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1
Criminal Code (Child Pornography and Abuse)
Amendment Bill 2004
Criminal Code (Child Pornography and
Abuse) Amendment Bill 2004
Explanatory Notes
General Outline
Short Title
The short title of the Bill is the Criminal Code (Child Pornography and
Abuse) Amendment Bill 2004.
Policy Objectives of the Legislation
The policy objective of the Bill is to respond to the growing incidence of
child pornography by inserting specific offences (with appropriate
penalties) into the Criminal Code.
Reasons for the Bill
Offences relating to the production, sale and possession of child
pornography (generally described as child abuse material) are contained in
the Classification of Computer Games and Images Act 1995, the
Classification of Films Act 1991 and the Classification of Publications Act
1991. These Acts (the "Classification Acts") are part of a Commonwealth/
State/Territory scheme for the classification of publications, films and
computer games and for the enforcement of those classifications.
The Commonwealth Classification (Publications, Films and Computer
Games) Act 1995 (the Commonwealth Act) provides for the classification
of publications, films and computer games for the Australian Capital
Territory. These classifications are in turn adopted by the various States
under their State legislation. Although the Classification Acts also allow a
State officer to classify computer games (upon his or own her initiative or
upon representation about the computer game) and publications (upon his
or her own initiative or upon complaint about the publication); almost all
classifications are dealt with under the Commonwealth Act. The State
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Criminal Code (Child Pornography and Abuse)
Amendment Bill 2004
officer's classification role is unique to Queensland. The practice of the
State officer under the Classification Acts is to only consider material
submitted by the police to determine whether or not it is child abuse
material (RC) under the Classification Acts, not to perform a general
classification function.
Other child pornography related offences are contained in the
Commonwealth and Queensland Criminal Codes.
The recent national crackdown on an internet child pornography ring
resulting in hundreds of arrests across Australia raised the profile of current
Queensland and interstate child pornography offences and penalties.
The offences under existing Queensland legislation cover most forms of
child pornography and child abuse material, including films, photographs,
and computer images. Objects are not included, except in section 228 of the
Code, which only applies to an object publicly exhibited.
However, legislation designed to classify material to determine who can
access it, if at all, does not recognise the nature of the conduct involved.
The Classification Acts are largely directed at material produced for a
commercial purpose and for public distribution. Child pornography is
produced for a very different audience.
The material that is restricted is also limited by the nature of the legislation
regulating it--films, publications or computer games. However, the
definitions within the Acts are wide enough to catch considerably more
than items submitted for classification, for example an image on a
computer may be classified as a "computer game". Describing an image of
a child in the act of being abused as a "computer game" is clearly
inappropriate.
Some of the existing child pornography offences are not expressed in terms
of "child abuse"--for example, people who sell or distribute pornographic
computer images can only be charged with selling or distributing
"objectionable computer games". Likewise the offences of procuring
minors for games or films refer only to "objectionable" games or films.
A number of jurisdictions (the Northern Territory, South Australia and New
South Wales) have recently amended or are amending their legislation in
this area.
The recent national crackdown also means that it is likely that there will be
some ongoing discussion at various national forums regarding the
adequacy of the existing offences and investigative powers. This means
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Criminal Code (Child Pornography and Abuse)
Amendment Bill 2004
that the Queensland provisions (both current and those provided in this
Bill) may require further legislative amendment in due course.
Achieving the objective
Given the serious criminal and exploitative nature of this activity, it is more
appropriate for there to be specific offences (with appropriate penalties) in
the Criminal Code dealing with involving a child in, and making,
distributing and possessing what is called "child exploitation" material
under the Bill.
The insertion of these new offences will not derogate from the liability of
an offender for the more substantive offence relating to the activity in
appropriate cases. For example, a person who takes indecent photographs
of 10 year old children as part of a photo shoot for a child pornography
magazine will not only be involving a child in the making of child
pornography under the new offences (maximum penalty of 10 years), but
will also be committing an offence under existing section 210(1)(f) of the
Criminal Code (taking an indecent photograph of a child under the age of
16 years). The latter offence carries a maximum penalty of 20 years. The
new offences are intended to complement not replace existing offences.
Where it can be established that a more serious offence involving abuse of
a child has occurred, that offence should be charged.
