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This is a Bill, not an Act. For current law, see the Acts databases.
2013-2014-2015
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Criminal Code Amendment (Private
Sexual Material) Bill 2015
No. , 2015
(Mr Watts and Ms TM Butler)
A Bill for an Act to amend the Criminal Code Act
1995, and for related purposes
No. , 2015
Criminal Code Amendment (Private Sexual Material) Bill 2015
i
Contents
1
Short title ............................................................................................ 1
2
Commencement .................................................................................. 1
3
Schedules ............................................................................................ 2
Schedule 1--Amendme nts
3
Criminal Code Act 1995
3
No. , 2015
Criminal Code Amendment (Private Sexual Material) Bill 2015
1
A Bill for an Act to amend the Criminal Code Act
1
1995, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Criminal Code Amendment (Private
5
Sexual Material) Act 2015.
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2 Commencement
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(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Criminal Code Amendment (Private Sexual Material) Bill 2015
No. , 2015
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
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Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
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3 Schedules
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Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
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Amendments Schedule 1
No. , 2015
Criminal Code Amendment (Private Sexual Material) Bill 2015
3
Schedule 1--Amendments
1
2
Criminal Code Act 1995
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1 Section 473.1 of the Criminal Code
4
Insert:
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private sexual material has the meaning given by section 474.24D.
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subject of private sexual material has the meaning given by
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section 474.24D.
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2 After Subdivision D of Division 474 of the Criminal Code
9
Insert:
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Subdivision DA--Offences relating to use of carriage service
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for private sexual material
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474.24D Meaning of private sexual material
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For the purposes of this Act, material is private sexual material if:
14
(a) the material depicts:
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(i) a person (the subject) who is engaged in, or appears to
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be engaged in, a sexual pose or sexual activity (whether
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or not in the presence of other persons); or
18
(ii) a person (the subject) in a manner or context that is
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sexual; or
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(iii) a sexual organ or the anal region of a person (the
21
subject); or
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(iv) the breasts of a person (the subject) who is female, or
23
who is a transgender or intersex person who identifies
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as female; and
25
(b) a reasonable person in the position of the subject would
26
expect the material to be kept private.
27
474.24E Using a carriage service for private sexual material
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(1) A person commits an offence if:
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Schedule 1 Amendments
4
Criminal Code Amendment (Private Sexual Material) Bill 2015
No. , 2015
(a) the person transmits, makes available, publishes, distributes,
1
advertises or promotes material; and
2
(b) the material is private sexual material; and
3
(c) the person engages in the conduct mentioned in paragraph (a)
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without the consent of a subject of the material; and
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(d) the person knows of, or is reckless as to, the subject's lack of
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consent; and
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(e) either:
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(i) the conduct mentioned in paragraph (a) causes distress
9
or harm to a subject of the material; or
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(ii) there is a risk that the conduct mentioned in
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paragraph (a) will cause distress or harm to a subject of
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the material; and
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(f) the person engages in the conduct mentioned in paragraph (a)
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using a carriage service.
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Penalty: Imprisonment for 3 years.
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Transmission etc. to subject of material
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(2) In a prosecution for an offence against subsection (1), the
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prosecution must prove that the conduct mentioned in
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paragraph (1)(a) did not consist solely of a transmission, making
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available, publication, distribution, advertisement or promotion of
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private sexual material to a subject of the material.
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Consent
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(3) For the purposes of paragraph (1)(c):
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(a) a subject consents to the conduct mentioned in
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paragraph (1)(a) if the subject gives either:
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(i) a general consent covering conduct of the kind engaged
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in by the first person; or
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(ii) consent to the particular instance of conduct engaged in
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by the first person; and
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(b) the consent may be given expressly or by necessary
31
implication.
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Amendments Schedule 1
No. , 2015
Criminal Code Amendment (Private Sexual Material) Bill 2015
5
Causing distress or harm
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(4) For the purposes of paragraph (1)(e), a person's conduct is taken to
2
cause distress or harm if it substantially contributes to distress or
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harm.
