Debated resumed from 10 March 2010.

Mr GREG SMITH (Epping) [10.46 a.m.]: I lead for the Liberal-Nationals in debate on the Crimes Amendment (Child Pornography and Abuse Material) Bill 2010. The bill amends the Crimes Act 1900 and the Criminal Procedure Act 1986 in order to change the law as it relates to child pornography, which will be referred to as child abuse material, so that, first, the defence relating to material produced for child protection or for scientific, medical, legal, artistic or other public benefit purposes will no longer be available, and, second, the law is generally more consistent with Commonwealth offences relating to child pornography. The objects of the bill are also:

(b) to amend the Criminal Procedure Act 1986 to provide for the use of random sample evidence in proceedings for a child abuse material offence,

(c) to amend the Criminal Procedure Act 1986 to extend to a witness in sexual offence proceedings the same protections as those afforded to a complainant in the proceedings, in cases where it is alleged that the accused person has committed a sexual offence against the witness that is not the subject of the proceedings concerned.

(d) to make consequential and related amendments to the above Acts and other legislation.

That other legislation includes the Children and Young Persons (Care and Protection) Act 1988, the Commission for Children and Young People Act 1998, the Law Enforcement (Powers and Responsibilities) Act 2002, the Ombudsman Act 1974, the Parliamentary Electorates and Elections Act 1912, and regulations, and the Victims Support and Rehabilitation Act 1996. The background of the bill is that it belatedly follows the furore surrounding the Bill Henson exhibition on 22 May 2008 when the opening night of the Sydney photographer's 2007-08 exhibition at the Roslyn Oxley9 Gallery in Paddington, Sydney, was cancelled after complaints were made concerning photographs of a nude 13-year-old girl. Although a number of the images in the exhibition were seized by police with the intention of charging Mr Henson and/or the gallery with publishing an indecent article under the Crimes Act, no charges were ever brought.

Thereafter, in October 2008, the New South Wales child pornography working party made certain recommendations. This bill has been introduced in answer to those recommendations and it is touted specifically as removing the artistic merit defence presently available under the Crimes Act. Presently the offence of child pornography is created in section 91G and 91H of the Crimes Act. Section 91H(1) states:

child pornography means material that depicts or describes (or appears to depict or describe), in a manner that would in all the circumstances cause offence to reasonable persons, a person who is (or appears to be) a child:

(a) engaged in sexual activity, or

(b) in a sexual context, or

(c) as the victim of torture, cruelty or physical abuse (whether or not in a sexual context).

Section 91H (2) creates the offence of production, dissemination or possession of child pornography, for which the maximum penalty is 10 years' imprisonment. The defence of artistic merit is created by section 91H (4) (c), which provides that it is a defence to any charge for an offence that, having regard to the circumstances in which the material concerned was produced, used or intended to be used, the defendant was acting for a genuine child protection, scientific, medical, legal, artistic or other public benefit purpose and the defendant's conduct was reasonable for that purpose. Presently—prior to the enactment of this legislation, if it is passed—in order to establish the offence the prosecution is required to prove that the material falls within the definition of section 91H. Thereafter, if this legislation is passed, it will be for the defence to raise the artistic merit defence and to establish on the balance of probabilities that, having regard to the circumstances in which the material was produced, used or intended to be used, the defendant was acting for a genuine artistic purpose and the defendant's conduct was reasonable for that purpose.

The amendment in this bill will remove the specific defence. The issue will then be whether the matter complained of falls within the definition of "pornographic material", to be known as "child abuse material". If it is pornographic, there will be no defence. Although the intention is that these amendments should be in harmony with the Commonwealth legislation, it is noted that the Commonwealth Criminal Code does not provide a specific defence of artistic merit but, rather, includes "literary, artistic or educational merit" as one of the matters to be taken into account in determining whether reasonable persons would regard the material as offensive. That is covered by section 473.4 of the Commonwealth Criminal Code.

It is interesting to note the Supreme Court decision of Justice Adams in McEwen v Simmons [2008] NSWCSC, dated 8 December 2008, where Justice Adams ruled that possession of a series of cartoon figures depicted by apparent human genitalia was an offence under section 91H (3) of the Crimes Act 1900 and also section 474.19 of the Commonwealth Criminal Code 1995. In that case the issue was whether the cartoon character—I think it was one of the Simpsons—was a person within the definition of the relevant legislation. Because the New South Wales Act did not specifically refer to cartoon depictions, it was necessary for the judge to interpret the wording of the relevant section to reach a decision that such cartoon depictions were "as a question of fact and degree" a depiction of a person within the meaning of the Act. He relied on Western Australian and Canadian authority to reach that conclusion. The Opposition's examination of this bill suggests that it also covers such material provided that that decision was correctly decided.

I will now deal specifically with the bill. The bill generally substitutes the term "child abuse material" for the term "pornography". "Child abuse material" is defined in proposed section 91FB (1) as material that "depicts or describes in a way that reasonable persons would regard as being, in all the circumstances, offensive". That includes:

(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

(c) 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.

When determining whether a reasonable person would regard the material in question as offensive, the court is to take into account whether reasonable persons would regard particular material as being in all the circumstances offensive and also to consider the standards of morality, decency and propriety generally accepted by reasonable adults; the literary, artistic or educational merit, if any, of the material; 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 the general character of the material, including whether it is of a medical, legal or scientific nature.

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 proposed subsection (1). The private parts of a person are defined as the person's genital area or anal area or the breasts of a female person. I understand that the references to "sexual pose" and "implied" are extensions to the current definition. Accordingly, the issue of artistic merit is taken into account in the initial determination as to whether the material is offensive and thereby falls within the definition of child abuse material.

Proposed new sections 91H and 91HA relate to the production, dissemination or possession of child abuse material and the defences of innocent production, dissemination or possession. Proposed new section 91HA provides for specific defences of public benefit for law enforcement officers in the course of duty, for classified material and for approved scientific, medical or educational research. Proposed new section 91HA (7) provides that it is a specific defence to an offence against proposed section 91H that the material concerned was classified under the Commonwealth Classification (Publication, Films and Computer Games) Act 1995. In that Act the word "publication" is defined as meaning any written or pictorial matter.

The Criminal Procedure Act 1986 is amended to insert a new part 4A to provide for the use of random sample evidence in proceedings. The amendment enables an authorised analyst to conduct an examination of a random sample of child abuse material or alleged child abuse material the subject of the proceedings. The prosecutor may then adduce evidence of the findings of the authorised analyst. Evidence of the findings of the authorised analyst 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 random sample was taken. It is a bit like drug sampling—obviously an entire 500-kilogram haul of cannabis or buddha sticks is not sampled. Accordingly, it is open to a court to find that any type of child abuse material present in a particular proportion in the random sample of the material is present in the same proportion in all of the material.

Evidence of the findings of an authorised analyst may be given in the form of a certificate. Random sample evidence may be admitted under the provision only if the accused person or his or her Australian legal practitioner has been given an opportunity to view all of the material concerned. This will remove the enormous distress and pressure that is put on the jury, the court, the judge, the magistrate, the prosecutors, the defence lawyers and the police officers who are required to look at this filth. One would call it filth because it generally depicts action of a sexual kind between an adult and a child.

A new section 294D provides for the extension of protections afforded to complainants in sexual offence cases. At present special arrangements apply to the giving of evidence by complainants in sexual offence cases. For example, complainants may give their evidence during an in-camera session of court or may give their evidence from outside the courtroom by means of closed-circuit television facilities. An accused person is not permitted to personally examine or cross-examine the complainant. Schedule 2 [6] extends these special arrangements to sexual assault witnesses.

Arguments in favour of the amendments include that it will better enable the authorities to distinguish child abuse material from art and thereby protect victims and facilitate prosecutions. It arguably enables expert evidence to be led on the question of artistic merit. It enables the use of random sample evidence, which provides an element of protection to all parties involved in a prosecution from exposure to copious amounts of disturbing, offensive and graphic material. It will better enable magistrates and judges to determine whether material is or is not pornographic by removing the present twofold determination of whether material is pornographic and whether it is art pursuant to the current exception. It removes the artificial argument that certain pornography is acceptable because it is art.

Mr Kerry Hickey: That is right.

Mr GREG SMITH: It is in harmony with Commonwealth legislation. The specific consideration of journalistic merit in section 91FB (2) should protect images captured by genuine photojournalism. I am sure the member for Cessnock would be concerned to ensure that. The extension of special arrangements in regard to sexual assault witnesses will enable the court to make an order protecting that witness's identity and better protect sexual assault witnesses against whom an accused person is alleged to have committed a sexual offence but who are not subject to the proceedings concerned. That would be when a person gives eyewitness observation of an assault on someone else or tendency or coincidence evidence, I would imagine.

