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MODERN SLAVERY ACT 2018 - SCHEDULE 4

SCHEDULE 4 – Amendment of Crimes Act 1900 No 40

[1[#93] Section 91FA Definitions

Insert in alphabetical order--


"deal" , in relation to child abuse material, includes any of the following--
(a) viewing, uploading or downloading child abuse material,
(b) making child abuse material available for viewing, uploading or downloading,
(c) facilitating the viewing, uploading or downloading of child abuse material.

[2[#93] Section 91G Children not to be used for production of child abuse material

Insert after section 91G (2)--

(3) A person is guilty of an offence against this subsection if the person commits an offence against subsection (1) or (2) in circumstances of aggravation.
: Maximum penalty--imprisonment for 20 years.
(3A) In this section,
"circumstances of aggravation" means circumstances in which--
(a) the alleged victim is under 10 years of age, or
(b) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or
(c) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or
(d) the alleged offender is in the company of another person or persons, or
(e) the alleged victim is, whether generally or at the time of the commission of the offence, under the authority of the alleged offender, or
(f) the alleged victim has a serious physical disability, or
(g) the alleged victim has a cognitive impairment, or
(h) the alleged offender took advantage of the alleged victim being under the influence of alcohol or a drug in order to commit the offence, or
(i) the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence, or
(j) the alleged offender breaks and enters into a dwelling-house or other building with the intention of committing the offence or another serious indictable offence.
(3B) In proceedings for an offence against this section, it is not necessary to prove that the accused knew the age of the child concerned.
(3C) If on the trial of a person charged with an offence against subsection (3) the trier of fact is not satisfied that the offence is proven but is satisfied that the person has committed an offence against subsection (1) or (2), the trier of fact may acquit the person of the offence charged and find the person guilty of an offence against subsection (1) or (2). The person is liable to punishment accordingly.

[2A[#93] Section 91HB

Renumber section 91HAA as section 91HB and move to its appropriate location.

[3[#93] Sections 91HAA-91HAC

Insert after section 91H--

91HAA Administering a digital platform used to deal with child abuse material
(1) A person (the
"administrator" ) is guilty of an offence if--
(a) the administrator administers, or assists in the administration of, a digital platform, and
(b) the digital platform is used by another person to deal with child abuse material, and
(c) the administrator--
(i) intends that the digital platform be used by another person to deal with child abuse material, or
(ii) is aware that the digital platform is being used by another person to deal with child abuse material.
: Maximum penalty--imprisonment for 14 years.
(2) In proceedings for an offence against this section, it is not necessary to prove the identity of the person using the digital platform to deal with child abuse material.
(3) In this section--

"administer" , a digital platform, includes the following--
(a) design, create, manage or maintain the digital platform, part of the digital platform or a function of the digital platform,
(b) provide a device to host the digital platform, part of the digital platform or a function of the digital platform,
(c) facilitate the operation and use of the digital platform, part of the digital platform or a function of the digital platform.
91HAB Encouraging use of a digital platform to deal with child abuse material
(1) A person is guilty of an offence if--
(a) the person is 18 or more years of age, and
(b) the person encourages another person to use a digital platform, and
(c) the person intends that other person to use the digital platform to deal with child abuse material.
: Maximum penalty--imprisonment for 14 years.
(2) In determining whether a person has encouraged another person to use a digital platform with the intention of the person using it to deal with child abuse material in proceedings for an offence against this section, it is not necessary to prove--
(a) the identity of the person encouraged to use the digital platform to deal with child abuse material, or
(b) that another person in fact used the digital platform to deal with child abuse material, or
(c) if another person did in fact use the digital platform to deal with child abuse material, that it was the defendant's encouragement that caused the person to do so.
91HAC Providing information about avoiding detection
(1) A person is guilty of an offence if the person intentionally provides information to another person about how to avoid detection of, or prosecution for, conduct that involves the commission of an offence against section 91HAA or 91HAB.
: Maximum penalty--imprisonment for 14 years.
(2) In proceedings for an offence against this section, it is not necessary to prove--
(a) the identity of the person to whom the information was provided, or
(b) that the information was actually used by the other person.

