Child Pornography and Exploitation Material and Classification Legislation Amendment Act 2010 (WA)

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Western Australia

Child Pornography and Exploitation Material

and Classification Legislation Amendment

Act 2010

Western Australia

Child Pornography and Exploitation

Material and Classification Legislation

Amendment Act 2010

CONTENTS

Part 1 — Preliminary

1.

Short title

2

2.

Commencement

2

Part 2 — Child exploitation material

offences

Division 1 — The Criminal Code amended

3.

Act amended

3

4.

Part IV Chapter XXIV inserted

3

Chapter XXIV — Child exploitation material

216.

Terms used

3

217.

Involving child in child exploitation

4

218.

Production of child exploitation material

4

219.

Distribution of child exploitation material

4

220.

Possession of child exploitation material

5

221A.

Defences and exclusions for section 217,

218, 219 or 220

5

221B.

Forfeiture

7

5.

Section 557K amended

8

Division 2 — Classification (Publications, Films

and Computer Games) Enforcement

Act 1996 amended

6.

Act amended

8

7.

Section 3 amended

8

8.

Part 7 Division 1 heading amended

9

9.

Section 60 deleted

9

10.

Section 99 amended

9

Child Pornography and Exploitation Material and Classification Legislation

Amendment Act 2010

Contents

11.

Section 116 amended

9

12.

Section 117 amended

9

Division 3 — Consequential amendments

13.

Community Protection (Offender Reporting)

Act 2004 amended

10

14.

Prostitution Act 2000 amended

10

15.

Working with Children (Criminal Record

Checking) Act 2004 amended

11

Part 3 — Amendments consequential

to the Classification

(Publications, Films and

Computer Games) Amendment

Act 2007 (Commonwealth)

16.

Act amended

12

17.

Section 3 amended

12

18.

Section 7 inserted

12

7.

Films consisting only of classified films

12

19.

Section 66 amended

13

20.

Section 74 amended

13

21.

Section 96 amended

14

22.

Section 102F amended

14

23.

Section 106 amended

14

24.

Section 108 amended

15

25.

Section 130 amended

16

26.

Section 141 amended

17

Part 4 — Amendments in relation to

advertising

27.

Act amended

18

28.

Section 3 amended

18

29.

Section 90 amended

18

30.

Section 91 amended

19

31.

Section 92 amended

19

32.

Section 94 amended

21

33.

Section 95 amended

22

34.

Section 102D amended

24

35.

Section 152A inserted

24

152A.

Advertisements for unclassified films

24

Child Pornography and Exploitation Material and Classification Legislation

Amendment Act 2010

Contents

Western Australia

Child Pornography and Exploitation Material

and Classification Legislation Amendment

Act 2010

No. 21 of 2010

An Act to amend The Criminal Code in relation to child exploitation material offences, to make consequential and other amendments to the Classification (Publications, Films and Computer Games)

Enforcement Act 1996 and for related purposes.

[Assented to 7 July 2010]

The Parliament of Western Australia enacts as follows:

Child Pornography and Exploitation Material and Classification

Legislation Amendment Act 2010

Part 1

Preliminary

s. 1

Part 1 — Preliminary

1.             Short title

This is the Child Pornography and Exploitation Material and

Classification Legislation Amendment Act 2010.

2.             Commencement

This Act comes into operation as follows —

(a)

sections 1 and 2 — on the day on which this Act receives the Royal Assent;

(b)

the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions.

Child Pornography and Exploitation Material and Classification

Legislation Amendment Act 2010

Child exploitation material offences

Part 2

The Criminal Code amended

Division 1

s. 3

Part 2 — Child exploitation material offences

Division 1 — The Criminal Code amended

3.             Act amended

This Division amends The Criminal Code.

