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Principal, Xamax Consultancy Pty Ltd, Canberra
Visiting Fellow, Department of Computer Science, Australian National University
Version of 15 May 1998
© Xamax Consultancy Pty Ltd, 1998
This document is at http://www.rogerclarke.com/II/PossACT.html
This document provides a summary of information concerning a prosecution in the A.C.T. for the possession of child pornography, together with some ruminations about its implications.
This document reviews a case in the A.C.T. Supreme Court which may have substantial ramifications for netizens.
An overview of the general concept of censorship, and of the specific question of pornography, is provided in Clarke (1996).
Briefly put, censorship in Australia is primarily concerned with 'hard-core pornography' (in particular where it involves children, bestiality, violence, cruelty and/or exploitation); and incitement to or instruction in crime (especially those involving violence or proscribed drugs). Particularly severe legislation relates to 'child pornography'.
The framework of the law is provided in Commonwealth legislation, but the criminal provisions are expressed in State and Territory law.
For further information, see CAUDIT (1997), EFA (1996-) and Irene (1996-).
In 1996, a person living in Canberra was charged with the offence of knowing possession of child pornography.
In accordance with normal procedures in the Australian Capital Territory, the Australian Federal Police (which provides the A.C.T.'s police services under contract) investigated the matter, and the Director for Public Prosecutions conducted the prosecution. Because of the nature of the penalty provisions for the offence, and the absence of a District or County Court level in the A.C.T., the matter was heard at first instance by the A.C.T. Supreme Court two years after the charges were laid.
The salient facts were reported in 'The Canberra Times' of 12 May 1998. The individual's identity is not relevant to this discussion, and the report has been lightly edited to remove references to all identities (except that of the journalist).
By Rachel Hill
A man had kept child pornography he had downloaded from the Internet for six months before reporting it to the police, the ACT Supreme Court was told yesterday [i.e. Monday 11 May 1998].
Nym Bloggs [not the person's real name], a former contractor with [a government agency] who has since moved interstate, was sentenced to a three-year good-behaviour bond yesterday after pleading guilty of possessing a computer image depicting child pornography.
The court heard that on May 27, 1996, Bloggs had contacted police in relation to the availability of child pornography on the Internet.
That night police had executed a search warrant at his Canberra home, seizing his computer.
Police had found a computer graphics file which contained a depiction of a young girl engaged in a sexual act with a man.
The court also heard that the file had been downloaded by Bloggs several months earlier, in November 1995.
He had accessed an Internet news group that contained the graphics file and, after downloading it, had decoded it by turning it into a graphics format and then saving it in his virus sub-directory to prevent any of his children finding it.
Bloggs had admitted to police in June that he had downloaded the file from the Internet but said he believed he had deleted it on the morning before he spoke to police in May.
Blogg's lawyer said his client had been "astonished" to find such an image at a site he had easily accessed.
Although he had accessed the address out of "amazement and curiosity", he had contacted police out of "concern" about the availability of the material.
However, the prosecutor said while Bloggs may have been concerned, he had kept the material for up to six months before bringing it to the attention of police.
The prosecutor said although Bloggs may have downloaded it out of curiosity, it was curiosity that had got the better of him.
The judge said given Bloggs had downloaded the image and hid it, he had certainly retained it for future access.
Although Bloggs had suffered "severe consequences" from publicity surrounding the case, the judge said child pornography was potentially a grave threat to children in the Australian community.
The relevant provision is in s.92NB of the A.C.T. Crimes Act, which was inserted in 1991. This provision makes it a crime to 'knowingly possess' a depiction of a person under 16 "engaged in, or in the presence of another person engaged in, an act of a sexual nature, being a depiction or representation that would offend a reasonable adult person". The case involved a downloaded file, not a cached file.
It is important to note that the provision is silent as to whether the person's intent is relevant to the question of the criminality of the act of 'knowingly possessing'.
For people who 'knowingly possess' offending depictions for the purposes of law enforcement (e.g. investigating police, prosecutors, court officials, and judges), there are presumably defences available (although I can't see where they are expressed in A.C.T. law). Whether a defence is available to a person who 'knowingly possesses' for the purpose of reporting it to the police, is even less clear.
