Crimes Amendment (Child
Pornography) Bill 2004

New South Wales
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The object of this Bill is to amend the Crimes Act 1900 in relation to child
pornography offences.

The Bill:

(a) increases the maximum penalty for the production or dissemination of child
pornography to imprisonment for 10 years, and

(b) makes the possession of child pornography an indictable offence and increases
the maximum penalty for the offence to imprisonment for 5 years, and

(c) increases the maximum penalty for using a child for pornographic purposes to
imprisonment for 14 years (in the case of a child under 14 years) and for 10
years (in any other case), and

(d) revises the definition of child pornography for the purposes of offences
relating to the production, dissemination or possession of child pornography
so as to remove the requirement that the material be classified as refused
classification (RC), and

(e) extends the offences relating to child pornography and use of children for
pornographic purposes to cases of torture, cruelty or physical abuse (whether
or not in a sexual context).

The Bill also removes any doubt as to the timing of the classification of material in
connection with existing offences relating to child pornography.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act.

Clause 3 is a formal provision that gives effect to the amendments to the Crimes Act
1900 set out in Schedule 1.

Clause 4 is a formal provision that gives effect to the amendments to the Acts set out
in Schedule 2.

Schedule 1 Amendment of Crimes Act 1900
Child pornography—Transfer of provisions
Existing offences relating to the production, dissemination or possession of child
pornography are currently located in Part 16 (containing summary offences and other
miscellaneous enactments). These offences are transferred by the Bill to Division 15
of Part 3 (containing indictable child prostitution and pornography offences).

Schedule 1 [5] omits section 578B, the existing offence relating to possession of
child pornography. Schedule 1 [8] omits such parts of section 578C that relate to
publishing child pornography. These provisions are re-enacted by Schedule 1 [4] as
proposed section 91H.

Schedule 1 [1], [2], [6], [7], [9] and [10] make consequential amendments.

Child pornography—Definition of child pornography
Proposed section 91H (1) redefines child pornography as 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).

The proposed definition does not include a requirement that the material be classified
RC, under the Classification (Publications, Films and Computer Games) Act 1995 of
the Commonwealth, or be material that would, if classified, be classified RC.

However, classification (other than RC) will be a defence to any prosecution.

Child pornography—Increase in maximum penalty
Proposed section 91H (2) provides that a person who produces or disseminates child
pornography is guilty of an offence. The maximum penalty of imprisonment for 10
years provided for the proposed offence is greater than the maximum penalty
currently provided for an offence under section 578C (2A) ($110,000 or
imprisonment for 5 years (or both), or in the case of a corporation—$220,000).

Proposed section 91H (3) provides that a person who has child pornography in his or
her possession is guilty of an offence. The maximum penalty of imprisonment for 5
years provided for the proposed offence is greater than the maximum penalty
currently provided for an offence under section 578B ($11,000 or imprisonment for
2 years (or both)).

Child pornography—Defences
Proposed section 91H (4) provides for certain defences to charges for the offences of
production, dissemination or possession of child pornography.

It is a defence to any such charge:

(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.

Proposed section 91H (5) provides for it to be a defence to a charge for an offence of
possession of child pornography 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.

Children not to be used for pornographic purposes
Section 91G prohibits the use of children for pornographic purposes. Schedule 1 [3]
repeals and re-enacts section 91G to provide for an offence in respect of a child who
is under the age of 14 years (proposed section 91G (1)), and an offence in respect of
a child who is of or above the age of 14 years (proposed section 91G (2)).

The maximum penalty of imprisonment for 14 years provided for an offence under
proposed section 91G (1) is greater than the maximum penalty currently provided for
an offence under existing section 91G (1) where the child is under the age of 14 years
(imprisonment for 7 years).

The maximum penalty of imprisonment for 10 years provided for an offence under
proposed section 91G (2) is greater than the maximum penalty currently provided for
an offence under existing section 91G (1) where the child is not under the age of 14
years (imprisonment for 5 years).

In line with the new definition of child pornography to be used in relation to the
production, dissemination or possession of child pornography, and, in particular, in
line with the inclusion of material regarding torture, cruelty or physical abuse
(whether or not in a sexual context), the proposed section also provides that 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

(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.

Classification of films, publications or computer games
Schedule 1 [11] inserts a proposed Part in the Eleventh Schedule to provide that, to
avoid doubt, existing section 578B (4) (b) (relating to classification of material in
connection with a prosecution) 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.

Schedule 2 Amendment of other Acts
Schedule 2.4 [2] amends the Criminal Procedure Act 1986 to provide that the new
child pornography offences (proposed section 91H (2) and (3)) are indictable
offences that are to be dealt with summarily unless the prosecutor or the accused
elects otherwise.

Schedule 2.3 [2] makes an amendment to section 58 of the Classification
(Publications, Films and Computer Games) Enforcement Act 1995 to make it clear
that the evidentiary provision in that section extends to a certificate (whether given
before or after the commencement of the amendment) that states a matter at the time
the certificate is given, or at any other earlier specified time, or in respect of any
specified period before the certificate is given. Schedule 2.3 [1] makes an
amendment that applies that section to offences under the Crimes Act 1900.

The remaining amendments in Schedule 2 are consequential on the repeal of section
578B and its re-enactment as proposed section 91H.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

---

[Index] [Search] [Download] [Bill] [Help]