Acts Amendment (Sexual Offences) Act 1992 (WA)

WESTERN AUSTRALIA

ACTS AMENDMENT (SEXUAL

OFFENCES) ACT 1992

No. 14 of 1992

AN ACT to amend The Criminal Code and the

Bail Act 1982;

Evidence Act 1906;

Indecent Publications and Articles Act 1902;

Justices Act 1902; and

Video Tapes Classification and Control Act 1987,

in relation to sexual offences against children and

others and for related matters.

[Assented to 17 June 1992.]

The Parliament of Western Australia enacts as follows:

No. 14] Acts Amendment (Sexual Offences) Act 1992

PART 1— PRELIMINARY

Short title

1. This Act may be cited as the Acts Amendment (Sexual

Offences) Act 1992.

Commencement

2. This Act shall come into operation on such day as is, or days

as are respectively, fixed by proclamation.

Acts Amendment (Sexual Offences) Act 1992 [No. 14

PART 2 — THE CRIMINAL CODE

The Code

3. In this Part "the Code" means The Criminal Code*.

[* Reprinted as at 31 May 1991 as the Schedule to the Criminal Code Act 1913 appearing in Appendix B to the Criminal Code Act Compilation Act 19131

Section 1 amended and consequential amendments

4. (1) Section 1 (1) of the Code is amended by inserting in the appropriate alphabetical positions the following definitions —

" The term "assault" has the definition provided in

section 222;

The term "child" means —

(a)	any boy or girl under the age of 18 years; and
(b)	in the absence of positive evidence as to age, any boy or girl apparently under the

If.

age of 18 years;

(2) The provisions of the Code referred to in Column 1 of the Table to this subsection are amended in the manner set out opposite them in Column 2.

TABLE

Column 1

Column 2

s. 18

Delete "or young person under the age of 18

years".

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s. 282

Delete "or young person under the age of 18

years" in both places where it occurs.

Delete "or young person" in both places where it

occurs.

(3) Part A of Schedule 2 has effect.

Section 204A inserted

5. After section 204 of the Code the following section is

inserted —

Showing offensive material to children under 16

204A. (1) In this section, unless the contrary

intention appears —

"material" includes —

(a)	an object;
(b)	a still visual image of any kind, whether a drawing, painting, photo- graph, or other representation on a surface of any kind, and whether printed or not;
(c)	a moving visual image of any kind, whether produced from a cinemato- graphic film, video tape, or other medium;
(d)	a hologram;

"offensive material" means material that —

(a)	describes, depicts, expresses, or otherwise deals with matters of sex,

Acts Amendment (Sexual Offences) Act 1992 [No. 14

drug misuse or addiction, crime, cruelty or violence, or revolting or abhorrent phenomena, in a manner that is likely to cause offence to a reasonable adult;

(b)

depicts a person (whether engaged in sexual activity or otherwise) who is, or who is apparently, a child under the age of 16 years in a manner that is likely to cause offence to a reasonable adult;

(c)

describes, depicts, expresses, or otherwise deals with sexual activity of any kind between a human being and an animal; or

(d)

promotes, incites, or instructs in

matters of crime or violence,

and includes —

(e)	a film that has been refused approval by the censor under section 12 of the Censorship of Films Act 1947;

(0 a restricted publication as defined in section 6 (1) of the Indecent Publications and Articles Act 1902;

(g)	a video tape that has been refused classification under section 9 (2) of the Video Tapes Classification and Control Act 1987.

(2) A person who, with intent to commit a crime, shows offensive material to a child under the age of 16 years is guilty of a crime and is liable to imprisonment for 5 years.

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Upon an indictment charging a person with an offence under subsection (2), a certificate issued under an Act referred to in the definition of

(3)

"offensive material" in subsection (1) as to the

status of any material under that Act is, in the absence of evidence to the contrary, proof of the matters in the certificate.

It is a defence to a charge under subsection (2)

to prove the accused believed on reasonable grounds

that the child was of or over the age of 16 years.

(4)

Chapter XXXI inserted and consequential amendments

6. (1) After section 318A of the Code the following chapter is

inserted —

"	CHAPTER XXXI — SEXUAL OFFENCES

Interpretation

319. (1) In this chapter —

"circumstances of aggravation" means circumstances in which —

(a) at or immediately before or immediately after the commission of the offence —

(i) the offender is armed with any dangerous or offensive weapon or instrument or pretends to be so armed;

(ii) the offender is in company with another person or persons;

Acts Amendment (Sexual Offences) Act 1992 [No. 14

(iii) the offender does bodily harm to any person;

(iv) the offender does an act which is likely seriously and substantially to degrade or humiliate the victim; or

(v) the offender threatens to kill the victim;

(b) the victim is —

(i) of or over the age of 13 years and under the age of 16 years; or

(ii) of or over the age of 60 years;

