Div 11AChild exploitation material and related offences

Division 11A—Child exploitation material and related offences 62—Interpretation administering a website includes— (a) building, developing or maintaining the website; and (b) moderating contributions to, or content on, the website; and (c) managing or regulating membership of, or access to, the website; and (d) monitoring traffic through the website; and (e) an activity or function of a prescribed kind, but does not include an activity or function of a kind excluded by the regulations from the ambit of this definition; child exploitation material means material— (a) — (i) that— (A) describes or depicts a child under, or apparently under, the age of 17 years engaging in sexual activity; or (B) consists of, or contains, the image or representation of (or what appears to be the image or representation of) a child under, or apparently under, the age of 17 years, or the bodily parts of such a child, or in the production of which such a child has been or appears to have been involved; or (C) (without limiting subsubparagraph (B)) consists of, or contains, the image or representation of (or what appears to be the image or representation of) a child‑like sex doll, or part of a child‑like sex doll; and (ii) that is of a pornographic nature; or (b) that is a child‑like sex doll; child‑like sex doll means an actual doll or other object that— (a) resembles— (i) a person who is, or appears to be, under 17 years of age; or (ii) a part of the body of such a person; and (b) a reasonable person would consider it likely that the doll or other object is intended to be used by a person to simulate sexual intercourse; deal with child exploitation material includes— (a) view, upload, download or stream child exploitation material; and (b) make child exploitation material available for viewing, uploading, downloading or streaming; and (c) facilitate the viewing, uploading, downloading or streaming of child exploitation material; disseminate—a person disseminates child exploitation material if the person— (a) sends, supplies, sells, exhibits, distributes, 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; encourage includes suggest, request, urge, induce and demand; hosting a website means— (a) providing storage space or other resources on a server for the website; or (b) an activity or function of a prescribed kind, but does not include an activity or function of a kind excluded by the regulations from the ambit of this definition; material includes— (a) any written or printed material; or (b) any picture, painting or drawing; or (c) any carving, sculpture, doll, 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—material is of a pornographic nature for the purposes of this Division if the material is intended or apparently intended— (a) to excite or gratify sexual interest; or (b) to excite or gratify a sadistic or other perverted interest in violence or cruelty; See also section 63C(1). 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; relevant industry regulatory authority means a person or body prescribed as a relevant industry regulatory authority for the purposes of section 63AB(3)(d); website includes an online forum, group or social media platform. 63—Production or dissemination of child exploitation material (a) produces, or takes any step in the production of, child exploitation material, other than a child‑like sex doll, knowing of its pornographic nature; or (b) disseminates, or takes any step in the dissemination of, child exploitation material, other than a child‑like sex doll, knowing of its pornographic nature, 63AA—Production or dissemination of child‑like sex dolls (a) produces, or takes any step in the production of, a child‑like sex doll; or (b) disseminates, or takes any step in the dissemination of, a child‑like sex doll, 63A—Possession of child exploitation material (a) is in possession of child exploitation material, other than a child‑like sex doll, knowing of its pornographic nature; or (b) intending to obtain access to child exploitation material, other than a child‑like sex doll, obtains access, or takes a step towards obtaining access, to child exploitation material (other than a child‑like sex doll), Maximum penalty: Imprisonment for 12 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. 63AAB—Possession of child‑like sex dolls A person who is in possession of a child‑like sex doll is guilty of an offence. 63AB—Offences relating to websites (1) A person commits an offence if— (a) the person hosts or administers, or assists in the hosting or administration of, a website; and (b) the website is used by another person to deal with child exploitation material; and (c) the person— (i) intends that the website be used by another person to deal with child exploitation material; or (ii) is aware that the website is being used by another person to deal with child exploitation material. (2) It is a defence to a charge of an offence against subsection (1) to prove that the person, on becoming aware that the website was being used, or had been used, by another person to deal with child exploitation material, took all reasonable steps, in the circumstances, to prevent any person from being able to use the website to deal with child exploitation material. (3) In determining whether a person has taken all reasonable steps, in the circumstances, for the purposes of subsection (2), regard must be had as to whether the person, as soon as it was reasonably practicable, did any of the following: (a) shut the website down; (b) modified the operation of the website so that it could not be used to deal with child exploitation material; (c) notified a police officer that the website was being, or had been, used to deal with child exploitation material, and complied with any reasonable directions given by a police officer as to action to be taken by the person in relation to that use of the website; (d) notified a relevant industry regulatory authority that the website was being, or had been, used to deal with child exploitation material, and complied with any reasonable directions given by the authority as to action to be taken by the person in relation to that use of the website. (4) In proceedings for an offence against subsection (1), it is not necessary to prove the identity of the person that was using the website to deal with child exploitation material. (5) A person commits an offence if— (a) the person encourages another person to use a website; and (b) the person intends that the other person use the website to deal with child exploitation material. (6) In proceedings for an offence against subsection (5), it is not necessary to prove— (a) the identity of the person encouraged to use the website to deal with child exploitation material; or (b) that another person in fact used the website to deal with child exploitation material; or (c) if another person did in fact use the website, that it was the person's encouragement that caused the other person to do so. (7) A person commits an offence if— (a) the person provides information to another person; and (b) the person intends the other person to use the information for the purpose of avoiding or reducing the likelihood of apprehension for an offence committed by that other person against this Division. (8) In proceedings for an offence against subsection (7), it is not necessary to prove— (a) the identity of the person to whom the information was provided; or (b) that the information was actually used by the other person. 