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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Crimes Amendment (Child
Pornography and Abuse Material) Bill
2010
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Crimes Act 1900 No 40 3
Schedule 2 Amendment of Criminal Procedure Act 1986 No 209 8
Schedule 3 Amendment of other legislation 13
b2010-007-40.d17
New South Wales
Crimes Amendment (Child
Pornography and Abuse Material) Bill
2010
No , 2010
A Bill for
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.
Clause 1 Crimes Amendment (Child Pornography and Abuse Material) Bill 2010
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Crimes Amendment (Child Pornography and Abuse 3
Material) Act 2010. 4
2 Commencement 5
(1) This Act commences on a day or days to be appointed by proclamation, 6
except as provided by subsection (2). 7
(2) Schedule 2 [4]-[6] and [10] commence on the date of assent. 8
Page 2
Crimes Amendment (Child Pornography and Abuse Material) Bill 2010
Amendment of Crimes Act 1900 No 40 Schedule 1
Schedule 1 Amendment of Crimes Act 1900 No 40 1
[1] Section 61O Aggravated act of indecency 2
Omit "pornography" from section 61O (2A) (b) and (4) (a) wherever 3
occurring. 4
Insert instead "abuse material". 5
[2] Section 61Q Alternative verdicts 6
Omit "pornography" from the heading to section 61Q (6). 7
Insert instead "abuse material". 8
[3] Part 3, Division 15A, heading 9
Omit the heading. Insert instead: 10
Division 15A Child abuse material 11
[4] Section 91FA Definitions 12
Insert in alphabetical order: 13
child abuse material--see section 91FB. 14
data includes: 15
(a) information in any form, or 16
(b) any program (or part of a program). 17
[5] Section 91FA, definition of "material" 18
Omit "electronic". 19
[6] Section 91FB 20
Insert after section 91FA: 21
91FB Child abuse material--meaning 22
(1) In this Division: 23
child abuse material means material that depicts or describes, in 24
a way that reasonable persons would regard as being, in all the 25
circumstances, offensive: 26
(a) a person who is, appears to be or is implied to be, a child 27
as a victim of torture, cruelty or physical abuse, or 28
(b) a person who is, appears to be or is implied to be, a child 29
engaged in or apparently engaged in a sexual pose or 30
sexual activity (whether or not in the presence of other 31
persons), or 32
Page 3
Crimes Amendment (Child Pornography and Abuse Material) Bill 2010
Schedule 1 Amendment of Crimes Act 1900 No 40
(c) a person who is, appears to be or is implied to be, a child 1
in the presence of another person who is engaged or 2
apparently engaged in a sexual pose or sexual activity, or 3
(d) the private parts of a person who is, appears to be or is 4
implied to be, a child. 5
(2) The matters to be taken into account in deciding whether 6
reasonable persons would regard particular material as being, in 7
all the circumstances, offensive, include: 8
(a) the standards of morality, decency and propriety generally 9
accepted by reasonable adults, and 10
(b) the literary, artistic or educational merit (if any) of the 11
material, and 12
(c) the journalistic merit (if any) of the material, being the 13
merit of the material as a record or report of a matter of 14
public interest, and 15
(d) the general character of the material (including whether it 16
is of a medical, legal or scientific character). 17
(3) Material that depicts a person or the private parts of a person 18
includes material that depicts a representation of a person or the 19
private parts of a person (including material that has been altered 20
or manipulated to make a person appear to be a child or to 21
otherwise create a depiction referred to in subsection (1)). 22
(4) The private parts of a person are: 23
(a) a person's genital area or anal area, or 24
(b) the breasts of a female person. 25
[7] Section 91G Children not to be used for production of child abuse 26
material 27
Omit "for pornographic purposes" from section 91G (1) (a) and (2) (a) 28
wherever occurring. 29
Insert instead "for the production of child abuse material". 30
[8] Section 91G (3) 31
Omit the subsection. 32
Page 4
Crimes Amendment (Child Pornography and Abuse Material) Bill 2010