"deals with" includes doing any act which, if done without consent, would constitute an assault;

"indecent act" means an indecent act which

is--

(a)

committed in the presence of or viewed by any person; or

(b)

photographed, videotaped, or recorded

in any manner;

"to indecently record" means to take, or permit to be taken, or make, or permit to be made, an indecent photograph, film, video tape, or other recording (including a sound recording);

No. 14] Acts Amendment (Sexual Offences) Act 1992

"to sexually penetrate" means —

(a) to penetrate the vagina (which term includes the labia majora), the anus, or the urethra of any person with —

(i) any part of the body of another person; or

(ii)	an object manipulated by another person,

except where the penetration is carried out for proper medical purposes;

(b) to manipulate any part of the body of another person so as to cause penetration of the vagina (which term includes the labia majora), the anus, or the urethra of the offender by part of the other person's body;

(d) to engage in cunnilingus or fellatio; or

(e) to continue sexual penetration as defined in paragraph (a), (b), (c) or (d).

(2) For the purposes of this chapter —

(a)	"consent" means a consent freely and voluntarily given and, without in any way affecting the meaning attributable to those words, a consent is not freely and voluntarily given if it is obtained by force,

Acts Amendment (Sexual Offences) Act 1992 [No. 14

threat, intimidation, deceit, or any

fraudulent means;

(b)	where an act would be an offence if done without the consent of a person, a failure by that person to offer physical resistance does not of itself constitute consent to the act;
(c)	a child under the age of 13 years is incapable of consenting to an act which constitutes an offence against the child.

(3) For the purposes of this chapter, a reference to a person indecently dealing with a child or an incapable person includes a reference to the person —

(a)	procuring or permitting the child or incapable person to deal indecently with the person;
(b)	procuring the child or incapable person to deal indecently with another person; or
(c)	committing an indecent act in the presence of the child or incapable person.

(4) For the purposes of this chapter, a person is said to engage in sexual behaviour if the person —

(a)	sexually penetrates any person;
(b)	has carnal knowledge of an animal; or
(c)	penetrates the person's own vagina (which term includes the labia majora), anus, or urethra with any object or any part of the person's body for other than proper medical purposes.

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Child under 13: Sexual offences against

320. (1) In this section "child" means a child

under the age of 13 years.

(2)

A person who sexually penetrates a child is

guilty of a crime and is liable to imprisonment for 20

years.

(3)

A person who procures, incites, or encourages

a child to engage in sexual behaviour is guilty of a

crime and is liable to imprisonment for 20 years.

A person who indecently deals with a child is

guilty of a crime and is liable to imprisonment for 10

years.

(4)

A person who procures, incites, or encourages

a child to do an indecent act is guilty of a crime and is

liable to imprisonment for 10 years.

(5)

A person who indecently records a child is guilty of a crime and is liable to imprisonment for 10

(6)

years.

Child of or over 13 and under 16:

Sexual offences against

321. (1) In this section, "child" means a child of or over the age of 13 years and under the age of 16 years.

(2) A person who sexually penetrates a child is guilty of a crime and is liable to the punishment in subsection (7).

Acts Amendment (Sexual Offences) Act 1992 [No. 14

(3) A person who procures, incites, or encourages a child to engage in sexual behaviour is guilty of a crime and is liable to the punishment in subsection (7).

(4) A person who indecently deals with a child is guilty of a crime and is liable to the punishment in subsection (8).

(5) A person who procures, incites, or encourages a child to do an indecent act, other than an indecent act that is committed in the presence of or viewed by

the spouse of that child, is guilty of a crime and is

liable to the punishment in subsection (8).

(6) A person who indecently records a child is guilty of a crime and is liable to the punishment in subsection (8).

(7) A person who is guilty of a crime under subsection (2) or (3) is liable to imprisonment for —

(a)	14 years;
(b)	where the child is under the care, supervision, or authority of the offender, 20 years; or
(c)	where the offender is under the age of 18 years and the child is not under the care, supervision, or authority of the offender, 7 years.

(8) A person who is guilty of a crime under subsection (4), (5) or (6) is liable to imprisonment for —

(a) 7 years;

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(b)	where the child is under the care, supervision, or authority of the offender, 10 years; or
(c)	where the offender is under the age of 18 years and the child is not under the care, supervision, or authority of the offender, 4 years.

It is a defence to a charge under this section to prove the accused person believed on reasonable grounds that the child was of or over the age of 16 years.

(9)

It is a defence to a charge under subsection

(2), (3), (4) or (6) to prove the accused person was

lawfully married to the child.

(10)

Child under 16: Sexual relationship with

321A. (1) For the purposes of this section a person has a sexual relationship with a child under the age of 16 years if that person, on 3 or more occasions each of which is on a different day, does an act in relation to the child which would constitute a prescribed offence.