4.             Part IV Chapter XXIV inserted

At the end of Part IV insert:

Chapter XXIV — Child exploitation material

216.         Terms used

In this Chapter —

child means a person under 16 years of age;

child exploitation material means —

(a) child pornography; or

(b)

material that, in a way likely to offend a reasonable person, describes, depicts or represents a person, or part of a person, who is,

or appears to be, a child —

(i)      in an offensive or demeaning context; or

(ii)      being subjected to abuse, cruelty or torture (whether or not in a sexual context);

child pornography means material that, in a way likely

to offend a reasonable person, describes, depicts or

represents a person, or part of a person, who is, or

appears to be a child —

(a)

engaging in sexual activity; or

(b) in a sexual context;

Child Pornography and Exploitation Material and Classification

Legislation Amendment Act 2010

Part 2

Child exploitation material offences

Division 1

The Criminal Code amended

s. 4

material includes —

(a)

any object, picture, film, written or printed matter, data or other thing; and

(b)

any thing from which text, pictures, sound or data can be produced or reproduced, with or without the aid of anything else;

picture has the meaning given in section 204B.

217.         Involving child in child exploitation

(1)

For the purposes of this section, a person involves a

child in child exploitation if the person —

(a)

invites a child to be in any way involved in the production of child exploitation material; or

(b)

causes a child to be in any way involved in the production of child exploitation material; or

(c)

procures a child for the purpose of the production of child exploitation material; or

(d)

offers a child for the purpose of the production of child exploitation material.

(2)

A person who involves a child in child exploitation is

guilty of a crime and is liable to imprisonment for

10 years.

218.         Production of child exploitation material

A person who produces child exploitation material is

guilty of a crime and is liable to imprisonment for

10 years.

219.         Distribution of child exploitation material

(1)

In this section —

distribute child exploitation material, includes —

(a)

communicate, exhibit, sell, send, supply, offer or transmit child exploitation material to

Child Pornography and Exploitation Material and Classification

Legislation Amendment Act 2010

Child exploitation material offences

Part 2

The Criminal Code amended

Division 1

s. 4

another person, or enter into an agreement or

arrangement to do so; or

(b)

make child exploitation material available for access by electronic or other means by another person, or enter into an agreement or arrangement to do so.

(2)

A person who distributes child exploitation material is

guilty of a crime and is liable to imprisonment for

10 years.

(3)

A person who has possession of child exploitation

material with the intention of distributing the material

is guilty of a crime and is liable to imprisonment for

10 years.

220.         Possession of child exploitation material

A person who has possession of child exploitation

material is guilty of a crime and is liable to

imprisonment for 7 years.

221A.

Defences and exclusions for section 217, 218, 219

or 220

(1A)

It is no defence to a charge of an offence under section

217, 218, 219 or 220 to prove that the accused person

did not know the age of the child to whom the charge

relates, or the age of the child described, depicted or

represented in the material to which the charge relates,

or believed that the child was of or over 16 years of

age.

(1)

It is a defence to a charge of an offence under section 217, 218, 219 or 220 to prove that —

(a)

the material to which the charge relates was classified (whether before or after the commission of the alleged offence) under the Classification (Publications, Films and

Child Pornography and Exploitation Material and Classification

Legislation Amendment Act 2010

Part 2

Child exploitation material offences

Division 1

The Criminal Code amended

s. 4

Computer Games) Act 1995 (Commonwealth),

other than as refused classification (RC); or

(b)

the accused person did not know, and could not reasonably be expected to have known, that the material to which the charge relates describes,

depicts or represents a person or part of a

person in a way likely to offend a reasonable

person; or

(c)

the material to which the charge relates was —

(i)      of recognised literary, artistic or scientific merit; or

(ii)      of a genuine medical character,

and that the act to which the charge relates is

justified as being for the public good; or

(d)

the accused person was acting for a genuine child protection or legal purpose, and that the person’s conduct was reasonable for that purpose.

(2)

It is a defence to a charge of an offence under

section 220 to prove that —

(a)

the material to which the charge relates came into the accused person’s possession unsolicited; and

(b)

as soon as the accused person became aware of the nature of the material the accused person took reasonable steps to get rid of it.