Amendment of Crimes Act 1900 No 40 Schedule 1
[9] Sections 91H and 91HA 1
Omit section 91H. Insert instead: 2
91H Production, dissemination or possession of child abuse material 3
(1) In this section: 4
disseminate child abuse material, includes: 5
(a) send, supply, exhibit, transmit or communicate it to 6
another person, or 7
(b) make it available for access by another person, or 8
(c) enter into any agreement or arrangement to do so. 9
possess child abuse material includes, in relation to material in 10
the form of data, being in possession or control of data (within the 11
meaning of section 308F (2)). 12
produce child abuse material includes: 13
(a) film, photograph, print or otherwise make child abuse 14
material, or 15
(b) alter or manipulate any image for the purpose of making 16
child abuse material, or 17
(c) enter into any agreement or arrangement to do so. 18
(2) A person who produces, disseminates or possesses child abuse 19
material is guilty of an offence. 20
Maximum penalty: imprisonment for 10 years. 21
91HA Defences 22
(1) Innocent production, dissemination or possession 23
It is a defence in proceedings for an offence against section 91H 24
that the defendant did not know, and could not reasonably be 25
expected to have known, that he or she produced, disseminated or 26
possessed (as the case requires) child abuse material. 27
(2) It is a defence in proceedings for an offence against section 91H 28
not involving the production or dissemination of child abuse 29
material that the material concerned came into the defendant's 30
possession unsolicited and the defendant, as soon as he or she 31
became aware of its nature, took reasonable steps to get rid of it. 32
Page 5
Crimes Amendment (Child Pornography and Abuse Material) Bill 2010
Schedule 1 Amendment of Crimes Act 1900 No 40
(3) Public benefit 1
It is a defence in proceedings for an offence against section 91H 2
that the conduct engaged in by the defendant: 3
(a) was of public benefit, and 4
(b) did not extend beyond what was of public benefit. 5
(4) Conduct is of public benefit if, and only if, the conduct is 6
necessary for or of assistance in: 7
(a) enforcing or administering a law of the State, or of another 8
State, a Territory or the Commonwealth, or 9
(b) monitoring compliance with, or investigating a 10
contravention of, a law of the State, or of another State, a 11
Territory or the Commonwealth, or 12
(c) the administration of justice. 13
(5) The question of whether a person's conduct is of public benefit is 14
a question of fact and the person's motives for engaging in the 15
conduct are irrelevant. 16
(6) Law enforcement officers 17
It is a defence in proceedings for an offence against section 91H 18
that: 19
(a) the defendant was, at the time of the offence, a law 20
enforcement officer acting in the course of his or her 21
duties, and 22
(b) the conduct of the defendant was reasonable in the 23
circumstances for the purpose of performing that duty. 24
(7) Classified material 25
It is a defence in proceedings for an offence against section 91H 26
that the material concerned was classified (whether before or 27
after the commission of the alleged offence) under the 28
Classification (Publications, Films and Computer Games) Act 29
1995 of the Commonwealth, other than as refused classification 30
(RC). 31
Page 6
Crimes Amendment (Child Pornography and Abuse Material) Bill 2010
Amendment of Crimes Act 1900 No 40 Schedule 1
(8) Approved research 1
It is a defence in proceedings for an offence against section 91G 2
or 91H that the conduct engaged in by the defendant: 3
(a) was necessary for or of assistance in conducting scientific, 4
medical or educational research that has been approved by 5
the Attorney General in writing for the purposes of this 6
section, and 7
(b) did not contravene any conditions of that approval. 8
Page 7
Crimes Amendment (Child Pornography and Abuse Material) Bill 2010
Schedule 2 Amendment of Criminal Procedure Act 1986 No 209
Schedule 2 Amendment of Criminal Procedure Act 1
1986 No 209 2
[1] Section 91 Witness may be directed to attend 3
Omit "pornographic purposes" from paragraph (c) of the definition of 4
