A Bill for an Act to amend the Criminal Code Act 1995, and for related purposes
The Parliament of Australia enacts:
1 Short title
This Act is the Criminal Code Amendment (Private Sexual Material) Act 2015.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
| Commencement information |
| Column 1 | Column 2 | Column 3 |
| Provisions | Commencement | Date/Details |
| 1. The whole of this Act | The day after this Act receives the Royal Assent. | |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Schedules
Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Amendments
Criminal Code Act 1995
1 Section 473.1 of the Criminal Code
Insert:
private sexual material has the meaning given by section 474.24D.
subject of private sexual material has the meaning given by section 474.24D.
2 After Subdivision D of Division 474 of the Criminal Code
Insert:
Subdivision DA—Offences relating to use of carriage service for private sexual material
474.24D Meaning of private sexual material
For the purposes of this Act, material is private sexual material if:
(a) the material depicts:
(i) a person (the subject) who is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or
(ii) a person (the subject) in a manner or context that is sexual; or
(iii) a sexual organ or the anal region of a person (the subject); or
(iv) the breasts of a person (the subject) who is female, or who is a transgender or intersex person who identifies as female; and
(b) a reasonable person in the position of the subject would expect the material to be kept private.
474.24E Using a carriage service for private sexual material
(1) A person commits an offence if:
(a) the person transmits, makes available, publishes, distributes, advertises or promotes material; and
(b) the material is private sexual material; and
(c) the person engages in the conduct mentioned in paragraph (a) without the consent of a subject of the material; and
(d) the person knows of, or is reckless as to, the subject’s lack of consent; and
(e) either:
(i) the conduct mentioned in paragraph (a) causes distress or harm to a subject of the material; or
(ii) there is a risk that the conduct mentioned in paragraph (a) will cause distress or harm to a subject of the material; and
(f) the person engages in the conduct mentioned in paragraph (a) using a carriage service.
Penalty: Imprisonment for 3 years.
Transmission etc. to subject of material
(2) In a prosecution for an offence against subsection (1), the prosecution must prove that the conduct mentioned in paragraph (1)(a) did not consist solely of a transmission, making available, publication, distribution, advertisement or promotion of private sexual material to a subject of the material.
Consent
(3) For the purposes of paragraph (1)(c):
(a) a subject consents to the conduct mentioned in paragraph (1)(a) if the subject gives either:
(i) a general consent covering conduct of the kind engaged in by the first person; or
(ii) consent to the particular instance of conduct engaged in by the first person; and
(b) the consent may be given expressly or by necessary implication.
Causing distress or harm
(4) For the purposes of paragraph (1)(e), a person’s conduct is taken to cause distress or harm if it substantially contributes to distress or harm.
Use of carriage service
(5) Absolute liability applies to paragraph (1)(f).
Note: For absolute liability, see section 6.2.
Defences
(6) As well as the general defences provided for in Part 2.3, defences are provided for under section 474.24H in relation to this section.
Definitions
(7) In this section:
consent means free and voluntary agreement.
474.24F Using a carriage service—making a threat about private sexual material
(1) A person (the first person) commits an offence if:
(a) the first person makes a threat to another person (the second person) to transmit, make available, publish, distribute, advertise or promote private sexual material of which the second person or a third person is a subject; and
(b) the first person intends the second person to fear that the threat will be carried out; and
(c) either or both of the following apply:
(i) the first person intends to compel the second person or a third person to do or omit to do an act by making the threat;
(ii) there is a risk that making the threat will cause distress or harm to the second person or the third person; and
(d) either or both of the following apply:
(i) the first person makes the threat using a carriage service;
(ii) the threat is to transmit, make available, publish, distribute, advertise or promote the private sexual material using a carriage service.
Penalty: Imprisonment for 3 years.
Actual fear not necessary
(2) In a prosecution for an offence against subsection (1), it is not necessary to prove that the person receiving the threat actually feared that the threat would be carried out.
Private sexual material need not exist
(3) For the purposes of subsection (1), it is irrelevant whether the private sexual material actually exists.
Causing distress or harm
(4) For the purposes of subparagraph (1)(c)(ii), a threat is taken to cause distress or harm if it substantially contributes to distress or harm.
Use of carriage service
(5) Absolute liability applies to paragraph (1)(d).
Note: For absolute liability, see section 6.2.