The facts in this case are complicated by the fact that the file was downloaded a long time before the report was made to the police. Nonetheless, it appears that, in the A.C.T., knowingly possessing an offending depiction is an offence, even if the sole purpose of the person possessing it is to report it to the police.
The law in some other States is even nastier than in the A.C.T. The S.A. Summary Offences Act, s.33(3) says "A person who is in possession of child pornography is guilty of an offence". Similarly, the N.S.W. Crimes Act s. 578B(2) says "a person who has in his or her possession any child pornography is guilty of an offence". Hence in such States, not only is the purpose of the possession irrelevant, it's even irrelevant whether or not the person knows they possess the depiction.
Hence it appears that, in the rest of Australia, merely possessing an offending depiction is an offence, even if the person is unaware that they possess it, and even if the sole purpose of the person possessing it is to report it to the police.
In N.S.W., a defence is available under s.578B(5)(a) if the defendant can prove that they did not know, or could not reasonably be expected to have known, that the depiction was illegal (i.e. was or would have been 'refused classification' by the Office of Film and Literature Classification). In S.A., defences are available for possession of material "in good faith and for the advancement or dissemination of legal, medical or scientific knowledge" (s.33(5)(a)); and if the material "constitutes, or forms part of, a work of artistic merit if, having regard to the artistic nature and purposes of the work as a whole, there is no undue emphasis on its indecent or offensive aspects" - a very Adelaide provision that (s.33(5)(b)). But what such expressions really mean is anyone's guess. Any volunteers to muck up several years of their life being a test-case?
A person may 'knowingly possess' an offending depiction for entirely reasonable purposes, especially relating to the gathering of evidence to support a report to the police of suspicions concerning a criminal offence. Other reasonable purposes include sociological and criminological research. Irrespective of the purpose, any person in Australia who `knowingly possesses' appears to be guilty of a serious criminal offence.
Moreover, the act of destroying evidence may also be a criminal offence. Hence the wording of these laws places the citizen generally, and the netizen in particular, in double jeopardy.
A person may very easily 'possess' an offending depiction without knowing it. Examples include:
A court would be likely to take into account the competence of the user concerned. Hence an 'expert' (and courts sometimes use the word 'expert' for a person that others would call merely 'competent') may be at greater risk, on the courtly presumption that they know what's on their machine, and how to access it.
Additional, and very important, instances arise in the case of Internet services providers (used in the most general sense of the word), in such contexts as:
An ISP would be very likely to be regarded by the court as an expert, and therefore would be unlikely to get any kind of allowance for ignorance.
Many Internet users are unintentionally and unconsciously in breach of these laws on an ongoing basis. And probably every Internet services provider is in breach of these laws multiple times, on a minute-by-minute basis.
In this area, the law is particularly asinine. Innocent people are going to get hurt, because they will suffer the oppressive experience of a long-winded court-process, the taint of being a society low-life or outcast, and the strong likelihood of gaining an unwarranted criminal record.
Morover, the policy purpose of these laws is completely undermined by the manner in which they are expressed. The word is going around that only naive fools report suspected child pornography on the Internet, because the only person who suffers the heat is the person doing the reporting.
CAUDIT (1997) 'Code of Practice Relating to Content That May Infringe Censorship Laws: Legal Materials', Committee of Australian University Directors of Information Technology, 3 April 1997, at http://www.caudit.edu.au/caudit/codes/LegalMatls.html
Clarke R. (1996) 'How Do You Cope With Censorship? An Analysis for IT Services Executives' CAUDIT (the Conference of the Australian Universities' Directors of IT), Magnetic Island, Townsville, 23 August 1996, at http://www.rogerclarke.com/II/CensCope.html
EFA (1996-) `Internet Regulation in Australia', at http://www.efa.org.au/Issues/Censor/cens1.html
Irene (1996-) `Liberty or Tyrrany', at http://rene.efa.org.au/liberty/
The content and infrastructure for these community service pages are provided by Roger Clarke through his consultancy company, Xamax.
From the site's beginnings in August 1994 until February 2009, the infrastructure was provided by the Australian National University. During that time, the site accumulated close to 30 million hits. It passed 40 million by the end of 2012.
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Created: 14 May 1998 - Last Amended: 15 May 1998 by Roger Clarke - Site Last Verified: 15 February 2009
This document is at www.rogerclarke.com/II/PossACT.html