Crimes Amendment (Child Pornography and Other Matters) Bill

2015

Introduction Print

EXPLANATORY MEMORANDUM

Clause Notes

Part 1—Preliminary

Clause 1 sets out the purposes of the Bill, which are to—

amend the Crimes Act 1958 to—

create three new offences concerning child pornography

increase the penalty for the offence of possession of child pornography

provide for the use of random sample evidence in proceedings for child pornography offences, and

provide for the giving of a direction under a warrant requiring assistance from a person with knowledge of a computer or computer network, and

amend the Criminal Procedure Act 2009 to restrict inspection by an accused of evidence that is child pornography, and

make minor amendments to certain other Acts.

Clause 2 provides for the commencement of the Bill.

581067 BILL LA INTRODUCTION 4/8/20151

Subclause (1) provides that, subject to subclause (2), this Act comes into operation on a day or days to be proclaimed.

Subclause (2) provides that if a provision of this Act does not come into operation before 1 December 2015, it comes into operation on that day.

Part 2—Amendment of Crimes Act 1958

Clause 3 inserts new definitions into section 67A of the Crimes Act 1958. These definitions will apply to Subdivision (13) of Part 1, Division 1 of the Crimes Act 1958, which contains child pornography offences.

This clause defines administer, in relation to a website, to include building, developing or maintaining the website. It does not include hosting the website (e.g. internet service providers). This definition will apply to the new offence of administering a child pornography website (new section 70AAAB).

Further, deal, in relation to child pornography, has been defined to include—

viewing, uploading or downloading child pornography

making child pornography available for viewing, uploading or downloading child pornography, or

facilitating the viewing, uploading or downloading of child pornography.

This clause defines website to include a page, or a group of pages, on the Internet.

The definitions of deal and website will be relevant to the new offence of administering a child pornography website (new section 70AAAB) and encouraging the use of a website to deal with child pornography (new section 70AAAC).

Clause 4 amends section 70 of the Crimes Act 1958 to increase the maximum penalty for the offence of possession of child pornography from 5 years imprisonment to 10 years imprisonment (level 5).

This is the same maximum penalty that currently applies to the offences of production of child pornography and

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procurement of a minor for child pornography. The reform reflects the fact that serious examples of possession of child pornography (for instance, where the offender possesses tens of thousands of images) may be as serious as cases of production and procurement.

Clause 5 amends the heading of section 70AAA of the Crimes Act 1958 to refer to "certain child pornography offences" instead of "child pornography offences".

Section 70AAA currently contains exceptions to child pornography offences that apply where minors engage in consensual and non-exploitative "sexting" with their peers. These exceptions were introduced by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 to implement recommendations made by the Victorian Parliament's Law Reform Committee in its Report on the Inquiry into Sexting (2013). These "sexting" exceptions will not apply to the new offences introduced by this Bill. Therefore, this clause limits the section heading.

Clause 6 inserts new sections 70AAAB, 70AAAC, 70AAAD and 70AAAE into the Crimes Act 1958. Sections 70AAAB, 70AAAC and 70AAAD introduce three new offences relating to the use of child pornography websites, and assisting others to avoid apprehension for a child pornography offence. Such conduct is instrumental in facilitating the commission of child pornography offences by others.

New section 70AAAB—Administering a child pornography website

New section 70AAAB(1) provides for the new offence of administering a child pornography website. Under this section, a person (A) will commit an offence if—

A administers, or assists in the administration of, a website

the website is used by another person to deal with child pornography, and

A either intends that the website be so used or is aware that the website is being so used.

For example, the offence may apply where A manages membership of a website and intends that the website be used by

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other persons to view child pornography. It may also apply where A monitors traffic through a website and ensures that the web server hardware and software are running correctly, whilst being aware that the website is being used by other persons to download child pornography.

New section 70AAAB(2) provides that the maximum penalty for this offence is level 5 imprisonment (10 years maximum). The same penalty currently applies to the offences of production of child pornography and procurement of a minor for child pornography. The same maximum penalty will also apply to the new offences in sections 70AAAC and 70AAAD.

New section 70AAAB(3) provides that it is not necessary to prove the identity of the person who uses the website to deal with child pornography. It is therefore only necessary to prove that someone other than A used the website to deal with child pornography.