complainant in section 91 (9). 5
Insert instead "the production of child abuse material". 6
[2] Section 281B Sensitive evidence--meaning 7
Insert "or child abuse material (within the meaning of Division 15A of Part 3 8
of the Crimes Act 1900)" after "child pornography" in section 281B (2) (c). 9
[3] Chapter 6, Part 4A 10
Insert after Part 4: 11
Part 4A Use of random sample evidence 12
289A Definitions 13
In this Part: 14
authorised analyst means any person, or person of a class, 15
authorised by the Attorney General or the Director of Public 16
Prosecutions to exercise the functions of an authorised analyst 17
under this Part. 18
child abuse material and material have the same meanings as 19
they have in Division 15A of Part 3 of the Crimes Act 1900. 20
child abuse material offence means an offence under 21
Division 15A of Part 3 of the Crimes Act 1900. 22
289B Use of random sample evidence in child abuse material cases 23
(1) An authorised analyst may, in connection with any proceedings 24
for a child abuse material offence, conduct an examination of a 25
random sample of the child abuse material or alleged child abuse 26
material that is the subject of the proceedings concerned. 27
(2) In proceedings for the child abuse material offence concerned, 28
evidence adduced by the prosecutor of any findings of the 29
authorised analyst as to the nature and content of the random 30
sample is admissible as evidence of the nature and content of the 31
whole of the material from which the random sample was taken. 32
Page 8
Crimes Amendment (Child Pornography and Abuse Material) Bill 2010
Amendment of Criminal Procedure Act 1986 No 209 Schedule 2
(3) Accordingly, it is open to a court to find that any type of child 1
abuse material found by an authorised analyst to be present in a 2
particular proportion in the random sample is present in the same 3
proportion in the material from which the random sample was 4
taken. 5
(4) A certificate of an authorised analyst, that certifies any of the 6
following matters, is admissible in proceedings for a child abuse 7
material offence as evidence of the matters certified: 8
(a) that the authorised analyst conducted an examination of a 9
random sample of the material the subject of the 10
proceedings, 11
(b) that the random sample was taken, and the examination 12
conducted, in accordance with any requirements of the 13
regulations, 14
(c) the findings of the authorised analyst as to the nature and 15
content of the random sample. 16
(5) A certificate signed by a person purporting to be an authorised 17
analyst is taken to be a certificate of an authorised analyst, in the 18
absence of evidence to the contrary. 19
(6) Evidence is admissible under this section only if the court is 20
satisfied that the accused person, or an Australian legal 21
practitioner representing the accused person, has been given a 22
reasonable opportunity to view all of the child abuse material or 23
alleged child abuse material the subject of the proceedings 24
concerned. 25
(7) This section does not affect the provisions of Part 2A, which 26
restrict the access of an accused person to sensitive evidence. 27
(8) The regulations may make further provision for or with respect to 28
the taking and admissibility of random sample evidence under 29
this section, including by providing for: 30
(a) the circumstances or types of cases in which the prosecutor 31
may adduce evidence of the findings of an authorised 32
analyst under this section, and 33
(b) the procedure for taking and examining random samples of 34
material, and 35
(c) any further requirements as to the content and service of a 36
certificate of an authorised analyst. 37
Page 9
Crimes Amendment (Child Pornography and Abuse Material) Bill 2010
Schedule 2 Amendment of Criminal Procedure Act 1986 No 209
[4] Section 290A Definitions 1
Omit the definition of complainant. Insert instead: 2
complainant, in relation to any proceedings, means the person, or 3
any of the persons, against whom a prescribed sexual offence 4
with which the accused person stands charged is alleged to have 5
been committed. 6
[5] Section 290A (2) 7
