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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Criminal Code Amendment (Cyber Predators)
Bill 2005
CONTENTS
1. Short title 2
2. Commencement 2
3. The Criminal Code amended 2
4. Section 204B inserted 2
204B. Using electronic communication to
procure, or expose to indecent matter,
children under 16 2
5. Chapter LXXII heading amended 5
6. Section 711AA inserted 6
711AA. Order to facilitate access to data in data
storage devices 6
7. Consequential amendment to Working With
Children (Criminal Record Checking) Act 2004 8
087--1 page i
Western Australia
LEGISLATIVE ASSEMBLY
Criminal Code Amendment (Cyber Predators)
Bill 2005
A Bill for
An Act to amend the The Criminal Code and, in consequence, to
amend the Working With Children (Criminal Record Checking)
Act 2004.
The Parliament of Western Australia enacts as follows:
page 1
Criminal Code Amendment (Cyber Predators) Bill 2005
s. 1
1. Short title
This is the Criminal Code Amendment (Cyber Predators)
Act 2005.
2. Commencement
5 (1) Subject to subsection (2), this Act comes into operation on the
day on which it receives the Royal Assent.
(2) Section 6 comes into operation on a day fixed by proclamation.
3. The Criminal Code amended
The amendments in this Act other than section 7 are to The
10 Criminal Code*.
[* Reprint 12 as at 1 June 2005 (see the Schedule to the
Criminal Code Act 1913 appearing as Appendix B to the
Criminal Code Compilation Act 1913).]
4. Section 204B inserted
15 After section 204A the following section is inserted --
"
204B. Using electronic communication to procure, or
expose to indecent matter, children under 16
(1) In this section --
20 "computer generated image" means electronically
recorded data capable, by way of an electronic
device, of being produced on a computer monitor,
television screen, liquid crystal display or similar
medium as an image, whether or not the image is
25 in the form of text;
"electronic communication" has the meaning given to
that term in section 5 of the Electronic
Transactions Act 2003;
page 2
Criminal Code Amendment (Cyber Predators) Bill 2005
s. 4
"indecent matter" includes an indecent film,
videotape, audiotape, picture, photograph, or
printed or written matter;
"picture" includes an image, whether or not it is a
5 computer generated image;
"victim" means a person whom an adult, contrary to
subsection (2) or (3), intends to --
(a) procure to engage in sexual activity; or
(b) expose to any indecent matter.
10 (2) An adult who uses electronic communication --
(a) with intent to --
(i) procure a person under the age of
16 years to engage in sexual activity; or
(ii) expose a person under the age of
15 16 years to any indecent matter,
either in Western Australia or elsewhere; or
(b) with intent to --
(i) procure a person the offender believes is
under the age of 16 years to engage in
20 sexual activity; or
(ii) expose a person the offender believes is
under the age of 16 years to any
indecent matter,
either in Western Australia or elsewhere,
25 is guilty of a crime and is liable to imprisonment for
5 years.
(3) An adult who uses electronic communication --
(a) with intent to --
(i) procure a person under the age of
30 13 years to engage in sexual activity; or
page 3
Criminal Code Amendment (Cyber Predators) Bill 2005
s. 4
(ii) expose a person under the age of
13 years to any indecent matter,
either in Western Australia or elsewhere; or
(b) with intent to --
5 (i) procure a person the offender believes is
under the age of 13 years to engage in
sexual activity; or
(ii) expose a person the offender believes is
under the age of 13 years to any
10 indecent matter,
either in Western Australia or elsewhere,
is guilty of a crime and is liable to imprisonment for
10 years.
Alternative offence: subsection (2).
15 (4) For the purpose of subsection (2)(a)(i) or (b)(i) or
(3)(a)(i) or (b)(i), a person engages in sexual activity if
the person --
(a) allows a sexual act to be done to the person's
body;
20 (b) does a sexual act to the person's own body or
the body of another person; or
(c) otherwise engages in an act of an indecent
nature.
(5) The acts referred to in subsection (4) are not limited to
25 penetration or acts involving physical contact.
(6) For the purpose of subsection (2)(a)(i) or (b)(i) or
(3)(a)(i) or (b)(i), it is not necessary to prove that the
accused person intended to procure the victim to
engage in any particular sexual activity.
page 4
Criminal Code Amendment (Cyber Predators) Bill 2005
s. 5
(7) If, despite subsection (6), an intention to procure the
victim to engage in any particular sexual activity is
alleged, it does not matter that, because of
circumstances not known to the accused person, it is
5 impossible in fact for the victim to engage in the sexual
activity.
