Crimes (Child Prostitution) Amendment Act 1988 (NSW)

CRIMES (CHILD PROSTITUTION) AMENDMENT ACT

1988 No. 115

NEW SOUTH WALES

TABLE OF PROVISIONS

1. Short title
2. Commencement

3. Amendment of Crimes Act 1900 No. 40

4. Consequential amendment of Search Warrants Act 1985 No. 37, s. 10 (Definitions)

SCHEDULE 1—AMENDMENT OF CRIMES ACT 1900

CRIMES (CHILD PROSTITUTION) AMENDMENT ACT 1988 No.

115

NEW SOUTH WALES

Act No. 115, 1988

An Act to amend the Crimes Act 1900 for the purpose of preventing the

participation of children in prostitution or pornography and to amend the	Search Warrants Act 1985 consequentially. [Assented to 21 December 1988]
See also Children (Care and Protection) (Prostitution) Amendment Act 1988; Summary Offences (Prostitution) Amendment Act

Crimes (Child Prostitution) Amendment 1988

The Legislature of New South Wales enacts:

Short title

1.     This Act may be cited as the Crimes (Child Prostitution) Amendment

Act 1988.

Commencement

2. This Act commences on a day or days to be appointed by

proclamation.

Amendment of Crimes Act 1900 No. 40

3. The Crimes Act 1900 is amended as set out in Schedule 1.

Consequential amendment of Search Warrants Act 1985 No. 37, s. 10
(Definitions)

4. The Search Warrants Act 1985 is amended by inserting in the definition of "search warrant" in section 10 in alphabetical order the matter "section 357EA of the Crimes Act 1900;".

SCHEDULE 1—AMENDMENT OF CRIMES ACT 1900

(Sec. 3)

(1) Section 1 (Short title and contents of Act)—

(a)	In the matter relating to Part 3, insert in appropriate order: (1 3A) Child prostitution and pornography—55. 91 c-91 G
(b)	In the matter relating to Part 10, insert in appropriate order:

(2AA) Powers of entry and search in cases of child prostitution or pornography—5. 357EA

(2) Section 77A (Proceedings in camera in certain cases)—
(a)	Section 77A (1) (b)— Omit "or 78Q" , insert instead ", 78Q, 91D, 91E, 9 1 F or 91G" .
(b)	Section 77A (6), definition of "complainant"— After "committed", insert:

and includes—

(a) in relation to an offence under section 9ID, 91E or 9IF, the person under the age of 18 years who is alleged to have participated in an act of child prostitution; and

(b) in relation to an offence under section 91G, the person

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Crimes (Child Prostitution) Amendment 1988

SCHEDULE 1—AMENDMENT OF CRIMES ACT 1900—continued

(3) Sections 9 1 C - 9 1 G —

After section 91B, insert:

Child prostitution and pornography

Definitions of "act of child prostitution", "child"

91c. For the purposes of sections 9 1 C - 9 1 G —

"act of child prostitution" means any sexual service, whether or not involving an indecent act—

(a)	that is provided by a child for the payment of money or the provision of any other material thing (whether or not it is in fact paid or provided to the child or to any other person); and
(b)	that can reasonably be considered to be aimed at the sexual arousal or sexual gratification of a person or persons other than the child,

and includes (but is not limited to) sexual activity between persons of different sexes or the same sex, comprising sexual intercourse (as defined in section 61A) for payment or masturbation committed by one person on another for payment, engaged in by a child:

"child" means a person who is under the age of 18 years. -

Promoting or engaging in acts of child prostitution

91D. (1) Any person who—

(a)	by any means, causes or induces a child to participate in an act of child prostitution; or
(b)	participates as a client with a child in an act of child prostitution,

is liable to penal servitude for 10 years or, if the child is under

the age of 14 years, to penal servitude for 14 years.

(2) Except where the child and the other person alleged to have participated in the act of child prostitution are both male, a person is not guilty of an offence under this section if the person satisfies the court—

(a)	that the child was not under the age of 14 years when the offence is alleged to have been committed; and
(b)	that the child consented to the act of child prostitution; and
(c)	that the person had, when the offence is alleged to have been committed, reasonable cause to believe, and did in fact believe, that the child was a person of or above the age of 18 years.