(3)

Nothing in section 219 or 220 makes it an offence —

(a)

for a member or officer of a law enforcement agency to possess or distribute child exploitation material when acting in the course of his or her official duties; or

Child Pornography and Exploitation Material and Classification

Legislation Amendment Act 2010

Child exploitation material offences

Part 2

The Criminal Code amended

Division 1

s. 4

(b)

for a person to possess or distribute child exploitation material in the exercise of a function relating to the classification of such

material conferred or imposed on the person under the Classification (Publications, Films and Computer Games) Act 1995

(Commonwealth).

(4)

In subsection (3)(a) —

law enforcement agency means —

(a)

the Police Force of the State; or

(b)

the Police Service of the State; or

(c)

the Office of the Director of Public Prosecutions of the State; or

(d)

the Corruption and Crime Commission; or

(e)

any entity of another State or a Territory, the Commonwealth or another country that has functions similar to functions of an entity referred to in paragraph (a), (b), (c) or (d).

221B. Forfeiture

(1)

If a person is charged with an offence against

section 217, 218, 219 or 220, the court may order the

material to which the charge relates be forfeited to the

State.

(2)

The court may make an order under subsection (1)

whether or not the person is convicted of the offence.

(3)

This section does not limit the court’s powers under

section 731 or under the Criminal Property

Confiscation Act 2000.

Child Pornography and Exploitation Material and Classification

Legislation Amendment Act 2010

Part 2

Child exploitation material offences

Division 2

Classification (Publications, Films and Computer Games)

Enforcement Act 1996 amended

s. 5

5.             Section 557K amended

In section 557K(1) in the definition of child sex offender:

(a)

after paragraph (a)(i) insert:

(iia)

Chapter XXIV — Child exploitation

material;

(b)

in paragraph (e) after “offence under” insert:

the deleted

(c)

in paragraph (f)(ii) delete “child pornography;” and insert —

child exploitation material (as defined in section 216);

(d)

after each of paragraphs (a) to (i) insert:

or

Division 2 — Classification (Publications, Films and Computer

Games) Enforcement Act 1996 amended

6.             Act amended

This Division amends the Classification (Publications, Films

and Computer Games) Enforcement Act 1996.

7.             Section 3 amended

In section 3 delete the definition of child pornography.

Child Pornography and Exploitation Material and Classification

Legislation Amendment Act 2010

Child exploitation material offences

Part 2

Classification (Publications, Films and Computer Games)

Division 2

Enforcement Act 1996 amended

s. 8

8.             Part 7 Division 1 heading amended

In the heading to Part 7 Division 1 delete “articles, child

pornography” and insert:

articles

9.             Section 60 deleted

Delete section 60.

10.           Section 99 amended

In section 99 in the definition of objectionable material delete

paragraph (b).

11.           Section 116 amended

Delete section 116(2).

12.           Section 117 amended

(1)

In section 117(2a):

(a)

in paragraph (a) delete “18+;” and insert:

18+; or

(b)

in paragraph (b) delete “RC; or” and insert:

RC,

(c)

delete paragraph (c).

(2)

In section 117(3) delete “(2a)(a), (b) or (c)” and insert:

(2a)(a) or (b)

Child Pornography and Exploitation Material and Classification

Legislation Amendment Act 2010

Part 2

Child exploitation material offences

Division 3

Consequential amendments

s. 13

Division 3 — Consequential amendments

13. Community Protection (Offender Reporting) Act 2004 amended

(1)

This section amends the Community Protection (Offender

Reporting) Act 2004.

(2)

In Schedule 2:

(a)

after the item relating to The Criminal Code s. 204B(3)

insert:

s. 217

Involving child in child exploitation

s. 218

Production of child exploitation material

s. 219

Distribution of child exploitation material

s. 220

Possession of child exploitation material

(b)

under the heading relating to the Classification

(Publications, Films and Computer Games) Enforcement

Act 1996 delete “s. 60” and insert:

the deleted s. 60

14. Prostitution Act 2000 amended

(1)

This section amends the Prostitution Act 2000.

