South Australian Current Acts

SUMMARY OFFENCES ACT 1953 - SECT 33

33—Indecent or offensive material

        (1)         In this section—

"computer data" means electronic data from which an image, sound or text may be created by means of a computer;

"computer record or system" means a computer disk or tape or other object or device on which computer data is stored;

"indecent material" means material that is, in whole or in part, of an indecent, immoral or obscene nature;

"indecent or offensive aspects" of indecent material or offensive material means those aspects or characteristics of the material by virtue of which it is indecent material or offensive material;

"material" includes—

            (a)         any written or printed material; or

            (b)         any picture, painting or drawing; or

            (c)         any carving, sculpture, statue or figure; or

            (d)         any photograph, film, video recording or other object or thing from which an image may be reproduced; or

            (da)         any computer data or the computer record or system containing the data; or

            (e)         any other material or object on which an image or representation is recorded or from which an image or representation may be reproduced;

"offensive material" means material—

            (a)         of which the subject matter is or includes—

                  (i)         violence or cruelty; or

                  (ii)         the manufacture, acquisition, supply or use of instruments of violence or cruelty; or

                  (iii)         the manufacture, acquisition, supply, administration or use of drugs; or

                  (iv)         instruction in crime; or

                  (v)         revolting or abhorrent phenomena; and

            (b)         which would cause serious and general offence amongst reasonable adult members of the community;

"sell" includes—

            (a)         barter, exchange or let on hire; or

            (b)         offer or have in possession for sale, barter, exchange or hire; or

            (c)         deliver for the purpose of, or in pursuance of, sale, barter, exchange or hire,

and "sale" has a corresponding meaning.

        (2)         A person who—

            (a)         produces, or takes any step in the production of, indecent or offensive material for the purpose of sale; or

            (b)         sells indecent or offensive material; or

            (c)         exhibits indecent or offensive material in a public place or so as to be visible from a public place; or

            (d)         deposits indecent or offensive material in a public place or, except with the permission of the occupier, in or on private premises; or

            (e)         exhibits indecent material to a person so as to offend or insult that person; or

            (f)         delivers or exhibits indecent or offensive material to a minor (other than a minor of whom the person is a parent or guardian); or

            (g)         being a parent or guardian of a minor, causes or permits the minor to deliver or exhibit indecent or offensive material to another person; or

            (h)         causes or permits a person to do an act referred to in a preceding paragraph of this subsection,

is guilty of an offence.

Maximum penalty: $20 000 or imprisonment for 6 months.

        (4)         In proceedings for an offence against this section, the circumstances of the production, sale, exhibition, delivery or possession of material to which the charge relates and its use or intended use may be taken into account in determining whether the material was indecent or offensive material, but, if the material was inherently indecent or offensive material, the circumstances of its production, sale, exhibition, delivery or possession or its use or intended use cannot be taken to have deprived it of that character.

        (5)         Despite the preceding provisions of this section—

            (a)         no offence is committed by reason of the production, sale, exhibition, delivery or possession of material in good faith and for the advancement or dissemination of legal, medical or scientific knowledge; and

            (b)         no offence is committed by reason of the production, sale, exhibition, delivery or possession of material that constitutes, or forms part of, a work of artistic merit if, having regard to the artistic nature and purposes of the work as a whole, there is no undue emphasis on its indecent or offensive aspects.

        (6)         A prosecution for an offence against this section cannot be commenced without the written consent of the Minister.

        (7)         In deciding whether to consent to a prosecution under this section, the Minister must have regard to any relevant decision of the National Board or National Review Board under the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth.

        (8)         In proceedings for an offence against this section, an apparently genuine document purporting to be signed by the Minister and to be a consent to a prosecution under this section will be accepted by the court, in the absence of proof to the contrary, as proof of that consent.

        (9)         Upon finding a person guilty of an offence against this section, a court may, upon the application of the prosecutor or on its own initiative, order that indecent or offensive material to which the proceedings relate be forfeited to the Crown.

        (10)         This section does not derogate from the Classification (Publications, Films and Computer Games) Act 1995 .