Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 (42 of 2010)

Schedule 2   Forfeiture of child sex material

Crimes Act 1914

8   After Part ID

Insert:

Part IE - Forfeiture of child pornography material and child abuse material

Division 1 - Things this Part applies to

23ZA Application

This Part applies to a thing (the forfeitable thing ) that is:

(a) child abuse material; or

(b) child pornography material; or

(c) any of the following that contains child abuse material or child pornography material:

(i) a computer;

(ii) a data storage device;

(iii) another piece of electronic equipment.

Division 2 - Forfeiture by operation of law after notice is given

23ZB Forfeiture of material by operation of law

Application

(1) This section applies if a constable reasonably believes that the forfeitable thing is derived from, or was used in connection with, the commission of a Commonwealth child sex offence.

Power to give forfeiture notice

(2) The constable may give a notice (the forfeiture notice ) described in subsection (3) to:

(a) a person who owns the forfeitable thing (either alone or with other persons); or

(b) if the constable is unable, after reasonable inquiry, to identify such a person:

(i) the person who possesses the thing; or

(ii) if the thing has been seized under a law of the Commonwealth, a State, a Territory or a foreign country - the person who would possess it apart from that seizure.

Content of forfeiture notice

(3) The forfeiture notice is a notice that:

(a) identifies the forfeitable thing; and

(b) states the constable’s belief that the thing is derived from, or was used in connection with, the commission of a Commonwealth child sex offence; and

(c) states that the thing will be forfeited to the Commonwealth 30 days after the notice is given, unless any of the following persons object to the forfeiture by written notice given before the end of that period to the head of the police force that includes the constable:

(i) a person who owns the thing (either alone or with other persons);

(ii) a person who has a right to possess the thing; and

(d) explains the circumstances in which, under section 23ZC, a person may be given a copy of parts of the thing, or of data contained in the thing, on request to the head of the police force made within 30 days after the notice is given; and

(e) explains the effect of forfeiture of the thing; and

(f) explains the circumstances in which compensation is payable in connection with forfeiture of the thing; and

(g) requests a person claiming compensation for forfeiture of the thing to notify the head of the police force of the claim.

Giving copy of forfeiture notice to others affected

(4) If the constable gives the forfeiture notice to a person described in subsection (2), the constable may also give a copy of the notice to anyone whom the constable reasonably believes will be directly or indirectly affected by the proposed forfeiture of the forfeitable thing.

Effect of giving forfeiture notice

(5) If there is not an objection described in paragraph (3)(c), the forfeitable thing is forfeited to the Commonwealth (by force of this subsection) at the end of the period described in that paragraph.

(6) If there is an objection described in paragraph (3)(c) but the head of the police force that includes the constable considers that the forfeitable thing should be forfeited to the Commonwealth despite the objection:

(a) the head of the police force must instruct the Director of Public Prosecutions to apply for an order under section 23ZD for the forfeiture of the thing; and

(b) the Director must make the application.

Objection or lack of one does not affect prosecution

(7) Evidence of the fact that a person described in paragraph (3)(c) objected or did not object as described in that paragraph is not admissible against the person in a prosecution of the person for a Commonwealth child sex offence.

23ZC Providing copies of innocuous parts of material to be forfeited

(1) This section applies if:

(a) the forfeitable thing is identified in a forfeiture notice given by a constable; and

(b) less than 30 days after the notice is given, a person who was given the notice or who would be directly or indirectly affected by the proposed forfeiture of the thing gives a written request to the head of the police force that includes the constable; and

(c) the request is for the person to be given a copy of parts of the thing, or of data contained in the thing, that:

(i) are specified in the request clearly enough to enable the parts or data to be identified readily; and

(ii) are not child abuse material or child pornography material.

(2) The head of the police force must comply with the request if he or she is satisfied that it is reasonably practicable to do so.

(3) However, the head of the police force need not comply with the request if he or she reasonably believes:

(a) that to do so might endanger the safety of anyone or prejudice an investigation or prosecution; or

(b) that possession by the person of the copy could constitute an offence against a law of the Commonwealth, a State or a Territory.

(4) If:

(a) the head of the police force complies with the request; and

(b) a court convicts the person of a Commonwealth child sex offence and is satisfied on the balance of probabilities that the forfeitable thing is derived from, or was used in connection with, the commission of the offence;

the court may order the person to pay the Commonwealth, State or Territory whose police force incurred costs in complying with the request those costs.