Crimes (Child Prostitution) Amendment 1988

SCHEDULE 1—AMENDMENT OF CRIMES ACT 1900—continued

(3) The consent of a child is not a defence to a charge relating to an offence under this section, except as provided by subsection (2).

Obtaining benefit from child prostitution

91E. (1) Any person who receives money or any other material benefit knowing that it is derived directly or indirectly from an act of child prostitution is liable to penal servitude for 10 years.

(2) A person is not guilty of an offence under this section if the person satisfies the court that the money or other material benefit concerned—

(a)	was received by the person for the lawful provision of goods or services; or
(b)	was paid or provided in accordance with a judgment or an order of a court or a legislative requirement, whether or not under New South Wales law.

Premises not to be used for child prostitution

9IF. (1) Any person who is capable of exercising lawful

control over premises at which a child participates in an act of
child prostitution is liable to penal servitude for 7 years.

(2) For the purposes of this section, each person—

(a)	who is an owner, lessee, licensee or occupier of premises; or
(b)	who is concerned in the management of premises or in controlling the entry of persons to, or their movement within, premises,
premises, whether or not any other person is capable of exercising	is to be considered as capable of exercising lawful control over the
lawful control over the premises.
(3) A person is not guilty of an offence under this section relating to an act of child prostitution if the person satisfies the court—

(a) that the person did not know about the act; or

(b)	that the person did not know that a child was participating in the act or, for any other reason, did not know that the act was an act of child prostitution; or
(c)	that the person used all due diligence to prevent the child from participating in the act.

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Crimes (Child Prostitution) Amendment 1988

SCHEDULE 1—AMENDMENT OF CRIMES ACT 1900—continued

Children not to be employed for pornographic purposes

91G. (1) Any person—

(a) who employs a child for pornographic purposes; or

(b) who causes or procures a child to be so employed; or

(c) who, having the care (but not necessarily entitled by law to have the custody) of a child, consents to the child being so employed or allows the child to be so employed,

is liable to penal servitude for 5 years or, if the child is under the
age of 14 years, to penal servitude for 7 years.

(2) For the purposes of this section, a child is employed for pornographic purposes only if money or some other material thing is paid or provided (whether or not to the child) for the employment of the child and, in the course of the child's employment—

(a)	the child is engaged in an activity of a sexual nature (for example, actual or simulated sexual intercourse or a striptease) for the purpose of producing pornography; or
(b)	the child is in the presence of another person who is so engaged.

(4) Section 357EA—

After section 357E, insert:

Powers of entry and search in cases of child prostitution or

pornography

Police may enter and search

357EA. (1) A member of the police force may apply to an authorised justice for the issue of a search warrant if the member	of the police force has reasonable grounds for believing that an	offence against section 9ID, 91E, 9 1 F or 9 1 G has recently been or
is being committed on or with respect to any premises.
(2) An authorised justice to whom an application is made under subsection (1) may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising any member of the police force—

(a)	to enter and search the premises concerned for evidence of an offence against section 9 ID, 91E, 9 1 F or 91G; and
(b)	to make in the premises inquiries relating to such an offence; and

Crimes (Child Prostitution) Amendment 1988

SCHEDULE 1—AMENDMENT OF CRIMES ACT 1900—continued

(3) Part 3 of the Search Warrants Act 1985 applies to a search warrant issued under this section.

(4) In this section—

"authorised justice" means—

(a) a Magistrate; or

(b) a justice employed in the Attorney General's Department.

(5) Section 476 (Indictable offences punishable summarily with consent of

accused)—

Section 476 (6) (d)—

In appropriate order, insert "91A, 91B, 9ID, 91E, 9IF, 91G, " .

(6) Section 578 (Publication of evidence may be forbidden in certain

cases)—

Section 578 (1)—

Omit "or 91B" , insert instead ", 91B, 9ID, 91E, 9 1 F or 9 1 G " .

[Minister's second reading speech made in—

Legislative Assembly on 10 November 1988

Legislative Council on 7 December 1988]