4
Use of carriage service
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(5) Absolute liability applies to paragraph (1)(f).
6
Note:
For absolute liability, see section 6.2.
7
Defences
8
(6) As well as the general defences provided for in Part 2.3, defences
9
are provided for under section 474.24H in relation to this section.
10
Definitions
11
(7) In this section:
12
consent means free and voluntary agreement.
13
474.24F Using a carriage service--making a threat about private
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sexual material
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(1) A person (the first person) commits an offence if:
16
(a) the first person makes a threat to another person (the second
17
person) to transmit, make available, publish, distribute,
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advertise or promote private sexual material of which the
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second person or a third person is a subject; and
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(b) the first person intends the second person to fear that the
21
threat will be carried out; and
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(c) either or both of the following apply:
23
(i) the first person intends to compel the second person or a
24
third person to do or omit to do an act by making the
25
threat;
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(ii) there is a risk that making the threat will cause distress
27
or harm to the second person or the third person; and
28
(d) either or both of the following apply:
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(i) the first person makes the threat using a carriage
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service;
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Schedule 1 Amendments
6
Criminal Code Amendment (Private Sexual Material) Bill 2015
No. , 2015
(ii) the threat is to transmit, make available, publish,
1
distribute, advertise or promote the private sexual
2
material using a carriage service.
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Penalty: Imprisonment for 3 years.
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Actual fear not necessary
5
(2) In a prosecution for an offence against subsection (1), it is not
6
necessary to prove that the person receiving the threat actually
7
feared that the threat would be carried out.
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Private sexual material need not exist
9
(3) For the purposes of subsection (1), it is irrelevant whether the
10
private sexual material actually exists.
11
Causing distress or harm
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(4) For the purposes of subparagraph (1)(c)(ii), a threat is taken to
13
cause distress or harm if it substantially contributes to distress or
14
harm.
15
Use of carriage service
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(5) Absolute liability applies to paragraph (1)(d).
17
Note:
For absolute liability, see section 6.2.
18
Definitions
19
(6) In this section:
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fear includes apprehension.
21
474.24G Possessing, controlling, producing, supplying or obtaining
22
private sexual material for use through a carriage service
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(1) A person commits an offence if:
24
(a) the person:
25
(i) has possession or control of material; or
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(ii) produces, supplies or obtains material; and
27
(b) the material is private sexual material; and
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Amendments Schedule 1
No. , 2015
Criminal Code Amendment (Private Sexual Material) Bill 2015
7
(c) the person has that possession or control, or engages in that
1
production, supply or obtaining, with the intention that the
2
material be used:
3
(i) by that person; or
4
(ii) by another person;
5
in committing an offence against section 474.24E (using a
6
carriage service for private sexual material) or 474.24F
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(using a carriage service--making a threat about private
8
sexual material); and
9
(d) the person has that possession or control, or engages in that
10
production, supply or obtaining:
11
(i) for a commercial purpose; or
12
(ii) for the purpose of obtaining (whether directly or
13
indirectly) a benefit.
14
Penalty: Imprisonment for 5 years.
15
(2) A person may be found guilty of an offence against subsection (1)
16
even if committing the offence against section 474.24E or 474.24F
17
is impossible.
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(3) It is not an offence to attempt to commit an offence against
19
subsection (1).
20
474.24H Defences in respect of private sexual material
21
Public benefit
22
(1) A person is not criminally responsible for an offence against
23
section 474.24E (using a carriage service for private sexual
24
material) or 474.24G (possessing etc. private sexual material for
25
use through a carriage service) because of engaging in particular
26
conduct if the conduct:
27
(a) is of public benefit; and
28
(b) does not extend beyond what is of public benefit.
29
In determining whether the person is, under this subsection, not
30
criminally responsible for the offence, the question whether the
31
conduct is of public benefit is a question of fact and the person's
32
motives in engaging in the conduct are irrelevant.
33
Note:
A defendant bears an evidential burden in relation to the matter in this
34
subsection, see subsection 13.3(3).