The Government has indicated the following arguments in favour of the amendments: They expand protection for previous victims of sex offenders, allowing evidence to be given via closed-circuit television, preventing cross-examination by the accused, and providing victims with access to a court support person. They reduce the trauma experienced by police, prosecutors and juries involved in child pornography cases by allowing the use of random samples to represent vast amounts of images rather than analysing every single one. They make it easier for police to prosecute instances where images are disseminated via the internet by standardising New South Wales laws with Commonwealth laws; and they change the definition contained in the legislation from "child pornography material" to "child abuse material" to make it clear how devastating the practice of child pornography is for children. Included in arguments against is that expert evidence can be expensive and may prolong prosecutions. I do not worry about that too much. Otherwise there are no significant arguments against.

We have consulted with a number of parties—the Law Society, the Director of Public Prosecutions and Legal Aid NSW. The Bar Association has noted some differences with the Criminal Code. The bill refers to a person who is implied to be a child. This is absent in the code's definition of child abuse material and child pornography material. It is not apparent to the Bar Association why an offence should be created where material is implied to be of a child. Another difference between the bill and the code is that the bill does not require that the dominant characteristic of the material be the depiction or description of private parts or that it be for a sexual purpose. Furthermore, the code's definition of child abuse material and child pornography material requires recklessness in relation to the material whereas the bill contains no such element. If the disseminator was unaware of the risk the offence should not be made out by mere negligence—so says the Bar Association.

The Bar Association also had concerns in relation to the bill's provision allowing a certified analyst to make a finding based on a random sample of the material. The association is of the view that this is too broad and would allow opinion evidence from somebody who may not be expert in the field. Its views are that the analyst should be permitted to describe the material only in factual terms; that the provision should be subject to section 76 of the Evidence Act; and that the analyst should not be permitted to provide an opinion on the material. Again, that is the Bar Association's view and I am sure views will differ.

I think the practical importance of random sampling outweighs the concerns and, if the expert does not stand up to cross-examination, the evidence may not be of credibility and the whole lot may have to be called, so there will be great discipline on the police and the prosecution to make sure that their experts are experts and can sustain the intentions of the Act. Robyn Ayres, the Executive Director of the Arts Law Centre of Australia, has indicated that the centre has no objection to the bill. Accordingly the New South Wales Liberals and The Nationals do not oppose the bill.

Mr FRANK TERENZINI (Maitland) [11.06 a.m.]: I support the Crimes Amendment (Child Pornography and Abuse Material) Bill 2010. We must be cognisant that the bill has come about because of a working party that studied the issues and was given the task of looking at how to remove the defence of artistic purpose without infringing the individual rights of people who are at liberty to put together such artistic pieces. That is the balancing act that the working party had. Its recommendation was that the particular section dealing with this would be more in line with the Commonwealth bill, and that that would enable the defence to be removed, and I think that is a very sound outcome given the recommendations and the state of the law. I do not know whether it comes directly from the Henson case because I understand that the pictures in that case were categorised or classified, but the defence itself has been used only once—unsuccessfully—so that is not really a concern. The recommendation was for the defence to be removed, and the Government has supported that recommendation.

The member for Epping mentioned the McEwen v Simmons case—what is called the Simpsons case, because it involved the cartoon characters of The Simpsons. There was argument that it was only a cartoon and therefore could not be offensive or pornographic, but it enabled the court to determine that, because The Simpsons is a show that depicts normal family situations and contradictions in society and it is a show watched by adults as well as children, the cartoons were offensive and pornographic. That is an example of how the Commonwealth definition can be used to take account of all the circumstances. What it is about is enabling the court to look at all the circumstances and, as the member for Epping pointed out, the standards of morality, decency and propriety generally accepted by reasonable adults—because what was acceptable in 1960 may not be quite as acceptable in 2010; the literary, artistic or educational merit, if any, of the material; 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 the general character of the material, including whether it is of a medical, legal or scientific character.

My short contribution here today is simply to affirm my support for a bill that enables the court and the common law system that we have to take into account reasonable standards in the community, which can be done by removing the defence and using the Commonwealth definition. The Simpsons case, as we know it, is a great example of how it can be done. I do not know whether this legislation is in response to a specific case. However, it is certainly a good recommendation from the Attorney General and I congratulate him for that.

In my experience the random sample concept is a good one. There is already provision in the Evidence Act—I think it is section 50, but I am not sure—to enable expert summaries to be admissible in court for the jury to look at, instead of going through the whole business record. I think it is a business record exception to the hearsay rule to enable expert summaries to be presented. The provision in the bill is along those lines. That is also a very good step forward. For those reasons I commend the bill to the House.

Mr VICTOR DOMINELLO (Ryde) [11.10 a.m.]: Although my colleagues and I do not oppose the Crimes Amendment (Child Pornography and Abuse Material) Bill 2010, I do have some misgivings that I would like to place on the record, namely, the deletion of the term, "child pornography" from the Crimes Act 1900, and its replacement with "child abuse material". Child abuse is a very broad concept. Child abuse is the blanket term to describe four types of child mistreatment: physical abuse, sexual abuse, emotional abuse, and neglect. Examples range from verbal abuse to leaving a child unattended in a car with the windows up to physical assault. In 1990 Australia ratified the United Nations Convention on the Rights of the Child. This convention is an international human rights instrument. As a party to the convention the Australian Government accepted specific international legal obligations towards the children and youth of Australia. Article 19 of the convention states that:

Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

It is interesting to note that in article 19 of the convention the United Nations makes specific reference to sexual abuse. Article 34 of the convention states that:

Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse.

Article 34 then goes on to specify exploitation of children through prostitution and pornography. In this article the United Nations uses the words "sexual exploitation" and "sexual abuse". Importantly, sexual abuse is not subsumed into the general notion of abuse. A reason why sexual abuse and sexual exploitation have not merged into the general notion of abuse may be found in the European Union law enforcement agency Europol's published paper on child abuse in relation to trafficking in human beings. In this January 2008 paper Europol states that:

it is clear that crimes related to the sexual abuse of children need a special approach, not only because they are increasing but also because the criminality behind them exhibits different dynamics and characteristics to those seen in other forms of trafficking in human beings.

The obvious extension of this statement is that crimes related to the sexual abuse of children need a special approach, not only because they are increasing but also because the criminality behind them exhibits different dynamics and characteristics from those seen in other forms of child abuse. The different dynamics and characteristics are a probable and rational explanation for the dichotomy that exists in the Commonwealth Criminal Code Act 1995. Interestingly, this Act came into existence after the United Nations convention was ratified by Australia. Pursuant to part 10.6 division 473.1 of the Commonwealth Criminal Code Act, child abuse material is separately defined from child pornography material.

This separation continues with part 10.6 division 474.19 stating the offence of using a carriage service for child pornography material and division 474.22 stating the offence of using a carriage service for child abuse material. The member for Miranda, in his agreement in principle speech, went through the bill in detail explaining the background and rationale for same. In fact his speech contained over 2,700 words. However, only three sentences were proffered to explain why the term "child pornography" should be expunged from the vocabulary of the Crimes Act. Relevantly, the member for Miranda said:

Another significant change recommended by the working party was to replace the term "child pornography" with the term "child abuse material". The Government supports this change in terminology. Child pornography is a form of child abuse and the community and the Government will not tolerate predators who engage in this type of behaviour.

In the first of these sentences the member for Miranda appropriately acknowledged that the removal of the words "child pornography" represented a "significant change". Given the significance, one would expect a detailed and considered explanation for the change. However, no explanation was given other than that child pornography is a form of child abuse and the Government supports this change in terminology. Given the barren explanation provided by the member for Miranda, I reviewed the Child Pornography Working Party's report, which was released on 10 January this year. At page 24 it noted:

As previously discussed, the Commonwealth model distinguishes between material that is defined as child pornography and material that is defined as child abuse material. Although the CPWP is of the view that NSW should follow the Commonwealth model, the CPWP recommends that, in the NSW context, the definitions should be merged, and the term 'child abuse material' used to cover both child abuse material and child pornography material, as defined in the Code. The rationale behind this is that as child pornography is a form of child abuse, it may be artificial to split the two. The CPWP has also considered the term 'child exploitation material', which is also commonly used to describe such material. However, the CPWP is of the view that the term 'child abuse material' has a more settled meaning and describes conduct that is clearly criminal. Although child pornography and child abuse material is exploitative, it is foreseeable that conduct could also fall under this category that is not necessarily criminal.