The Bill defines child exploitation material as material that, in a way likely
to cause offence to a reasonable adult, describes or depicts someone who is,
or apparently is, a child under 16 years--
(i) in a sexual context, including for example, engaging in a sexual
activity; or
(ii) in an offensive or demeaning context; or
(iii) being subjected to abuse, cruelty or torture.
"Material" is defined to include data from which text, images or sound can
be generated.
The Bill goes on to provide for the following offences:
· involving a child (i.e. a person under the age of 18 years) in the
making of child exploitation material ( maximum penalty 10 years)
· making child exploitation material (maximum penalty 10 years)
· distributing (which includes communicating, exhibiting, sending and
supplying) child exploitation material (maximum penalty 10 years)
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Criminal Code (Child Pornography and Abuse)
Amendment Bill 2004
· knowingly in possession of child exploitation material (maximum
penalty five years).
The Bill acknowledges the role of the Commonwealth Classification Board
in classifying material (and refusing classification of child pornography
material--RC) by providing a defence to any of the offences for the
defendant to prove that the material was classified (other than RC) whether
before or after the alleged offence was committed. If the material is a film,
computer game or publication that has not been previously classified, a
defendant relying on the classification defence will have to bear the costs
(which could be up to $1500 for a single disc containing a number of
images) of applying to the Commonwealth Classification Board for
classification.
The Bill provides an evidentiary aid for the purpose of this defence. This
evidentiary aid is a certificate under section 87 of the Commonwealth Act
or a certificate issued by the State officer to cover those very rare cases
where the State officer may have classified the publication or computer
image.
The Bill also provides for other defences including that the conduct the
subject of the offence was for a genuine artistic, educational, legal,
medical, scientific or public benefit purpose. An example of public benefit
purpose includes a current affairs television report showing a child being
tortured.
A defendant wishing to access the material for any of the defences will
have to make an application to the court under the sensitive evidence
provisions of the Criminal Code. This obligation already exists on
defendants who wish to access material in prosecutions under section 210
of the Criminal Code (taking an indecent image of a child under the age of
16) or prosecutions for child abuse material under the existing provisions
of the Classification Acts.
The Classification Acts offences will remain operational under the Bill.
This is being done to allow consideration of the overlap between the two
regimes (and what further legislative change may be necessary as a result
of that consideration). It is also being done to allow for maximum
flexibility to accommodate any developments that may arise at a national
level in this area.
Administrative Costs
Nil.
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Criminal Code (Child Pornography and Abuse)
Amendment Bill 2004
Fundamental Legislation Principles
Onus of proof reversal
The Bill allows the defendant to establish that the material was classified
(other than RC) either before or after the offence was allegedly committed,
rather than oblige the prosecution in every case to establish that the
material was not classified, or was not capable of being classified (other
than RC) prior to charging or prior to trial. This is in effect a reversal of the
onus of proof.
The vast majority of material seized by police is computer images,
sometimes numbering in the thousands, and of that material, the vast
majority will never be capable of being classified. Requiring the
prosecution to prove in every case that the material was either not classified
or not capable of being classified will be extremely costly (potentially in
the millions) and time consuming. Therefore, it is a better balance in those
rare cases to allow a defendant who genuinely believes that the material has
already been classified, or is capable of being classified (other than RC) to
seek to prove this.
Forfeiture
The Classification Acts give the court a discretion to order forfeiture of the
offending film, computer game or publication and anything used in
connection with the offence when a person has been convicted of an
offence under those Acts.
The Bill continues this regime but also gives the court a discretion to order
the forfeiture of the offending material where a conviction has not
occurred. This discretion could be exercised for example where there has
been an unsuccessful prosecution for an offence of possession because the
prosecution has not been able to establish that the defendant was
knowingly in possession of the material, but the fact that the material is
child exploitation material is not in dispute.
CONSULTATION
The Bill has been developed in consultation with the Departments of
Premier and Cabinet, Fair Trading, Tourism and Wine Industry
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Criminal Code (Child Pornography and Abuse)
Amendment Bill 2004
Development and the Queensland Police Service. The Director of Public
Prosecutions has also been consulted regarding the Bill.
Notes on Provisions
Part 1 Preliminary
Short Title
Clause 1 provides that the short title is the Criminal Code (Child
Pornography and Abuse) Amendment Act 2004.
Commencement
Clause 2 provides for the commencement of the Act.