Division 3 - Forfeiture by court order on application

23ZD Forfeiture of material by court order on application

Court to order forfeiture on application if offence committed

(1) If, on application by the Director of Public Prosecutions to a court of a State or Territory, the court is satisfied that a Commonwealth child sex offence has been committed or that a person is or has been convicted of a Commonwealth child sex offence (by the court or another court), the court must order the forfeiture to the Commonwealth of all the things that the court is satisfied:

(a) are forfeitable things derived from, or used in connection with, the commission of the offence; and

(b) have not already become property of the Commonwealth.

Note 1: It does not matter whether the Director of Public Prosecutions makes the application on his or her own initiative or because of section 23ZB.

Note 2: It does not matter whether the court is satisfied in the course of criminal proceedings or civil proceedings that the Commonwealth child sex offence has been committed.

Notice of application

(2) The Director of Public Prosecutions must give written notice of the application to anyone:

(a) who claims to own, or have a right to possess, a thing covered by the application; or

(b) whom the Director reasonably believes would be directly or indirectly affected by the proposed forfeiture.

Interim orders

(3) At any time after the application is made to the court, it may make any interim orders it considers appropriate (such as orders relating to the delivery or retention of things pending the court’s decision on the application, and orders relating to the making and provision of copies of things).

Circumstances that do not prevent court ordering forfeiture

(4) An order under subsection (1):

(a) may be made even if a person entitled to be given notice of the application fails to appear at the hearing of the application; and

(b) need not be based on a finding as to the commission of a particular Commonwealth child sex offence; and

(c) can be based on a finding that some such offence was committed; and

(d) need not be based on a finding that a particular person committed a Commonwealth child sex offence.

Court may order compensation for forfeiture

(5) The court may order the Commonwealth to pay a specified reasonable amount of compensation to a person who owns, has a right to possess or has other property in a thing whose forfeiture the court orders if the thing is a computer, data storage device or other electronic equipment and the court is satisfied that:

(a) the person has appeared at the hearing of the application; and

(b) the person did not commit, is not and has not been convicted (by the court or another court) of, and has not been found by another court in civil proceedings to have committed, the Commonwealth child sex offence; and

(c) the person is not the subject of proceedings in another court relating to the Commonwealth child sex offence and has not been the subject of such proceedings in connection with which an appeal may still be lodged as of right; and

(d) the person is not the subject of an investigation into a Commonwealth child sex offence of which the thing provides evidence.

Standard of proof for forfeiture and compensation orders

(6) The standard of proof for subsections (1) and (5) is the balance of probabilities.

Division 4 - Provisions relating to forfeiture under this Part generally

23ZE Effect of forfeiture under this Part

(1) This section applies if a thing is forfeited to the Commonwealth under this Part.

(2) When the thing is forfeited it becomes the property of the Commonwealth.

(3) A constable may, without warrant, seize the thing.

(4) The Commissioner may deal with the thing in any way he or she considers appropriate (including by destroying the thing).

(5) However, if the thing is in the custody of a constable who is a member of a police force of a State or Territory, the head of the police force may deal with the thing in any way he or she considers appropriate (including by destroying the thing).

(6) Subsections (3), (4) and (5) have effect despite section 9.

23ZF Compensation for forfeiture of electronic equipment etc.

(1) This section applies to a person if:

(a) a thing that is a computer, data storage device or other electronic equipment is forfeited under this Part; and

(b) the person owned, had a right to possess or had other property in the thing immediately before the forfeiture.

(2) The Commonwealth is liable to pay the person a reasonable amount of compensation for the forfeiture.

(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 of a State or Territory for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

(4) However, the court is not to determine an amount of compensation for the person while:

(a) the person is the subject of an investigation into a Commonwealth child sex offence of which the thing provides evidence; or

(b) the person is the subject of proceedings (other than those under subsection (3)) relating to a Commonwealth child sex offence from which the thing was allegedly derived or in connection with which the thing was allegedly used; or

(c) an appeal may be lodged as of right in relation to proceedings covered by paragraph (b).

(5) Subsection (2) does not apply if the person is or has been convicted of, or found by a court in civil proceedings (including proceedings under subsection (3)) to have committed, a Commonwealth child sex offence to which the forfeiture relates.

23ZG Delegation by head of police force

The head of a police force (including the Commissioner) may, by writing, delegate to a constable who is a member of the force all or any of the head’s powers, functions and duties under this Part.