The report noted that New South Wales should follow the Commonwealth model. However, it stated that in light of the "New South Wales context" the definitions should be merged. I ask the Parliamentary Secretary in reply to detail what is the New South Wales context. How is the New South Wales context so different as to warrant such a significant change of terminology and departure from the recommended Commonwealth model? Is it for economy of words? With great respect, the chimes of legislative economy rarely sound in this Chamber, so I ask why the Government now chooses to sound these chimes in order to silence the term "child pornography".

I would like to raise an additional issue in relation to the bill. Schedule 3 lists amendments to other legislation that, at present, contains reference to the term "child pornography" as this is defined in section 91H of the Crimes Act. These Acts include the Children and Young Persons (Care and Protection) Act 1988 and the Parliamentary Electorates and Elections Act 1912. In this last case the proposal seems to be to add "an offence involving child abuse material" to the existing reference to "child pornography", but this may be to capture offences under the Commonwealth Criminal Code where both terms are in use.

Schedule 2 [10] contains what the explanatory notes call a transitional provision that extends these arrangements to proceedings that have already been commenced. As I see it, the gap relates to those Acts that regulate the medical and related professions and that contain reference to criminal proceedings that involve child pornography. A full list of these Acts is set out on page 40 of the Parliamentary Library research paper on Child Pornography Law, Briefing Paper No. 9/2008. Basically, these Acts require practitioners to notify their regulating boards of any relevant convictions, criminal findings or charges. One example is section 20 (1) (e) of the Chiropractors Act 2000, which refers to:

(e) details of any criminal proceedings pending against the chiropractor at the end of the return period, in this State or elsewhere, for a sex/violence offence alleged to have been committed against a minor or to involve child pornography (whether or not alleged to have been committed in the course of the practice or purported practice of chiropractic).

My concern is that this bill leaves provisions of this sort in a kind of legal limbo or no man's land. Proceedings that have already been commenced are provided for. However, my question relates to whether provision is made for future proceedings under these Acts that regulate the medical and related professions. Have they been forgotten or overlooked? Unless these Acts are amended to reflect the change in terminology from child pornography to child abuse material, the relevant provisions of those Acts will become inoperative. Even if that is not the case it would be in the interests of clarity and consistency to amend all the statutes that presently employ the term "child pornography" consistently.

In conclusion, I have concerns about the removal of the term "child pornography" from the Crimes Act and related legislation. It is a term that the community understands. Whilst it is a subset of child abuse it is a particularly depraved form of child abuse that requires special recognition. Make no mistake: child pornography is an enemy of children. Not only do I want to know the face of our common foe; I also want to know its name. Unfortunately, the term "child pornography" will now be cloaked by anonymity. Alarm bells are starting to ring. This bill takes us down a path of increasing shadows.

Dr ANDREW McDONALD (Macquarie Fields—Parliamentary Secretary) [11.22 a.m.]: In participating in debate on the Crimes Amendment (Child Pornography and Abuse Material) Bill 2010 I wish to focus in particular on protections for artists and maintaining the classification defence. Before deciding whether particular material constitutes child abuse material the court must consider whether reasonable persons would regard that material as being offensive in all the circumstances. One of the matters that the court must consider is whether the material has any artistic merit. On page 24 of its report the Child Pornography Working Party noted:

... by requiring the literary, artistic or educational merit of the material is determined prior to the work being defined as child pornography, it ensures that works with genuine artistic merit are not confused with child pornography. It also ensures that a defence is not available for the creators of material without any artistic merit, but produced under the guise of an artistic purpose.

In this way the work of artists is distinguished from child abuse material. In addition, police are now able to consider the artistic merit of a work before any charges are laid rather than it operating as a defence to be raised once criminal charges have been laid. The working party released its report in January this year. The Government then consulted with arts groups, the media and victims groups on the proposed changes. During this consultation many stakeholders from the arts sector were concerned that the proposed changes would remove the existing classification defence.

Arts groups recommended that this defence be retained. They argued that the classification defence provided a safeguard for emerging artists who may not have an established body of work, which may be a consideration that the court takes into account in determining whether a work has artistic merit. If the defence were retained, emerging artists could apply to the Classification Board to have their work classified. In this way artists and art galleries could be confident that the work they display is not child abuse material, and they will not be liable for criminal prosecution. The Government has listened to this feedback and decided to retain the classification defence. I commend the bill to the House.

Mr JONATHAN O'DEA (Davidson) [11.25 a.m.] I speak in debate on the Crimes Amendment (Child Pornography and Abuse Material) Bill 2010, the objects of which include amending the Criminal Procedure Act 1986 to provide for the use of random sample evidence in proceedings for a child abuse material offence and to extend to a witness in sexual offence proceedings the same protections as those afforded to a complainant in the proceedings, in certain cases. Another object on which I will focus my comments today is to amend the Crimes Act 1900 to change the law as it relates to child pornography, which will now be referred to as child abuse material, so that the defence relating to material produced for child protection, scientific, medical, legal, artistic or other public benefit purposes will no longer be available.

This bill removes the standalone defence of artistic merit, expands the definition of "pornographic material" in a reworked definition of "child abuse material" and specifies a list of factors that must be taken into account when determining whether material is offensive, including the existence of any artistic merit. The legislation involves two strong principles that are in tension but that are not necessarily irreconcilable. They are the protection of children and the freedom of expression. In the arts freedom of expression is limited by law. The interests of an artist and the interests of children can conflict. When a creative process involves children the law properly imposes certain limits and constraints designed to protect children from exploitation or harm.

As the father of four young children I particularly abhor the activities of people who mistreat or abuse children for their own sexual gratification. All of us surely condemn the sick child abuse behaviour of all such people, unfortunately including the former member for Swansea—or at least I hope we all do. However, the proposed amendments appear to be more about window-dressing than about attacking child abuse in our society. In this respect I note the admission of the current Acting-Speaker, the member for Maitland, that the defence has been used only once and in that case it was unsuccessful. It is questionable as to whether this change will result in different outcomes in child protection. What it does do, however, is potentially increase the bureaucratic process, anxiety levels and potential costs for artists. One can understand the view expressed in the media to the effect that the reform is essentially a politically motivated and cynical initiative driven in a post-Henson furore. Article 19 (2) of the International Covenant on Civil and Political Rights provides:

Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

John Stuart Mill's famous essay On Liberty, which was published just over 150 years ago, remains a source of inspirational guidance today. Mill spoke in his essay of principles of freedom and said:

There is a limit to the legitimate interference of collective opinion with individual independence. And to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs as protection against political despotism.

Prevailing opinion can be distorted and misinformed so as to make it unjust and oppressive to individuals. Of course, harm against others, particularly children, must be reasonably prevented. However, a socialist philosophy that promotes a controlling and overprotective State can unfairly relegate individual rights. Indeed, Sir Robert Menzies in his 1942 speech "The Four Freedoms" spoke of freedom of speech and expression by stating:

what appears to be today's truth is frequently tomorrow's error.

We parliamentarians should be careful to preserve the freedom of our minds and spirits as legitimately contained in artistic expression. Where is the Minister for the Arts? Why is she not speaking for her portfolio's constituency? The Legislation Review Committee in its latest digest recorded that stakeholders such as the National Association for the Visual Arts and the Arts Law Centre for Australia appear satisfied that the bill will not adversely impact on the work of artists. Importantly, the committee noted:

the Bill retains the defence of classified material at proposed section 91HA(7) which allows an absolute defence when 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. In this regard, artists may seek classification of their work by the Classification Board to determine what restrictions, if any, will apply to their work. The retention of this provision safeguards artists, and their work, from being unintentionally caught by the definition of "child abuse material".

This Commonwealth classification defence becomes more important in light of the removal of the artistic merit defence. However, the classification process available to artists is a largely bureaucratic and costly exercise and potentially will hit the pockets of often-struggling artists. I note that the definition of "child" under Commonwealth law refers to children under 18 years, whereas under New South Wales law a child is under 16 years. Commonwealth classification guidelines provide that publications will be refused justification if they promote or provide instruction in paedophile activities, or if they contain descriptions or depictions of child sexual abuse or any other exploitative or offensive descriptions or depictions involving a person who is, or appears to be, a child under 18. The depiction of a person who is or appears to be aged 16 or 17 years may fall through the gap, receive a refused classification and result in a prosecution despite not being caught under New South Wales legislation.