(8) For the purposes of subsection (2) or (3), it does not
matter that the victim is a fictitious person represented
to the accused person as a real person.
10 (9) Evidence that the victim was represented to the
accused person as being under the age of 16 years, or
13 years, as the case may be, is, in the absence of
evidence to the contrary, proof that the accused person
believed the victim was under that age.
15 (10) It is a defence to a charge under subsection (2)(a) to
prove the accused person believed on reasonable
grounds that the victim was of or over the age of
16 years.
(11) It is a defence to a charge under subsection (3)(a) to
20 prove the accused person believed on reasonable
grounds that the victim was of or over the age of
13 years, but that does not prevent the person from
being convicted of an offence under subsection (2).
".
25 5. Chapter LXXII heading amended
The heading to Chapter LXXII is amended by inserting before
"Custody" --
" Obtaining data from data storage devices: ".
page 5
Criminal Code Amendment (Cyber Predators) Bill 2005
s. 6
6. Section 711AA inserted
After section 711 the following section is inserted --
"
711AA. Order to facilitate access to data in data storage
5 devices
(1) In this section--
"data" includes --
(a) information in any form; and
(b) any program or part of a program;
10 "data storage device" means a computer or other
thing that --
(a) contains or is designed to contain; or
(b) provides access to or is designed to provide
access to,
15 data in digital, electronic or magnetic form;
"prescribed offence" means --
(a) an offence under section 204B, 320, 321,
321A, 322 or 329;
(b) an offence under section 60 of the
20 Censorship Act 1996; or
(c) any offence under this Code or another
written law that regulations prescribe as an
offence to which this section applies.
(2) A police officer may apply to a magistrate for an order
25 requiring a specified person to provide any information
or assistance that is reasonable and necessary to allow
the police officer to do one or more of the following --
(a) obtain access to data contained in or accessible
from a data storage device which is in the
30 police officer's possession, or to which the
police officer has access, whether under a
warrant or otherwise;
page 6
Criminal Code Amendment (Cyber Predators) Bill 2005
s. 6
(b) copy data referred to in paragraph (a) to another
data storage device;
(c) convert data referred to in paragraph (a) into
any documentary form.
5 (3) The magistrate may make the order if the magistrate is
satisfied that --
(a) there are reasonable grounds for suspecting that
anything relevant to a prescribed offence is
contained in or accessible from the data storage
10 device;
(b) the specified person --
(i) is reasonably suspected of having
committed the offence; or
(ii) is, or is an employee of, the owner or
15 lessee of the data storage device;
and
(c) the specified person has relevant knowledge
of --
(i) the data storage device or a computer
20 network of which the data storage
device forms a part; or
(ii) measures applied to protect data
contained in or accessible from the data
storage device.
25 (4) Without limiting subsection (3), a magistrate may
make an order under that subsection when issuing a
warrant under section 711 in respect of a prescribed
offence.
(5) In an order made under subsection (3) the magistrate
30 must indicate which of subsection (3)(b)(i) or (ii) is
applicable to the specified person.
page 7
Criminal Code Amendment (Cyber Predators) Bill 2005
s. 7
(6) If a specified person to whom subsection (3)(b)(i) is
applicable fails to comply with an order made under
subsection (3), the person is guilty of a crime and is
liable to imprisonment for 5 years.
5 (7) If a specified person to whom subsection (3)(b)(ii) is
applicable fails to comply with an order made under
subsection (3), the person is guilty of an offence and is
liable to imprisonment for 12 months and a fine of
$12 000.
10 (8) The Governor may make regulations prescribing --
(a) offences to which this section applies; and
(b) any other matters that are necessary or
convenient to be prescribed for giving effect to
the purposes of this section.
15 ".
7. Consequential amendment to Working With Children
(Criminal Record Checking) Act 2004
(1) The amendment in this section is to the Working With Children
(Criminal Record Checking) Act 2004*.
20 [* Act No. 65 of 2004.]
(2) Schedule 2 is amended by inserting after the item relating to The
Criminal Code section 187 --
"
s. 204B Using electronic communication to
procure, or expose to indecent matter,
children under 16
".
25
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