In subsection (1) the act referred to need not

be the same act, or constitute the same offence on

each of the 3 or more occasions.

(2)

A person who has a sexual relationship with a

child under the age of 16 years is guilty of a crime and

is liable to imprisonment for 20 years.

(3)

An indictment under subsection (3) shall specify the period during which it is alleged that the sexual relationship occurred and the accused shall not be charged in the same indictment with any other

(4)

Acts Amendment (Sexual Offences) Act 1992 [No. 14

offence under this chapter alleged to have been

committed against the child during that period.

(5)

In proceedings on an indictment charging an offence under subsection (3) it is not necessary to specify the dates, or in any other way to particularize the circumstances, of the alleged acts.

(6)

An indictment for an offence under this section is to be signed by the Director of Public Prosecutions or the Deputy Director of Public Prosecutions.

(7)

It is a defence to a charge under subsection (3) to prove the accused person believed on reasonable grounds that the child was of or over the age of 16 years.

(8)

It is a defence to a charge under subsection (3)

to prove the accused person was lawfully married to

the child.

(9)

Upon an indictment charging a person with an offence under subsection (3), if the jury is not satisfied the accused person is guilty of that offence, the accused person may be convicted of one or more prescribed offences if the offence or offences are established by the evidence.

(10)

If a person has been tried and convicted or acquitted on an indictment alleging the commission of an offence under subsection (3), that fact is a defence to any charge of an offence under this chapter alleged to have been committed against the same child during the period when it was alleged the sexual relationship with the child occurred.

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(11) In this section, "prescribed offence" means —

(a)	an offence under section 320 (2) or (4) or 321 (2) or (4); or
(b)	an offence under section 320 (3) or 321 (3) where the child in fact engages in sexual behaviour.

Child of or over 16: Sexual offences against by person in authority etc.

322. (1) In this section "child" means a child of or

over the age of 16 years.

A person who sexually penetrates a child who is under his or her care, supervision, or authority is guilty of a crime and is liable to imprisonment for 10 years.

(2)

(3)

A person who procures, incites, or encourages a child who is under his or her care, supervision, or authority to engage in sexual behaviour is guilty of a crime and is liable to imprisonment for 10 years.

(4)

A person who indecently deals with a child who is under his or her care, supervision, or authority is guilty of a crime and is liable to imprisonment for 5 years.

A person who procures, incites, or encourages a child who is under his or her care, supervision, or authority to do an indecent act is guilty of a crime and is liable to imprisonment for 5 years.

(5)

Acts Amendment (Sexual Offences) Act 1992 [No. 14

(6)

A person who indecently records a child who is under his or her care, supervision, or authority is guilty of a crime and is liable to imprisonment for 5 years.

It is a defence to a charge under this section

to prove the accused believed on reasonable grounds

that the child was of or over the age of 18 years.

(7)

(8)

It is a defence to a charge under this section

to prove the accused person was lawfully married to

the child.

Juvenile male: Offences against

322A. (1) In this section "juvenile male" means a male person of or over the age of 16 years and under the age of 21 years.

(2)

A male person who sexually penetrates a juvenile male or who procures or permits a juvenile male to sexually penetrate him is guilty of a crime and is liable to imprisonment for 5 years.

A male person who indecently deals with a juvenile male or who procures a juvenile male to

(3)

indecently deal with him or another male or who permits a juvenile male to indecently deal with him is guilty of a crime and is liable to imprisonment for 4 years.

(4)

It is a defence to a charge under this section to prove the accused person believed on reasonable grounds that the juvenile male was of or over the age of 21 years.

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Indecent assault

323. A person who unlawfully and indecently

assaults another person is guilty of a crime and liable

to imprisonment for 5 years.

Aggravated indecent assault

324. A person who unlawfully and indecently assaults another person in circumstances of aggravation is guilty of a crime and is liable to imprisonment for 7 years.

Sexual penetration without consent

325. A person who sexually penetrates another

person without the consent of that person is guilty of a

crime and is liable to imprisonment for 14 years.

Aggravated sexual penetration without consent

326. A person who sexually penetrates another

person without the consent of that person in circumstances of aggravation is guilty of a crime and liable to imprisonment for 20 years.

Sexual coercion

327. A person who compels another person to

engage in sexual behaviour is guilty of a crime and is

liable to imprisonment for 14 years.

Acts Amendment (Sexual Offences) Act 1992 [No. 14

Aggravated sexual coercion

328. A person who compels another person to engage in sexual behaviour in circumstances of aggravation is guilty of a crime and is liable to imprisonment for 20 years.

Relatives and the like: Sexual offences by

329. (1) In this section —

"de facto child" means a step-child of the offender or a child or step-child of a person (whether or not of the same sex as the offender) who lives with the offender as if they are married;

"lineal relative" means a person who is a lineal ancestor, lineal descendant, brother, or sister, whether the relationship is of the whole blood or half-blood, whether or not the relationship is traced through, or to, a person whose parents were not married to each other at the time of the person's birth, or subsequently, and whether the relationship is a natural relationship or a relationship established by a written law.

