Modern Day Which Hunt ~ Over with, we Hope! ~
Copyright© 2016 by Ernest Bywater
Chapter 2
The Criminal Laws
The two laws involved in this case are the NSW Crimes Act and the Australian Criminal Act. However, it’s really three laws because the NSW Crimes Act was heavily changed in late 2010.
These copies of the laws were downloaded in 2015 and cleaning up the formatting to use in this document was a lot of work. It’s probable the laws have change a bit since then, but when last checked there were no significant changes obvious. Thus no effort was made to use a copy of the very current versions of the laws because it’s too much work.
Before the change the law required torture or physical abuse or sexual activity with a child or any of those being observed by a child to be classified as child pornography. After the law was changed nudity or a girl being topless was now child abuse material. Also, the law allows the official to decide if the person is a child or looks like a child. From being a black and white qualitative law with a clear decision point anyone can make it became a quantitative law based solely on the judgement of the official making the decision.
Under this law a topless photo of a twenty year old woman with small breasts could be classed as being child abuse material. A fifteen year old can legally walk down the street in a see-through top, but if she allows a friend to take a photo of her the person with the photo has child abuse material and can be charged. There are child care products advertised on TV where the ads violate the law as it is now. However, the Police do nothing about them at all. Why? Is it because they have good legal staff?
NSW Crimes Act as of June 2015
In May 2008 a controversy over some photographs of a thirteen year-old girl taken by Bill Henson caused a major media stir. New South Wales Police raided the art gallery where the images were on display. Two weeks later they were returned after it was found they weren’t in violation of the law and the Australian Classification Board gave them a PG (Parental Guidance for those under the age of 16) rating. A few months later the Australian Labor Party (ALP), the party in government in New South Wales at the time, organised a committee to review the laws on child pornography. At the time the relevant section of the New South Wales Crime Act read:
Section 91H - Production, dissemination or possession of child pornography
(1) Definitions
In this section:
child pornography means material that depicts or describes, in a manner that would in all the circumstances cause offence to reasonable persons, a person under (or apparently under) the age of 16 years:
(a) engaged in sexual activity, or
(b) in a sexual context, or
© as the victim of torture, cruelty or physical abuse (whether or not in a sexual context).
It was clear that plain nudity was legal regardless of the person’s age, be it an image of some sort or in a story. Sexual context had to be present for it to be child pornography. Also, Section 91C defined a child as being anyone under eighteen years of age. Age of Consent, then, was sixteen years of age. Note the later change of the name of the offence from child pornography to child abuse material to show it covers more than porn.
NSW Crimes Act 1900 as of October 2015
In January 2010 the committee reported back to the NSW Parliament, an ALP government lead by Kristina Keneally, with a lot of media attention at the time. In June the legislation still read the same as above.
On 17 September 2010 the ALP government in charge changed the legislation, but they did not issue a media release on the change of the law that Ernest could find. The general public didn’t know of the law change, despite some very significant changes to the legislation to read:
Section 91FB - Child abuse material—meaning
(1) In this Division:
child abuse material means material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive:
(a) a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or
(b) a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or
© a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or
(d) the private parts of a person who is, appears to be or is implied to be, a child.
(2) The matters to be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive, include:
(a) the standards of morality, decency and propriety generally accepted by reasonable adults, and
(b) the literary, artistic or educational merit (if any) of the material, and
© the journalistic merit (if any) of the material, being the merit of the material as a record or report of a matter of public interest, and
(d) the general character of the material (including whether it is of a medical, legal or scientific character).
(3) Material that depicts a person or the private parts of a person includes material that depicts a representation of a person or the private parts of a person (including material that has been altered or manipulated to make a person appear to be a child or to otherwise create a depiction referred to in subsection (1)).
(4) The private parts of a person are:
(a) a person’s genital area or anal area, or
(b) the breasts of a female person.
No sexual context is needed under this new law, and there is no grace period to comply. Works and images that were legal on 16 September were suddenly unlawful on 17 September. A child was still defined as being anyone under eighteen years of age. But it is now sixteen years of age in the law. For decades the legal age of consent for sexual activity has been sixteen years of age for both genders.
Major Issues with the Law Itself
There are some major issues with the law itself, as it is written.