Part 2 Criminal Code amended
Clause 3 provides that this part amends the Criminal Code.
Clause 4 amends section 1 of the Criminal Code - Definitions to include
the new definitions inserted by this Act.
Clause 5 inserts new section 207A which inserts definitions for Chapter 22
of the Criminal Code - Offences against morality.
"Child exploitation material" is defined as material that, in a way likely
to cause offence to a reasonable adult, describes or depicts someone who is,
or apparently is, a child under 16 years--
(i) in a sexual context, including for example, engaging in a sexual
activity; or
(ii) in an offensive or demeaning context; or
(iii) being subjected to abuse, cruelty or torture.
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Criminal Code (Child Pornography and Abuse)
Amendment Bill 2004
This definition is broad enough to catch any material at all - images, sound
recordings, objects and written descriptions. It also includes data from
which text, images or sounds can be generated (see the definition of
"material").
It is not necessary to prove that a child depicted in the material was in fact
less than 16 years of age at the time the image or material was created. It is
also not necessary for the material to depict a real person.
The definition also includes an objective test--that the material is likely to
cause offence to a reasonable adult. This will ensure that innocent family
photos, such as a naked toddler in the bath, are not caught within the
definition of child exploitation material.
"Classification officer" means:
· the computer games classification officer under the Classification of
Computer Games and Images Act 1995; or
· the films classification officer under the Classification of Films Act
1991; or
· the publications classification officer under the Classification of
Publications Act 1991.
"Classified" means:
· for a computer game--cross refers to the Classification of Computer
Games and Images Act 1995 which provides for classification by the
computer games classification officer upon his/ her own initiative or
representation or classification under the Commonwealth Act. As
noted previously nearly all classifications are done under the
Commonwealth Act.
· for a film--cross refers to the Classification of Films Act 1991 which
provides for classification under the Commonwealth Act.
· for a publication--cross refers to the Classification of Publications
Act 1991 which provides for classification by the publications
classification officer upon his/ her own initiative or complaint or
classification under the Commonwealth Act. As noted previously
nearly all classifications are done under the Commonwealth Act.
"Computer game" is defined by reference to the Classification of
Computer Games and Images Act 1995.
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Criminal Code (Child Pornography and Abuse)
Amendment Bill 2004
Under that Act, computer game means:
(a) a computer program and associated data, capable of generating a
display on a computer monitor, television screen, liquid crystal
display or similar medium; or
(b) a computer generated image; or
(c) an interactive film;
but does not include--
(d) a bulletin board; or
(e) an exempt computer game; or
(f) a film that is not an interactive film.
"Film" is defined by reference to the Classification of Films Act 1991.
Under that Act, film includes--
(a) a cinematograph film, slide, video tape and video disc; and
(b) any other form of recording from which a visual image can be
produced together with its sound track;
but does not include--
(c) a computer game; or
(d) a computer program; or
(e) an advertisement for a computer game, film or publication; or
(f) an exempt film.
"Material" includes anything that contains data from which text, images
or sound can be generated.
"Publication" is defined by reference to the Classification of Publications
Act 1991. Under that Act, publication means a book, paper, magazine or
other written or pictorial matter.
"Someone" in the context of a description or depiction, includes the body
parts of someone, including for example, someone's breast or genitalia.
Clause 6 inserts new sections 228A to 228H into Chapter 22 of the
Criminal Code "Offences against morality".
New section 228A Involving child in making child exploitation
material: provides for the offence of involving a child in making child
exploitation material.
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Criminal Code (Child Pornography and Abuse)
Amendment Bill 2004
In this section, involving a child in the making of child exploitation
material includes:
(a) in any way concerns a child in the making of child exploitation
material; and
(b) attempts to involve a child in the making of child exploitation
material.
As noted previously, the insertion of these new offences will not derogate
from the liability of an offender for the more substantive offence relating to
the activity in appropriate cases. For example, a person who takes indecent
photographs of 10 year old children as part of a photo shoot for a child
pornography magazine will not only be involving a child in the making of
child pornography under the new offences (maximum penalty of 10 years),
but will also be committing an offence under existing section 210(1)(f) of
the Criminal Code (taking an indecent photograph of a child under the age
of 16 years). The latter offence carries a maximum penalty of 20 years
imprisonment. The new offences are intended to complement not replace
existing offences. Where it can be established that a more serious offence
involving abuse of a child has occurred, that is the offence that should be
charged.