From 2000 to 2004, before I entered this place, I performed the roles of deputy convenor and, for a short time, acting convenor of the Australian Classification Review Board. This board meets as needed to review its classification decisions, generally in response to an application for review from the original applicant. The board comprises a representative group of trained individuals with relevant skills and experience. In my appointed capacity I was charged with reviewing classification decisions in accordance with the regulatory framework set by this and other parliaments. I did that faithfully, sometimes in difficult circumstances, respecting the criteria for which others were responsible but, importantly, taking into account relevant impact and context when assessing material. On one occasion the board was asked to consider the classification of an image, following the criteria set out by politicians, for the purpose of a foreshadowed prosecution. My role now in this place is as part of a lawmaking forum responsible for setting the criteria. What guidance or instruction will a jury be given to make such a decision? What training and experience would a randomly chosen jury have?

While the Opposition does not oppose the legislation, I am concerned that the removal of the artistic merit defence may have unintended or unfortunate consequences. I refer, by way of example, to the controversy over the sculpture of a little boy at Tamarama Beach as part of the most recent and excellent Sculpture by the Sea exhibition. In an act of censorship the local council required that the sculpture be clothed in swimmers rather than displayed in its intended naked form. I conclude my remarks with the words of Bernadette McMenamin, Director of Child Wise, a child protection charity, as quoted in the Sydney Morning Herald on 1 November 2009:

It will certainly attract its fair amount of perverts who will come down, but I do not want Australia to become a puritanical society where we have such black and white rules about not just art but about nakedness.

Mr KERRY HICKEY (Cessnock) [11.35 a.m.]: I support the Crimes Amendment (Child Pornography and Abuse Material) Bill 2010. The objects of the bill are:

(a) to amend the Crimes Act 1900 to change the law as it relates to child pornography (which will now be referred to as child abuse material) so that:

(i) the defence relating to material produced for child protection, scientific, medical, legal, artistic or other public benefit purposes will no longer be available, and

(ii) the law is generally more consistent with Commonwealth offences relating to child pornography,

(b) to amend the Criminal Procedure Act 1986 to provide for the use of random sample evidence in proceedings for a child abuse material offence,

(c) to amend the Criminal Procedure Act 1986 to extend to a witness in sexual offence proceedings the same protections as those afforded to a complainant in the proceedings, in cases where it is alleged that the accused person has committed a sexual offence against the witness that is not the subject of the proceedings concerned,

(d) to make consequential and related amendments to the above Acts and other legislation.

I shall address why "child pornography" has been renamed "child abuse material" in this bill. Possessing, disseminating or producing child pornography is committing child abuse. These activities have a devastating effect on the victims involved. The abuse occurs not only when the photograph or video is being taken, but also through continued exposure of the image or video. For this reason the Government supports the Child Pornography Working Party's recommendation to replace the term "child pornography" with the stronger term "child abuse material". New South Wales has chosen to follow the Commonwealth legislation in other respects also. The Child Pornography Working Party noted that offenders who obtain child pornography via the Internet often are simultaneously committing offences against State law, such as possession of child pornography, and Commonwealth law, such as obtaining child pornography material for use through a carriage service.

The working party advised that frequently it is the case that both offences are charged against the one offender. It is also the case that offenders caught downloading child pornography will often, upon execution of a search warrant, be found in possession of an extensive collection of child pornography resulting in Commonwealth and State charges for the different bundles of pornography. Police officers and practitioners will encounter difficulties if the tests to determine what constitutes child pornography vary according to whether the State or Commonwealth charge is being considered. There is potential also for a jury hearing a trial involving both charges to be confused by having to apply two different tests. The working party noted that harmonising New South Wales law with Commonwealth law would assist with law enforcement and the prosecution of these offences. For those reasons, I support the bill.

Mr GREG PIPER (Lake Macquarie) [11.39 a.m.]: In contributing to debate on the Crimes Amendment (Child Pornography and Abuse Material) Bill 2010, which seeks to amend the Crimes Act 1900 and the Criminal Procedure Act 1986 to make changes to the law pertaining to child pornography, I believe I join every reasonable member of our society in supporting the nominal intention of the bill: the protection of children from exploitation and harm at the hands of people who would use legitimate art as a camouflage for improper exploitation. For that reason, I support the bill.

However, I must place on record my concerns over the huge and ongoing onus upon the Government to steer a path through the broad grey area in which a distinction must be drawn between what is art and what is not. The bill deals with an issue that creates strong emotions and views throughout the community. By its very nature, it is complicated. The bill adopts definitions that are used by the Commonwealth, which goes some of the way towards reducing cross-jurisdictional confusion of definitions, but other areas remain quite obscure. The Parliamentary Secretary, the member for Miranda, stated during his agreement in principle speech on 10 March that the intention of the bill is to disallow "artistic purposes" as a defence, without infringing on the rights of artists to depict valid situations involving children. Of course, that will be a difficult balancing act.

Nothing in the bill instils any confidence that a suitable method or set of criteria have been established to allow legitimate artistic expression while simultaneously prohibiting pornography. In theory, the intention of the artist should resolve the matter, but this is largely impossible to determine. What remains is a subjective opinion by a third party of what is acceptable and what is not. The Government's Child Pornography Working Party stated that material that is otherwise offensive because of the way in which it depicts children should not be protected because its creator claims an overriding artistic purpose for it. I believe that to be a reasonable view, but under this bill reliance will be placed on a third party's expert opinion to determine artistic merit.

There is a risk that an artist may produce what he believes to be a work of art without evoking in his mind any notions of sexualisation, sexual abuse or exploitation of children, but subsequently he may find that others believe that the material is unlawful under this legislation. Has that person committed an offence? At what stage was the offence committed? Was it during the course of composing the work, on completion of the work, on exhibition of the work, or at the stage at which it is determined by the Classification Review Board or other experts that the object or image depicted amounts to sexual or abusive images relating to children? If it is determined that an item contravenes the Act, do the authorities take action against the creator of the item for the production of child abuse material?

Those who abuse the innocence of children deserve all the condemnation that current laws express, but legitimate artists need a way of being sure that they are not seen as purveyors of pornography or abusive material. This is the dilemma that will likely result in future storms of media attention and public protests when someone, perhaps innocently, crosses that arguable line. One aspect of the bill that does not fall subject to interpretation or misinterpretation is that treatment of witnesses during legal proceedings should be equal to that of complainants. I strongly support that further protection for witnesses.

As I have stated, I support the intention of the bill. Therefore I will vote in favour of it, but I caution that, due to the complex and subjective nature of the issue, there are likely to be unintended consequences and grey areas that will be impossible to chart. It will be important for the Government and, indeed, the community to closely watch the implementation of this legislation and to be prepared to make changes, if and when required. In spite of the concerns I have expressed, I believe that this legislation is a genuine attempt to further protect children within New South Wales from exploitation by sexual predators and abusers. I fully support the intention of the bill.

Ms SONIA HORNERY (Wallsend) [11.43 a.m.]: An important issue to address in discussion of the Crimes Amendment (Child Pornography and Abuse Material) Bill 2010 is why the definition of "child pornography" has changed. The bill introduces a new definition of what constitutes "child abuse material", based on the definitions used in the Commonwealth Criminal Code Act 1995. Currently "child pornography" is defined as material that depicts or describes, in a manner that would in all the circumstances cause offence to reasonable persons, a person who is, or appears to be, a child engaged in sexual activity, or in a sexual context, or as the victim of torture, cruelty or physical abuse, whether or not in a sexual context. The bill significantly expands that definition by referring to material that depicts or describes the private parts of a child.

After enactment of this bill, "child abuse material" will be defined as material that depicts or describes children in such a way that reasonable persons would regard the depiction as being, in all the circumstances, offensive. The "private parts of a person" are defined as a person's genital area or anal area, or the breasts of a female person. The specific inclusion of material that depicts or describes the private parts of a person who is, or appears to be, or is implied to be a child, will assist the prosecution in cases in which nude photographs, which are not overtly sexual, have been taken of a child, but which reasonable persons would regard as being, in all the circumstances, offensive—for example, if they were in a person's possession for the purpose of sexual gratification.

The Director of Public Prosecutions [DPP] has advised that difficulties have been experienced in proving that such photographs depicted a child in a sexual context. For example, in the case Director of Public Prosecutions (NSW) v Annetts, the accused had secretly filmed boys in a change room. The accused was arrested in possession of a video containing short films of the boys, some of which concentrated on the genitalia. The accused was charged with possession of child pornography. The matter was dismissed on appeal in the District Court following a finding by the judge that:

one simply looks at the images, in applying the objective test, in determining whether or not the images depict a person, under the age of 16, 'in a sexual context'.

