Crimes Amendment (Child Pornography and Abuse Material) Act 2010 (NSW)

An Act to amend the Crimes Act 1900 and other legislation to make further provision with respect to the possession, production and dissemination of child pornography and abuse material.

1Name of Act

This Act is the Crimes Amendment (Child Pornography and Abuse Material) Act 2010.

2Commencement(1)

This Act commences on a day or days to be appointed by proclamation, except as provided by subsection (2).

(2)

Schedule 2 [4]–[6] and [10] commence on the date of assent.

Schedule 1Amendment of Crimes Act 1900 No 40[1]Section 61O Aggravated act of indecency

Omit “pornography” from section 61O (2A) (b) and (4) (a) wherever occurring.

Insert instead “abuse material”.

[2]Section 61Q Alternative verdicts

Omit “pornography” from the heading to section 61Q (6).

Insert instead “abuse material”.

[3]Part 3, Division 15A, heading

Omit the heading. Insert instead:

[4]Section 91FA Definitions

Insert in alphabetical order:

child abuse material—see section 91FB.

data includes:

• (a)

  information in any form, or

• (b)

  any program (or part of a program).

[5]Section 91FA, definition of “material”

Omit “electronic”.

[6]Section 91FB

Insert after section 91FA:

91FBChild abuse material—meaning(1)

In this Division:

child abuse material means material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive:

• (a)

  a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or

• (b)

  a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or

• (c)

  a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or

• (d)

  the private parts of a person who is, appears to be or is implied to be, a child.

(2)

The matters to be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive, include:

• (a)

  the standards of morality, decency and propriety generally accepted by reasonable adults, and

• (b)

  the literary, artistic or educational merit (if any) of the material, and

• (c)

  the journalistic merit (if any) of the material, being the merit of the material as a record or report of a matter of public interest, and

• (d)

  the general character of the material (including whether it is of a medical, legal or scientific character).

(3)

Material that depicts a person or the private parts of a person includes material that depicts a representation of a person or the private parts of a person (including material that has been altered or manipulated to make a person appear to be a child or to otherwise create a depiction referred to in subsection (1)).

(4)

The private parts of a person are:

• (a)

  a person’s genital area or anal area, or

• (b)

  the breasts of a female person.

[7]Section 91G Children not to be used for production of child abuse material

Omit “for pornographic purposes” from section 91G (1) (a) and (2) (a) wherever occurring.

Insert instead “for the production of child abuse material”.

[8]Section 91G (3)

Omit the subsection.

[9]Sections 91H and 91HA

Omit section 91H. Insert instead:

91HProduction, dissemination or possession of child abuse material(1)

In this section:

disseminate child abuse material, includes:

• (a)

  send, supply, exhibit, transmit or communicate it to another person, or

• (b)

  make it available for access by another person, or

• (c)

  enter into any agreement or arrangement to do so.

possess child abuse material includes, in relation to material in the form of data, being in possession or control of data (within the meaning of section 308F (2)).

produce child abuse material includes:

• (a)

  film, photograph, print or otherwise make child abuse material, or

• (b)

  alter or manipulate any image for the purpose of making child abuse material, or

• (c)

  enter into any agreement or arrangement to do so.

(2)

A person who produces, disseminates or possesses child abuse material is guilty of an offence.

Maximum penalty: imprisonment for 10 years.

91HADefences(1)

It is a defence in proceedings for an offence against section 91H that the defendant did not know, and could not reasonably be expected to have known, that he or she produced, disseminated or possessed (as the case requires) child abuse material.

(2)

It is a defence in proceedings for an offence against section 91H not involving the production or dissemination of child abuse material that the material concerned came into the defendant’s possession unsolicited and the defendant, as soon as he or she became aware of its nature, took reasonable steps to get rid of it.

(3)

It is a defence in proceedings for an offence against section 91H that the conduct engaged in by the defendant:

• (a)

  was of public benefit, and

• (b)

  did not extend beyond what was of public benefit.

(4)

Conduct is of public benefit if, and only if, the conduct is necessary for or of assistance in:

• (a)

  enforcing or administering a law of the State, or of another State, a Territory or the Commonwealth, or

• (b)

  monitoring compliance with, or investigating a contravention of, a law of the State, or of another State, a Territory or the Commonwealth, or

• (c)

  the administration of justice.

(5)

The question of whether a person’s conduct is of public benefit is a question of fact and the person’s motives for engaging in the conduct are irrelevant.

(6)

It is a defence in proceedings for an offence against section 91H that:

• (a)

  the defendant was, at the time of the offence, a law enforcement officer acting in the course of his or her duties, and

• (b)

  the conduct of the defendant was reasonable in the circumstances for the purpose of performing that duty.

(7)

It is a defence in proceedings for an offence against section 91H that the material concerned was classified (whether before or after the commission of the alleged offence) under the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth, other than as refused classification (RC).

(8)

It is a defence in proceedings for an offence against section 91G or 91H that the conduct engaged in by the defendant:

• (a)

  was necessary for or of assistance in conducting scientific, medical or educational research that has been approved by the Attorney General in writing for the purposes of this section, and

• (b)

  did not contravene any conditions of that approval.

Schedule 2Amendment of Criminal Procedure Act 1986 No 209[1]Section 91 Witness may be directed to attend

Omit “pornographic purposes” from paragraph (c) of the definition of complainant in section 91 (9).

Insert instead “the production of child abuse material”.

[2]Section 281B Sensitive evidence—meaning

Insert “or child abuse material (within the meaning of Division 15A of Part 3 of the Crimes Act 1900)” after “child pornography” in section 281B (2) (c).