New section 70AAAB(4) provides a defence to the new offence where the person, on becoming aware that the website is being used or has been used by another person to deal with child pornography, takes all reasonable steps in the circumstances to prevent any person from being able to use the website to deal with child pornography.

New section 70AAAB(5) provides that, in determining whether a person has taken "all reasonable steps in the circumstances" referred to in new section 70AAAB(4), regard must be had to whether the person did any of the following as soon as it was practicable to do so—

notified a police officer that the website is being, or has been, used to deal with child pornography and complied with any reasonable directions given to the person by a police officer as to what to do in relation to that use of the website

notified a relevant industry regulatory authority (which will be specified in regulations) that the website is being, or has been, used to deal with child pornography and complied with any reasonable directions given to the person by that authority as to what to do in relation to that use of the website

shut the website down

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modified the website so it could not be used to deal with child pornography.

New section 70AAAB(6) creates an exception to the offence, which will apply where a person engages in conduct in good faith—

in the course of official duties of the person—

connected with the administration of the criminal justice system, including the investigation or prosecution of offences, or

as an employee of the Department of Justice and Regulation who is authorised to engage in that conduct by the Secretary to that Department, or

for a genuine medical, scientific or educational purpose.

For example, this exception may apply to persons acting in good faith in the course of official duties at Victoria Police (e.g. investigating offences) or the Office of Public Prosecutions (e.g. prosecuting offences). This exception is based on existing defences to possession of child pornography in section 70 of the Crimes Act 1958.

New section 70AAAB(7) creates a further exception for dealings with material that has been classified other than RC or X18+ under the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 or would, if classified, have been classified other than RC or X18+. This exception is based on an existing defence to possession of child pornography in section 70(2)(a) of the Crimes Act 1958.

New sections 70AAAB(8) and (9) enable the new offence to have extra-territorial application, so long as one of the key aspects of the offence is in or occurs in Victoria. For example, this will enable Victorian police to charge someone with administering a child pornography website even if that person was interstate at the time of the offending, so long as the person using the website to deal with the child pornography, or the computer used to deal with the child pornography, was in Victoria.

New section 70AAAC—Encouraging use of a website to deal with child pornography

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New section 70AAAC(1) provides for the new offence of encouraging use of a website to deal with child pornography. Under this section, a person (A) will commit this offence if—

A is 18 years of age or more

A encourages another person to use a website, and

A either intends that the other person use the website to deal with child pornography.

For example, the offence may apply where a person posts advertisements for a child pornography website online. Unlike the other two new offences in the Bill, this offence will only apply to adults. This will ensure that sexual exploration by teenagers (such as where a teenager asks a classmate to look at naked photos of other teenagers online) is not inappropriately criminalised.

New section 70AAAC(2) provides that the maximum penalty for this offence is level 5 imprisonment (10 years maximum). The same penalty currently applies to the offences of production of child pornography and procurement of a minor for child pornography. The same maximum penalty will also apply to the new offences in sections 70AAAB and 70AAAD.

New section 70AAAC(3) provides that, in determining whether A encouraged another person to use a website to deal with child pornography, it is not necessary to prove—

the identity of the person encouraged

that another person did in fact use the website to deal with child pornography, or

if another person did in fact so use the website, that such use was caused by A's encouragement.

This means that the offence will apply even if the person encouraged by the accused did not, in fact, go on to use the website to deal with child pornography—it will be enough if the accused encouraged that person to use the website to deal with child pornography with the intention that the person so use the website.

New section 70AAAC(4) provides that an attempt to commit this offence is not itself an offence.

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New sections 70AAAC(5) and (6) enable the new offence to have extra-territorial application, so long as one of the key aspects of the offence is in or occurs in Victoria.

The Note to this section explains, for the avoidance of doubt, that if an adult uses a minor as an innocent agent to encourage another person to use a website, intending that the other person use the website to deal with child pornography, the adult commits an offence against subsection (1). This Note reflects the position at common law. It is designed to make clear that an adult who uses a minor to encourage others to use child pornography websites on their behalf will be liable as a principal offender.