(2)

A person who sexually penetrates a child who the offender knows is his or her lineal relative or a de facto child is guilty of a crime and is liable to the punishment in subsection (9).

(3)

A person who procures, incites, or encourages a child who the offender knows is his or her lineal relative or a de facto child to engage in sexual behaviour is guilty of a crime and is liable to the punishment in subsection (9).

No. 14] Acts Amendment (Sexual Offences) Act 1992

A person who indecently deals with a child who the offender knows is his or her lineal relative or a de facto child is guilty of a crime and is liable to the punishment in subsection (10).

(4)

A person who procures, incites, or encourages a child who the offender knows is his or her lineal relative or a de facto child to do an indecent act is guilty of a crime and is liable to the punishment in subsection (10).

(5)

(6)

A person who indecently records a child who the offender knows is his or her lineal relative or a de facto child is guilty of a crime and is liable to the punishment in subsection (10).

(7)

A person who sexually penetrates a person of or over the age of 18 years who the offender knows is his or her lineal relative is guilty of a crime and is liable to imprisonment for 3 years.

(8)

A person of or over the age of 18 years who consents to being sexually penetrated by a person who he or she knows is his or her lineal relative is guilty of a crime and is liable to imprisonment for 3 years.

A person who is guilty of a crime under subsection (2) or (3) is liable to imprisonment for —

(9)

(a) where the child is under the age of 16 years, 20 years; or

(b) where the child is of or over the age of 16

years, 10 years.

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[No. 14

(10) A person who is guilty of a crime under subsection (4), (5) or (6) is liable to imprisonment for —

(a)	where the child is under the age of 16 years, 10 years; or
(b)	where the child is of or over the age of 16 years, 5 years.

(11) On a charge under this section it shall be presumed in the absence of evidence to the contrary —

(a)	that the accused knew that he or she was related (whether lineally or as otherwise referred to in this section) to the other person; and
(b)	that people who are reputed to be related to each other in a particular way (whether lineally or as otherwise referred to in this section) are in fact related in that way.

Incapable person: Sexual offences against

330. (1) In this section a reference to an incapable

person is a reference to a person who is so mentally disabled or intellectually handicapped as to be incapable —

(a) of understanding the nature of the act the subject of the charge against the accused person; or

(b) of guarding himself or herself against sexual exploitation.

No. 14] Acts Amendment (Sexual Offences) Act 1992

(2) A person who sexually penetrates a person who the offender knows or ought to know is an incapable person is guilty of a crime and is liable to the punishment in subsection (7).

(3) A person who procures, incites, or encourages a person who the offender knows or ought to know is an incapable person to engage in sexual behaviour is guilty of a crime and is liable to the punishment in subsection (7).

(4) A person who indecently deals with a person who the offender knows or ought to know is an incapable person is guilty of a crime and is liable to the punishment in subsection (8).

(5) A person who procures, incites, or encourages a person who the offender knows or ought to know is an incapable person to do an indecent act is guilty of a crime and is liable to the punishment in subsection (8).

(6) A person who indecently records a person who the offender knows or ought to know is an incapable person is guilty of a crime and is liable to the punishment in subsection (8).

(7) A person who is guilty of a crime under subsection (2) or (3) is liable to imprisonment for —

(a)	14 years; or
(b)	where the incapable person is under the care, supervision, or authority of the offender, 20 years.

(8) A person who is guilty of a crime under subsection (4), (5) or (6) is liable to imprisonment for —

(a) 7 years; or

Acts Amendment (Sexual Offences) Act 1992 [No. 14

(b) where the incapable person is under the care, supervision, or authority of the offender, 10 years.

(9) It is a defence to a charge under this section to prove the accused person was lawfully married to the incapable person.

Ignorance of age no defence

331. It is no defence to a charge of a crime under section 320 or 329 in respect of which the age of the victim is relevant that the accused person did not know the age of the victim or believed the victim was

of or over that age.

(2)	Sections 185, 187, 188, 189, 190, 196, 197, 198 and 206 of

the Code are repealed.

(3)	Section 202 of the Code is amended by deleting "sections

185 to 193" and substituting the following —

"	section 186, 191 or 192

(4)	Chapter XXX!A of the Code is repealed.
(5)	If this Act comes into operation before the Acts

Amendment (Evidence) Act 1991 comes into operation —

(a) Chapter XXXII of the Code is repealed; and

(b) the Acts Amendment (Evidence) Act 1991 is amended

in section 12 (9) by deleting "and Chapter =Cr.