[3]Chapter 6, Part 4A

Insert after Part 4:

Part 4AUse of random sample evidence289ADefinitions

In this Part:

authorised analyst means any person, or person of a class, authorised by the Attorney General or the Director of Public Prosecutions to exercise the functions of an authorised analyst under this Part.

child abuse material and material have the same meanings as they have in Division 15A of Part 3 of the Crimes Act 1900.

child abuse material offence means an offence under Division 15A of Part 3 of the Crimes Act 1900.

289BUse of random sample evidence in child abuse material cases(1)

An authorised analyst may, in connection with any proceedings for a child abuse material offence, conduct an examination of a random sample of the child abuse material or alleged child abuse material that is the subject of the proceedings concerned.

(2)

In proceedings for the child abuse material offence concerned, evidence adduced by the prosecutor of any findings of the authorised analyst as to the nature and content of the random sample is admissible as evidence of the nature and content of the whole of the material from which the random sample was taken.

(3)

Accordingly, it is open to a court to find that any type of child abuse material found by an authorised analyst to be present in a particular proportion in the random sample is present in the same proportion in the material from which the random sample was taken.

(4)

A certificate of an authorised analyst, that certifies any of the following matters, is admissible in proceedings for a child abuse material offence as evidence of the matters certified:

• (a)

  that the authorised analyst conducted an examination of a random sample of the material the subject of the proceedings,

• (b)

  that the random sample was taken, and the examination conducted, in accordance with any requirements of the regulations,

• (c)

  the findings of the authorised analyst as to the nature and content of the random sample.

(5)

A certificate signed by a person purporting to be an authorised analyst is taken to be a certificate of an authorised analyst, in the absence of evidence to the contrary.

(6)

Evidence is admissible under this section only if the court is satisfied that the accused person, or an Australian legal practitioner representing the accused person, has been given a reasonable opportunity to view all of the child abuse material or alleged child abuse material the subject of the proceedings concerned.

(7)

This section does not affect the provisions of Part 2A, which restrict the access of an accused person to sensitive evidence.

(8)

The regulations may make further provision for or with respect to the taking and admissibility of random sample evidence under this section, including by providing for:

• (a)

  the circumstances or types of cases in which the prosecutor may adduce evidence of the findings of an authorised analyst under this section, and

• (b)

  the procedure for taking and examining random samples of material, and

• (c)

  any further requirements as to the content and service of a certificate of an authorised analyst.

[4]–[6]

(Repealed)

[7]Section 306A Definitions

Omit “pornographic purposes” from paragraph (c) of the definition of complainant.

Insert instead “the production of child abuse material”.

[8]Section 348 Offences in respect of which an intervention program may be conducted

Omit “dissemination or possession of child pornography” from section 348 (2) (d).

Insert instead “dissemination or possession of child pornography or child abuse material”.

[9]Schedule 2 Savings, transitional and other provisions

Insert at the end of clause 1 (1):

Crimes Amendment (Child Pornography and Abuse Material) Act 2010

[10]

(Repealed)

Schedule 3Amendment of other legislationChildren and Young Persons (Care and Protection) Act 1998 No 157[1]Section 43 Removal of children and young persons without warrant

Omit “pornographic purposes” from section 43 (3) (b) (i) and (ii) wherever occurring.

Insert instead “the production of child abuse material”.

[2]Section 43 (7), definition of “pornographic purposes”

Omit the definition. Insert in alphabetical order:

child abuse material has the same meaning as it has in Division 15A of Part 3 of the Crimes Act 1900.

Commission for Children and Young People Act 1998 No 146[1]Section 33 Definitions

Insert after paragraph (a) of the definition of reportable conduct in section 33 (1):

(aa1)

any offence or misconduct involving child abuse material (within the meaning of Division 15A of Part 3 of the Crimes Act 1900), or

[2]Section 33G Persons not entitled to make review applications

Omit section 33G (1) (c). Insert instead:

(c)

an offence under section 91H (2) of the Crimes Act 1900, involving the production of child abuse material, or a similar offence under that Act or a law other than a law of New South Wales,

Law Enforcement (Powers and Responsibilities) Act 2002 No 103[1]Section 46A Searchable offences

Omit section 46A (1) (a) (iv). Insert instead:

(iv)

a child abuse material offence,

[2]Section 46A (2)

Omit the definition of child pornography offence. Insert instead:

child abuse material offence means an offence under section 91H or 578C of the Crimes Act 1900.

Ombudsman Act 1974 No 68

Insert “or an offence involving child abuse material (within the meaning of Division 15A of Part 3 of the Crimes Act 1900)” after “child pornography offence” in paragraph (a) of the definition of reportable conduct in section 25A (1).

Parliamentary Electorates and Elections Act 1912 No 41

Insert “or an offence involving child abuse material (within the meaning of Division 15A of Part 3 of the Crimes Act 1900)” after “child pornography offence” wherever occurring in paragraphs (a) and (b) of the definition of child sexual offence in section 81K (1).

Parliamentary Electorates and Elections Regulation 2008[1]Schedule 1 Forms

Insert “or offences involving child abuse material (within the meaning of Division 15A of Part 3 of the Crimes Act 1900)” after “child pornography offences” in Form 6.

[2]Schedule 1, Form 6

Insert “or an offence involving child abuse material (within the meaning of Division 15A of Part 3 of the Crimes Act 1900)” after “child pornography offence” wherever occurring.

Victims Support and Rehabilitation Act 1996 No 115

Omit “pornographic purposes” from paragraph (e) of the definition of sexual assault and domestic violence.

Insert instead “the production of child abuse material”.