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This is a Bill, not an Act. For current law, see the Acts databases.
Queensland
Criminal Code (Child
Pornography and Abuse)
Amendment Bill 2004
Queensland
Criminal Code (Child Pornography and
Abuse) Amendment Bill 2004
Contents
Page
Part 1 Preliminary
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Part 2 Criminal Code amended
3 Code amended in pt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4 Amendment of s 1 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . 4
5 Insertion of new s 207A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
207A Definitions for this chapter . . . . . . . . . . . . . . . . . . . . . 5
6 Insertion of new ss 228A228H . . . . . . . . . . . . . . . . . . . . . . . . . . 6
228A Involving child in making child exploitation material . . 6
228B Making child exploitation material . . . . . . . . . . . . . . . 6
228C Distributing child exploitation material . . . . . . . . . . . . 7
228D Possessing child exploitation material . . . . . . . . . . . . 7
228E Defences for ss 228A228D. . . . . . . . . . . . . . . . . . . . 7
228F Excluding non-essential persons from court when
child exploitation material displayed . . . . . . . . . . . . . . 9
228G Forfeiture of child exploitation material etc. . . . . . . . . 10
228H Possession etc. of child exploitation material by law
enforcement officer. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
7 Amendment of s 590AF (Meaning of sensitive evidence) . . . . . . 12
Part 3 Child Protection (Offender Reporting) Act 2004 amended
8 Act amended in pt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
9 Amendment of sch 2 (Class 2 offences). . . . . . . . . . . . . . . . . . . . 13
Part 4 Commission for Children and Young People and Child
Guardian Act 2000 amended
10 Act amended in pt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
11 Amendment of s 99E (What is an excluding offence). . . . . . . . . . 13
2
Criminal Code (Child Pornography and Abuse)
Amendment Bill 2004
12 Amendment of sch 2 (Current serious offences) . . . . . . . . . . . . . 14
2004
A Bill
for
An Act to amend the Criminal Code, and for other purposes
s1 4 s4
Criminal Code (Child Pornography and Abuse)
Amendment Bill 2004
The Parliament of Queensland enacts-- 1
Part 1 Preliminary 2
Clause 1 Short title 3
This Act may be cited as the Criminal Code (Child 4
Pornography and Abuse) Amendment Act 2004. 5
Clause 2 Commencement 6
This Act commences on a day to be fixed by proclamation. 7
Part 2 Criminal Code amended 8
Clause 3 Code amended in pt 9
This part amends the Criminal Code. 10
Clause 4 Amendment of s 1 (Definitions) 11
Section 1-- 12
insert-- 13
`child exploitation material, for chapter 22, see section 207A. 14
classification officer, for chapter 22, see section 207A. 15
classified, for chapter 22, see section 207A. 16
computer game, for chapter 22, see section 207A. 17
film, for chapter 22, see section 207A. 18
material, for chapter 22, see section 207A. 19
publication, for chapter 22, see section 207A. 20
someone, for chapter 22, see section 207A.'. 21
s5 5 s5
Criminal Code (Child Pornography and Abuse)
Amendment Bill 2004
Clause 5 Insertion of new s 207A 1
Chapter 22, before section 208-- 2
insert-- 3
`207A Definitions for this chapter 4
`In this chapter-- 5
child exploitation material means material that, in a way 6
likely to cause offence to a reasonable adult, describes or 7
depicts someone who is, or apparently is, a child under 8
16 years-- 9
(a) in a sexual context, including for example, engaging in a 10
sexual activity; or 11
(b) in an offensive or demeaning context; or 12
(c) being subjected to abuse, cruelty or torture. 13
classification officer means-- 14
(a) the computer games classification officer under the 15
Classification of Computer Games and Images Act 16
1995; or 17
(b) the films classification officer under the Classification 18
of Films Act 1991; or 19
(c) the publications classification officer under the 20
Classification of Publications Act 1991. 21
classified-- 22
(a) for a computer game--see the Classification of 23
Computer Games and Images Act 1995; or 24
(b) for a film--see the Classification of Films Act 1991; or 25
(c) for a publication--see the Classification of Publications 26