New section 70AAAD—Assisting a person to avoid apprehension

New section 70AAAD(1) provides for the new offence of assisting a person to avoid apprehension for a child pornography offence. It provides that a person (A) will commit this offence if—

A intentionally provides information to another person (B), and

A intends that B use the information to avoid or reduce the likelihood of apprehension for a child pornography offence.

For example, the offence may apply where A provides information to B about how to use a website to deal with child pornography anonymously or how to encrypt electronic files containing child pornography. It may also apply where A provides information to B about how to delete electronic data that records information about B's identity.

New section 70AAAD(2) provides that the maximum penalty for this offence is level 5 imprisonment (10 years maximum). The same penalty currently applies to the offences of production of child pornography and procurement of a minor for child pornography. The same maximum penalty will also apply to the new offences in sections 70AAAB and 70AAAC.

New section 70AAAD(3) provides that it is not necessary to prove—

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the identity of the person to whom the information was provided, or

that the information was actually used by the other person.

This means that the offence may apply even where the person to whom the accused provided the information did not use that information.

New sections 70AAAD(4) and (5) enable the new offence to have extra-territorial application, so long as one of the key aspects of the offence is in or occurs in Victoria.

New section 70AAAD(6) explains that, for the purposes of the extra-territoriality provisions in sections 70AAAD(4) and (5), information is provided by A to B at the place where A is at the time of giving that information irrespective of where B is at the time of receiving that information. For instance, if A is in Victoria and sends an email to B containing information about how to encrypt electronic files containing child pornography, the "conduct constituting the offence" has occurred in Victoria (even if B is interstate when he or she reads the email). This is relevant to the element in the offence in new section 70AAAD(1)(a) that applies to information provided by A to B.

New section 70AAAE—Use of random sample evidence in child pornography cases

New section 70AAAE allows for the use of "random sample evidence" in proceedings for a child pornography offence. This reform is based on a similar procedure used in New South Wales under section 289B of the Criminal Procedure Act 1986 (NSW).

The new process will allow a court to make findings about the nature and content of child pornography material based on a random sample of "seized material" (which is defined in clause 3). This means each item of child pornography will not need to be viewed and assessed. This reform is designed to facilitate the prosecution of matters involving large numbers of child pornography material and limit the exposure of participants in the prosecution process to such material.

New section 70AAAE(1) permits an authorised classifier to conduct an examination of a random sample of seized material. An authorised classifier is defined in section 67A to be a person

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who has been, or belongs to a class of persons who have been, prescribed by regulations for this purpose (clause 3).

New section 70AAAE(2) provides that the authorised classifier's findings as to the nature and content of the random sample is admissible as evidence of the nature and content of the whole of the material from which the sample was taken.

New section 70AAAE(3) provides that it is open to a court to find that any type of child pornography found by an authorised classifier to be present in a particular proportion in the random sample is present in the same proportion in the material from which the sample was taken.

New section 70AAAE(4) provides that if a classifier certifies that they conducted an examination of a random sample of seized material and made certain findings as to the nature and content of the sample, then that certificate is admissible as evidence of those matters in proceedings for a child pornography offence.

New section 70AAAE(5) provides that a signed certificate that purports to be signed by a classifier is to be taken to be genuine, unless there is evidence to the contrary.

New section 70AAAE(6) provides that evidence about a random sample is only admissible if the trial judge is satisfied that the accused or their legal practitioner has been given a reasonable opportunity to inspect all of the seized material.

New section 70AAAE(7) provides that section 70AAAE does not affect the provisions of the Criminal Procedure Act 2009 which restricts inspection by an accused personally of evidence that is child pornography (see Part 3 of the Bill).

New section 70AAAE(8) provides for a regulation-making power with respect to random sample evidence.

Clause 7 makes a minor amendment to section 70AA of the Crimes Act 1958, which deals with forfeiture of child pornography. The amendment ensures that the forfeiture provisions apply to all child pornography offences (as defined in clause 3 of the Bill), which includes the new offences introduced by this Bill.

Clause 8 repeals section 465(1A) of the Crimes Act 1958, which currently deems offences against sections 68 or 69 of that Act to be indictable. This section is redundant, since those offences are, in

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fact, indictable by virtue of the operation of section 2B of the Crimes Act 1958.