Definitions
(6) In this section:
fear includes apprehension.
474.24G Possessing, controlling, producing, supplying or obtaining private sexual material for use through a carriage service
(1) A person commits an offence if:
(a) the person:
(i) has possession or control of material; or
(ii) produces, supplies or obtains material; and
(b) the material is private sexual material; and
(c) the person has that possession or control, or engages in that production, supply or obtaining, with the intention that the material be used:
(i) by that person; or
(ii) by another person;
in committing an offence against section 474.24E (using a carriage service for private sexual material) or 474.24F (using a carriage service—making a threat about private sexual material); and
(d) the person has that possession or control, or engages in that production, supply or obtaining:
(i) for a commercial purpose; or
(ii) for the purpose of obtaining (whether directly or indirectly) a benefit.
Penalty: Imprisonment for 5 years.
(2) A person may be found guilty of an offence against subsection (1) even if committing the offence against section 474.24E or 474.24F is impossible.
(3) It is not an offence to attempt to commit an offence against subsection (1).
474.24H Defences in respect of private sexual material
Public benefit
(1) A person is not criminally responsible for an offence against section 474.24E (using a carriage service for private sexual material) or 474.24G (possessing etc. private sexual material for use through a carriage service) because of engaging in particular conduct if the conduct:
(a) is of public benefit; and
(b) does not extend beyond what is of public benefit.
In determining whether the person is, under this subsection, not criminally responsible for the offence, the question whether the conduct is of public benefit is a question of fact and the person’s motives in engaging in the conduct are irrelevant.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
(2) For the purposes of subsection (1), conduct is of public benefit if, and only if, the conduct is necessary for or of assistance in:
(a) enforcing a law of the Commonwealth, a State or a Territory; or
(b) monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or a Territory; or
(c) the administration of justice; or
(d) conducting scientific, medical or educational research that has been approved by the Minister in writing for the purposes of this section.
Media activities
(3) A person is not criminally responsible for an offence against section 474.24E (using a carriage service for private sexual material) or 474.24G (possessing etc. private sexual material for use through a carriage service) because of engaging in particular conduct if:
(a) the person engaged in the conduct for the purposes of collecting, preparing for the dissemination of, or disseminating:
(i) material having the character of news, current affairs, information or a documentary; or
(ii) material consisting of commentary or opinion on, or analysis of, news, current affairs, information or a documentary; and
(b) the person did not intend the conduct to cause harm to a subject of the material; and
(c) the person reasonably believed the conduct to be in the public interest.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
Duties of law enforcement officer, or intelligence or security officer
(4) A person is not criminally responsible for an offence against section 474.24E (using a carriage service for private sexual material) or 474.24G (possessing etc. private sexual material for use through a carriage service) if:
(a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in the course of his or her duties; and
(b) the conduct of the person is reasonable in the circumstances for the purpose of performing that duty.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
Prohibited content and content filtering technology
(5) A person is not criminally responsible for an offence against section 474.24E (using a carriage service for private sexual material) or 474.24G (possessing etc. private sexual material for use through a carriage service) if the person engages in the conduct in good faith for the sole purpose of:
(a) assisting the Children’s e‑Safety Commissioner to detect:
(i) prohibited content (within the meaning of Schedule 7 to the Broadcasting Services Act 1992); or
(ii) potential prohibited content (within the meaning of that Schedule);
in the performance of the Commissioner’s functions under Schedule 5 or Schedule 7 to that Act; or
(b) manufacturing or developing, or updating, content filtering technology (including software) in accordance with:
(i) a recognised alternative access‑prevention arrangement (within the meaning of clause 40 of Schedule 5 to the Broadcasting Services Act 1992); or
(ii) a designated alternative access‑prevention arrangement (within the meaning of clause 60 of that Schedule).
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
474.24J Consent to commencement of proceedings where defendant under 18
(1) Proceedings for an offence against this Subdivision must not be commenced without the consent of the Attorney‑General if the defendant was under 18 at the time he or she allegedly engaged in the conduct constituting the offence.
(2) However, a person may be arrested for, charged with, or remanded in custody or on bail in connection with, such an offence before the necessary consent has been given.
3 Subsections 475.1A(1) and (2) of the Criminal Code
After “D,”, insert “DA,”.
4 Paragraphs 475.1B(1)(a) and (2)(a) of the Criminal Code
After “D,”, insert “DA,”.