Act 1991. 27
computer game see the Classification of Computer Games 28
and Images Act 1995. 29
film see the Classification of Films Act 1991. 30
material includes anything that contains data from which text, 31
images or sound can be generated. 32
s6 6 s6
Criminal Code (Child Pornography and Abuse)
Amendment Bill 2004
publication see the Classification of Publications Act 1991. 1
someone, in the context of a description or depiction, includes 2
the body parts of someone, including for example, someone's 3
breast or genitalia.'. 4
Clause 6 Insertion of new ss 228A228H 5
After section 228-- 6
insert-- 7
`228A Involving child in making child exploitation material 8
`(1) A person who involves a child in the making of child 9
exploitation material commits a crime. 10
Maximum penalty--10 years imprisonment. 11
`(2) In this section-- 12
involves a child in the making of child exploitation material 13
includes-- 14
(a) in any way concerns a child in the making of child 15
exploitation material; and 16
(b) attempts to involve a child in the making of child 17
exploitation material. 18
`228B Making child exploitation material 19
`(1) A person who makes child exploitation material commits a 20
crime. 21
Maximum penalty--10 years imprisonment. 22
`(2) In this section-- 23
make child exploitation material includes-- 24
(a) produce child exploitation material; and 25
(b) attempt to make child exploitation material. 26
s6 7 s6
Criminal Code (Child Pornography and Abuse)
Amendment Bill 2004
`228C Distributing child exploitation material 1
`(1) A person who distributes child exploitation material commits 2
a crime. 3
Maximum penalty--10 years imprisonment. 4
`(2) In this section-- 5
distribute child exploitation material includes-- 6
(a) communicate, exhibit, send, supply or transmit child 7
exploitation material to someone, whether to a particular 8
person or not; and 9
(b) make child exploitation material available for access by 10
someone, whether by a particular person or not; and 11
(c) enter into an agreement or arrangement to do something 12
in paragraph (a) or (b); and 13
(d) attempt to distribute child exploitation material. 14
`228D Possessing child exploitation material 15
`A person who knowingly possesses child exploitation 16
material commits a crime. 17
Maximum penalty--5 years imprisonment. 18
`228E Defences for ss 228A228D 19
`(1) Subsections (2), (3) and (5) prescribe defences available to a 20
person charged with an offence against section 228A, 228B, 21
228C or 228D. 22
`(2) It is a defence for the person to prove that-- 23
(a) the person engaged in the conduct that is alleged to 24
constitute the offence for a genuine artistic, educational, 25
legal, medical, scientific or public benefit purpose; and 26
(b) the person's conduct was, in the circumstances, 27
reasonable for that purpose. 28
29
Example of something made for a `public benefit'--
30
A current affairs television program showing children being tortured
31
during a civil war.
s6 8 s6
Criminal Code (Child Pornography and Abuse)
Amendment Bill 2004
`(3) It is a defence for the person to prove that, at the time of the 1
alleged offence-- 2
(a) a classification exemption had been given to an entity 3
for the material that is alleged to be child exploitation 4
material; and 5
(b) the person engaged in the conduct that is alleged to 6
constitute the offence-- 7
(i) for a purpose for which the exemption was given; 8
and 9
(ii) in a way that is consistent with the exemption, 10
including any conditions imposed on the 11
exemption. 12
13
Example--
14
A Brisbane medical school is given an exemption under the
15
Classification of Computer Games and Images Act 1995,
16
section 59, to allow the medical school to possess computer
17
images of tortured children, and to distribute the images to its
18
medical students. The exemption is subject to a condition that
19
the medical students are not allowed to distribute the images to
20
anyone, including to themselves at another computer. Amy, a
21
medical student, sends a copy of the images to her home
22
computer and also to her brother Bob's computer. Neither Amy
23
nor Bob could claim a defence under subsection (3), because
24
their possession of the images is not consistent with the
25
exemption.