Insert at the end of the section: 8
(2) In this Division, a reference to a person against whom a 9
prescribed sexual offence is alleged to have been committed 10
includes: 11
(a) in relation to an offence under section 80E of the Crimes 12
Act 1900, a reference to the person who is alleged to have 13
been the subject of sexual servitude, and 14
(b) in relation to an offence under section 91D, 91E or 91F of 15
the Crimes Act 1900, a reference to the person under the 16
age of 18 years who is alleged to have participated in an act 17
of child prostitution, and 18
(c) in relation to an offence under section 91G of the Crimes 19
Act 1900, a reference to the person under the age of 20
18 years who is alleged to have been used for the 21
production of child abuse material. 22
[6] Section 294D 23
Insert after section 294C: 24
294D Protections afforded to complainants extend to witnesses against 25
whom accused person is alleged to have committed sexual 26
offence 27
(1) In proceedings in respect of a prescribed sexual offence, this 28
Division applies to a sexual offence witness in the proceedings in 29
the same way as it applies to a complainant in the proceedings. 30
(2) A sexual offence witness is any witness in the proceedings 31
against whom a prescribed sexual offence is alleged to have been 32
committed by the accused person, being a prescribed sexual 33
offence that is not the subject of the proceedings concerned. 34
(3) Accordingly, a reference in this Division to a complainant 35
includes a reference to a sexual offence witness. 36
Page 10
Crimes Amendment (Child Pornography and Abuse Material) Bill 2010
Amendment of Criminal Procedure Act 1986 No 209 Schedule 2
(4) In addition, the court may make an order directing that the 1
identity of a sexual offence witness is not to be publicly 2
disclosed. 3
(5) If the court makes such an order, the sexual offence witness is 4
taken to be a complainant for the purposes of section 578A of the 5
Crimes Act 1900 and that section applies accordingly. 6
Note. Section 578A of the Crimes Act 1900 prohibits the publication of 7
any matter which identifies the complainant in prescribed sexual offence 8
proceedings or any matter which is likely to lead to the identification of 9
the complainant. 10
(6) A witness is to be treated as a sexual offence witness, even if the 11
witness has not yet given evidence in the proceedings, if the court 12
is satisfied that the prosecutor has given notice to the accused 13
person that the prosecutor intends to adduce evidence that the 14
accused person committed a prescribed sexual offence against 15
the witness. 16
[7] Section 306A Definitions 17
Omit "pornographic purposes" from paragraph (c) of the definition of 18
complainant. 19
Insert instead "the production of child abuse material". 20
[8] Section 348 Offences in respect of which an intervention program may 21
be conducted 22
Omit "dissemination or possession of child pornography" from 23
section 348 (2) (d). 24
Insert instead "dissemination or possession of child pornography or child 25
abuse material". 26
[9] Schedule 2 Savings, transitional and other provisions 27
Insert at the end of clause 1 (1): 28
Crimes Amendment (Child Pornography and Abuse Material) 29
Act 2010 30
Page 11
Crimes Amendment (Child Pornography and Abuse Material) Bill 2010
Schedule 2 Amendment of Criminal Procedure Act 1986 No 209
[10] Schedule 2 1
Insert at the end of the Schedule with appropriate Part and clause numbering: 2
Part Provisions consequent on enactment of 3
Crimes Amendment (Child Pornography 4
and Abuse Material) Act 2010 5
Use of random sample evidence 6
(1) Part 4A of Chapter 6, as inserted by the Crimes Amendment 7
(Child Pornography and Abuse Material) Act 2010, extends to 8
proceedings instituted or partly heard before the commencement 9
of that Part, which were not finally disposed of before that 10
commencement. 11
(2) Accordingly, that Part extends to offences under Division 15A of 12
Part 3 of the Crimes Act 1900 alleged to have been committed 13
before the commencement of Part 4A of Chapter 6. 14
References to child abuse material 15
A reference in this Act to child abuse material includes a 16