Clause 9 inserts new section 465AAA into the Crimes Act 1958. This section will enable police to direct a person with knowledge of a computer or computer network to assist police in executing a search warrant. It is designed to assist police in the investigation of serious offences (including child pornography offences).

New section 465AAA(1) provides that a search warrant issued under section 465 of the Crimes Act 1958 may authorise a police officer who is executing that warrant to give a direction under section 465AAA(2) to a specified person. A search warrant may be issued in chambers, in contrast to an order for assistance under current section 465AA of the Crimes Act 1958, which must be obtained in open court.

New section 465AAA(2) provides that a police officer may direct a specified person to provide information or other assistance (such as providing computer passwords) that is reasonable and necessary to allow the officer to—

access data on a computer or data storage device that is on the premises subject to the search warrant or has been seized

copy the data, or

convert the data into documentary or other intelligible form.

New section 465AAA(3) provides that a magistrate may authorise police to give such direction if the magistrate is satisfied that—

there are reasonable grounds for suspecting the data will afford evidence of the commission of an indictable offence

the specified person—

is reasonably suspected of having committed an indictable offence

is the owner or lessee of the relevant computer or device, or their employee

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is under contract to provide services regarding the computer or device

uses or has used the computer or device, or

is or was the system administrator for the computer network to which the computer or device belongs, and

the specified person has relevant knowledge of the computer, device or network or of measures to protect data in or accessible from the computer or device.

New section 465AAA(4) provides that a person commits an offence if they have the relevant knowledge, are informed of the authorisation to give the direction and that it is an offence to fail to comply, and fail to comply with the direction without reasonable excuse.

New section 465AAA(5) provides that penalty for this offence is level 7 imprisonment (2 years maximum). In contrast, the offence for failing to comply with an order obtained under section 465AA is five years imprisonment.

New section 465AAA(6) provides that the offence is a summary offence.

New section 465AAA(7) provides that a person is not excused from complying with a direction under subsection (2) on the ground that complying with it may result in information being provided that might incriminate the person. This is consistent with section 465AA(6).

The direction in the warrant may, or may not, concern a person who is suspected of committing the relevant offence. Knowing how to access data on a computer or computer network is different from being involved in an offence. The direction is similar to requiring a person to unlock a cupboard at premises being searched under a warrant. Material found in a cupboard or a computer is potentially admissible. For the avoidance of doubt, a claim that the material might incriminate the person will not stymie the execution of the warrant.

New section 465AAA(8) provides that key terms relevant to this section are defined in section 247A(1) of the Crimes Act 1958.

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Clause 10 provides that section 465AAA applies in addition to section 465AA, but that a person cannot be charged for an offence against both sections.

As noted above, section 465AA allows police to obtain a court order requiring a person to provide information or assistance to police. The effect of this clause is that police may obtain an order for assistance under section 465AA, in addition to an authorisation in a search warrant to direct a person to provide assistance under section 465AAA, in relation to the same person. However, if that person fails to comply with the direction for assistance under both sections 465AA and 465AAA, he or she cannot be charged with an offence against both sections.

Clause 11 inserts transitional provisions for amendments to the Crimes Act 1958 made by the Bill.

New section 628(1) provides that new section 70AAAE (the new random sample provisions) applies to the following proceedings or part proceedings, irrespective of when the offence to which the proceeding relates is alleged to have been committed—

a trial that commences on or after the day on which section 6 of this Act comes into operation (the commencement day)

a summary proceeding that commences on or after the commencement day

for a summary proceeding that commenced before the commencement day, that part of the proceeding that takes place on or after that day, other than any hearing in the proceeding that commenced before that day and continued on or after that day or was adjourned until that day or a day after that day.

New section 628(2) provides that new section 465AAA applies regardless of when the relevant offence is suspected to have been committed.

Part 3—Amendment of Criminal Procedure Act 2009This Part relates to the inspection of exhibits that include child pornography. It deals with inspection at different stages of a proceeding, including summary proceedings, committal proceedings and trial proceedings.

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Clause 12 inserts into section 3 of the Criminal Procedure Act 2009 a new definition of child pornography, giving it the same meaning as that given in section 67A of the Crimes Act 1958.