No. 14] Acts Amendment (Sexual Offences) Act 1992

(6) Section 398 of the Code is amended by —

(a)

deleting paragraph (b) and substituting the following paragraph —

"	(b) An offence under Chapter XXII or XXXI, or an attempt to commit such

7);

an offence; or

and

(b)	deleting paragraph (d).

(7) Schedule 1 has effect.

(8) Without in any way affecting the generality of the

operation of Schedule 1, Part B of Schedule 2 has effect.

Sections 596 to 596AC repealed and a section substituted

7. Sections 596, 596A, 596AA, 596AB and 596AC of the Code

are repealed and the following section is substituted —

Charges of sexual offences; alternative verdicts

596. Upon an indictment charging a person with a crime under a section in Column 1 of the Table to this section, the person may be convicted of a crime under a section opposite that section in Column 2 if that crime is established by the evidence.

Acts Amendment (Sexual Offences) Act 1992 [No. 14

TABLE

Column 1	Column 2
(section)	(section)
320 (2)	320 (4), 321 (2), 321 (4), 322 (2), 322 (4), 322A (2), 322A (3).
320 (3)	320 (4), 320 (5), 321 (3), 321 (4), 321 (5), 322 (3), 322 (4), 322 (5), 322A (2), 322A (3).
320 (4)	321 (4), 322 (4), 322A (3).
320 (5)	321 (5), 322 (5).
320 (6)	321 (6), 322 (6).
321 (2)	321 (4), 322 (2), 322 (4), 322A (2), 322A (3).
321 (3)	321 (4), 321 (5), 322 (3), 322 (4), 322 (5), 322A (2), 322A (3).
321 (4)	322 (4), 322A (3).
321 (5)	322 (5).
321 (6)	322 (6).
322 (2)	322 (4), 322A (2), 322A (3).
322 (3)	322 (4), 322 (5), 322A (2), 322A (3).

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Acts Amendment (Sexual Offences) Act 1992

322 (4)

322A (3)

324

321 (4), 322 (4),

322A (3),

323.

325

322 (2), 322 (4),

322A (2), 322A

(3),

323, 324.

326

321 (2), 321 (4),

322 (2), 322 (4),

322A (2), 322A

(3),

323, 324, 325.

327

322 (3), 322 (4),

322

(5),

322A (2), 322A

(3).

328

321 (3), 321 (4),	321	(5),
322 (3), 322 (4),	322	(5),

322A (2), 322A

(3),

327.

329 (2)

321 (2), 321 (4),

322 (2), 322 (4),

322A (2), 322A

(3),

329 (4).

329 (3)

321 (3), 321 (4),	321	(5),
322 (3), 322 (4),	322	(5),

322A (2), 322A

(3),

329 (4), 329 (5).

329	(4)	321 (4), 322 (4),	322A (3).
329	(5)	321 (5), 322 (5).

329 (6)

321 (6), 322 (6).

Acts Amendment (Sexual Offences) Act 1992 [No. 14

330 (2)	322 (2), 322 (4), 322A (2), 322A (3), 323, 324, 325, 326, 330 (4).
330 (3)	322 (3), 322 (4), 322 (5), 322A (2), 322A (3), 327, 328, 330 (4), 330 (5).
330 (4)	322 (4), 322A (3), 323, 324.
330 (5)	322 (5).
330 (6)	322 (6).

Section 635A repealed and a section substituted

8. Section 635A of the Code is repealed and the following

section is substituted —

Court to be open: Publicity

635A. (1) Unless expressly provided otherwise, the

court-room or place of hearing where a trial or other criminal proceeding is conducted is an open and public court to which all persons may have access so far as is practicable.

(2) If satisfied that it is necessary for the proper administration of justice to do so, a court may —

(a) order any or all persons or any class of persons to be excluded from the court-room or place of hearing during the whole or any part of the trial or other criminal proceeding;

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(b)	make an order prohibiting the publication outside the court-room or place of hearing of the whole or any part of the evidence or proceedings;
(c)	make an order prohibiting the publication outside the court-room or place of hearing of the whole or any part of the evidence or proceedings except in accordance with directions by the court.

(3) On an application by the prosecution or an accused person a court may order any person who may be called as a witness in the trial or other criminal proceeding to leave the court-room or place of hearing and to remain outside and beyond the hearing of the court until called to give evidence.

(4) Counsel or a solicitor engaged in the trial or other criminal proceeding shall not be excluded from the court-room or place of hearing under this section.

(5) A person who contravenes or fails to comply with an order made under this section commits an offence punishable —

(a)

by the Supreme Court as for contempt; or

(b)

after summary conviction, by imprisonment

for 12 months or a fine of $10 000.

(6) Only the Attorney General or a person on his behalf may take proceedings for a contravention of or a failure to comply with an order made under this section.