`(4) Whether conduct was engaged in for a purpose mentioned in 26
subsection (2)(a) or (3)(b)(i) is a question of fact. 27
`(5) It is a defence for the person to prove that the material alleged 28
to be child exploitation material is-- 29
(a) a computer game that, under the Classification 30
(Publications, Films and Computer Games) Act 1995 31
(Cwlth), is a film classified R or X; or 32
(b) a computer game, film or publication that is classified as 33
something other than RC. 34
`(6) For subsection (5), the material may have been classified 35
before, or may be classified after, the offence is alleged to 36
have been committed. 37
s6 9 s6
Criminal Code (Child Pornography and Abuse)
Amendment Bill 2004
`(7) A certificate that states any of the following facts is evidence 1
of that fact-- 2
(a) whether a stated computer game, film or publication has 3
been classified; 4
(b) if a stated computer game, film or publication has been 5
classified--the classification given to the computer 6
game, film or publication. 7
`(8) In this section-- 8
certificate means-- 9
(a) a certificate under the Classification (Publications, 10
Films and Computer Games) Act 1995 (Cwlth), 11
section 87; or 12
(b) a certificate signed, or purporting to be signed, by-- 13
(i) for a computer game--the computer games 14
classification officer under the Classification of 15
Computer Games and Images Act 1995; or 16
(ii) for a publication--the publications classification 17
officer under the Classification of Publications Act 18
1991. 19
classification exemption means an exemption given under-- 20
(a) for a computer game--the Classification of Computer 21
Games and Images Act 1995, section 59; or 22
(b) for a publication--the Classification of Publications Act 23
1991, section 37. 24
`228F Excluding non-essential persons from court when 25
child exploitation material displayed 26
`(1) When material alleged to be child exploitation material is on 27
display in a courtroom, the court must exclude from the 28
courtroom anyone who is not an essential person. 29
`(2) An essential person is-- 30
(a) a party, or a person representing a party, to the 31
proceeding; or 32
s6 10 s6
Criminal Code (Child Pornography and Abuse)
Amendment Bill 2004
(b) a Crown Law officer or a person authorised by a Crown 1
Law officer; or 2
(c) the prosecutor; or 3
(d) a witness giving evidence; or 4
(e) a person who a witness is entitled to have present in 5
court under the Evidence Act 1977, section 21A(2)(d) 6
or 21AV or the Criminal Law (Sexual Offences) Act 7
1978, section 5(1)(f); or 8
(f) a person whose presence is, in the court's opinion, 9
necessary or desirable for the proper conduct of the 10
proceeding; or 11
(g) a person who applies to the court to be present and 12
whose presence, in the court's opinion-- 13
(i) would serve a proper interest of the person; and 14
(ii) would not be prejudicial to the interests of any 15
child described or depicted in the child exploitation 16
material, whether or not any child can be identified 17
from the child exploitation material. 18
`(3) When forming an opinion under subsection (2)(f) or (g), the 19
court must consider the public benefit of limiting the number 20
of people with access to child exploitation material. 21
`228G Forfeiture of child exploitation material etc. 22
`(1) This section applies if a person is prosecuted for an offence 23
against-- 24
(a) section 210(1)(f);1 or 25
(b) section 228A, 228B, 228C or 228D. 26
`(2) Whether or not the person is convicted of the offence, the 27
court may order the photograph, visual image, or material that 28
is the subject of the offence be forfeited to the State. 29
1 Section 210 (Indecent treatment of children under 16)
s6 11 s6
Criminal Code (Child Pornography and Abuse)
Amendment Bill 2004
`(3) If the person is convicted of the offence, the court may also 1
order that anything used to commit the offence be forfeited to 2
the State. 3
4
Example of a thing used to commit the offence--
5
A computer, camera or sound recording device.
