Commonwealth of Australia Explanatory Memoranda

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CRIMINAL CODE AMENDMENT (ANTI-CHILD ABUSE AND PORNOGRAPHY MATERIALS) BILL 2007

                   2004-2005-2006-2007




THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                       THE SENATE




CRIMINAL CODE AMENDMENT (ANTI-CHILD ABUSE AND
       PORNOGRAPHY MATERIALS) BILL 2007




            EXPLANATORY MEMORANDUM




       (Circulated by authority of Senator Joe Ludwig)
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        CRIMINAL CODE AMENDMENT (ANTI-CHILD ABUSE AND
               PORNOGRAPHY MATERIALS) BILL 2007

GENERAL OUTLINE

The purpose of the Bill is:
    · to introduce two new offences criminalising the transmission of child
       pornography and child abuse material by post, and
    · to increase the penalties for a range of similar crimes from 10 years
       imprisonment to 10 years imprisonment and 2,500 penalty units, in line with
       the penalties for importation under the Customs Act 1901.

Presently there is no specific offence covering the transmission of child abuse and
child pornography material via mail within Australia (although state laws relating to
the possession and distribution of child pornography would still apply).

This Bill is designed to correct an anomaly whereby the transmission of child abuse
material and child pornography material via a telecommunications carriage service is
specifically outlawed by Commonwealth law, but there is no corresponding offence
for the transmission of similar material via a postal service.

In standardising the penalties for a range of similar offences to include a fine of 2,500
penalty units, the Bill will also allow corporations to be found guilty of these offences
to be penalised.


FINANCIAL IMPACT STATEMENT

It is not expected that there will be any financial impact.
NOTES ON CLAUSES

Clause 1: Short title

This clause sets out the short title by which this Act may be cited ­ Criminal Code
Amendment (Child Pornography and Abuse Materials) Act 2007.

Clause 2: Commencement

This clause provides that this Act commences on the day on which it receives the
Royal Assent.

Clause 3: Schedule(s)

This clause provides that the amendments to the Criminal Code Act 1995 made by
this Act are set out in a Schedule.


SCHEDULE 1 ­ AMENDMENT OF THE CRIMINAL CODE ACT 1995

Item 1 Subdivision 470.1

This item inserts definitions of `child abuse material' and `child pornography
material' for the purposes of Part 10.5 (Postal Offences).

The definitions inserted here refer to those in section 473.1 of the Criminal Code Act
1995.

Item 2 Section 471.13A

Item 2 inserts a new section, 471.13A after 471.13. This section creates a new
offence, Using a postal or similar service to transmit child abuse material.

Under the new section, a person commits an offence if the person causes an article of
child abuse material to be carried by a postal or similar service.

It is a defence to this crime that the person was an employee of Australia Post (or a
provider of similar services) and that the article was transmitted in the normal course
of their duties.

The penalty for this offence is imprisonment for 10 years or 2,500 penalty units or
both. This penalty is reflective of the penalty attached to the section 233BAB offence
under the Customs Act 1901 which applies to importing similar material.

Proposed subsection (2) provides that the existing section 470.1 definition of carry by
post does not apply. The definition of carry by post has the same meaning as provided
for in the Australian Postal Corporation Act 1989.

Section 4 of that Act provides:



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       For the purposes of this Act, an article is carried by post if it is carried by or
       through Australia Post.

It is undesirable that the offence be limited in scope only to Australia Post, as this
would exclude similar services offered via other providers, hence the exclusion of this
definition.

This construction is similar in approach to the offence of section 471.13, Causing a
dangerous article to be carried by a postal or similar service. A similar approach is
also reflected in the proposed section 471.13B offence created by item 3 below.

Item 3 Section 471.13B

Item 3 inserts a new section, 471.13B after 471.13A inserted by item 2. This section
creates a new offence, Using a postal or similar service to transmit child
pornography material.