reference to child pornography within the meaning of 17
section 91H of the Crimes Act 1900 (as in force before that 18
section was replaced by the Crimes Amendment (Child 19
Pornography and Abuse Material) Act 2010). 20
Extension of protections afforded to complainants to other 21
witnesses 22
(1) Section 294D, as inserted by the Crimes Amendment (Child 23
Pornography and Abuse Material) Act 2010, extends to 24
proceedings instituted or partly heard before the commencement 25
of that section, which were not finally disposed of before that 26
commencement. 27
(2) However, section 294D does not affect the admissibility of any 28
evidence given in proceedings before the commencement of that 29
section or otherwise affect the validity of anything done, or 30
omitted to be done, before that commencement. 31
Page 12
Crimes Amendment (Child Pornography and Abuse Material) Bill 2010
Amendment of other legislation Schedule 3
Schedule 3 Amendment of other legislation 1
3.1 Children and Young Persons (Care and Protection) Act 1998 2
No 157 3
[1] Section 43 Removal of children and young persons without warrant 4
Omit "pornographic purposes" from section 43 (3) (b) (i) and (ii) wherever 5
occurring. 6
Insert instead "the production of child abuse material". 7
[2] Section 43 (7), definition of "pornographic purposes" 8
Omit the definition. Insert in alphabetical order: 9
child abuse material has the same meaning as it has in 10
Division 15A of Part 3 of the Crimes Act 1900. 11
3.2 Commission for Children and Young People Act 1998 No 146 12
[1] Section 33 Definitions 13
Insert after paragraph (a) of the definition of reportable conduct in 14
section 33 (1): 15
(aa1) any offence or misconduct involving child abuse material 16
(within the meaning of Division 15A of Part 3 of the 17
Crimes Act 1900), or 18
[2] Section 33G Persons not entitled to make review applications 19
Omit section 33G (1) (c). Insert instead: 20
(c) an offence under section 91H (2) of the Crimes Act 1900, 21
involving the production of child abuse material, or a 22
similar offence under that Act or a law other than a law of 23
New South Wales, 24
3.3 Law Enforcement (Powers and Responsibilities) Act 2002 25
No 103 26
[1] Section 46A Searchable offences 27
Omit section 46A (1) (a) (iv). Insert instead: 28
(iv) a child abuse material offence, 29
Page 13
Crimes Amendment (Child Pornography and Abuse Material) Bill 2010
Schedule 3 Amendment of other legislation
[2] Section 46A (2) 1
Omit the definition of child pornography offence. Insert instead: 2
child abuse material offence means an offence under 3
section 91H or 578C of the Crimes Act 1900. 4
3.4 Ombudsman Act 1974 No 68 5
Section 25A Definitions 6
Insert "or an offence involving child abuse material (within the meaning of 7
Division 15A of Part 3 of the Crimes Act 1900)" after "child pornography 8
offence" in paragraph (a) of the definition of reportable conduct in 9
section 25A (1). 10
3.5 Parliamentary Electorates and Elections Act 1912 No 41 11
Section 81K Definitions 12
Insert "or an offence involving child abuse material (within the meaning of 13
Division 15A of Part 3 of the Crimes Act 1900)" after "child pornography 14
offence" wherever occurring in paragraphs (a) and (b) of the definition of 15
child sexual offence in section 81K (1). 16
3.6 Parliamentary Electorates and Elections Regulation 2008 17
[1] Schedule 1 Forms 18
Insert "or offences involving child abuse material (within the meaning of 19
Division 15A of Part 3 of the Crimes Act 1900)" after "child pornography 20
offences" in Form 6. 21
[2] Schedule 1, Form 6 22
Insert "or an offence involving child abuse material (within the meaning of 23
Division 15A of Part 3 of the Crimes Act 1900)" after "child pornography 24
offence" wherever occurring. 25
Page 14
Crimes Amendment (Child Pornography and Abuse Material) Bill 2010
Amendment of other legislation Schedule 3
3.7 Victims Support and Rehabilitation Act 1996 No 115 1
Dictionary 2
Omit "pornographic purposes" from paragraph (e) of the definition of sexual 3
assault and domestic violence. 4
Insert instead "the production of child abuse material". 5
Page 15
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