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1
Criminal Code (Child Pornography and Abuse)
Amendment Bill 2005
Criminal Code (Child Pornography and
Abuse) Amendment Bill 2005
Explanatory notes for amendments to be
moved during consideration in detail by The
Honourable Rod Welford MP
Title of the Bill
Criminal Code (Child Pornography and Abuse) Amendment Bill 2005
Objectives of the Amendments
The purpose of the amendment is to clarify that the excuse provided in
section 228H (Possession etc of child exploitation material by law
enforcement officer) does not excuse unlawful conduct that should be
authorised under Chapter 5 of the Police Powers and Responsibilities Act
2000.
The Bill creates a number of new offences relating to child exploitation
material. It also includes a number of excuse and defence provisions,
including section 228H, which provides that a person is not criminally
responsible for an offence against section 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.
Section 228H was not intended to permit any police officer to proactively
commit offences while investigating offences relating to child exploitation
material, rather it was intended to provide protection for law enforcement
officers required to copy child exploitation material (eg for the purposes of
preparing the police brief), to distribute child exploitation material (eg by
giving to the classification officer or providing it to the Office of the
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Criminal Code (Child Pornography and Abuse)
Amendment Bill 2005
Director of Public Prosecutions), or to possess child exploitation material
(eg retaining for legitimate intelligence purposes).
Chapter 5 of the Police Powers and Responsibilities Act 2000 provides for
controlled operations and controlled activities. Its purpose is to permit
certain law enforcement officers to effectively investigate serious
indictable offences (such as child pornography) including by permitting
those officers to engage in unlawful activity during the investigation. For
investigations into child exploitation material, this would include
permitting the relevant police or Crime and Misconduct Commission
officer to be in possession of child exploitation material, to distribute it to
targets and to counsel or procure targets to distribute child exploitation
material to a covert officer.
The controlled operations approval is also designed to ensure that these
types of unlawful activities are only undertaken when appropriately
authorised, and only by appropriately trained officers. The process also
preserves the admissibility of evidence obtained in this way, and protects
the operatives from criminal and civil liability in relation to the approved
unlawful activities.
It is arguable that section 228H would not apply to a police officer who,
without the appropriate authority, undertook unlawful activities, because
such conduct would not be reasonable in the course of that officer's duties.
However to be prudent, it is considered necessary to amend section 228H
to clarify that law enforcement officers will still be required to obtain
controlled operations approvals under Chapter 5 of the Police Powers and
Responsibilities Act 2000 before undertaking unlawful activities.
Estimated Cost for Government Implementation
Nil
Consistency with Fundamental Legislative Principles
The amendments are consistent with fundamental legislative principles.
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Criminal Code (Child Pornography and Abuse)
Amendment Bill 2005
Consultation
The amendments have been developed in consultation with the Department
of the Premier and Cabinet, the Queensland Police Service and the
Department of Tourism, Fair Trading and Wine Industry Development.
Notes on provisions
Amendment 1 amends Clause 6 of the Bill by adding an example to
section 228H(1) and adding new subsections (2) and (3) to section 228H.
New section 228H provides that a person is not criminally responsible for
an offence against section 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 following examples of what conduct may be reasonable for the
performance of a law enforcement officer's duties will be added to
subsection (1)--
· Copying child exploitation material for the purposes of preparing a
brief for police prosecutors.
· Supplying child exploitation material to a classification officer for
classification or to the Office of the Director of Public Prosecutions
for use during the prosecution of a person for an offence.
· Keeping child exploitation material obtained during an investigation
for legitimate intelligence purposes.
The addition of these examples will give greater guidance as to the type of
conduct that may be excused by this provision.
New subsection (2) provides that the protection of subsection (1) does not
apply to the extent that the person's conduct consists of--
(a) engaging in an activity as part of an investigation of chapter 5
criminal activity; or
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Criminal Code (Child Pornography and Abuse)
Amendment Bill 2005
(b) engaging in conduct that is directed to obtaining evidence of the
commission of an offence against a particular person.
New subsection (3) provides that "chapter 5 criminal activity" has the
meaning given by the Police Powers and Responsibilities Act 2000, that is,
a suspected indictable offence, a suspected misconduct offence or
suspected organised crime (see section 165, Police Powers and
Responsibilities Act 2000).
The purpose of these new subsections is to ensure that law enforcement
officers investigating offences created by the Bill undertake otherwise
unlawful activities only as part of a controlled operation or as a controlled
activity, authorised under Chapter 5 of the Police Powers and
Responsibilities Act 2000.
© State of Queensland 2005