(2)

In Schedule 1:

(a)

under the heading relating to the Classification

(Publications, Films and Computer Games) Enforcement

Act 1996 delete “s. 60” and insert:

the deleted s. 60

Child Pornography and Exploitation Material and Classification

Legislation Amendment Act 2010

Child exploitation material offences

Part 2

Consequential amendments

Division 3

s. 15

(b)

after the item relating to The Criminal Code s. 204A

insert:

s. 217

s. 218

s. 219

s. 220

15. Working with Children (Criminal Record Checking) Act 2004 amended

(1)

This section amends the Working with Children (Criminal

Record Checking) Act 2004.

(2)

In Schedule 2:

(a)

after the item relating to The Criminal Code s. 204B insert:

s. 217

Involving child in child exploitation

s. 218

Production of child exploitation material

s. 219

Distribution of child exploitation material

s. 220

Possession of child exploitation material

(b)

under the heading relating to the Classification

(Publications, Films and Computer Games) Enforcement

Act 1996 delete “s. 60” and insert:

the deleted s. 60

Child Pornography and Exploitation Material and Classification

Legislation Amendment Act 2010

Part 3

Amendments consequential to the Classification (Publications,

Films and Computer Games) Amendment Act 2007

(Commonwealth)

s. 16

Part 3 — Amendments consequential to the

Classification (Publications, Films and Computer Games) Amendment Act 2007 (Commonwealth)

16.           Act amended

This Part amends the Classification (Publications, Films and

Computer Games) Enforcement Act 1996.

17.           Section 3 amended

In section 3:

(a)

delete the definition of approved form and insert:

approved form means a form approved under

section 8A of the Commonwealth Act;

(b)

insert in alphabetical order:

Convenor means the Convenor of the Review Board

appointed under section 74 of the Commonwealth Act;

18.           Section 7 inserted

At the end of Part 1 insert:

7.             Films consisting only of classified films

Despite any other provision of this Act, a film —

(a)

that is contained on one device; and

(b)

that consists only of 2 or more classified films,

is to be treated, for the purposes of this Act, as if each

of the classified films were on a separate device.

Child Pornography and Exploitation Material and Classification

Legislation Amendment Act 2010

Amendments consequential to the Classification (Publications,

Part 3

Films and Computer Games) Amendment Act 2007

(Commonwealth)

s. 19

19.           Section 66 amended

(1)

In section 66 delete “A person” and insert:

(1) A person

(2)

At the end of section 66 insert:

(2)

Subsection (1) is not contravened by reason only of the

exhibition of a classified film —

(a)

under a title different from that under which it is classified if it is contained on one device that consists only of 2 or more classified films; or

(b)

with a modification referred to in section 21(2) of the Commonwealth Act.

20.           Section 74 amended

(1)

In section 74 delete “A person” and insert:

(1) A person

(2)

At the end of section 74 insert:

(2)

Subsection (1) is not contravened by reason only of the

sale of a classified film —

(a)

under a title different from that under which it is classified if it is contained on one device that consists only of 2 or more classified films; or

Child Pornography and Exploitation Material and Classification

Legislation Amendment Act 2010

Part 3

Amendments consequential to the Classification (Publications,

Films and Computer Games) Amendment Act 2007

(Commonwealth)

s. 21

(b)

with a modification referred to in section 21(2) of the Commonwealth Act.

21.           Section 96 amended

In section 96(2) in the definition of illegal advertisement

paragraph (b)(i) delete “by the Director”.

22.           Section 102F amended

In section 102F(1) delete “Director” and insert:

Convenor

23.           Section 106 amended

(1)

In section 106(2) delete “may be made by an approved

organization and” and insert:

by an organization approved under section 108 for an

exemption under subsection (1)

(2)

After section 106(2) insert:

(3A)

The Minister or the Director may, on application under

subsection (3B), direct in writing that Part 7 does not

apply, or any provisions of that Part do not apply, to an

organization approved under section 108 in relation to

all or any of its activities or functions that relate to

films or computer games.

