G Loitering by convicted child sexual offenders near premises
frequented by children
Insert "91H," after "section" in paragraph (c) of the definition of convicted
child sexual offender in section 11G (2).
Page 8
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