Section 736 repealed

9. Section 736 of the Code is repealed.

Acts Amendment (Sexual Offences) Act 1992 [No. 14

PART 3 — BAIL ACT 1982

Principal Act

10. In this Part the Bail Act 1982* is referred to as the

principal Act.

[* Reprinted under section 21 of the Bail Amendment Act

1988.

For subsequent amendments see 1990 Index to

Legislation of Western Australia, p. 12 and Acts Nos.

33 of 1989, 61 and 83 of 1990 and 15 of 1991.]

Schedule, Part C amended

11. The Schedule to the principal Act is amended in Part C

by deleting the full stop at the end of clause 1 (e) and

"substituting a semi-colon and inserting after clause 1 (e) the

following paragraph —

(f) where the defendant is charged with an offence that is alleged to have been committed in respect of a child, whether a condition should be imposed under Part D requiring the defendant to reside at a place other than the place where the child resides.

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PART 4 — EVIDENCE ACT 1906

Principal Act

12. In this Part, the Evidence Act 1906* is referred to as the

principal Act.

[* Reprinted as at 14 August 1986.

For subsequent amendments see 1990 Index to Legislation of Western Australia, p. 52 and Acts Nos. 66 of 1987, 34 of 1989, 47 of 1990 and 15 of 1991.]

Section 36A amended and consequential amendments

13. (1) Section 36A (1) of the principal Act is amended —

(a)	in the definitions of "complainant" and "defendant" by deleting "sexual assault offence" wherever it occurs and substituting in each case the following —

sexual offence

"; and

(b)	deleting the definition of "sexual assault offence" and substituting the following definition —

"sexual offence" means an offence —

(a)	under section 186, 191 (1) or 195 of The Criminal Code;
(b)	under Chapter XXXI of The Criminal Code;
(c)	of attempting to commit any of the offences under paragraph (a) or (b); or

Acts Amendment (Sexual Offences) Act 1992 [No. 14

(d)	of conspiring to commit any of the offences under paragraph (a) or (b).

(2) The principal Act is amended by deleting "sexual assault offence" wherever it occurs in the provisions referred to in the Table to this subsection and substituting in each case the following —

sexual offence

TABLE

s. 36A (2)	s. 36BA	s. 36BD
s. 36B	s. 36BC (1)	s. 36C

Section 38 repealed

14. Section 38 of the principal Act is repealed.

Second Schedule amended

15. (1) If this Act comes into operation before the Acts

Amendment (Evidence) Act 1991 comes into operation —

(a)	sections 9 (2) and (3) of the principal Act are repealed;
(b)

the Second Schedule to the principal Act is amended and XXXII" and substituting the following —

PI;

and Chapter XXXI

(c)	the Second Schedule to the principal Act is amended by deleting Parts II and III; and

(d) the Acts Amendment (Evidence) Act 1991 is amended

in section 10 by deleting from Part 1 of the Schedule

No. 14] Acts Amendment (Sexual Offences) Act 1992

being substituted the references to offences under sections 185, 187, 188, 189, 190, 197, 198, 324B, 324C, 324D and 324E of The Criminal Code and inserting in the appropriate positions the material to be inserted by subsection (2) of this section.

(2) If this Act does not come into operation before the Acts Amendment (Evidence) Act 1991 comes into operation, the Second Schedule to the principal Act as amended by that Act is amended in Part 1 by deleting the reference to offences under sections 185, 187, 188, 189, 190, 197, 198, 324B, 324C, 324D and 324E of The Criminal Code and inserting in the appropriate positions the following —

s. 320	Child under 13: Sexual offences against
s. 321	Child of or over 13 and under 16: Sexual offences against
s. 321A	Child under 16: Sexual relationship with
s. 322	Child of or over 16: Sexual offences against by person in authority etc.
s. 322A	Juvenile male: Sexual offences against
s. 323	Indecent assault
s. 324	Aggravated indecent assault
s. 325	Sexual penetration without consent
s. 326	Aggravated sexual penetration without consent
s. 327	Sexual coercion

Acts Amendment (Sexual Offences) Act 1992 [No. 14

s. 328

Aggravated sexual coercion

s. 329

Relatives and the like: Sexual

offences by

s. 330

Incapable person: Sexual offences

against

No. 14] Acts Amendment (Sexual Offences) Act 1992

PART 5 — INDECENT PUBLICATIONS AND ARTICLES

ACT 1902

Principal Act

16. In this Part the Indecent Publications and Articles Act

1902* is referred to as the principal Act.

[* Reprinted as approved 1 September 1975.

For subsequent amendments see 1990 Index to

Legislation of Western Australia, p. 75.]

Section 2A inserted and consequential amendments

17. (1) After section 2 of the principal Act the following

section is inserted —

Child pornography

"	2A. (1) For the purposes of this section —

(a)	unless the context otherwise requires "child pornography" means an indecent or obscene article, picture, photograph, lithograph, drawing, or representation which depicts a person (whether engaged in sexual activity or otherwise) who is, or who is apparently, a child under the age of 16 years;

and

(b)	a reference to the exhibiting of child pornography includes, in relation to a film, the screening of the film.