35
Schedule 1 Amendments
8
Criminal Code Amendment (Private Sexual Material) Bill 2015
No. , 2015
(2) For the purposes of subsection (1), conduct is of public benefit if,
1
and only if, the conduct is necessary for or of assistance in:
2
(a) enforcing a law of the Commonwealth, a State or a Territory;
3
or
4
(b) monitoring compliance with, or investigating a contravention
5
of, a law of the Commonwealth, a State or a Territory; or
6
(c) the administration of justice; or
7
(d) conducting scientific, medical or educational research that
8
has been approved by the Minister in writing for the purposes
9
of this section.
10
Media activities
11
(3) A person is not criminally responsible for an offence against
12
section 474.24E (using a carriage service for private sexual
13
material) or 474.24G (possessing etc. private sexual material for
14
use through a carriage service) because of engaging in particular
15
conduct if:
16
(a) the person engaged in the conduct for the purposes of
17
collecting, preparing for the dissemination of, or
18
disseminating:
19
(i) material having the character of news, current affairs,
20
information or a documentary; or
21
(ii) material consisting of commentary or opinion on, or
22
analysis of, news, current affairs, information or a
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documentary; and
24
(b) the person did not intend the conduct to cause harm to a
25
subject of the material; and
26
(c) the person reasonably believed the conduct to be in the public
27
interest.
28
Note:
A defendant bears an evidential burden in relation to the matter in this
29
subsection, see subsection 13.3(3).
30
Duties of law enforcement officer, or intelligence or security
31
officer
32
(4) A person is not criminally responsible for an offence against
33
section 474.24E (using a carriage service for private sexual
34
material) or 474.24G (possessing etc. private sexual material for
35
use through a carriage service) if:
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Amendments Schedule 1
No. , 2015
Criminal Code Amendment (Private Sexual Material) Bill 2015
9
(a) the person is, at the time of the offence, a law enforcement
1
officer, or an intelligence or security officer, acting in the
2
course of his or her duties; and
3
(b) the conduct of the person is reasonable in the circumstances
4
for the purpose of performing that duty.
5
Note:
A defendant bears an evidential burden in relation to the matter in this
6
subsection, see subsection 13.3(3).
7
Prohibited content and content filtering technology
8
(5) A person is not criminally responsible for an offence against
9
section 474.24E (using a carriage service for private sexual
10
material) or 474.24G (possessing etc. private sexual material for
11
use through a carriage service) if the person engages in the conduct
12
in good faith for the sole purpose of:
13
(a) assisting the Children's e-Safety Commissioner to detect:
14
(i) prohibited content (within the meaning of Schedule 7 to
15
the Broadcasting Services Act 1992); or
16
(ii) potential prohibited content (within the meaning of that
17
Schedule);
18
in the performance of the Commissioner's functions under
19
Schedule 5 or Schedule 7 to that Act; or
20
(b) manufacturing or developing, or updating, content filtering
21
technology (including software) in accordance with:
22
(i) a recognised alternative access-prevention arrangement
23
(within the meaning of clause 40 of Schedule 5 to the
24
Broadcasting Services Act 1992); or
25
(ii) a designated alternative access-prevention arrangement
26
(within the meaning of clause 60 of that Schedule).
27
Note:
A defendant bears an evidential burden in relation to the matter in this
28
subsection, see subsection 13.3(3).
29
474.24J Consent to commencement of proceedings where defendant
30
under 18
31
(1) Proceedings for an offence against this Subdivision must not be
32
commenced without the consent of the Attorney-General if the
33
defendant was under 18 at the time he or she allegedly engaged in
34
the conduct constituting the offence.
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Schedule 1 Amendments
10
Criminal Code Amendment (Private Sexual Material) Bill 2015
No. , 2015
(2) However, a person may be arrested for, charged with, or remanded
1
in custody or on bail in connection with, such an offence before the
2
necessary consent has been given.
3
3 Subsections 475.1A(1) and (2) of the Criminal Code
4
After "D,", insert "DA,".
5
4 Paragraphs 475.1B(1)(a) and (2)(a) of the Criminal Code
6
After "D,", insert "DA,".
7