Child Pornography and Exploitation Material and Classification

Legislation Amendment Act 2010

Amendments consequential to the Classification (Publications,

Part 3

Films and Computer Games) Amendment Act 2007

(Commonwealth)

s. 24

(3B)

An application by an organization approved under

section 108 for an exemption under subsection (3A)

must —

(a) be in writing; and

(b)

specify the extent of the exemption sought; and

(c)

be accompanied by the prescribed fee.

24.           Section 108 amended

(1)

In section 108(1) delete “this Part.” and insert:

section 106(1) or (3A).

(2)

In section 108(2):

(a)

delete “organization,” and insert:

organization for the purposes of section 106(1),

(b)

in paragraph (b) after “scientific,” insert:

educational,

(3)

After section 108(2) insert:

(3A)

In considering whether to approve an organization for

the purposes of section 106(3A), the Minister or

Director must have regard to the following —

(a)

the purpose for which the organization was formed;

Child Pornography and Exploitation Material and Classification

Legislation Amendment Act 2010

Part 3

Amendments consequential to the Classification (Publications,

Films and Computer Games) Amendment Act 2007

(Commonwealth)

s. 25

(b)

the extent to which the organization carries on activities of an educational, cultural or artistic nature;

(c)

the reputation of the organization in relation to —

(i)      the screening of films by the organization; or

(ii)      the demonstration of computer games by the organization,

as the case may be;

(d)

the conditions as to admission of persons to —

(i)      the screening of films by the organization; or

(ii)      the demonstration of computer games by the organization,

as the case may be.

(4)

In section 108(4) delete “subsection (2),” and insert:

subsection (2) or (3A),

25.           Section 130 amended

In section 130(3) delete “the approved form” and insert:

a form approved by the Minister

Child Pornography and Exploitation Material and Classification

Legislation Amendment Act 2010

Amendments consequential to the Classification (Publications,

Part 3

Films and Computer Games) Amendment Act 2007

(Commonwealth)

s. 26

26.           Section 141 amended

In section 141 delete “Director or Deputy Director” and insert:

Director, Deputy Director or Convenor

Child Pornography and Exploitation Material and Classification

Legislation Amendment Act 2010

Part 4

Amendments in relation to advertising

s. 27

Part 4 — Amendments in relation to advertising

27.           Act amended

This Part amends the Classification (Publications, Films and

Computer Games) Enforcement Act 1996.

28.           Section 3 amended

In section 3 insert in alphabetical order:

advertising scheme means the scheme determined

from time to time under section 31(1) of the

Commonwealth Act;

29.           Section 90 amended

(1)

In section 90(2) in the definition of unapproved advertisement:

(a)

in paragraph (c) delete “that Act; or” and insert:

that Act.

(b)

delete paragraph (d);

(c)

after each of paragraphs (a) and (b) insert:

or

(2)

After section 90(2) insert:

(3)

If an advertisement for a film, publication or computer

game is approved under section 29 of the

Commonwealth Act, a person must not publish the

advertisement —

(a)

in an altered form to the form in which it is approved; or

Child Pornography and Exploitation Material and Classification

Legislation Amendment Act 2010

Amendments in relation to advertising

Part 4

s. 30

(b)

if it is approved subject to conditions, except in accordance with those conditions.

Penalty: a fine of $5 000.

30.           Section 91 amended

(1)

In section 91(1):

(a)

delete paragraph (a);

(b)

delete paragraph (c);

(c)

after each of paragraphs (b) and (d) insert:

or

(2)

After section 91(1) insert:

(2A)

A person must not publish an advertisement for an unclassified film or an unclassified computer game otherwise than in accordance with the advertising

scheme.

Penalty: a fine of $5 000.