`(4) Subsections (2) and (3) apply whether the thing to be forfeited 6
has been seized or is in its owner's possession. 7
`(5) The court may also make any order that it considers 8
appropriate to enforce the forfeiture. 9
`(6) This section does not limit the court's powers under the 10
Penalties and Sentences Act 1992, the Criminal Proceeds 11
Confiscation Act 2002 or another law. 12
`(7) When forfeited to the State, the thing becomes the State's 13
property and may be dealt with as directed by the chief 14
executive. 15
`228H Possession etc. of child exploitation material by law 16
enforcement officer 17
`(1) A person is not criminally responsible for an offence against 18
section 228B, 228C or 228D if-- 19
(a) the person is, at the time of the offence, a classification 20
officer or law enforcement officer acting in the course of 21
the person's duties; and 22
(b) the person's conduct is reasonable in the circumstances 23
for the performance of the duties. 24
`(2) In this section-- 25
law enforcement agency means-- 26
(a) the Queensland Police Service; or 27
(b) the Office of the Director of Public Prosecutions; or 28
(c) the Crime and Misconduct Commission; or 29
(d) any other entity of-- 30
(i) another State; or 31
(ii) the Commonwealth; or 32
s7 12 s8
Criminal Code (Child Pornography and Abuse)
Amendment Bill 2004
(iii) another country; 1
that performs a similar function to an entity in 2
paragraphs (a) to (c). 3
law enforcement officer means-- 4
(a) a member or officer of a law enforcement agency, 5
including a person appearing for the director under the 6
Director of Public Prosecutions Act 1984, section 10(4); 7
or 8
(b) a person who is authorised, in writing, by the 9
commissioner of the police service, or the chairperson 10
of the Crime and Misconduct Commission, to help a 11
member or officer of a law enforcement agency; or 12
(c) a person who belongs to a class of persons that is 13
authorised, in writing, by the commissioner of the police 14
service, or the chairperson of the Crime and Misconduct 15
Commission, to help a member or officer of a law 16
enforcement agency.'. 17
Clause 7 Amendment of s 590AF (Meaning of sensitive evidence) 18
Section 590AF-- 19
insert-- 20
`(2) Child exploitation material under chapter 22, or material 21
alleged to be child exploitation material, is sensitive 22
evidence.'. 23
Part 3 Child Protection (Offender 24
Reporting) Act 2004 amended 25
Clause 8 Act amended in pt 26
This part amends the Child Protection (Offender Reporting) 27
Act 2004. 28
s9 13 s 11
Criminal Code (Child Pornography and Abuse)
Amendment Bill 2004
Clause 9 Amendment of sch 2 (Class 2 offences) 1
Schedule 2, item 1(a)-- 2
insert-- 3
`· section 228A (Involving child in making child 4
exploitation material) 5
· section 228B (Making child exploitation material) 6
· section 228C (Distributing child exploitation 7
material) 8
· section 228D (Possessing child exploitation 9
material)'. 10
Part 4 Commission for Children and 11
Young People and Child 12
Guardian Act 2000 amended 13
Clause 10 Act amended in pt 14
This part amends the Commission for Children and Young 15
People and Child Guardian Act 2000. 16
Clause 11 Amendment of s 99E (What is an excluding offence) 17
Section 99E-- 18
insert-- 19
`(c) an offence against the Criminal Code, section 228A, 20
228B, 228C or 228D.2'. 21
2 Criminal Code, section 228A (Involving child in making child exploitation
material), 228B (Making child exploitation material), 228C (Distributing child
exploitation material) or 228D (Possessing child exploitation material)
s 12 14 s 12
Criminal Code (Child Pornography and Abuse)
Amendment Bill 2004
Clause 12 Amendment of sch 2 (Current serious offences) 1
Schedule 2, item 4-- 2
insert-- 3
`228A Involving child in
making child
exploitation
material
228B Making child
exploitation
material
228C Distributing child
exploitation
material
228D Possessing child
exploitation
material'.
© State of Queensland 2004
AMENDMENTS TO BILL
1
Criminal Code (Child Pornography and Abuse)
Amendment Bill 2005
Criminal Code (Child Pornography and
Abuse) Amendment Bill 2005
Amendments agreed to during consideration
1 Clause 6--
At page 11, line 25--
omit, insert--
`Examples of conduct that may be reasonable for the performance
of a law enforcement officer's duties--
1 Copying child exploitation material for the purposes of
preparing a brief for police prosecutors
2 Supplying child exploitation material to a classification
officer for classification or to the Office of the Director of
Public Prosecutions for use during the prosecution of a
person for an offence
3 Keeping child exploitation material obtained during an
investigation for legitimate intelligence purposes
`(2) However, subsection (1) does not apply to the extent that the
person's conduct consists of--
(a) engaging in an activity as part of an investigation of
chapter 5 criminal activity; or
(b) engaging in conduct that is directed to obtaining
evidence of the commission of an offence against a
particular person.1
`(3) In this section--
chapter 5 criminal activity has the meaning given by the
Police Powers and Responsibilities Act 2000.'.
© State of Queensland 2005
1 See the Police Powers and Responsibilities Act 2000, chapter 5, which provides for
the approval of, and protection from liability of persons involved in, controlled
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