63B—Procuring child to commit indecent act etc (a) incites or procures the commission of an indecent act by a child under the prescribed age in relation to that person; or (b) acting for a prurient purpose— (i) causes or induces a child under the prescribed age in relation to that person 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 under the age of 17 years engaged in a private act may be reproduced, (a) for a basic offence—imprisonment for 12 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 under the prescribed age in relation to that person or makes a communication with the intention of procuring a child under the prescribed age in relation to that person 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 under the prescribed age in relation to that person amenable to a sexual activity, (a) for a basic offence—imprisonment for 12 years; (3a) For the purposes of subsection (3), it does not matter if the victim is a fictitious person represented to the defendant as a real person. (4) It is a defence to a charge under subsection (1)(a), (1)(b)(i) or (3) (other than where the defendant was in a position of authority in relation to the child) if the defendant proves that— (a) the child was, on the date on which the offence is alleged to have been committed, of or above the age of 16 years; and (i) was, on the date on which the offence is alleged to have been committed, under the age of 17 years; or (ii) believed on reasonable grounds that the child was of or above the age of 17 years. (4a) It is a defence to a charge under subsection (1)(a), (1)(b)(i) or (3) if the defendant was a person of a class described in subsection (6)(c) in relation to the child and proves that— (a) the child was, on the date on which the offence is alleged to have been committed, of or above the age of 17 years; and (b) the defendant— (i) was, on the date on which the offence is alleged to have been committed, under the age of 18 years; or (ii) believed on reasonable grounds that the child was of or above the age of 18 years. (5) This section does not apply if the person and the child are legally married to each other. (6) For the purposes of this section, a person is in a position of authority in relation to a child if— (b) the person is a parent, step-parent, guardian or foster parent of the child or the de facto partner or domestic partner of a parent, step-parent, guardian or foster parent of the child; or (d) the person is a religious official or spiritual leader (however described and including lay members and whether paid or unpaid) in a religious or spiritual group attended by the child; or (g) the person is employed or providing services in a correctional institution (within the meaning of the Correctional Services Act 1982) or a training centre (within the meaning of the Young Offenders Act 1993), or is a person engaged in the administration of those Acts, acting in the course of the person's duties in relation to the child; or (ga) the person is employed or providing services in a licensed children's residential facility (within the meaning of the Children and Young People (Safety) Act 2017), or a residential care facility or other facility established under section 36 of the Family and Community Services Act 1972, or is a person engaged in the administration of those Acts, acting in the course of the person's duties in relation to the child; or (h) the person is an employer of the child or other person who has the authority to determine significant aspects of the child's terms and conditions of employment or to terminate the child's employment (whether the child is being paid in respect of that employment or is working in a voluntary capacity). (7) For the purposes of this section, the prescribed age of a child in relation to a person is— (a) if the person is in a position of authority in relation to the child—18 years; or (b) in any other case—17 years. 63C—Material to which Division relates (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 (other than an offence against section 63AB(7)) by reason of the production, dissemination or possession of, or dealing with, material in good faith and for the advancement or dissemination of legal, medical or scientific knowledge. (2a) No offence is committed against this Division (other than an offence against section 63AB(7)) by reason of the production, dissemination or possession of, or dealing with, material in good faith by— (a) a police officer or other law enforcement officer acting in the course of his or her duties; or (b) any other person acting in the course of his or her duties in the administration of the criminal justice system. (2b) No offence is committed against this Division (other than an offence against section 63AB(7)) by reason of the production, dissemination or possession of, or dealing with, material in good faith by a person acting reasonably for the purpose of providing genuine child protection or legal advice. (3) No offence is committed against this Division (other than an offence against section 63AB(7)) by reason of the production, dissemination or possession of, or dealing with, 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 to be of a pornographic nature. (4) No offence is committed against this Division (other than an offence against section 63AB(7)) by reason of— (a) the possession or dissemination of, or dealing with, 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. 63D—Forfeiture (1) If a court finds a person guilty of an offence against this Division, the court may order forfeiture of any material, equipment, device or other item that was used for, or in connection with, the commission of the offence. (2) A court making an order for forfeiture of any equipment, device or other item under subsection (1) may, if it thinks fit, allow the offender or any other person an opportunity to retrieve (in accordance with any directions of the court) specified records, or other material not involved in the commission of the offence from the equipment, device or item before it is so forfeited.