New South Wales Repealed Acts New South Wales Repealed ActsThis legislation has been repealed.
Omit "For the purposes of sections 91C-91G".
Insert instead "For the purposes of this Division".
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).
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(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.
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.(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.
Omit the section.
Omit the definition of "child pornography" from section 578C (1).
Omit "(other than an indecent article that is child pornography)".
Omit the subsections.
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.
Omit "578B or" wherever occurring.
Insert at the end of the Schedule with appropriate Part and clause numbers:
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.