Acts Amendment (Sexual Offences) Act 1992 [No. 14

(2) A person who publishes, or causes to be published, an advertisement likely to be understood as conveying that the advertiser sells or supplies or exhibits child pornography commits an offence and is liable —

(a)	in the case of a corporation, to a fine not exceeding $15 000; or
(b)	in any other case, to a fine not exceeding $4 000 or imprisonment for a term not exceeding 12 months.

(3) A person who exhibits child pornography in a public place or a school, or who causes child pornography to be so exhibited commits an offence and is liable —

(a)	in the case of a corporation, to a fine of $15 000; or
(b)	in any other case, to a fine of $4 000 or imprisonment for a term not exceeding 12 months.

(4) A person who has possession of child pornography commits an offence and is liable —

(a)	in the case of a corporation, to a fine not exceeding $15 000; or
(b)	in any other case, to a fine not exceeding $4 000 or imprisonment for a term not exceeding 12 months.

(5) A person who —

(a) with intent to sell or supply it to another, has possession of; or

No. 14] Acts Amendment (Sexual Offences) Act 1992

(b)	sells or supplies, or offers to sell or supply, to another,

child pornography, or who causes or permits child pornography to be sold, supplied or so offered, commits an offence and is liable —

(c)	in the case of a corporation, to a fine not exceeding $100 000; or
(d)	in any other case, to a fine not exceeding $25 000 or imprisonment for a term not exceeding 5 years.

(6) A complaint for an offence against this section may be made at any time.

(2)	Section 9 (1) (b) of the principal Act is amended by

deleting "section 2" and substituting the following —

section 2 or 2A

(3)	Section 13 (2) of the principal Act is amended by deleting

"section 11" and substituting the following —

"	section 2A or 11

(4)	Section 14 of the principal Act is amended —

(a)	by deleting "or" after paragraph (b);
(b)	by deleting the full stop at the end of paragraph (c) and substituting the following —

; or

"; and

Acts Amendment (Sexual Offences) Act 1992 [No. 14

paragraph —

(d) an officer of the Department for Community Services under section 2A (3), (4) or (5) in respect of any act done or omitted to be done in good faith by the officer in the course of the officer's duties.

No. 14] Acts Amendment (Sexual Offences) Act 1992

PART 6 — JUSTICES ACT 1902

Principal Act

18. In this Part the Justices Act 1902* is referred to as the

principal Act.

[* Reprinted as approved 9 November 1984.

For subsequent amendments see 1990 Index to Legislation of Western Australia, pp. 81-2 and Acts Nos. 33 of 1989 and 61 of 1990.]

Section 65 and heading repealed and a section substituted

19. Section 65 of the principal Act and the heading "Publicity."

preceding the section are repealed and the following section is

substituted —

Court to be open: Publicity

65. (1) Unless expressly provided otherwise, the court-room or place of hearing where justices sit to hear and determine any complaint is an open and public court to which all persons may have access so far as is practicable.

(2) If satisfied that it is necessary for the proper administration of justice to do so, justices may —

(a)	order any or all persons or any class of persons to be excluded from the court-room or place of hearing during the whole or any part of the trial or other criminal proceeding;
(b)	make an order prohibiting the publication outside the court-room or place of hearing

Acts Amendment (Sexual Offences) Act 1992 [No. 14

of the whole or any part of the evidence or

proceedings;

(c) make an order prohibiting the publication outside the court-room or place of hearing of the whole or any part of the evidence or proceedings except in accordance with directions by the justices.

(3) On an application by the prosecution or an accused person justices may order any person who may be called as a witness in the trial or other criminal proceeding to leave the court-room or place of hearing and to remain outside and beyond the hearing of the court until called to give evidence.

(4) Counsel or a solicitor engaged in the trial or other criminal proceeding shall not be excluded from the court-room or place of hearing under this section.

(5) A person who contravenes or fails to comply with an order made under this section commits an offence punishable —

(a)

by the Supreme Court as for contempt; or

(b)

after summary conviction, by imprisonment

for 12 months or a fine of $10 000.

(6) Only the Attorney General or a person on his behalf may take proceedings for a contravention of or a failure to comply with an order made under this section.

No. 14] Acts Amendment (Sexual Offences) Act 1992

PART 7 — VIDEO TAPES CLASSIFICATION AND

CONTROL ACT 1987

Principal Act

20. In this Part the Video Tapes Classification and Control Act

1987* is referred to as the principal Act.

[* Act No. 73 of 1987.

For subsequent amendments see Act No. 19 of 1991.]