The Court of Criminal Appeal held that:

The fact that the images were secretly recorded is not relevant to whether or not the material is child pornography. Furthermore, the reasons which motivated the photographer are not relevant. These matters may inform an understanding of the context in which the film was made but are not relevant to an understanding of whether or not the video depicts boys in a "sexual context". That question must be answered after considering the content of the film itself.

The court found:

Although the motivation of the photographer and the method he used to film the boys was not relevant all of the content of the images, including that all the images were of young boys, concentrated on their genitalia and were taken over a period of time, and, if this is apparent from the video, were taken in a men's change room, were relevant to the question of whether or not the material depicted a person "in a sexual context".

After this legislation is passed, the prosecution will not have to prove that the images were depicting a person in a sexual context. It will be sufficient that the images depicted or described, in a way that reasonable persons would regard as being, in all the circumstances, offensive, the private parts of a person who is, or appears to be or is implied to be, a child. The number of images and the context in which the photographs were taken, such as surreptitiously taking photographs in a change room, will be able to be considered by the court in determining whether or not reasonable persons would regard the images as offensive. The purpose of the photographer when taking photographs, such as for sexual gratification, also is relevant.

It is noted that the Commonwealth definition of "child pornography material" includes material the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ, a representation of such a sexual organ or anal region, or the breasts of a female person in a way that reasonable persons would regard as being, in all the circumstances, offensive. Thus, for material that depicts the sexual organs of a child, the depiction of the sexual organs must be the dominant characteristic of the material, and the depiction must be for a sexual purpose. The material also must be material that would be regarded by reasonable persons as being, in all the circumstances, offensive.

However, the New South Wales Government is of the view that a simplified approach is preferred. The words "for a sexual purpose" have not been included in the New South Wales definition of "child abuse material". That is because it is difficult to conceive of a situation in which material that depicts the sexual organs of a child for a sexual purpose would not be considered by reasonable persons to be, in all the circumstances, offensive. Therefore, such depictions already will be covered by the definition that is part of the bill. However, an important safeguard—that reasonable persons must regard the material as, in all the circumstances, offensive—has been included to ensure that family happy snaps depicting images such as children in the bath or playing naked outside under a sprinkler are not caught by these provisions. A family's treasured photograph album will not be covered by the provisions of the bill.

Ms PRU GOWARD (Goulburn) [11.49 a.m.]: I am pleased to support the Crimes Amendment (Child Pornography and Abuse Material) Bill 2010. We all recognise that it is important to protect our children, and child pornography is a deeply offensive and troubling crime. Like other members, I think the Parliament needs to respect issues of culture, art and the freedom of the western world to think and explore ideas. After all, historically, the great advantage the west has always had over its competitors is the encouragement of freedom in thought and ideas, and that includes art. It would be most unfortunate if this bill impinged on that in any way.

It is admirable that these cases will end up before courts and that artistic merit will no longer be included as a defence but, rather, as a factor that needs to be taken into account. The issue that I raise is: How does a jury decide whether the material is offensive? Commonsense should always prevail, and that is what juries are for. These issues are complex, and on this occasion the Government and the Attorney General's Department should provide juries with some guidance. For example, what is offensive? I find most violent movies offensive and deep down inside I would not mind seeing them banned. However, they are not offensive to other people. Deciding what is offensive is extremely difficult, as we found in the great censorship debates of the 1950s and 1960s. That is why progressively governments have stepped back from them. Instead, we have sought to include more objective tests in the definitions and in the way we think about them.

For example, it is important for a jury to consider whether the material it is considering would incite someone to commit a crime. When paedophiles are on trial—paedophilia is obviously the crime we are most concerned about here—it is important for us to know whether they have in their home such material as George Lambert's painting of The Bathers, which as we all know is a full-frontal painting of a naked boy. It is one of Australia's best-loved and most famous paintings of children at the beach in about 1910. I do not know whether that painting can be found on Dolly Dunn's wall. We must always bear in mind that the sort of material paedophiles keep in their homes that obviously incites crime is mostly of a violent and completely depraved nature; artistic works, including, I would have thought, Mr Henson's works, are rarely, if at all, found in these homes. I think that is an important consideration for a jury. Does such material incite a person to commit a crime?

As I said, offensiveness of itself is a consideration, but it is a difficult one to consider in this modern day and age when almost anything goes. I often feel that there are good ideas behind government legislation but that it lacks community debate and engagement. That means that the legislation is doing more than simply arresting a wrong or addressing a new concern; it is also engaging the public and getting us all to think about these issues. In particular, it is a pity that this issue does not help us with what a major concern and that is the sexualisation of children. One cannot deny that Bill Henson's photographs, which I found very troubling, sexualise children. He would say they show the vulnerability of children and the sexual vulnerability of children, which is an important consideration for us. I am not sure that I am convinced, but that is the argument in the arts community.

The sexualisation of children is rarely a problem at the high end of art or artistic endeavours. The fact is that children are sexualised with trainer bras and bras for eight-year-olds, strapless gowns for eight-year-olds, and little girls of eight at school concerts—I have attended some of them—looking like pole dancers and being encouraged to be overtly come-hitherish in their actions. Often that is a much bigger problem for us as a modern society than artistic images. I think the Parliament is serious about addressing the sexualisation of children because of the obvious consequences for young adults and teenagers. It is extraordinary that we have seen an increase in the teenage pregnancy rate in this State in the past two years. While it is great to have legislation that deals with images of children more broadly than just as pieces of art and that no longer allows that as a defence but provides that it be one of a number of factors in these cases—it is putting the arts industry, the photographic industry and the cultural industry on notice that they must be more thoughtful in the future—this is also a good time for us to think more broadly about the sexualisation of children.

The sexualisation of children is not just a matter for the arts fraternity but also for the advertising industry and for what we think is acceptable for six-year-olds to see on television at six o'clock at night. Sadly, this bill does not go any way towards that and I sense no debate about it. If the bill were not being rushed through the Parliament and if the debate had not come on so quickly, this would have been a wonderful opportunity to engage advertisers, convenors of children's activities, designers of children's television, and television and radio networks in a much bigger debate about the sexualisation of children and whether it makes a difference. I do not think there is evidence to show that the sexualisation of children is encouraging higher rates of child sexual abuse or indeed teenage sexual abuse. I simply make the point that we all feel that it is having other unfortunate and damaging consequences for the latest general of young people.

The bill is not opposed by the Opposition. Certainly, the children who are of my immediate portfolio concern will be protected. The police have told me that when they go into homes where there is domestic violence or drug abuse sadly there are often distressing sexual images of children. If this bill makes those children less vulnerable, then that is a good thing. But we need to bear in mind that this legislation involves risks and unintended consequences. The history and achievements of western civilisation need to be preserved and treasured, and that includes the capacity to think and express ourselves freely. When juries are considering these cases I hope they will think about these other issues as well as the issue immediately before them. It will not be an easy task for juries to decide what is offensive, using commonsense alone, and I would encourage juries to also consider the wider implications.

Mr ALAN ASHTON (East Hills) [11.58 a.m.]: I thank members opposite for their support of the Crimes Amendment (Child Pornography and Abuse Material) Bill 2010. I note that some of them seemed to have spent the morning or last night working heavily on Google or another search engine to find appropriate quotes such as that of John Stuart Mill and the United Nations. Also mentioned were the statue of liberty speech, Socrates and many other people. So I thought I would quote from a journal of record. I will use only parts of it; there is no filibuster in this House. I refer to the 1991 edition of the Australian Reference Dictionary. I suggest that the library update its copy.

We all use the word "pornography" but I wonder how many of us know its accurate definition. On page 613, pornography is defined as being the explicit representation of sexual activity, visually or descriptively, to stimulate erotic rather than aesthetic feelings. The word comes from the Greek word porné, meaning prostitute. I am sure many members, including me, have never checked its ancient definition. The pornography that was drawn on the pyramids of Egypt, on the walls of ancient Rome, and in caves in the mists of time, was not meant to be offensive or erotically stimulating but was related to fertility and the reproduction of the species.

The member for Davidson and the member for Goulburn spoke about the need to make sure that the bill is not a beat-up or an over-reaction to the Henson material, which, had it been ignored, would have disappeared into an artistic gallery, to be seen by very few people. The bill has not come out of that event but out of a broader child pornography review. Society has tried to deal with this issue for hundreds of years. During the 1960s, books such as Portnoy's Complaint by Philip Roth and Lady Chatterley's Lover by D. H. Lawrence were banned in Australia. The member for Coffs Harbour probably secreted copies at home, as did many young men of about his age. If he feels I am verballing him I will withdraw that comment; if not, I will check out his copies later.

