Div 10Sensitive material

Division 10—Sensitive material 67G—Interpretation and application (1) In this Division— access—a person gives another person access to sensitive material if the person— (a) allows the other to view the material; or (b) gives the other a copy of the material; or (c) gives the other a tape, disk or device from which the material may be produced or reproduced; or (d) transmits the material, or a copy of the material, to the other in the form of computer data; conditions of access—see section 67I(4); criminal investigation means the investigation of an offence, or alleged offence; criminal proceedings means proceedings against a person for an offence (whether summary or indictable), including the following: (a) committal proceedings for an indictable offence; (b) proceedings relating to bail; (c) proceedings for the trial of an offence; (d) proceedings relating to sentencing; (e) proceedings on an appeal against conviction or sentence; private act means— (a) a sexual act; or (b) an act involving an intimate bodily function such as using a toilet; or (c) an activity involving nudity or exposure or partial exposure of sexual organs, pubic area, buttocks or female breasts; prosecuting authority means— (a) in relation to criminal proceedings—the Director of Public Prosecutions, a delegate of the Director of Public Prosecutions, a police officer, or any other person acting in a public official capacity, who is responsible for commencing or conducting a prosecution; and (b) in relation to a criminal investigation—a police officer or any other person acting in a public official capacity who is responsible for conducting a criminal investigation; public official means— (a) a police officer; or (b) a person who holds an office or position in the employment of the State or an instrumentality or agency of the State; or (c) any person classified by regulation as a public official; restricted access to sensitive material means access subject to conditions imposed under this Division; sensitive material has the meaning given by section 67H; sensitive material notice—see section 67I; unrestricted access to sensitive material means access that is not subject to conditions imposed under this Division. (2) In this Division, a reference to a prosecuting authority includes a reference to a legal practitioner representing the prosecuting authority. 67H—Meaning of sensitive material (1) For the purposes of this Division, sensitive material includes— (a) the whole or part of an audiovisual record, or the transcript of any such record, of— (i) an interview of a witness to whom this paragraph applies made pursuant to Part 17 Division 3 of the Summary Offences Act 1953; or (ii) evidence of a witness to whom this paragraph applies at a pre‑trial special hearing conducted in accordance with section 12AB; and (ab) child exploitation material (within the meaning of section 62 of the Criminal Law Consolidation Act 1935); and (b) anything that contains or displays an image of a person if— (i) the image is of the person engaged or apparently engaged in a private act; or (ii) the image is of the victim, or alleged victim, of a sexual offence or an offence of stalking and harassment under section 19AA of the Criminal Law Consolidation Act 1935; or (iii) the image is of the person taken or made after the person's death. (2) A reference to sensitive material extends to anything in a prosecuting authority's possession that the prosecuting authority reasonably considers to be sensitive material. (3) Paragraph (a) of subsection (1) applies to a witness— (a) who is— (i) a young child; or (ii) a person with a disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions; and (b) who is the victim, or alleged victim, of a sexual offence. 67HA—Court may give access to certain sensitive material in certain circumstances A court may, if of the opinion that giving access to sensitive material of a kind referred to in section 67H(1)(a) that has been, or may be, admitted as evidence in proceedings before the court would assist a medical practitioner or psychologist— (a) to prepare an expert report for the court; or (b) to provide treatment or therapy to the witness, make the sensitive material available to the medical practitioner or psychologist (as the case may be) subject to such conditions as the court thinks fit. 67I—Procedures for giving restricted access to sensitive material (1) If, but for this Division, a prosecuting authority would be required to give unrestricted access to sensitive material, the prosecuting authority has a discretion to give either unrestricted or restricted access to the sensitive material. (2) A prosecuting authority cannot, however, exercise its powers under this Division to restrict access to sensitive material by— (a) a court; or (b) a public official who reasonably requires access to the sensitive material for purposes connected with his or her official functions. (3) If the prosecuting authority decides to give restricted access, the authority must give the person entitled to access a notice (a sensitive material notice) that complies with this section. (4) The sensitive material notice must— (a) describe the sensitive material; and (b) indicate that the prosecuting authority has decided to exercise its powers under this section to restrict the person's access to the sensitive material; and (c) state that the restricted access to the sensitive material is subject to the following conditions: (i) the condition that the material will be available for examination by the person under the supervision of the prosecuting authority at a place specified in the notice and at a time to be arranged at the request of the person; (ii) any other condition the prosecuting authority considers necessary or desirable to protect the integrity of the material and to prevent unauthorised reproduction or dissemination; and (d) set out the name and contact details of the person who is responsible for arranging restricted access to the material on behalf of the prosecuting authority. (5) After receiving a sensitive material notice, the person entitled to restricted access may ask the prosecuting authority to give the person access to the sensitive material. (6) The prosecuting authority must, as soon as practicable after receiving such a request, give the person entitled to restricted access such opportunity or opportunities as may be reasonable in the circumstances to access the sensitive material under the conditions of access. (7) A decision by a prosecuting authority under this section to restrict access to sensitive material is administrative and final and not subject to any form of review. (8) A person who is given restricted access to sensitive material by a prosecuting authority under this section must not contravene a condition of access. 67J—Improper dissemination of sensitive material (1) A person who creates sensitive material for a prosecuting authority, or who obtains possession of sensitive material on behalf of or from a prosecuting authority, in connection with a criminal investigation, or criminal or civil proceedings, must not allow access to the material except— (a) for the legitimate purposes of the investigation or proceedings; or (b) as may be authorised by the prosecuting authority. (2) A public official who creates, or obtains possession of, sensitive material in connection with official functions must not allow access to the material except as reasonably required for purposes connected with his or her official functions (which may include functions relating to education or training). (3) In proceedings for an offence against subsection (1) or (2), it is a defence to prove that the act or omission constituting the offence was attributable to an honest and reasonable mistake on the defendant's part.