South Australian Numbered Acts South Australian Numbered Acts7—Insertion of Part 3 Division 11A
Part 3—after Division 11 insert:
Division 11A—Child pornography and related offences
62—Interpretation
In this Division—
"child" means a person under, or apparently under, the age of 16 years;
"child pornography" means material—
(a)
that—
(i)
describes or depicts a child engaging in sexual activity;
or
(ii)
consists of, or contains, the image of a child or bodily
parts of a child (or what appears to be the image of a child or bodily parts
of a child) or in the production of which a child has been or appears to have
been involved; and
(b) that
is intended or apparently intended—
(i)
to excite or gratify sexual interest; or
(ii)
to excite or gratify a sadistic or other perverted
interest in violence or cruelty;
"disseminate"—a person disseminates child pornography if the
person—
(a)
sends, supplies, exhibits, transmits or communicates it to another, or enters
into an agreement or arrangement to do so; or
(b)
makes it available for access by another (including access by means of a
computer) or enters into an agreement or arrangement to do so;
"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
photographic, electronic or other information or data from which an image or
representation may be produced or reproduced; or
(e) any
film, tape, disc, or other object or system containing any such information or
data;
"pornographic nature" of child pornography means the aspects of the material
by reason of which it is pornographic;
"private act" means—
(a) a
sexual act; or
(b) an
act involving an intimate bodily function such as using a toilet; or
(c) an
act or activity involving undressing to a point where the body is clothed only
in undergarments; or
(d) an
activity involving nudity or exposure or partial exposure of sexual organs,
pubic area, buttocks or female breasts;
"prurient purpose"—a person acts for a prurient purpose if the person
acts with the intention of satisfying his or her own desire for sexual arousal
or gratification or of providing sexual arousal or gratification for someone
else.
63—Production or dissemination of child pornography
A person who—
(a)
produces, or takes any step in the production of, child pornography knowing of
its pornographic nature; or
(b)
disseminates, or takes any step in the dissemination of, child pornography
knowing of its pornographic nature,
is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
63A—Possession of child pornography
(1) A person
who—
(a) is
in possession of child pornography knowing of its pornographic nature; or
(b)
intending to obtain access to child pornography, obtains access to child
pornography or takes a step towards obtaining access to child pornography,
is guilty of an offence.
Maximum penalty:
(a) for
a first offence—imprisonment for 5 years; or
(b) for
a subsequent offence—imprisonment for 7 years.
(2) It is a defence to
a charge of an offence against subsection (1) to prove that the material
to which the charge relates came into the defendant's possession unsolicited
and that the defendant, as soon as he or she became aware of the material and
its pornographic nature, took reasonable steps to get rid of it.
(3) In determining
whether an offence against subsection (1) is a first or subsequent
offence, a court must treat a previous offence involving child pornography
against any provision of this Division, or a corresponding previous enactment,
as a previous offence.
63B—Procuring child to commit indecent act etc
(1) A person
who—
(a)
incites or procures the commission by a child of an indecent act; or
(b)
acting for a prurient purpose—
(i)
causes or induces a child to expose any part of his or
her body; or
(ii)
makes a photographic, electronic or other record from
which the image, or images, of a child engaged in a private act may be
reproduced,
is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
(2)
Subsection (1) applies whether the acts alleged to constitute the
offence—
(a)
occur in private or in public; or
(b)
occur with or without the consent of the child, or the child's parent or
guardian.
(3) A person
who—
(a)
procures a child or makes a communication with the intention of procuring a
child to engage in, or submit to, a sexual activity; or
(b)
makes a communication for a prurient purpose and with the intention of making
a child amenable to a sexual activity,
is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
63C—Pornographic nature of material
(1) In determining
whether material to which a charge of an offence relates is of a pornographic
nature, the circumstances of its production and its use or intended use may be
taken into account but no such circumstance can deprive material that is
inherently pornographic of that character.
(2) No offence is
committed against this Division by reason of the production, dissemination or
possession of material in good faith and for the advancement or dissemination
of legal, medical or scientific knowledge.
(3) No offence is
committed against this Division by reason of the production, dissemination 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 aspects of the work that might otherwise
be considered pornographic.
(4) No offence is
committed against this Division by reason of—
(a) the
possession or dissemination of a publication, film or computer game that has
been classified under the Classification (Publications, Films and Computer
Games) Act 1995 (unless it is classified as a publication for which
classification is refused (RC)); or
(b) the
possession of a publication, film or computer game for the purposes of
obtaining a classification under that Act.