31.           Section 92 amended

(1)

In section 92:

(a)

delete “A person” and insert:

(1) A person

(b)

after “advertisement for a” insert:

classified

Child Pornography and Exploitation Material and Classification

Legislation Amendment Act 2010

Part 4

Amendments in relation to advertising

s. 31

(c)

after “of another” insert:

classified

(2)

At the end of section 92 insert:

(2)

A person must not exhibit in a public place an

advertisement for a classified computer game during a

programme for the exhibition of a classified film unless

the film has a classification specified in column 1 of an

item in the Table and the advertised computer game

has a classification specified opposite it in column 2 of

that item.

Table

Item

Column 1

Column 2

Film

Advertised computer game

1

G

G

2

PG

PG or G

3

M

M, PG or G

4

MA 15+

MA 15+, M, PG or G

5

R 18+

MA 15+, M, PG or G

Penalty: $2 000

(3)

A person must not exhibit in a public place an

advertisement for an unclassified film or an

unclassified computer game during a programme for

the exhibition of a classified film unless the exhibition

Child Pornography and Exploitation Material and Classification

Legislation Amendment Act 2010

Amendments in relation to advertising

Part 4

s. 32

of that advertisement with the classified film complies

with the advertising scheme.

Penalty: $5 000.

32.           Section 94 amended

(1)

In section 94:

(a)

delete “A person” and insert:

(1) A person

(b)

after “must not sell a” insert:

classified

(c)

after “for another” insert:

classified

(2)

At the end of section 94 insert:

(2)

A person must not sell a classified film that is

accompanied by an advertisement for a classified

computer game unless the film has a classification

specified in column 1 of an item in the Table and the

advertised computer game has a classification specified

opposite it in column 2 of that item.

Child Pornography and Exploitation Material and Classification

Legislation Amendment Act 2010

Part 4

Amendments in relation to advertising

s. 33

Table

Item

Column 1

Column 2

Film

Advertised computer game

1

G

G

2

PG

PG or G

3

M

M, PG or G

4

MA 15+

MA 15+, M, PG or G

5

R 18+

MA 15+, M, PG or G

Penalty: $2 000

(3)

A person must not sell a classified film that is

accompanied by an advertisement for an unclassified

film or an unclassified computer game unless the sale

of the classified film with that advertisement complies

with the advertising scheme.

Penalty: $5 000.

33.           Section 95 amended

(1)

In section 95:

(a)

delete “A person” and insert:

(1) A person

(b)

after “must not sell a” insert:

classified

Child Pornography and Exploitation Material and Classification

Legislation Amendment Act 2010

Amendments in relation to advertising

Part 4

s.

(c)

after “for another” insert:

classified

(2)

At the end of section 95 insert:

(2)

A person must not sell a classified computer game that

is accompanied by an advertisement for a classified

film unless the computer game has a classification

specified in column 1 of an item in the Table and the

advertised film has a classification specified opposite it

in column 2 of that item.

Table

Item

Column 1

Column 2

Computer

Advertised film

Game

1

G

G

2

PG

PG or G

3

M

M, PG or G

4

MA 15+

MA 15+, M, PG or G

Penalty: $2 000

(3)

A person must not sell a classified computer game that is accompanied by an advertisement for an unclassified computer film or an unclassified computer game unless the sale of the classified computer game with that

advertisement complies with the advertising scheme.

Penalty: $5 000.

Child Pornography and Exploitation Material and Classification

Legislation Amendment Act 2010

Part 4

Amendments in relation to advertising

s. 34

34.           Section 102D amended

In section 102D(1)(b) delete “classified”.

35.           Section 152A inserted

After section 151 insert:

152A.

Advertisements for unclassified films

(1)

A person does not commit an offence under

section 91(2A) by publishing an advertisement for an

unclassified film if the advertisement is published in

accordance with a transitional Commonwealth

regulation.

(2)

In subsection (1) —

transitional Commonwealth regulation means a

regulation made under the Classification (Publications,

Films and Computer Games) Amendment (Assessments

and Advertising) Act 2008 (Commonwealth)

Schedule 1 item 13.

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