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Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Bill 2007

Schedule 1 Prohibited material

   

Classification (Publications, Films and Computer Games) Act 1995

1  At the end of the Act

Add:

Part 10 Material prohibited in prescribed areas

Division 1 Preliminary

99   Definitions

                   In this Part:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

body corporate manager , in relation to a body corporate, means:

                     (a)  the manager or governing officer (however described) of the body corporate; or

                     (b)  a member of the governing body (however described) of the body corporate.

item , in relation to prohibited material, means a publication, film or computer game.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

level 1 prohibited material means:

                     (a)  a publication classified Category 1 restricted or Category 2 restricted; or

                     (b)  an unclassified publication that contains material that would be likely to cause it to be classified Category 1 restricted or Category 2 restricted; or

                     (c)  a film classified X 18+; or

                     (d)  an unclassified film that contains material that would be likely to cause it to be classified X 18+; or

                     (e)  a prohibited advertisement.

level 2 prohibited material means:

                     (a)  a publication, film or computer game classified RC; or

                     (b)  an unclassified publication, film or computer game that contains material that would be likely to cause it to be classified RC.

material includes any computer data or other form of recording from which sounds or written or pictorial matter may be produced.

police officer means a constable within the meaning of the Crimes Act 1914 .

postal service means a postal service within the meaning of paragraph 51(v) of the Constitution.

prescribed area has the same meaning as in the Northern Territory National Emergency Response Act 2007 .

prohibited advertisement means an advertisement for a publication, a film or a computer game:

                     (a)  that has been refused approval under Part 3; or

                     (b)  that contains material that would be likely to cause it to be refused approval under Part 3.

prohibited material means:

                     (a)  level 1 prohibited material; or

                     (b)  level 2 prohibited material.

seized material means material seized under section 106.

State/Territory body corporate manager , in relation to a body corporate that operates within a State or Territory, means a person who takes part in managing, administering or governing the business of the body corporate in the State or Territory.

supply includes supply by way of sale, exchange, gift, lease, loan, hire or hire-purchase.

100   Concurrent operation of State and Territory laws

             (1)  This Part is not intended to exclude or limit the concurrent operation of any law of a State or Territory.

             (2)  Without limiting subsection (1), this Part is not intended to exclude or limit the concurrent operation of a law of a State or Territory that makes:

                     (a)  an act or omission that is an offence against a provision of this Part; or

                     (b)  a similar act or omission;

an offence against the law of the State or Territory.

             (3)  Subsection (2) applies even if the law of the State or Territory does any one or more of the following:

                     (a)  provides for a penalty for the offence that differs from the penalty provided for in this Part;

                     (b)  provides for a fault element in relation to the offence that differs from the fault elements applicable to the offence under this Part;

                     (c)  provides for a defence in relation to the offence that differs from the defences applicable to the offence under this Part.

Division 2 Offences

101   Possession or control of level 1 prohibited material in prescribed areas

                   A person commits an offence if:

                     (a)  the person has possession or control of material; and

                     (b)  the material is level 1 prohibited material; and

                     (c)  the material is in a prescribed area.

Penalty:  50 penalty units.

102   Possession or control of level 2 prohibited material in prescribed areas

                   A person commits an offence if:

                     (a)  the person has possession or control of material; and

                     (b)  the material is level 2 prohibited material; and

                     (c)  the material is in a prescribed area.

Penalty:  100 penalty units.

103   Supplying prohibited material in and to prescribed areas

Supply generally

             (1)  A person commits an offence if:

                     (a)  the person:

                              (i)  supplies material to a third person; or

                             (ii)  prepares material intending to supply any of it, or believing that another person intends to supply any of it, to a third person; or

                            (iii)  transports material intending to supply any of it, or believing that another person intends to supply any of it, to a third person; or

                            (iv)  guards or conceals material intending to supply any of it, or intending to assist another person to supply any of it, to a third person; or

                             (v)  possesses material intending to supply any of it to a third person; and

                     (b)  the third person is in a prescribed area; and

                     (c)  the material is prohibited material.

Penalty:  100 penalty units.

Supplying 5 or more items

             (2)  A person commits an offence if:

                     (a)  the person:

                              (i)  supplies material to a third person; or

                             (ii)  prepares material intending to supply any of it, or believing that another person intends to supply any of it, to a third person; or

                            (iii)  transports material intending to supply any of it, or believing that another person intends to supply any of it, to a third person; or

                            (iv)  guards or conceals material intending to supply any of it, or intending to assist another person to supply any of it, to a third person; or

                             (v)  possesses material intending to supply any of it to a third person; and

                     (b)  the third person is in a prescribed area; and

                     (c)  the material is prohibited material; and

                     (d)  the material consists of 5 or more items of prohibited material.

Penalty:  200 penalty units or imprisonment for 2 years, or both.

             (3)  For the purposes of proving an offence against subsection (2), a person who engages in conduct specified in subparagraph (2)(a)(ii), (iii), (iv) or (v) in a prescribed area, is taken to have done so:

                     (a)  intending to supply the material; or

                     (b)  believing that another person intends to supply the material; or

                     (c)  intending to assist another person to supply the material;

as the subparagraph requires, to a person in a prescribed area.