New section 228B Making child exploitation material: provides for the
offence of making child exploitation material.
In this section, make child exploitation material includes--
(a) produce child exploitation material; and
(b) attempt to make child exploitation material.
New section 228C Distributing child exploitation material: provides for
the offence of distributing child exploitation material.
In this section, distribute child exploitation material includes--
(a) communicate, exhibit, send, supply or transmit child exploitation
material to someone, whether to a particular person or not; and
(b) make child exploitation material available for access by someone,
whether by a particular person or not; and
(c) enter into an agreement or arrangement to do something in paragraph
(a) or (b); and
(d) attempt to distribute child exploitation material.
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Criminal Code (Child Pornography and Abuse)
Amendment Bill 2004
New section 228D Possessing child exploitation material: provides for
the offence of knowingly possessing child exploitation material.
New section 228E Defences for ss 228A - 228D: provides for the
defences for the new offences.
Subsection (1) provides that subsections (2), (3) and (5) prescribe defences
available to a person charged with an offence against sections 228A, 228B,
228C or 228D.
Under subsection (2), it is a defence for a person to prove that--
(a) the person engaged in the conduct for a genuine artistic, educational,
legal, medical, scientific or public benefit purpose; and
(b) the person's conduct was, in the circumstances, reasonable for that
purpose.
An example of something made for a "public benefit" is a current affairs
television article showing children being tortured during a civil war.
Subsection (3) provides a defence for a person to prove that, at the time of
the offence--
(a) a classification exemption had been given to an entity for the material
that is alleged to be child exploitation material; and
(b) the person engaged in the conduct that is alleged to constitute the
offence--
(i) for a purpose for which the exemption was given; and
(ii) in a way that is consistent with the exemption, including any
conditions imposed on the exemption.
This defence refers to specific exemptions that may be given under section
59 of the Classification of Computer Games and Images Act 1995 or
section 37 of the Classification of Publications Act 1991 for material that is
clearly child exploitation material, but where the material is of a medical,
educational or scientific character, or which is intended to be used for a
medical, educational or scientific purpose. The defence will only arise if
the use of the material is consistent with the exemption.
For example, a medical school may be given an exemption under section
59 of the Classification of Computer Games and Images Act 1995 to allow
the medical school to possess images of tortured children, and to show the
images to its medical students. The exemption is subject to a condition that
the medical students are not allowed to forward the images to anyone,
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Criminal Code (Child Pornography and Abuse)
Amendment Bill 2004
including to themselves at another computer. If a student sends a copy of
the images to his or her home computer or to another person's computer,
the defence will not apply.
Whether conduct was engaged in for a purpose mentioned in subsection
(2)(a) or (3)(b)(i) is a question of fact.
Where the material alleged to be child exploitation material is a computer
game, film or publication, subsection (5) provides a further defence for a
person to prove that the material is classified as something other than RC
(that is, "refused classification").The defence also applies where the
material is a computer game that, under the Commonwealth Act, is a film
classified as R or X. Under subsection (6) the material may have been
classified before, or may be classified after, the offence is alleged to have
been committed.
The purpose of this defence is to ensure that a person can not be convicted
of one of these serious offences in relation to material that has been
approved by the classification system. A film, publication or computer
game will be refused classification (and thus classified RC) if it depicts a
person who is, or who looks like, a child under 16 in a way likely to cause
offence to a reasonable adult.
The defence also allows the person to seek to have the item classified after
being charged, if it was not classified at the time of the alleged offence.
As is noted above, the Commonwealth Act provides for the classification
of publications, films and computer games for the Australian Capital
Territory. These classifications are in turn adopted by the various States
under their State legislation. Although the Classification Acts also allow a
State officer to classify computer games (upon his or her own initiative or
upon representation about the computer game) and publications (upon his
or her own initiative or upon complaint about the publication); almost all
classifications are dealt with under the Commonwealth Act. A defendant
wishing to have unclassified material which is a film, computer game or
publication classified for the purposes of his/ her defence will have to make
an application to the Commonwealth Classification Board for the material
to be classified.
Subsection (7) provides that a certificate stating whether a film, publication
or computer game is classified and its classification is evidence of that fact.
