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This is a Bill, not an Act. For current law, see the Acts databases.
House of Assembly—No 35
As laid on the table and read a first time, 26 October 2004
South Australia
Criminal
Law Consolidation (Child Pornography) Amendment Bill 2004
A Bill For
An Act to amend the Criminal Law Consolidation
Act 1935 and to make consequential amendments to the Summary
Offences Act 1953.
Contents
Part 1—Preliminary
1 Short title
2 Commencement
3 Amendment provisions
Part 2—Amendment of Criminal
Law Consolidation Act 1935
4 Repeal of section 58A
5 Redesignation of section 64
6 Redesignation of section 65
7 Insertion of Part 3 Division 11A
Division 11A—Child pornography
and related offences
62 Interpretation
63 Production or dissemination of
child pornography
63A Possession of child pornography
63B Procuring child to commit indecent
act etc
63C Pornographic nature of material
Part 3—Amendment of the
Summary Offences Act 1953
8 Amendment of
section 33—Indecent or offensive material
The Parliament of South Australia enacts
as follows:
This Act may be cited as the Criminal Law Consolidation (Child
Pornography) Amendment Act 2004.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the
amendment of a specified Act amends the Act so specified.
Part 2—Amendment of Criminal Law Consolidation
Act 1935
Section 58A—delete the section
Section 64—redesignate the section as section 60
Section 65—redesignate the section as section 61
7—Insertion of Part 3 Division 11A
Part 3—after Division 11 insert:
Division 11A—Child
pornography and related offences
62—Interpretation
In this Division—
child means a person under, or apparently
under, the age of 16 years;
child pornography means material—
(a) that—
(i) describes or
depicts a child engaging in sexual activity; or
(ii) consists of, or contains, the image of a child or bodily
parts of a child (or what appears to be the image of a child or bodily parts of
a child) or in the production of which a child has been or appears to have been
involved; and
(b) that is intended or apparently intended—
(i) to excite or
gratify sexual interest; or
(ii) to excite or gratify a sadistic or other perverted interest
in violence or cruelty;
disseminate—a person disseminates child pornography if the person—
(a) sends, supplies, exhibits, transmits or communicates it to
another, or enters into an agreement or arrangement to do so; or
(b) makes it available for access by another (including access
by means of a computer) or enters into an agreement or arrangement to do so;
material includes—
(a) any written or printed material; or
(b) any picture, painting or drawing; or
(c) any carving, sculpture, statue or figure; or
(d) any photographic, electronic or other information or data from
which an image or representation may be produced or reproduced; or
(e) any film, tape, disc, or other object or system containing
any such information or data;
pornographic nature of child pornography means the aspects of
the material by reason of which it is pornographic;
private act means—
(a) a sexual act; or
(b) an act involving an intimate bodily function such as using a
toilet; or
(c) an act or activity involving undressing to a point where the
body is clothed only in undergarments; or
(d) an activity involving nudity or exposure or partial exposure
of sexual organs, pubic area, buttocks or female breasts;
prurient purpose—a person acts for a prurient purpose if the person acts with the
intention of satisfying his or her own desire for sexual arousal or
gratification or of providing sexual arousal or gratification for someone else.
63—Production
or dissemination of child pornography
A person who—
(a) produces, or takes any step in the production of, child
pornography knowing of its pornographic nature; or
(b) disseminates, or takes any step in the
dissemination of, child pornography knowing of its pornographic nature,
is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
63A—Possession
of child pornography
(1) A person who—
(a) is in possession of child pornography knowing of its
pornographic nature; or
(b) intending to obtain access to child pornography, obtains
access to child pornography or takes a step towards obtaining access to child
pornography,
is guilty of an offence.
Maximum penalty:
(a) for a first offence—imprisonment for 5 years; or
(b) for a subsequent offence—imprisonment for 7 years.
(2) It
is a defence to a charge of an offence against subsection (1) to prove that
the material to which the charge relates came into the defendant's possession
unsolicited and that the defendant, as soon as he or she became aware of the
material and its pornographic nature, took reasonable steps to get rid of it.
(3) In
determining whether an offence against subsection (1) is a first or
subsequent offence, a court must treat a previous offence involving child
pornography against any provision of this Division, or a corresponding previous
enactment, as a previous offence.
63B—Procuring
child to commit indecent act etc
(1) A person who—
(a) incites or procures the commission by a child of an indecent
act; or
(b) acting for a prurient purpose—
(i) causes or induces
a child to expose any part of his or her body; or
(ii) makes a photographic, electronic or other record from which
the image, or images, of a child engaged in a private act may be reproduced,
is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
(2) Subsection (1) applies whether the
acts alleged to constitute the offence—
(a) occur in private or in public; or
(b) occur with or without the consent of the child, or the
child's parent or guardian.
(3) A person who—
(a) procures a child or makes a communication with the intention
of procuring a child to engage in, or submit to, a sexual activity; or
(b) makes a communication for a prurient
purpose and with the intention of making a child amenable to a sexual activity,
is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
63C—Pornographic
nature of material
(1) In
determining whether material to which a charge of an offence relates is of a
pornographic nature, the circumstances of its production and its use or
intended use may be taken into account but no such circumstance can deprive
material that is inherently pornographic of that character.
(2) No
offence is committed against this Division by reason of the production,
dissemination or possession of material in good faith and for the advancement
or dissemination of legal, medical or scientific knowledge.
(3) No
offence is committed against this Division by reason of the production,
dissemination or possession of material that constitutes, or forms part of, a
work of artistic merit if, having regard to the artistic nature and purposes of
the work as a whole, there is no undue emphasis on aspects of the work that
might otherwise be considered pornographic.
(4) No offence is committed against this
Division by reason of—
(a) the possession or dissemination of a publication, film or
computer game that has been classified under the Classification
(Publications, Films and Computer Games) Act 1995 (unless it is
classified as a publication for which classification is refused (RC)); or
(b) the possession of a publication, film or computer game for
the purposes of obtaining a classification under that Act.
Part 3—Amendment of the Summary Offences Act 1953
8—Amendment of section 33—Indecent or offensive material
(1) Section
33(1), definitions of child and child pornography—delete
the definitions
(2) Section 33(2), penalty provision—delete the
penalty provision and substitute:
Maximum penalty: $20 000 or imprisonment for 6 months.
(3) Section 33(3)—delete subsection (3)