This issue is serious. The Government has introduced this bill. Normally the Opposition would want to be seen to be farther to the right than God and Thee in these matters, but today it is lecturing members of this House about artistic rights. The Minister for the Arts could well have spoken on this legislation but it is the Attorney General's bill and it could result in offenders being sent to jail if the offences that are created by the bill are proved by evidence and testimony. An important reform that is effected in the bill but is not directly connected to child pornography is the extension of victims' protections to what are called tendency witnesses.

Currently, complainants in sexual offence proceedings are entitled to the benefit of a number of provisions within part 5, division 1 of the Criminal Procedure Act 1986, including provision for closed courts, provision for non-publication of the names of people involved in a court case especially those under-age, and restriction of cross-examination about sexual experience. That last provision may have gone out of general use 20 or 30 years ago, but it had the effect of stopping people, especially women, taking their case to court, because they found the prospect of cross-examination about previous experiences too distressing. For victims of rape, the trauma of the offence was compounded by having to give evidence and reveal in court any previous sexual experience, or lack of it, so rapists were left free to walk the streets.

Government legislation already provides that a complainant should not be examined or cross-examined by the accused person, that a complainant may give evidence by alternative arrangements, such as closed-circuit television—so that if a trial miscarries the complainant would not have to give evidence again because the recorded evidence can be replayed or the transcript of it can be read—and that a complainant is entitled to have a support person present whilst giving evidence. Those provisions do not restrict an accused person's right to a fair trial. Before laying charges, police must have a reasonable case that they believe can be won and their witnesses must receive reasonable protection. This bill extends those protections to witnesses in sexual offence proceedings who allege that an accused has committed a sexual offence against them.

Attempts to use hearsay evidence about an accused's previous similar crimes would be immediately objected to by any good lawyer. I am surrounded by lawyers in this Chamber but I do not feel as threatened as the member for Mount Druitt. Objections to hearsay evidence are usually upheld as such evidence is not admissible. Everybody should know that. This legislation will encourage more witnesses to give evidence about previous sexual assaults or child abuse, and more victims will report abuse, confident that witnesses will attest to an offender's pattern of behaviour. The witnesses, mostly young people, would be examined about what they do or do not know, and because the witnesses are protected a complainant would have a much better chance of a successful prosecution. More victims will come forward and report abuse. It is for those reasons that the Government has introduced these reforms. The Government is committed to minimising the distress caused to victims of sexual assault who give evidence. It is not possible to distinguish between the difficulties faced by witnesses and by complainants in sexual assault trials.

In conclusion, the bill provides for closed courts and non-publication orders. We know from what happened recently to two famous people who are well-known in sport and fashion that protective provisions are necessary. Newspapers and other media tend to want it both ways. The member for Goulburn made a fair point, that newspapers often express outrage on their front pages about what the Government is doing—for example, in their reports about the relocation of Dennis Ferguson, with photographs of people holding crosses and coffins—yet publish photographs of beach girls on page three. In the car section of the papers one finds photographs of young girls presenting trophies to V8 race winners and the like.

We watch serious programs on television, such as Today Tonight, dealing with the types of issues we are talking about here, and then we see advertisements that could be said to be almost on the verge of child abuse, using young children as models—that happened only a few years ago, involving 12- and 13-year-old girls particularly, but also young boys. They might not be depicted for artistic purposes, but they are being used to promote products. Probably no-one would dare to take on a television station, but that is an important aspect and I believe the member for Goulburn was on to something there.

We are just a bit hypocritical, not about chasing genuine paedophiles and trying to stop child pornography and abuse, but I think sometimes the modern media plays it both ways. They want to publish salacious stories and pictures, yet call for the death penalty for anybody who might have read this book or looked at that picture. In conclusion, the bill extends protection provisions to witnesses in sexual offence proceedings who are alleging the accused has committed a sexual offence against them. With those words, I support the bill and the Government's intention, but I do understand some of the points made by Opposition speakers.

Ms LYLEA McMAHON (Shellharbour—Parliamentary Secretary) [12.11 p.m.]: One important issue that the bill deals with is the introduction of random sample evidence provisions. I would like to take this opportunity to outline how they work. As part of its consideration, the child pornography working party examined the likely impact on child pornography prosecutions of the development of a project that will create an Australian National Victim Image Library [ANVIL] and the use of the Microsoft software child exploitation tracking system [CETS]. The Australian Federal Police and Queensland Police are jointly leading development of this program. As the submission to the child pornography working group from the New South Wales Office of the Director of Public Prosecutions explained:

Essentially CETS is comprised of software and a database that will enable a cloned version of a hard drive to be entered into a database and it will identify any pornographic images that are known to the database, and produce a report that will count the number of images that fall within prescribed categories. The database will ultimately be an international collection, where the same criteria have been used to classify the images.

This will mean that over time, once there are enough images on the database, an investigating officer will not have to view all the images, and the prosecutor and court will be able to rely in the most part on the report produced to quantify and scale the images. At some point the investigating officer will need to examine images that are not identified by the software and, if they turn out to be child pornography, enter those images onto the database. There will be a transitional phase while the database is being created where both the software and manual analysis will need to be used to investigate. Ultimately it is envisioned that most collections will already be on the database.

The child exploitation tracking system has clear benefits in that it can quantify as well as qualitatively assess any given child pornography seizure. However, the child pornography working party noted that the ANVIL-CETS program is at the business case stage. A time frame for delivery cannot be committed to as the business case will need to be considered at a national level and senior officer group level through the national Ministerial Council for Police Emergency Management. The problem remains regarding prosecutions conducted in the meantime. To address this interim problem, the child pornography working party was of the view that the creation of a legislative rebuttable presumption was warranted in child pornography matters. The presumption would be based on a genuine random sample of the images seized and the test for disproving the presumption would be on the balance of probabilities. The random sample evidence provisions implement this recommendation of the child pornography working party.

I wish to discuss how these provisions assist the prosecution of child pornography matters. The random sample evidence provisions assist police in the prosecution of child pornography matters by only requiring the investigating officers to view a portion of the total seizure rather than each and every image. Often seizures involve thousands upon thousands of images so this is a significant and welcome development. It will reduce the exposure of the investigating officers to these horrific images. It will also assist in reducing the number of images that have to be shown to a jury or judge who is hearing a child pornography matter, the court staff, the Director of Public Prosecutions solicitors, Crown prosecutors and legal representatives involved. Not only does it reduce the occupational health and safety impact of having to view such disturbing material, but it also reduces the further dissemination of the actual image, which will be of some comfort to the victims displayed in the photos or videos. I commend the bill.

Mr BARRY COLLIER (Miranda—Parliamentary Secretary) [12.18 p.m.], in reply: I thank the members representing the electorates of Epping, Maitland, Ryde, Macquarie Fields, Davidson, Cessnock, Lake Macquarie, Wallsend, Goulburn, East Hills and Shellharbour for their contributions to the debate. I note at the outset that the Opposition supports the bill. The shadow Attorney General, Mr Greg Smith, pointed out many positive features of the bill, which in his submission were overwhelming. In fact I believe he said that there were no significant arguments against, but for, payment of experts. As the bill says, experts may play a very important role in prosecution of these offences. The member for Epping inadvertently referred to some concerns of the Bar Association, but has agreed after checking that they were not the concerns of the Bar Association but concerns raised by Mr Stephen Odgers SC, with which I will deal later.

The member for Epping raised the issue of the definition of "child pornography material" in the Criminal Code, which is somewhat different to the definition contained in the bill. The definition of "child abuse material" contained in the bill differs from the definitions of "child abuse material" and "child pornography material" contained in the Commonwealth Criminal Code. Under the Commonwealth code, for material that depicts the sexual organs of a child, the depiction of the sexual organ must be the dominant characteristic of the material and the depiction must be for a sexual purpose. The material must also be material that would be regarded by reasonable persons as being, in all the circumstances, offensive. However, for material that describes the sexual organs of a child, it is not necessary that the description of the sexual organs be the dominant purpose of the material or that the purpose of the description be for a sexual purpose. It also must be material that would be regarded by reasonable persons as being, in all the circumstances, offensive.

New South Wales has not followed this approach because it appears to be inconsistent. It is difficult to conceive of circumstances in which depiction of the sexual organs of a child as the dominant characteristic for a sexual purpose would not be considered offensive by reasonable persons. Under the New South Wales model, the fact that the sexual organ of a child is the dominant characteristic and whether it is depicted for a sexual purpose can be taken into account by the court when it considers whether the material is offensive to a reasonable person. This is consistent with the Commonwealth approach to material that describes the sexual organs of a child. For instance, in the case of a doctor's report describing a child's sexual organ for a medical purpose, the medical character of the material is taken into account in deciding whether reasonable persons would regard the material as being offensive in all the circumstances.