Generally, this will be a certificate issued under section 87 of the
Commonwealth Act. A certificate is only likely to be issued by a State
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Criminal Code (Child Pornography and Abuse)
Amendment Bill 2004
officer in those very rare cases where the State officer has previously
classified a publication or computer image.
A defendant wishing to access the material for any of the defences will
have to make an application to the court under the sensitive evidence
provisions of the Criminal Code. This obligation already exists on
defendants who wish to access material in prosecutions under section 210
of the Criminal Code (making an indecent image of a child under the age of
16) or prosecutions for child abuse material under the existing provisions
of the Classification Acts.
"Certificate" and "classification exemption" are defined in subsection (8).
New section 228F Excluding non-essential persons from court when
child exploitation material displayed: requires the court to exclude all
non-essential persons from the court when child exploitation material is
displayed.
This provision has been inserted to minimise public exposure and access to
child exploitation material. It is modelled on section 21AU of the Evidence
Act 1977 and section 5 of the Criminal Law (Sexual Offences) Act 1978.
The court may permit a person with a proper interest to be present,
provided that person's presence would not be prejudicial to the interests of
any child depicted in the material. For example, a person conducting
legitimate research into child pornography might apply to be present in
court while child exploitation material is on display. In determining who is
entitled to be present, the court must consider the public benefit of limiting
the number of people with access to child exploitation material.
New section 228G Forfeiture of child exploitation material etc:
continues the forfeiture regime under the Classification Acts and gives the
court a discretion to order forfeiture of the offending film, computer game
or publication and anything used in connection with the offence when a
person has been convicted of an offence under those Acts.
The provision also gives the court a discretion to order the forfeiture of the
alleged child exploitation material when a conviction has not occurred.
This discretion could be exercised for example where there has been an
unsuccessful prosecution for an offence of possession because the
prosecution has not been able to establish that the defendant was
knowingly in possession of the material, but it is not disputed that the
material is child exploitation material.
New section 228H Possession etc of child exploitation material by law
enforcement officer: makes it clear that law enforcement officers are not
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Criminal Code (Child Pornography and Abuse)
Amendment Bill 2004
criminally responsible for offences against sections 228B, 228C or 228D
if--
(a) the person is, at the time of the offence, a classification officer or law
enforcement officer acting in the course of the person's duties; and
(b) the person's conduct is reasonable in the circumstances for the
performance of the duties.
The effect of this provision is that a law enforcement officer may
reasonably have child exploitation material in his/ her possession as part of
the investigation of an offence. He/ she could however be charged with the
distribution of the child exploitation material if that distribution was not
reasonable in the circumstances for the performance of the duties, even if
the possession of the material is excused by this provision.
This section is an excuse, not a defence. In practice this will mean that a
law enforcement officer who is charged with an offence bears an evidential
onus to raise the issue that his/ her conduct was reasonable in the
circumstances for the performance of his/ her duties. After the issue has
been raised, the prosecution must prove beyond reasonable doubt that the
conduct was not reasonable in the circumstances.
Clause 7 amends section 590AF to make it clear that child exploitation
material or alleged child exploitation material is sensitive evidence under
the Criminal Code.
Part 3 Child Protection (Offender Reporting)
Act 2004 amended
Clause 8 provides that this part amends the Child Protection (Offender
Reporting) Act 2004.
Clause 9 adds these new offences to class 2 of the Schedule to the Child
Protection (Offender Reporting ) Act 2004 - the effect being that a person
convicted of such an offence will be a reportable offender (for at least eight
years) under that Act.
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Criminal Code (Child Pornography and Abuse)
Amendment Bill 2004
Part 4 Commission for Children and Young
People and Child Guardian Act amended
Clause 10 states that this part amends the Commission for Children and
Young People and Child Guardian Act 2000.
Clause 11 amends section 99E (What is an excluding offence) to insert a
new subsection (c) referring to these new Code offences. A person
convicted of an excluding offence for which imprisonment is ordered or
where a disqualification order is made by the court under section 126C
must be issued with a negative notice (in effect a life time ban). A
conviction for an excluding offence for which imprisonment is not ordered,
and where the court has not made an order under section 126C, will result
in a negative notice being issued, unless exceptional circumstances exist.
Clause 12 amends schedule 2 (Current serious offences) to include these
new offences within the list of serious offences.
© State of Queensland 2004