Clause 13 makes a consequential amendment to section 43(1)(c) of the Criminal Procedure Act 2009. Under section 43(1)(c), an accused may give the informant a written request for inspection of exhibits. This clause makes that paragraph subject to new section 43A, which will be introduced by clause 14 of the Bill.

Clause 14 inserts new section 43A into the Criminal Procedure Act 2009, which will limit an accused from personally inspecting exhibits that include child pornography where the material is an exhibit in a full brief in a summary proceeding. This section will not affect the ability of an accused's legal representative to inspect those exhibits.

This reform recognises the interest of the children depicted in child pornography and the community interest in limiting access to child pornography, so that the accused's personal inspection of such material only occurs where it is clearly necessary to do so. This new process will also minimise the risk of an accused obtaining sexual gratification by looking at the child pornography evidence.

New section 43A(1) provides that this section applies if a request under section 43(1)(c) relates to an exhibit, or a part of an exhibit, that is child pornography, and the accused is legally represented.

New section 43A(2) provides that an accused may request inspection of the exhibit, or the part of the exhibit, by the accused's legal practitioner (but not the accused personally).

An example provided states that the informant may agree with the accused's legal practitioner on a time and place for the accused's legal practitioner to inspect exhibits that include child pornography. The legal practitioner may not show such an exhibit to the accused but may discuss its content with the accused in order to obtain instructions. This example explains that inspection by the accused's legal practitioner of an exhibit that is child pornography does not allow disclosure of the child pornography to the accused personally.

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Clause 15 amends section 45(1) of the Criminal Procedure Act 2009 to limit an accused from personally inspecting child pornography evidence.

Section 45(1) contains a number of grounds on which an informant may refuse disclosure of any information, document or thing. Subclause (1) amends this section to introduce a new paragraph (g) that provides a further ground for an informant to refuse to disclose any information, document or thing, namely that the disclosure would result in disclosure of child pornography to the accused personally.

Subclause (2) inserts new section 45(1A) into the Criminal Procedure Act 2009 which provides that the informant may not refuse, on the ground referred to in section 45(1)(g), a request under section 43(1)(c) for inspection of exhibits by the accused's legal practitioner (but not the accused personally). This makes clear that this clause will not affect the ability of an accused's legal practitioner to inspect such evidence.

Clause 16 amends section 46 of the Criminal Procedure Act 2009, which allows an accused to apply to the Magistrates' Court for an order requiring disclosure. Because clause 15 does not permit the informant to refuse inspection of an exhibit containing child pornography by the accused's legal practitioner, this clause applies where the accused wishes to personally inspect the exhibit. The accused may or may not be legally represented. Clause 16 inserts a new section 46(3) into the Criminal Procedure Act 2009 which provides that the court may make an order, on any conditions specified by it, that disclosure of such evidence be made to either—

the accused's legal practitioner (and not the accused), or

the accused personally.

This allows the accused or the accused's legal practitioner to apply to the court for disclosure of child pornography evidence following the informant's initial decision to refuse disclosure to the accused personally. Under this new process, if the accused requests personal inspection of an exhibit that is child pornography (whether or not he or she is legally represented) and the informant objects, a court may make an order allowing such inspection and may do so subject to conditions.

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Clause 17 inserts a Note at the foot of section 115 of the Criminal Procedure Act 2009 (which deals with inspection of exhibits from a hand-up brief in a committal proceeding) stating that sections 45(1)(g) and 122(2) provide for restricting inspection by an accused personally of evidence that is child pornography.

Clause 18 inserts a Note at the foot of section 122(2) of the Criminal Procedure Act 2009, which deals with compliance with a request to copy or inspect items. Section 122 cross-refers to grounds to refuse a request to inspect an exhibit under section 45. The Note states that section 45(1)(g) provides for restricting inspection by an accused personally to evidence that is child pornography.

Clause 19 inserts new subsection (3) into section 125 of the Criminal Procedure Act 2009, which relates to committal mention hearings.

New section 125(3) provides that, in determining an objection to disclosure on the ground that it would result in disclosure of the child pornography to the accused personally, the court may order, on any conditions specified by it, that disclosure be made to either—

the accused's legal practitioner (and not the accused), or

the accused personally.