1. It is not descriptive of what does or does not constitute ‘a person who appears to be a child.’
2. It applies to written works or images of a person who appears to be a child, with nothing on how to identify a child.
Concerns with the New NSW Law
Two serious concerns with the new NSW law are the way they can mix levels of activities so minor issues are seen as major issues and how they make legal activities unlawful. Examples of this are:
1. The original law required the involvement of sexual activity or torture or a very blatant sexual pose for it to be child porn. Simple nudity or non-sexual activity were legal images, as were topless or see through images. However, the new law is such that a visible breast or simple nudity is now child abuse material by the courts.
Thus, an image of a fifteen year-old girl walking down the street in a see through top is now seen as the same as an image of someone having sex with a six year-old girl.
2. It is legal for the fifteen year-old girl in the see through top to walk down the street. It is legal for her to take a photo of herself like that with her breasts displayed. It is also legal for her to have a copy of the photo. It is legal for her to send that photo to other people. However, if the person who receives the photo doesn’t immediately delete it they can be charged with having child abuse material and be sentenced the same as some as someone having a photo of a person having sex with a toddler.
It’s also possible for a person under sixteen years of age to legally wander around various places topless or in a see through top, but taking a photograph of them is a crime. Or they may be over sixteen years of age but are deemed by someone in authority as to be looking under eighteen years of age. Also, a photograph of a topless boy under ten years of age could be said to look like a photograph of a topless girl of the same age, and thus a crime.
Photographs of nude people are no longer legal, unless it’s obvious they’re over sixteen years of age, as seen in the eyes of the person in authority making the decision. The definition of what constitutes ‘appears to be a child’ is totally subjective and not objective. Good laws are objective and have very clear and obvious markers, like the drunk driving and speed laws. If someone chooses to use a buxom sixteen year old like Samantha Fox as their standard, then even photos of a twenty year old Twiggy in a flimsy top would get people arrested.
The traditional photos of new born babes taken with them wearing only a diaper is now child pornography, according to this law.
The way the law is written it is applicable in a retrospective manner because anyone with images from prior to the change that were legal can now be charged under the law. It doesn’t include a ‘grandfather clause’ to exempt anything held from prior to the change in the legislation. Yet laws aren’t supposed to be legal to have a retrospective application. They should include an exemption date or a reasonable period of grace to allow for people to comply after they’re made aware of the changes.
In Ernest’s searches of the newspapers and NSW government websites he did not find any references to the changes of these laws between August 2010 and December 2010, when it would be expected a media announcement would be made about the impending changes or the just made changes to the law.
At one point during his enquiries into the reason for the law change a claim made by a few people within the Police and legal system was the current law is more in line with the Christian mores. However, if anyone bothers to take the time to read the Christian Bible they will find in Genesis that God approved of nudity and the concept of nudity being wrong was given to Adam and Eve by the Serpent. Thus that is a Satanic concept and doctrine and not a Christian one.
Another Concern
Also, it appears the Police take no action to check if any images are lawful once their examination identifies as being of interest under this law are actually lawful under section 91HA (7) with a Commonwealth Censor Classification and are thus legal to have.
Legal Defences in October 2015
Part of the law the detectives investigating Ernest’s case seem to have totally ignored is the section 91 HA of the NSW Crimes Act.
91HA Defences
(1) Innocent production, dissemination or possession
It is a defence in proceedings for an offence against section 91H that the defendant did not know, and could not reasonably be expected to have known, that he or she produced, disseminated or possessed (as the case requires) child abuse material.
(2) It is a defence in proceedings for an offence against section 91H not involving the production or dissemination of child abuse material that the material concerned came into the defendant’s possession unsolicited and the defendant, as soon as he or she became aware of its nature, took reasonable steps to get rid of it.
(7) Classified material
It is a defence in proceedings for an offence against section 91H that the material concerned was classified (whether before or after the commission of the alleged offence) under the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth, other than as refused classification (RC).
On a number of occasions Ernest told the Police, in interviews and discussions, he had many images from books and magazines sold with a Commonwealth Government Censorship Classification, and he also had a huge collection of images he hadn’t yet examined. He also said he had always operated according to the law as it was known to him when he last checked it in June 2010. The Police had no interest in any of this information, nor did they ever act on it beyond claiming he knowingly had child abuse material
Criminal Code Act 1995 (Australia)
as of October 2015
What is most intriguing about the Commonwealth law on child porn is the way it’s part of a section of law about the protection of national infrastructure. Thus they see child porn is not an offence against people, but an offence against the telecommunications infrastructure in the same way the section is about the laws to deal with people blowing up bridges.
Chapter 10: National infrastructure
Part 10.6 - Telecommunications Services
Division 474 - Telecommunications offences
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
© 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
© 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).
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