[4[#93] Section 91HA Defences

Insert after section 91HA (1)--

(1A) Reasonable steps to prevent dealing with child abuse material It is a defence in proceedings for an offence against section 91HAA that the defendant, on becoming aware that the digital platform was being used to deal with child abuse material, took all reasonable steps in the circumstances to prevent other persons from being able to use the digital platform to access child abuse material.

[5[#93] Section 91HA (3), (6) and (7)

Insert ", 91HAA, 91HAB or 91HAC" after "section 91H".

[6[#93] Section 91HA (8)

Omit "or 91H". Insert instead ", 91H, 91HAA, 91HAB or 91HAC".

[7[#93] Part 3, Division 17

Insert after section 93--

Division 17 - Slavery and slavery-like offences

93AA Definitions In this Division--

"coercion" includes coercion by any of the following--
(a) force,
(b) duress,
(c) detention,
(d) psychological oppression,
(e) abuse of power,
(f) taking advantage of a person's vulnerability.

"deceive" means mislead as to fact (including the intention of any person) or as to law, by words or other conduct.

"threat" means--
(a) a threat of force, or
(b) a threat to cause a person's deportation, or
(c) a threat of any other detrimental action, unless there are reasonable grounds for the threat of that action in connection with provision of labour or services by the person.
93AB Slavery, servitude and child forced labour
(1) A person is guilty of an offence if, in New South Wales--
(a) the person holds another person in slavery or servitude and the circumstances are such that the person knows or ought to know that the person is held in slavery or servitude, or
(b) the person requires a child to perform forced or compulsory labour and the circumstances are such that the person knows or ought to know that the child is being required to perform forced or compulsory labour.
: Maximum penalty--imprisonment for 25 years.
(2) For the purposes of subsection (1) (b),
"forced or compulsory labour" does not include--
(a) work or service normally required of a child who is under detention because of a court order or who, under a court order of this or another jurisdiction, has been conditionally released from detention or ordered to perform work in the community, or
(b) work or service required because of an emergency threatening the New South Wales community or a part of the New South Wales community, or
(c) work or service that forms part of normal civil obligations.
(3) In determining whether a person is being held in slavery or servitude or a child is required to perform forced or compulsory labour, regard may be had to all the circumstances.
(4) For example, regard may be had to the following--
(a) to any of the person's personal circumstances (such as the person being a child, the person's family relationships, and any mental or physical illness) which may make the person more vulnerable than other persons,
(b) to any work or services provided by the person, including work or services provided in circumstances which constitute exploitation,
(c) the coercion, threat or deception involved,
(d) without limiting paragraph (c), whether the person has been coerced, threatened or deceived into doing anything which involves the supply or sale of the person's tissue (within the meaning of the Human Tissue Act 1983 ).
(5) The consent of a person (whether an adult or a child) to any of the acts alleged to constitute holding the person in slavery or servitude, or requiring the child to perform forced or compulsory labour, does not preclude a determination that the person is being held in slavery or servitude, or the child is required to perform forced or compulsory labour.
(6) In this section--

"servitude" has the meaning it has in section 270.4 of the Commonwealth Criminal Code .

"slavery" has the meaning it has in section 270.1 of the Commonwealth Criminal Code .
93AC Child forced marriage
(1) In this section--

"child" means a person who is under 18 years of age.

"marriage" includes the following--
(a) a marriage recognised under the law of a foreign country,
(b) a marriage that is void, invalid or not recognised by law for any reason.
(2) For the purposes of this section, a child enters into a
"forced marriage" if--
(a) the child enters into the marriage without freely and fully consenting--
(i) because of the use of coercion, threat or deception, or
(ii) because the child was incapable of understanding the nature and effect of the marriage ceremony, or
(b) when the marriage is entered into, the child is under 16 years of age.
(3) A person--
(a) who causes a child to enter into a forced marriage, and
(b) who intends to cause, or is reckless as to causing, that forced marriage,
is guilty of an offence.
: Maximum penalty--imprisonment for 9 years.
(4) A person is guilty of an offence if the person--
(a) enters into a marriage with a child, and
(b) knows that it is a forced marriage, and
(c) is not a victim of the forced marriage.
: Maximum penalty--imprisonment for 9 years.
(5) For the purposes of subsection (2)(a)(i), the subparagraph applies whether the use of the coercion, threat or deception--
(a) is by another party to the marriage or by another person, or
(b) is against the child or another person.



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