Commonwealth Numbered Acts Commonwealth Numbered Acts
1 Section 473.1 of the Criminal Code
Insert:
"private sexual material " means:
(a) material that:
(i) depicts a person who is, or appears to be, 18 years of age or older and who is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); and
(ii) does so in circumstances that reasonable persons would regard as giving rise to an expectation of privacy; or
(b) material the dominant characteristic of which is the depiction of:
(i) a sexual organ or the anal region of a person who is, or appears to be, 18 years of age or older; or
(ii) the breasts of a female person who is, or appears to be, 18 years of age or older;
where the depiction is in circumstances that reasonable persons would regard as giving rise to an expectation of privacy.
Note: For material that relates to a person who is, or appears to be, under 18 years of age, see:
(a) the definition of child pornography material ; and
(b) the child pornography offences in Subdivision D.
"subject " of private sexual material means:
(a) if the material is covered by paragraph (a) of the definition of private sexual material --the person first mentioned in that paragraph; or
(b) if the material is covered by paragraph (b) of the definition of private sexual material --the person mentioned in whichever of subparagraph (b)(i) or (ii) of that definition is applicable.
2 Section 473.4 of the Criminal Code
Before "The matters", insert "(1)".
3 At the end of section 473.4 of the Criminal Code
Add:
(2) If:
(a) a particular use of a carriage service involves the transmission, making available, publication, distribution, advertisement or promotion of material; and
(b) the material is private sexual material;
then, in deciding for the purposes of this Part whether reasonable persons would regard the use of the carriage service as being, in all the circumstances, offensive, regard must be had to whether the subject, or each of the subjects, of the private sexual material gave consent to the transmission, making available, publication, distribution, advertisement or promotion of the material.
(3) Subsection (2) does not limit subsection (1).
Definition
(4) In this section:
"consent " means free and voluntary agreement.
4 After section 474.17 of the Criminal Code
Insert:
Standard aggravated offence
(1) A person commits an offence against this subsection if:
(a) the person commits an offence (the underlying offence ) against subsection 474.17(1); and
(b) the commission of the underlying offence involves the transmission, making available, publication, distribution, advertisement or promotion of material; and
(c) the material is private sexual material.
Penalty: Imprisonment for 5 years.
(2) There is no fault element for the physical element described in paragraph (1)(a) other than the fault elements (however described), if any, for the underlying offence.
(3) To avoid doubt, a person does not commit the underlying offence for the purposes of paragraph (1)(a) if the person has a defence to the underlying offence.
Special aggravated offence
(4) A person commits an offence against this subsection if:
(a) the person commits an offence (the underlying offence ) against subsection 474.17(1); and
(b) the commission of the underlying offence involves the transmission, making available, publication, distribution, advertisement or promotion of material; and
(c) the material is private sexual material; and
(d) before the commission of the underlying offence, 3 or more civil penalty orders were made against the person under the Regulatory Powers (Standard Provisions) Act 2014 in relation to contraventions of subsection 44B(1) of the Enhancing Online Safety Act 2015 .
Penalty: Imprisonment for 7 years.
(5) There is no fault element for the physical element described in paragraph (4)(a) other than the fault elements (however described), if any, for the underlying offence.
(6) To avoid doubt, a person does not commit the underlying offence for the purposes of paragraph (4)(a) if the person has a defence to the underlying offence.
(7) Absolute liability applies to paragraph (4)(d).
Note: For absolute liability, see section 6.2.
Double jeopardy etc.
(8) A person who has been convicted or acquitted of an offence (the aggravated offence ) against subsection (1) may not be convicted of an offence against subsection 474.17(1) or subsection (4) of this section in relation to the conduct that constituted the aggravated offence.
(9) Subsection (8) does not prevent an alternative verdict under section 474.17B.
(10) A person who has been convicted or acquitted of an offence (the aggravated offence ) against subsection (4) may not be convicted of an offence against subsection 474.17(1) or subsection (1) of this section in relation to the conduct that constituted the aggravated offence.
(11) Subsection (10) does not prevent an alternative verdict under section 474.17B.
(12) A person who has been convicted or acquitted of an offence (the underlying offence ) against subsection 474.17(1) may not be convicted of an offence against subsection (1) or (4) of this section in relation to the conduct that constituted the underlying offence.
When conviction must be set aside
(13) If:
(a) a person has been convicted by a court of an offence against subsection (4) on the basis that 3 or more civil penalty orders were made against the person under the Regulatory Powers (Standard Provisions) Act 2014 in relation to contraventions of subsection 44B(1) of the Enhancing Online Safety Act 2015 ; and
(b) one or more of those civil penalty orders are set aside or reversed on appeal; and
(c) if the civil penalty orders covered by paragraph (b) had never been made, the person could not have been convicted of the offence; and
(d) the person applies to the court for the conviction to be set aside;
the court must set aside the conviction.
(14) If:
(a) a person has been convicted by a court of an offence (the aggravated offence ) against subsection (4); and
(b) the court sets aside the conviction under subsection (13);
the setting aside of the conviction does not prevent proceedings from being instituted against the person for an offence against subsection 474.17(1) or subsection (1) of this section in relation to the conduct that constituted the aggravated offence.
474.17B Alternative verdict if aggravated offence not proven
(1) If, on a trial for an offence (the aggravated offence ) against subsection 474.17A(1), the trier of fact:
(a) is not satisfied that the defendant is guilty of the aggravated offence; but
(b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence against subsection 474.17(1);
it may find the defendant not guilty of the aggravated offence but guilty of the offence against subsection 474.17(1), so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
(2) If, on a trial for an offence (the aggravated offence ) against subsection 474.17A(4), the trier of fact:
(a) is not satisfied that the defendant is guilty of the aggravated offence; but
(b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence against subsection 474.17(1) or subsection 474.17A(1);
it may find the defendant not guilty of the aggravated offence but guilty of the offence against subsection 474.17(1) or subsection 474.17A(1), so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.