Under the new section, a person commits an offence if the person causes an article of
child pornography material to be carried by a postal or similar service.

As per item 3 above, proposed subsection (2) provides that the existing section 470.1
definition of carry by post does not apply. The definition of carry by post has the
same meaning provided for in the Australian Postal Corporation Act 1989.

It is a defence to this crime that the person was an employee of Australia Post (or a
like organisation) and that the article was transmitted in the normal course of their
duties.

The penalty for this offence is imprisonment for 10 years or 2,500 penalty units or
both.

Item 4 Subsection 474.19(1)

Item 4 alters the penalty for the offence of using a carriage service for child
pornography material.

The item increases the maximum penalty from imprisonment for 10 years to
imprisonment for 10 years and 2,500 penalty units.

This penalty is reflective of the penalty attached to the section 233BAB offence under
the Customs Act 1901 which applies to importing similar material. This penalty
threshold has been used as the basis of standardisation for this offence, and also those
under item 5.

This increase in penalty ensures that, under Federal law, like actions are treated alike.




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Item 5 Subsection 474.20(1)

Item 5 alters the penalty for the offence of Possessing, controlling, producing,
supplying or obtaining child pornography material for use through a carriage
service.

This item increases the penalty from imprisonment for 10 years to imprisonment for
10 years and 2,500 penalty units.

Items 6 ­ 11 Subsections 474.21(1), 474.21(3), 474.21(4)

Items 6-11 amend section 474.21, which contains a number of defences in respect of
child pornography material.

These items are consequential amendments to ensure that section 474.21 also applies
to:
    a) the new section 471.13B offence of Using a postal or similar service to
       transmit child pornography material created by item 2, and
    b) the existing section 474.25, Obligations of Internet service providers and
       Internet content hosts which is strengthened by item 14.

Item 12 Subsection 474.22(1)

Item 9 alters the penalty for the offence of Using a carriage service for child abuse
material.

The item increases the maximum penalty from imprisonment for 10 years to
imprisonment for 10 years and 2,500 penalty units.

This penalty is reflective of the penalty attached to the section 233BAB offence under
the Customs Act 1901 which applies to importing similar material. This penalty
threshold has been used as the basis of standardisation for this offence, and also those
under item 13.

This increase in penalty ensures that, under Federal law, like actions are treated alike.

Item 13 Subsection 474.23(1)

Item 13 alters the penalty for the offence of Possessing, controlling, producing,
supplying or obtaining child abuse material for use through a carriage service.

The item increases the maximum penalty from imprisonment for 10 years to
imprisonment for 10 years and 2,500 penalty units.

Items 14 ­ 19 Subsections 474.24(1), 474.24(3), 474.24(4)

Items 14-19 amend section 474.24, which contains a number of defences in respect of
child abuse material.



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These items are consequential amendments to ensure that section 474.24 also applies
to
   a) the new offence of section 474.13A, Using a postal or similar service to
       transmit child pornography material created by item 3, and
   b) the existing section 474.25, Obligations of Internet service providers and
       Internet content hosts which is strengthened by item 14.


Item 20 Section 474.25

Section 474.25 places obligations on Internet Service providers and content hosts in
respect of child pornography material and child abuse material.

Under this section, if an ISP or content host is aware that their service can be `used to
access particular material that the person has reasonable grounds to believe is
(i) child pornography material; or (ii) child abuse material', then they must refer
details of the material to the Australian Federal Police within a reasonable time after
becoming aware of the existence of the material.

The penalty for failure to comply with this obligation is presently 100 penalty units.

The proposed amendment increases the penalty for this offence, from 100 penalty
units to 2,500 penalty units. This penalty is reflective of the penalty attached to the
section 233BAB offence under the Customs Act 1901 which applies to importing
similar material.

This increase in penalty ensures that, under Federal law, like actions are treated alike.

Commensurate with the increase in penalty, the defences already available for child
pornography material and child abuse material are extended to this offence by items
6-11 and 14-19.




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