Queensland Numbered Acts Queensland Numbered ActsAfter section 228--
insert--
'(1) A person who involves a child in the making of child exploitation material commits a crime.
Maximum penalty--10 years imprisonment.
'(2) In this section--
involves 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.
'(1) A person who makes child exploitation material commits a crime.
Maximum penalty--10 years imprisonment.
'(2) In this section--
make child exploitation material includes--
(a) produce child exploitation material; and
(b) attempt to make child exploitation material.
'(1) A person who distributes child exploitation material commits a crime.
Maximum penalty--10 years imprisonment.
'(2) 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.
'A person who knowingly possesses child exploitation material commits a crime.
Maximum penalty--5 years imprisonment.
'(1) Subsections (2), (3) and (5) prescribe defences available to a person charged with an offence against section 228A, 228B, 228C or 228D.
'(2) It is a defence for the person to prove that--
(a) the person engaged in the conduct that is alleged to constitute the offence 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.
Example of something made for a 'public benefit'--
A current affairs television program showing children being tortured during a civil war.
'(3) It is a defence for the person to prove that, at the time of the alleged 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.
Example--
A Brisbane medical school is given an exemption under the Classification of Computer Games and Images Act 1995, section 59, to allow the medical school to possess computer images of tortured children, and to distribute the images to its medical students. The exemption is subject to a condition that the medical students are not allowed to distribute the images to anyone, including to themselves at another computer. Amy, a medical student, sends a copy of the images to her home computer and also to her brother Bob's computer. Neither Amy nor Bob could claim a defence under subsection (3), because their possession of the images is not consistent with the exemption.
'(4) Whether conduct was engaged in for a purpose mentioned in subsection (2)(a) or (3)(b)(i) is a question of fact.
'(5) It is a defence for the person to prove that the material alleged to be child exploitation material is--
(a) a computer game that, under the Classification (Publications, Films and Computer Games) Act 1995 (Cwlth), is a film classified R or X; or
(b) a computer game, film or publication that is classified as something other than RC.
'(6) For subsection (5), the material may have been classified before, or may be classified after, the offence is alleged to have been committed.
'(7) A certificate that states any of the following facts is evidence of that fact--
(a) whether a stated computer game, film or publication has been classified;
(b) if a stated computer game, film or publication has been classified--the classification given to the computer game, film or publication.
'(8) In this section--
certificate means--
(a) a certificate under the Classification (Publications, Films and Computer Games) Act 1995 (Cwlth), section 87; or
(b) a certificate signed, or purporting to be signed, by--
(i) for a computer game--the computer games classification officer under the Classification of Computer Games and Images Act 1995; or
(ii) for a publication--the publications classification officer under the Classification of Publications Act 1991.
classification exemption means an exemption given under--
(a) for a computer game--the Classification of Computer Games and Images Act 1995, section 59; or
(b) for a publication--the Classification of Publications Act 1991, section 37.
'(1) When material alleged to be child exploitation material is on display in a courtroom, the court must exclude from the courtroom anyone who is not an essential person.
'(2) An essential person is--
(a) a party, or a person representing a party, to the proceeding; or
(b) a Crown Law officer or a person authorised by a Crown Law officer; or
(c) the prosecutor; or
(d) a witness giving evidence; or
(e) a person who a witness is entitled to have present in court under the Evidence Act 1977, section 21A(2)(d) or 21AV or the Criminal Law (Sexual Offences) Act 1978, section 5(1)(f); or
(f) a person whose presence is, in the court's opinion, necessary or desirable for the proper conduct of the proceeding; or
(g) a person who applies to the court to be present and whose presence, in the court's opinion--
(i) would serve a proper interest of the person; and
(ii) would not be prejudicial to the interests of any child described or depicted in the child exploitation material, whether or not any child can be identified from the child exploitation material.
'(3) When forming an opinion under subsection (2)(f) or (g), the court must consider the public benefit of limiting the number of people with access to child exploitation material.
'(1) This section applies if a person is prosecuted for an offence against--
(a) section 210(1)(f); 1 or
(b) section 228A, 228B, 228C or 228D.
'(2) Whether or not the person is convicted of the offence, the court may order the photograph, visual image, or material that is the subject of the offence be forfeited to the State.
'(3) If the person is convicted of the offence, the court may also order that anything used to commit the offence be forfeited to the State.
Example of a thing used to commit the offence--
A computer, camera or sound recording device.
'(4) Subsections (2) and (3) apply whether the thing to be forfeited has been seized or is in its owner's possession.
'(5) The court may also make any order that it considers appropriate to enforce the forfeiture.
'(6) This section does not limit the court's powers under the Penalties and Sentences Act 1992, the Criminal Proceeds Confiscation Act 2002 or another law.
'(7) When forfeited to the State, the thing becomes the State's property and may be dealt with as directed by the chief executive.
'(1) 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.
Examples of conduct that may be reasonable for the performance of a law enforcement officer's duties--
1 Copying child exploitation material for the purposes of preparing a brief for police prosecutors
2 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
3 Keeping child exploitation material obtained during an investigation for legitimate intelligence purposes
'(2) However, 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
(b) engaging in conduct that is directed to obtaining evidence of the commission of an offence against a particular person.2
'(3) In this section--
chapter 5 criminal activity has the meaning given by the Police Powers and Responsibilities Act 2000.
law enforcement agency means--
(a) the Queensland Police Service; or
(b) the Office of the Director of Public Prosecutions; or
(c) the Crime and Misconduct Commission; or
(d) any other entity of--
(i) another State; or
(ii) the Commonwealth; or
(iii) another country;
that performs a similar function to an entity in paragraphs (a) to (c).
law enforcement officer means--
(a) a member or officer of a law enforcement agency, including a person appearing for the director under the Director of Public Prosecutions Act 1984, section 10(4); or
(b) a person who is authorised, in writing, by the commissioner of the police service, or the chairperson of the Crime and Misconduct Commission, to help a member or officer of a law enforcement agency; or
(c) a person who belongs to a class of persons that is authorised, in writing, by the commissioner of the police service, or the chairperson of the Crime and Misconduct Commission, to help a member or officer of a law enforcement agency.'.