             (4)  Subsection (3) does not apply in relation to a subparagraph mentioned in that subsection if the person proves that he or she did not have the intention or belief required by that subparagraph.

Note:          A defendant bears a legal burden in relation to the matters in subsection (4)—see section 13.4 of the Criminal Code .

104   Body corporate managers taken to have committed offences

             (1)  An offence against this Part that is committed by a body corporate is also taken to have been committed by:

                     (a)  each body corporate manager; and

                     (b)  any State/Territory body corporate manager for the State or Territory in which the offence is committed.

             (2)  A body corporate manager or State/Territory body corporate manager does not commit an offence because of subsection (1) if he or she:

                     (a)  does not know of the circumstances that constitute the offence; or

                     (b)  knows of those circumstances but takes all reasonable steps to prevent the commission of the offence as soon as possible after he or she becomes aware of those circumstances.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (2)—see subsection 13.3(3) of the Criminal Code .

105   Division does not apply to postal services

                   This Division does not apply in relation to anything done in the normal course of the provision of a postal service.

Division 3 Seizure and forfeiture of prohibited material

106   Seizure of prohibited material

                   If:

                     (a)  a police officer finds material in a prescribed area; and

                     (b)  the officer suspects on reasonable grounds that the material is prohibited material;

the officer may seize the material.

Note:          See Part 1AA of the Crimes Act 1914 for police search powers.

107   Seizure notices

             (1)  The police officer who is responsible for the seized material (the responsible officer ) must, within 7 days after the day on which the material was seized, serve a seizure notice on:

                     (a)  the owner of the material; or

                     (b)  if the owner of the material cannot be identified after reasonable inquiries—the person from whom the material was seized.

             (2)  Subsection (1) does not apply if:

                     (a)  both:

                              (i)  the owner of the material cannot be identified after reasonable inquiries; and

                             (ii)  the material was not seized from a person; or

                     (b)  it is not possible to serve the person required to be served under subsection (1).

             (3)  The seizure notice must:

                     (a)  identify the material; and

                     (b)  state the date on which the material was seized; and

                     (c)  state the ground or grounds on which the material was seized; and

                     (d)  explain the procedures for the possible return of the material set out in sections 108 and 109; and

                     (e)  provide contact details for the responsible officer; and

                      (f)  state that, if the material is not returned to the owner under section 108 or 109, it is forfeited to the Commonwealth.

108   Return of seized material—on request

             (1)  The owner of the seized material may request the responsible officer to return the material.

             (2)  The request must be made:

                     (a)  within 60 days after the date of the seizure notice; or

                     (b)  if subsection 107(2) applied so that a seizure notice was not served—within 60 days after the day on which the material was seized.

             (3)  If:

                     (a)  the owner requests the return of the material within the time specified under subsection (2); and

                     (b)  the responsible officer is satisfied, on reasonable grounds, that the material is not prohibited material;

the responsible officer must return the material to the owner. Otherwise the request must be refused.

109   Return of seized material—application to magistrate

             (1)  If the responsible officer refuses to return the material, the owner may apply to a magistrate for an order that the material is to be returned.

             (2)  The application must be made within 60 days after the responsible officer’s refusal.

             (3)  If the magistrate is satisfied that the material is not prohibited material, the magistrate must order that the material is to be returned. Otherwise the magistrate must refuse to make the order.

110   Seized material forfeited to the Commonwealth

                   Seized material that is not returned to its owner under section 108 or 109:

                     (a)  is forfeited to the Commonwealth; and

                     (b)  must be destroyed, disposed of or otherwise dealt with as the Minister directs.

111   Relationship of Division to other laws

                   The powers conferred, and duties imposed, by this Division on police officers are in addition to, and not in derogation of, any other powers conferred, or duties imposed, by any other law of the Commonwealth or the law of a State or Territory.

Division 4 Miscellaneous

112   Evidence

                   In proceedings for an offence against this Part, a certificate under section 87 is prima facie evidence of the matters stated in the certificate.

113   Compensation for acquisition of property

             (1)  Subsection 50(2) of the Northern Territory (Self-Government) Act 1978 does not apply in relation to any acquisition of property referred to in that subsection that occurs as a result of the operation of this Part.

             (2)  However, if the operation of this Part would result in an acquisition of property to which paragraph 51(xxxi) of the Constitution applies from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.

             (3)  If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

114   Minister may repeal provisions of this Part

             (1)  The Minister may, by legislative instrument, repeal some or all of the provisions of this Part.

             (2)  A provision is repealed under subsection (1) when the instrument repealing the provision is made.

             (3)  Subsection 33(3) of the Acts Interpretation Act 1901 does not apply to an instrument made under subsection (1).

             (4)  Neither section 42 nor Part 6 of the Legislative Instruments Act 2003 applies to an instrument made under subsection (1).

115   Sunset provision

                   This Part ceases to have effect at the end of the period of 5 years beginning on the day after the day on which the Northern Territory National Emergency Response Act 2007 receives the Royal Assent.