Clause 20 amends section 185 of the Criminal Procedure Act 2009 (which deals with the continuing obligation of disclosure) to insert a reference to the new section 185A (clause 21). The prosecution's continuing obligation of disclosure provisions apply to trial proceedings.

Clause 21 inserts new section 185A into the Criminal Procedure Act 2009, which deals with disclosure of evidence that is child pornography.

New section 185A(1) provides that the prosecution need not provide, or make available for inspection, any information, document or thing that is required by section 185 (the prosecution's continuing obligation of disclosure in trial proceedings) to be provided, or made available for inspection, if the prosecutor believes that doing so will result in the disclosure of child pornography to the accused personally.

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New section 185A(2) provides that the accused may apply to the court for an order requiring the prosecution to provide or make available for inspection any information, document or thing not provided, or made available for inspection, under subsection (1).

New section 185A(3) provides that the court, having regard to whether the accused is legally represented, may order on any conditions specified by it that the information, document or thing be provided to either—

the accused's legal practitioner (and not the accused), or

the accused personally.

Under this process, an accused who is refused personal inspection of child pornography evidence by the prosecution may apply to the court for an order for such inspection (whether or not he or she is legally represented). The court may make such an order, and may do so subject to conditions.

Clause 22 inserts a reference to the new child pornography offences introduced by the Bill into section 366(1)(c) of the Criminal Procedure Act 2009. That section contains a list of criminal proceedings in relation to which recorded evidence-in-chief of children and cognitively impaired witnesses may be used.

Clause 23 inserts new section 446 which contains a transitional provision for amendments to the Criminal Procedure Act 2009 made by the Bill.

New section 446 provides that the amendments apply to a request for inspection of an exhibit (or a part of an exhibit), or for a copy of any information, document or thing, made on or after the day on which section 14 of this Act comes into operation irrespective of when—

the proceeding in relation to which the request is made commenced, or

the offence to which the proceeding relates is alleged to have been committed.

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Part 4—Amendment of other Acts

Clause 24 consequentially amends section 7C(a) of the Confiscation Act 1997 (which contains the meaning of serious criminal activity for the purposes of that Act) to refer to the new child pornography offences inserted by the Bill.

Clause 25 consequentially amends the definition of sexual offence in section 1.1.3(1) of the Education and Training Reform Act 2006 to include the new child pornography offences inserted by the Bill.

Clause 26 consequentially amends the Sentencing Act 1991 to include references to the new child pornography offences inserted by the Bill.

Subclause (1) inserts references to the new child pornography offences into the definition of relevant offence in section 89DC of the Sentencing Act 1991. If a person has been charged with a relevant offence under this section, the Director of Public Prosecutions or a police officer may make an application for an alcohol exclusion order in relation to that person (section 89DD of the Sentencing Act 1991).

Subclause (2) amends Schedule 1 to the Sentencing Act 1991, which contains a list of "serious offender offences", to include references to the new child pornography offences.

Clause 27 consequentially amends Schedule 1 to the Serious Sex Offenders (Detention and Supervision) Act 2009, which contains a list of "relevant offences" for the purposes of that Act. This clause inserts three new items into Schedule 1 covering the new child pornography offences inserted by the Bill.

Clause 28 consequentially amends Schedule 2 to the Sex Offenders Registration Act 2004 to include references to the new child pornography offences inserted by the Bill. That Schedule contains a list of "class 2 offences" for the purposes of that Act. A person who commits a "class 2 offence" is a "registrable offender" under the Sex Offenders Registration Act 2004 and must comply with reporting obligations under that Act.

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Clause 29 consequentially amends Schedule 4 to the Victoria Police Act 2013 to include references to the new child pornography offences inserted by the Bill. That Schedule contains a list of "reportable offences" for the purposes of that Act. An officer who commits such an offence may be charged under that Act with the commission of a breach of discipline after the Chief Commissioner has consulted with the Director of Public Prosecutions.

Clause 30 consequentially amends the definition of child pornography offence in section 3(1) of the Working with Children Act 2005 to include a reference to the new child pornography offences inserted by the Bill.

Part 5—Repeal of amending Act

Clause 31 provides that the amending Act will be repealed on 1 December 2016. This repeal does not affect the continuing operation of the amendments made by the Act (see section 15(1) of the Interpretation of Legislation Act 1984).

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