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Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.*
(a)
to increase the maximum term of imprisonment for the offence of
possessing child pornography from 12 months imprisonment to 2 years
imprisonment, and
(b)
to increase the maximum penalties for publishing an indecent article if
that article constitutes child pornography from 100 penalty units or 12
months imprisonment (or both) in the case of an individual, or 200
penalty units in the case of a corporation, to a maximum penalty of
1,000 penalty units or 5 years imprisonment (or both) in the case of an
individual, or 2,000 penalty units in the case of a corporation, and
* Amended in committee--see table at end of volume.
(c)
to provide for the offence of publishing an indecent article that
constitutes child pornography to be an indictable offence that is to be
dealt with summarily unless the prosecuting authority elects otherwise,
and
(d)
to replace the offence of employing a child for pornographic purposes
with an indictable offence of using a child for pornographic purposes
whether the child is employed for that purpose or not.
Clause 2 provides for the commencement of the proposed Act on a day or
days to be appointed by proclamation.
Clause 3 is a formal provision giving effect to the amendments to the
Crimes Act 1900 set out in Schedule 1 .
Clause 4 is a formal provision giving effect to the amendments to various
Acts set out in Schedule 2.
Schedule 1
Amendment of Crimes Act 1900
Possessing child pornography
Schedule 1 [5] amends section 578B (2) as described in paragraph (a) of the
Overview of the Bill.
Publishing child pornography
Schedule 1 [7] and [8] amend section 578C of the Principal Act in the
manner described in paragraphs (b) and (c) of the Overview of the Bill.
Currently the publication of child pornography is dealt with under section
578C which deals generally with the publication of indecent articles. The
maximum penalty for the publication of such articles is 100 penalty units or
12 months imprisonment (or both) in the case of an individual, or 200 penalty
units in the case of a corporation. The proposed amendments make specific
provision for the offence of publication of child pornography, and also
increase the maximum penalty for such publication so that an individual will
be liable to a maximum penalty of 1,000 penalty units or 5 years
imprisonment (or both) and a corporation will be liable to a maximum
penalty of 2,000 penalty units.
Explanatory note page 2
Use of a child for pornographic purposes
Schedule 1 [2][4] amend section 91G in the manner described in paragraph
(d) of the Overview of the Bill. Section 91G currently makes it an offence to
employ a child for pornographic purposes or to cause or procure a child to be,
or consent to a child being, so used. The proposed amendments to section
91G (1) made by Schedule 1 [2] and [3] will instead provide for the offence
of using a child for pornographic purposes (or causing or procuring a child to
be, or consenting to a child being, so used) whether employed for that
purpose or not.
The penalty for an offence under section 91G remains unchanged so that a
person convicted of using a child for pornographic purposes is liable to penal
servitude for 5 years or, if the child is under 14 years, 7 years penal servitude.
Proposed Schedule l [4] replaces section 91G (2) (which currently provides
that a child is employed for pornographic purposes if money or some other
material thing is paid or provided to the child, or some other person, for the
employment of the child and in the course of employment the child is
engaged in an activity of a sexual nature for the purpose of producing
pornography, or the child is in the presence of a person so engaged) to
remove the element of employment. The new section 91G (2) provides that a
child is used by a person for pornographic purposes if the child is engaged in
activity of a sexual nature (such as actual or simulated sexual intercourse or a
striptease) for the purpose of the production of pornography by that person,
or the child is in the presence of another person so engaged for that purpose.
Other amendments
Schedule 1 [l], [6] and [9] make minor and consequential amendments.
Schedule 1 [10] makes amendments of a savings and transitional nature.
Schedule 2
Amendment of other Acts
Schedule 2.2 amends section 33K of the Criminal Procedure Act 1986 to
provide that an offence under proposed section 578C (2A) (in relation to the
publication of child pornography) is to be dealt with summarily unless the
prosecution elects to have it dealt with on indictment. The maximum
penalties for the publication of child pornography if the matter is dealt with
summarily is to be 100 penalty units or 2 years imprisonment (or both) in the
case of an individual, or 200 penalty units in the case of a corporation.
Schedule 2.1 and 2.3 make consequential amendments to the Children (Care
and Protection) Act 1987 and the Victims Compensation Act 1996.
Explanatory note page 3