Section 35 amended

21. Section 35 (1) of the principal Act is amended by deleting "a

whole" and substituting the following —

I f

the whole

Section 36 repealed and consequential amendment

22. (1) Section 36 of the principal Act is repealed.

(2) Section 46A of the principal Act is amended by deleting

", 36".

Section 38 amended

23. Section 38 of the principal Act is amended by inserting

after "Act" the following —

or to an officer of the Department for Community Services in respect of any act done or omitted to be done in good faith by the officer in the course of the officer's duties.

Acts Amendment (Sexual Offences) Act 1992 [No. 14

SCHEDULE 1

[s. 6 (7)]

TRANSITIONAL AND SAVING

References to Chapter XXII of The Criminal Code

1. Unless the context requires otherwise, a reference in a written law enacted before this Act comes into operation to Chapter XXII of The Criminal Code is to be taken as including a reference to sections 320, 321, 322, 322A, 329 and 330 of The Criminal Code (as amended by this Act).

References to repealed sections of The Criminal Code

2. Unless the context otherwise requires, a reference in a written law enacted before this Act comes into operation to a section of The Criminal Code repealed by section 6 (2) of this Act is to be taken as a reference to the section or sections in Chapter XXXI of The Criminal Code (as amended by this Act) that correspond to the repealed section.

References to Chapter XXXIA of The Criminal Code

3. Unless the context otherwise requires, a reference in a written law enacted before this Act comes into operation to Chapter XXXIA of The Criminal Code (repealed by section 6 (4) of this Act) is to be taken as a reference to sections 323, 324, 325 and 326 of The Criminal Code (as amended by this Act).

References to sections 324B to 324H of The Criminal Code

4. Unless the context otherwise requires, a reference in a written law enacted before this Act comes into operation to section 32413, 324C, 324D, 324E, 324F, 324G or 32411 of The Criminal Code (repealed by section 6 (4) of this Act) is to be taken as a reference to the section in Chapter XXXI of The Criminal Code (as amended by this Act) that corresponds to the repealed section.

No. 141 Acts Amendment (Sexual Offences) Act 1992

SCHEDULE 2

CONSEQUENTIAL AMENDMENTS TO OTHER ACTS

PART A

[5. 4 (3)]

Children's Court of Western Australia Act 1988 amended

1. The Children's Court of Western Australia Act 1988 is amended in

section 3 in paragraph (b) of the definition of "child" by deleting

"under the apparent" and substituting the following —

apparently under the

Child Welfare Act 1947 amended

2. The Child Welfare Act 1947 is amended in section 4 (1) in the

definition of "child" by deleting "under the apparent" and substituting

the following —

apparently under the

PART B

Es. 6 (8)]

Children's Court of Western Australia Act 1988 amended

1. The Children's Court of Western Australia Act 1988 is amended in

section 35 (3) by deleting ',DMA" and substituting the following —

Child Welfare Act 1947 amended

2. The Child Welfare Act 1947 is amended —

(a)	in Division A of Part I of the Fourth Schedule by deleting the

items relating to sections 185, 197, 324D and 324E of The

Acts Amendment (Sexual Offences) Act 1992 [No. 14

Criminal Code and inserting in the appropriate position the

following items —

s. 320 (2)	Sexually penetrating a child under 13
s. 320 (3)	Procuring etc. a child under 13 to engage
in sexual behaviour
s. 321 (2)	Sexually penetrating a child of or over 13 and under 16, where the child is under the care, supervision, or authority of the offender
s. 321 (3)	Procuring etc. a child of or over 13 and under 16 to engage in sexual behaviour, where the child is under the care, supervision, or authority of the offender
s. 325	Sexual penetration without consent
s. 326	Aggravated sexual penetration without consent
s. 329 (2)	Sexually penetrating a child relative or a
de facto child, where the child is under 16
s. 329 (3)	Procuring etc. a child relative or a de
facto child to engage in sexual behaviour,
where the child is under 16
s. 330 (2)	Sexually penetrating an incapable person, where the incapable person is under the care, supervision, or authority of the offender
s. 330 (3)	Procuring etc. an incapable person to engage in sexual behaviour, where the incapable person is under the care, supervision, or authority of the offender

(b) in Division A of Part I of the Fourth Schedule, in the item

relating to section 398 of The Criminal Code —

(a)	by deleting paragraph (b) and substituting the following paragraph —

(b) an offence under Chapter XXII or XXXI of

The Criminal Code, or an attempt to

commit such an offence; or

and

(b)	by deleting paragraph (d).

No. 14] Acts Amendment (Sexual Offences) Act 1992

District Court of Western Australia Act 1969 amended

3. The District Court of Western Australia Act 1969 is amended in section 42 by repealing subsection (2a) and substituting the following subsection —

(2a) The Court has no jurisdiction to try an accused person charged with an offence against section 320 (2) or (3), 321A, 325, 326, 327 or 328 of The Criminal Code.