The child pornography working party noted that the Commonwealth Legislation distinguished between material that is defined as child pornography and material that is defined as child abuse material. The working party recommended that the definitions should be merged and the term "child abuse material" used to cover both child abuse material and child pornography as defined in the code. The child pornography working party was of the view that, as child pornography is a form of child abuse, it is artificial to split the two. There was a question raised as to why the New South Wales Government was following the Commonwealth legislation. The child pornography working party noted that offenders who obtain child pornography via the Internet are often simultaneously committing offences against State law, such as the possession of child pornography, and Commonwealth law such as obtaining child pornography material for use through a carriage service.

The working party advised that it is frequently the case that both offences are charged against the one offender. It is also the case that offenders caught downloading child pornography will often, upon the execution of a search warrant, be found to be in possession of an extensive existing collection of child pornography, resulting in Commonwealth and State charges for different bundles of pornography. Difficulties will be encountered by police officers and practitioners if the tests as to what constitutes child pornography vary according to whether the State charge is being considered or whether the Commonwealth charge is being considered. There is also the potential for a jury that is hearing a trial involving both charges to be confused by having to apply two different tests to the two charges. As noted by the working party, harmonising the law with the Commonwealth will assist with law enforcement and the prosecution of these offences.

The member for Epping mentioned the case of McEwen v Simmons. The court held in that matter that cartoon images were in breach of child pornography provisions despite the fact they did not involve real children. The Child Pornography Working Party reached the conclusion, assisted by the submission of Mr Paul Winch, Public Defender, that this interpretation of the provisions was in conformity with the intent of the legislation, by ensuring that materials showing abuse of children did not get distributed to a large audience and normalise this behaviour. As such, the working party recommended no changes to the law in this regard.

I turn now to some issues raised by Mr Stephen Odgers, SC. Firstly, there is the issue of "child abuse material" and "child pornography" in section 473.1 of the Criminal Code. The Commonwealth legislation distinguishes between material that depicts a person who is, or appears to be, under the age of 18 years and material that described a person who is, or is implied to be, under 18 years of age. The use of the word "appears" refers mainly to visual images and the use of the word "implied" applies to non-visual material. The New South Wales legislation has retained this model albeit in a modified form.

Mr Odgers also raised the concern that the definition of "child pornography material" in section 473.1 of the Criminal Code refers to "(b) material the dominant characteristic of which is depiction, for a sexual purpose of", what is defined as "private parts" in the bill. The definition of "child abuse material" contained in the bill differs from the definition of "child abuse material" and "child pornography material" contained in the Commonwealth Criminal Code. Under the Commonwealth model, for material that depicts the sexual organs of a child the depiction of the sexual organ must be the dominant characteristic of the material and the depiction must be for a sexual purpose. The material must be also material that would be regarded by reasonable persons as being in all the circumstances offensive. However, for material that describes the sexual organs of a child it is not necessary that the description of the organs be the dominant purpose of the material or that the purpose of the description be a sexual purpose. It also must be material that would be regarded by reasonable persons as being in all the circumstances offensive. New South Wales has not followed this approach, as I have said, because it appears to be inconsistent.

A further issue was raised by Mr Odgers in relation to the Commonwealth Criminal Code and the terms "child abuse material" and "child pornography material" requiring at least recklessness in relation to the material; for example, Criminal Code section 477.22 (2) (b). The response to that is that the bill retains the current position in relation to the accused's knowledge that already existed in the Crimes Act 1900 of New South Wales. The Child Pornography Working Party did not recommend any change to the requisite intent that the accused had to possess in relation to the offences of possession, dissemination or production of child pornography.

Mr Odgers also raised an issue in relation to the bill making admissible a certificate by a certified analyst containing "the findings of the authorised analyst as to the nature and content of the random sample" of the alleged child abuse material under proposed section 289B (4) (c). Mr Odgers suggested this was too broad. In response to that, the certificate under section 289B of the Criminal Procedure Act 1986 will allow the prosecutor to adduce evidence about the nature and content of material based on an examination of the nature and content of a random sample taken from that material. It is expected this will include factual evidence about the number of images contained in the sample, description of the content of the images, and descriptions of where the images fall on an agreed scale of seriousness, such as the Child Exploitation Tracking System or the Oliver scale. This does not amount to opinion evidence. The opinion rule in section 76 of the Evidence Act will therefore still operate. In addition, the content of the certificate can be further constrained by the regulation-making power contained in section 289B (8).

The member for Ryde questioned why "child pornography" has been renamed "child abuse material". Possessing, disseminating or producing child pornography is committing child abuse. These activities have a devastating effect on the victims involved. The abuse occurs not only at the time the photography or the video is being taken, but also through the continued exposure and proliferation of that image or video. It is for this reason the Government supports the Child Pornography Working Party's recommendation to replace the term "child pornography" with a stronger term, "child abuse material".

The member for Ryde was also concerned as to why the definition had changed. The bill does introduce a new definition of what constitutes "child abuse material" based on the definition used in the Commonwealth Criminal Code Act 1995. Previously, "child pornography" was defined as material that depicts or describes, or appears to depict or describe, in a manner that would in all the circumstances cause offence to reasonable persons, a person who is, or appears to be, a child engaged in sexual activity or in a sexual context, or as the victim of torture, cruelty or physical abuse, whether or not in a sexual context. The bill significantly expands this definition, including by referring to material that depicts or describes the private parts of a child. "Child abuse material" is now defined as 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

(c) 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 of sexual activity, or

(d) the private parts of a person who is, appears to be or is implied to be, a child.

The "private parts of a person" are defined as a person's genital area or anal area, or the breasts of a female person. The specific inclusion of material depicting or describing "the private parts of a person who is, appears to be or is implied to be, a child" will assist the prosecution in cases where nude photographs have been taken of a child that are not overtly sexual, but which a reasonable person would regard as being in all the circumstances offensive—for instance, if they were possessed for the purpose of sexual gratification. The DPP has advised that difficulties have been experienced in proving that such photographs depicted a child in a "sexual context". For instance, in the case of the Director of Public Prosecutions v Annetts [2009], New South Wales Court of Criminal Appeal 86, the accused secretly filmed young boys in a change room. The accused was arrested in possession of a video containing short films of the boys, some of which concentrated on their genitalia. The accused had been charged with the possession of child pornography and the matter had been dismissed on appeal in the District Court following this finding by the judge:

One simply looks at the images in applying the objective test, in determining whether or not the images depict a person under the age of 16, in a sexual context.

The Court of Criminal Appeal held at paragraph 10:

... the fact that the images were secretly recorded [was] not relevant to whether or not the material [was] child pornography. Furthermore, the reasons which motivated the photography [were] not relevant. These matters may inform an understanding of the context in which the film [was] made but are not relevant to an understanding of whether or not the video depict[ed] boys in a "sexual context". That question must be answered after considering the content of the film itself.

The court went on to find:

... although the motivation of the photographer and the method he used to film the boys was not relevant, all of the content of the images, including that all the images of young boys, concentrated on their genitalia and were taken over a period of time, and, if this is apparent from the video, were taken in a men's change room were relevant to the question of whether or not the material depicted a person "in a sexual context".

Now the prosecution would not have to prove that the images were in a sexual context; it would be sufficient if the private parts of a person who is, appears to be or is implied to be a child, were depicted or described in a way that reasonable persons would regard as being, in all the circumstances, offensive. The context in which a photograph is taken, such as surreptitiously in a change room, as well as the number of images, would now all be able to be considered by the court in determining whether or not reasonable persons regard the material as offensive. The purpose that the photographer had when taking the photographs, such as for sexual gratification, is also relevant.

It is noted that the Commonwealth definition of "child pornography" includes material, the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ, or the anal region of a person who is, or appears to be, under the age of 18; or a representation of such a sexual organ or anal region; or the breasts, or a representation of the breasts, of a female person who is, or appears to be, under the age of 18 years of age in a way that reasonable persons would regard as being, in all the circumstances, offensive. Thus, for material that depicts the sexual organs of a child, the depiction of the sexual organs must be the dominant characteristic of the material and the depiction must be for a sexual purpose. The material must also be material that would be regarded by reasonable persons as being, in all the circumstances, offensive.

However, the New South Wales Government is of the view that a simplified approach is preferred and the addition of the words "for a sexual purpose" has not been included in the New South Wales definition of "child abuse material". This is because it is difficult to conceive of a situation in which material that depicts the sexual organs of a child for a sexual purpose would not be considered by reasonable persons to be, in all the circumstances, offensive. Such depictions will therefore already be covered by the definition included in the bill.

