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Internet Sex Crimes in Australia

Many Readers will be surprised to read that the relevant provisions contained within the Australian Commonwealth Criminal Code seem not to require Normal "mens rea" and can have you run foul of the law even if you recklesslessly access Images of Underage Pornography etc.

Generally there are two categories of offences : (1) Merely accessing or looking at an image of underage pornography is an offence and of course (2) downloading such an image is another category of offence............

The penalties are very severe ..see extract of legislation below.......

For instance the above may raise huge problems even for those inadvertently viewing such underage images.....(for instance a lot or ordinary pornographic type web sites on the internet seem routinely to include underage tasteless images of Underage persons in sexual poses...........)

- Another problem is that as anyone will tell you when a person merely looks at an image on the internet this may cause in a lot of instances depending on how a web site is set up for under age pornographic images to automatically download onto a persons computer into their "temporary  internet files" (in windows on their computer)

- more worringly ...........various computer experts we have consulted with seem to agree that it is possible for various trojans and viruses that "lurk" or are associated with various Pornographic sites to cause  underage pornographic images to download onto a persons computer without their knowledge also ............... 

 

- we are concerned that many people in Australia will be unwittingly breaching the law which carries very severe penalties ....any comments or otherwise about this ?

-An Extract of the relevant legislation appears below.........

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EXTRACT AUSTRALIAN CRMINAL CODE ACT ACCESSING OR DOWNLOAD IMAGES OF UNDER AGE PORNOGRAPHIC PICTURES

Subdivision D--Offences relating to use of carriage service for child pornography material or child abuse material

474.19   Using a carriage service for child pornography material

             (1)  A person is guilty of an offence if:

                     (a)  the person:

                              (i)  accesses material; or

                             (ii)  causes material to be transmitted to himself or herself; or

                            (iii)  transmits, makes available, publishes, distributes, advertises or promotes material; or

                            (iv)  solicits material; and

                    (aa)  the person does so using a carriage service; and

                     (b)  the material is child pornography material.

Penalty:  Imprisonment for 15 years.

             (2)  To avoid doubt, the following are the fault elements for the physical elements of an offence against subsection (1):

                     (a)  intention is the fault element for the conduct referred to in paragraph (1)(a);

                     (b)  recklessness is the fault element for the circumstances referred to in paragraph (1)(b).

Note:          For the meaning of intention and recklessness see sections 5.2 and 5.4.

          (2A)  Absolute liability applies to paragraph (1)(aa).

Note:          For absolute liability, see section 6.2.

             (3)  As well as the general defences provided for in Part 2.3, defences are provided for under section 474.21 in relation to this section.

474.20   Possessing, controlling, producing, supplying or obtaining child pornography material for use through a carriage service

             (1)  A person is guilty of 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 child pornography 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 474.19 (using a carriage service for child pornography material).

Penalty:  Imprisonment for 15 years.

             (2)  A person may be found guilty of an offence against subsection (1) even if committing the offence against section 474.19 (using a carriage service for child pornography material) is impossible.

             (3)  It is not an offence to attempt to commit an offence against subsection (1).

474.21   Defences in respect of child pornography material

             (1)  A person is not criminally responsible for an offence against section 474.19 (using a carriage service for child pornography material) or 474.20 (possessing etc. child pornography 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.

             (3)  A person is not criminally responsible for an offence against section 474.19 (using a carriage service for child pornography material) or 474.20 (possessing etc. child pornography 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).

             (4)  A person is not criminally responsible for an offence against section 474.19 (using a carriage service for child pornography material) or 474.20 (possessing etc. child pornography 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 Australian Communications and Media Authority 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 Authority'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).

474.22   Using a carriage service for child abuse material

             (1)  A person is guilty of an offence if:

                     (a)  the person:

                              (i)  accesses material; or

                             (ii)  causes material to be transmitted to himself or herself; or

                            (iii)  transmits, makes available, publishes, distributes, advertises or promotes material; or

                            (iv)  solicits material; and

                    (aa)  the person does so using a carriage service; and

                     (b)  the material is child abuse material.

Penalty:  Imprisonment for 15 years.

             (2)  To avoid doubt, the following are the fault elements for the physical elements of an offence against subsection (1):

                     (a)  intention is the fault element for the conduct referred to in paragraph (1)(a);

                     (b)  recklessness is the fault element for the circumstances referred to in paragraph (1)(b).

Note:          For the meaning of intention and recklessness see sections 5.2 and 5.4.

          (2A)  Absolute liability applies to paragraph (1)(aa).

Note:          For absolute liability, see section 6.2.

             (3)  As well as the general defences provided for in Part 2.3, defences are provided for under section 474.24 in relation to this section.

474.23   Possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service

             (1)  A person is guilty of 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 child abuse 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 474.22 (using a carriage service for child abuse material).

Penalty:  Imprisonment for 15 years.

             (2)  A person may be found guilty of an offence against subsection (1) even if committing the offence against section 474.22 (using a carriage service for child abuse material) is impossible.

             (3)  It is not an offence to attempt to commit an offence against subsection (1).

474.24   Defences in respect of child abuse material

             (1)  A person is not criminally responsible for an offence against section 474.22 (using a carriage service for child abuse material) or 474.23 (possessing etc. child abuse 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.

             (3)  A person is not criminally responsible for an offence against section 474.22 (using a carriage service for child abuse material) or 474.23 (possessing etc. child abuse 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).

             (4)  A person is not criminally responsible for an offence against section 474.22 (using a carriage service for child abuse material) or 474.23 (possessing etc. child abuse 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 Australian Communications and Media Authority 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 Authority'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).

474.24A   Aggravated offence--offence involving conduct on 3 or more occasions and 2 or more people

             (1)  A person commits an offence against this section if:

                     (a)  the person commits an offence against one or more of the following provisions on 3 or more separate occasions:

                              (i)  section 474.19 (using a carriage service for child pornography material);

                             (ii)  section 474.20 (possessing etc. child pornography material for use through a carriage service);

                            (iii)  section 474.22 (using a carriage service for child abuse material);

                            (iv)  section 474.23 (possessing etc. child abuse material for use through a carriage service); and

                     (b)  the commission of each such offence involves 2 or more people.

Penalty:  Imprisonment for 25 years.

             (2)  There is no fault element for any of the physical elements described in paragraph (1)(a) other than the fault elements (however described), if any, for the offence against section 474.19, 474.20, 474.22 or 474.23.

             (3)  To avoid doubt, a person does not commit an offence against section 474.19, 474.20, 474.22 or 474.23 for the purposes of paragraph (1)(a) if the person has a defence to that offence.

Offence or conduct need not be the same

             (4)  For the purposes of subsection (1), it is immaterial whether the offence, or the conduct constituting the offence, is the same on each occasion.