The member for Ryde referred to the change of the term "child pornography" to "child abuse". It is clear that the Child Pornography Working Party, when referring to the New South Wales context, was talking about the legislation and not any other form of context. This is clear from the paragraph that speaks about the artificiality of using two definitions in the Commonwealth Criminal Code 1995. New South Wales has used only one definition for all material that depicts children as objects of torture and other abuse, and/or in a sexual setting, in contrast to the Commonwealth, which divides the two into different definitions. Other States use various terms, including "child pornography" and "child abuse". The Government supports the recommendation of the working party that New South Wales should use the term "child abuse". It stated:

The rationale behind this is that as child pornography is a form of child abuse, it may be artificial to split the two. "Abuse" makes it clear that all images of children involved in sexual activity are abusive whereas "pornography" does not make this clear.

The member for Epping and the member for Davidson referred to the classification defence. The working party released its report in January this year. The Government consulted with arts groups, the media and victims groups on the proposed changes. During the consultation many stakeholders from the arts sector were concerned that the proposed changes would remove the existing classification defence. Arts groups recommended that this defence be retained. They argued that the classification defence provided a safeguard for emerging artists who may not have an established body of work, which may be a consideration that the court takes into account in determining whether a work has artistic merit. If the defence were retained emerging artists could apply to the Classification Board to have their work classified. In this way artists and art galleries could be confident that the work they display is not child abuse material and that they will not be liable for criminal prosecution. The Government has listened to the feedback and it has decided to retain what is known as the classification defence. The member for Davidson said that this bill was politically motivated and cynical.

Mr Jonathan O'Dea: No, I did not. I said that the media suggested that.

Mr BARRY COLLIER: The member appeared to support the artistic merit defence, which seems to be contrary to the views of other Opposition members.

Mr Jonathan O'Dea: Point of order: That is not what I said. In the context of the current debate it is important to be accurate and not to misrepresent what I said. If the Parliamentary Secretary looks at Hansard he will see that that is not what I said. I indicated that it was a media report that I thought, in the context, was an understandable media report. I did not agree with—

ASSISTANT-SPEAKER (Ms Alison Megarrity): Order! That is not a point of order. Members will not engage in debate across the Chamber. The Parliamentary Secretary is speaking in reply.

Mr BARRY COLLIER: I give the member for Davidson an undertaking that I will check Hansard. My note indicates that the member for Davidson appeared to support that defence. The member for Davidson asked why the defence of artistic merit was being removed. In late 2008 the New South Wales Sentencing Council recommended that the defence of artistic merit be removed from the child pornography provisions contained in the Crimes Act 1900. The Government supported this recommendation and established a high-level working party to examine how the defence could be removed without infringing on the rights of journalists and artists to depict valid situations involving children.

The working party was chaired by Judge Peter Berman, SC, and comprised members of the New South Wales Police Force, the Australian Federal Police, the Commonwealth Director of Public Prosecutions, the Department of Justice and Attorney General, Legal Aid NSW, the Public Defenders Office, the New South Wales Director of Public Prosecutions, and the Law Enforcement Policy Branch of the Department of Premier and Cabinet. The working party recommended that New South Wales should follow the Commonwealth's approach to this issue. Under the Commonwealth legislation the artistic merit of a piece of work is considered by a court when it is determining whether reasonable persons would regard particular material as being, in all the circumstances, offensive. This means that a defence to a charge of child pornography will no longer be available for creators of material without any artistic merit but produced under the guise of an artistic purpose.

The changes give clear guidance to the court as to what it should consider in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive. These include the standards of morality, decency and propriety generally accepted by reasonable adults; the literary, artistic or educational merit, if any, of the material; 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 the general character of the material, including whether it is of a medical, legal or scientific character. The changes represent a commonsense approach to this matter and ensure that works with genuine artistic merit are not confused with child pornography.

The changes have the support of both victims groups and the artistic community. I am sure that the member for Goulburn will be interested to know that the following groups were consulted: the National Association of Visual Artists, the Australia Council, the Arts Law Centre of New South Wales, and Arts NSW. All those organisations were consulted and these changes have their support. These changes will make New South Wales law relating to child pornography more consistent with the Commonwealth law in this area. The member for Davidson and the member for Goulburn said that judges should give juries guidance about matters that are before the court. I say to both the member for Davidson and the member for Goulburn that a judge will instruct a jury as to the law and the evidence in relation to both common law and statute law. The judge will ask the jury, as he or she always does, to apply common sense and their everyday experiences of life to the matters that are before them.

The member for Lake Macquarie referred earlier to the questions that were asked by juries. The jury, bringing to bear its common sense and everyday experience of life as to the law together with the directions of the judge, will consider whether a reasonable person regards the material as offensive in all the circumstances. It is important to note that a jury can be assisted in its determination by expert evidence. Expert witnesses play an important role in all jurisdictions from family law through to criminal law. The prosecutor will examine the expert witness, who then will be cross-examined by counsel for the defence. It is important also to note that the material having been classified by the classification board—other than as refused classification—is a complete defence. New section 91HA provides another defence of innocent production, dissemination or possession.

The judge will provide the jury with guidance with respect to the law and evidence—physical and circumstantial, including expert evidence—regarding the material it should consider to make its decision. I have great faith in the jury system of this State. Juries will make their decisions based on the material before them assisted by the guidance of the judge. An important part of the bill that should not be overlooked is the changes to how sexual assault victims give evidence in court. Currently complainants in sexual offence proceedings are entitled to the benefit of a number of provisions set out in part 5, division 1 of the Criminal Procedure Act. These include providing for closed courts, non-publication orders, restricting cross-examination regarding sexual experience, the complainant not being examined or cross-examined by the accused person, the complainant giving evidence by alternative arrangements such as via closed-circuit television and screens, and the complainant being entitled to have a support person present whilst they give evidence.

These are extremely important protections for any alleged victim of a sexual offence, particularly that they cannot be cross-examined directly by the alleged abuser. This bill extends these protections to witnesses in sexual offence proceedings who allege that the accused has committed a sexual offence against them. It is not possible to distinguish between the difficulties faced by witnesses and complainants in sexual assault trials. The reforms are aimed at encouraging more victims to come forward and report sexual abuse. The Government introduced this bill for those reasons. The Government is committed to minimising the stress caused to victims of sexual assault when giving their evidence.

This bill makes important changes to the criminal law by, firstly, amending the Crimes Act and other laws surrounding child pornography; secondly, allowing the use of random sample evidence in proceedings for a child abuse material offence; and, thirdly, amending the Criminal Procedure Act 1986 to extend to witnesses in sexual assault proceedings who allege the accused person has committed a sexual offence against him or her the same protections as those afforded to a complainant in those proceedings. This bill makes far-reaching and welcome changes based on consultation with communities and on the reports of a very important committee. I commend the bill to the House.

Mr Jonathan O'Dea: I seek the call under Standing Order 65. The Parliamentary Secretary has misunderstood or misquoted what I said in my contribution to the debate on the Crimes Amendment (Child Pornography and Abuse Material) Bill 2010. I seek to read the relevant paragraph onto the record.

ASSISTANT-SPEAKER (Ms Alison Megarrity): Order! I remind the member for Davidson that under Standing Order 65 he may briefly be heard in explanation. However, he cannot introduce new material or debate the matter. With that in mind, he may proceed.

Mr Barry Collier: Where is this from?

Mr JONATHAN O'DEA (Davidson) [12.48 p.m.], in explanation: From my speech. I will read the relevant paragraph from my speech onto the record. I said:

As the father of four young children I particularly abhor the activities of people who mistreat or abuse children for their own sexual gratification. All of us surely condemn the sick child abuse behaviour of all such people, unfortunately including the former member for Swansea—or at least I hope we all do. However, the proposed amendments appear to be more about window-dressing than about attacking child abuse in our society. In this respect I note the admission of the current Acting-Speaker, the member for Maitland, that the defence has been used only once and in that case it was unsuccessful. It is questionable as to whether this change will result in different outcomes in child protection. What it does do, however, is potentially increase the bureaucratic process, anxiety levels and potential costs for artists. One can understand the view expressed in the media to the effect that the reform is essentially a politically motivated and cynical initiative driven in a post-Henson furore.

Question—That this bill be now agreed to in principle—put and resolved in the affirmative.

Motion agreed to.

Bill agreed to in principle.


Bill declared passed and transmitted to the Legislative Council with a message seeking its concurrence in the bill.