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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Statutes Amendment (Extremist Material)
Bill 2017
A BILL FOR
An Act to amend the
Criminal
Law Consolidation Act 1935
and the
Summary
Offences Act 1953
.
Contents
Part 2—Amendment of Criminal Law
Consolidation Act 1935
83CAInformation for
terrorist acts
Part 3—Amendment of Summary Offences
Act 1953
37Possession,
production or distribution of extremist material
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Statutes Amendment (Extremist Material)
Act 2017.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Criminal Law Consolidation
Act 1935
After section 83C insert:
83CA—Information for terrorist
acts
(1) A person who, without reasonable excuse—
(a) collects or makes a record of information of a kind likely to be of
practical use to a person committing or preparing a terrorist act; or
(b) has possession of a document or record containing information of that
kind,
is guilty of an offence.
Maximum penalty: Imprisonment for 7 years.
(2) If a court
finds a person guilty of an offence against this section, the court may order
the forfeiture of anything that has been seized and consists of, or contains,
material to which the offence relates or consists of equipment used for the
commission of the offence.
(3) A court making an order for forfeiture of any equipment or item under
subsection (2)
may, if it thinks fit, allow the offender or any other person an
opportunity to retrieve (in accordance with any directions of the court)
specified records, or other material, not involved in the commission of the
offence from the equipment or item before it is so forfeited.
(4) In this section—
Commonwealth Criminal Code means the Criminal Code set out in
the Schedule to the Criminal Code Act 1995 of the Commonwealth, or a
law of the Commonwealth that replaces that Code;
terrorist act has the same meaning as in Part 5.3 of the
Commonwealth Criminal Code.
Part 3—Amendment
of Summary Offences
Act 1953
After section 35 insert:
Part 7A—Extremist material
36—Interpretation
In this Part—
broadcasting includes datacasting;
carriage service provider has the same meaning as in
section 87 of the Telecommunications Act 1997 of the
Commonwealth;
Commonwealth Criminal Code means the Criminal Code set out in
the Schedule to the Criminal Code Act 1995 of the Commonwealth, or a
law of the Commonwealth that replaces that Code;
computer data means electronic data from which an image,
sound or text may be created by means of a computer;
computer record or system means a computer disk or tape or
other object or device on which computer data is stored;
distribute includes—
(a) communicate,
exhibit, send, supply, upload or transmit; and
(b) make available
for access by another,
but does not include distribution by a person solely in the person's
capacity as an internet service provider, internet content host or a carriage
service provider;
extremist material—see
section 36A
;
internet content host has the same meaning as in
Schedule 5 of the Broadcasting Services Act 1992 of the
Commonwealth;
internet service provider has the same meaning as in
Schedule 5 of the Broadcasting Services Act 1992 of the
Commonwealth;
law enforcement personnel means police officers or officers
of a law enforcement agency;
material includes—
(a) any written or printed material; or
(b) any picture, painting or drawing; or
(c) any carving, sculpture, statue or figure; or
(d) any photograph, film, video recording or other object or thing from
which an image may be reproduced; or
(e) any computer data or the computer record or system containing the
data; or
(f) any other material or object on which an image or representation is
recorded or from which an image or representation may be reproduced;
media organisation means—
(a) an organisation that engages in broadcasting pursuant to a licence
under the Broadcasting Services Act 1992 of the Commonwealth or that
is otherwise authorised under a law of the Commonwealth to engage in
broadcasting; or
(b) an organisation that is a constituent body of the Australian Press
Council or is authorised under a law of the Commonwealth to engage in
publishing;
publish means publish by newspaper, radio or television, or
on the internet, or by other similar means of communication to the
public;
terrorist act has the same meaning as in Part 5.3 of the
Commonwealth Criminal Code;
terrorist organisation means an organisation referred to in
paragraph (b) of the definition of terrorist organisation in
Division 102 of the Commonwealth Criminal Code.
36A—Extremist material
(1) In this Part (and subject to
subsection (2)
) extremist material means—
(a) material that a reasonable person would understand to
be—
(i) directly or indirectly encouraging, glorifying, promoting or condoning
terrorist acts; or
(ii) seeking support for, or justifying, the carrying out of terrorist
acts; or
(b) material that a reasonable person would suspect has been produced or
distributed by a terrorist organisation.
(2) A publication, film
or computer game that is classified, within the meaning of the
Classification
(Publications, Films and Computer Games) Act 1995
, with a classification other than RC does not constitute extremist
material for the purposes of this Part.
37—Possession, production or distribution of
extremist material
(1) A person who,
without reasonable excuse—
(a) has possession of
extremist material; or
(b) takes any step in the production or distribution of extremist
material,
is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
(2) Without limiting the circumstances in which a defendant may be found
to have a reasonable excuse for the purposes of
subsection (1)
, the defendant will have a reasonable excuse if the defendant establishes
that—
(a) the conduct constituting the offence was for a legitimate public
purpose; or
(b) in the case of an offence against
subsection (1)(a)
—the material to which the charge relates came into the defendant's
possession unsolicited and that the defendant took reasonable steps to get rid
of it as soon as the defendant became aware of the material and its
nature.
(3) For the
purposes of this section, conduct will only be taken to be for a
legitimate public purpose if the conduct was in the public
interest having regard to the following:
(a) whether the conduct was for the purpose of educating or informing the
public;
(b) whether the conduct was for the purpose of a work of artistic
merit;
(c) whether the conduct was for a purpose connected to law enforcement or
public safety;
(d) whether the conduct was for a medical, legal or scientific
purpose;
(e) any other factor the court determining the charge considers
relevant.
(4) If, in any proceedings for an offence against this section, the
defendant establishes that the conduct allegedly constituting the offence was
engaged in by or on behalf of a media organisation, the conduct will, for the
purposes of this section, be taken to have been engaged in for a legitimate
public purpose unless the court determining the charge finds that, having regard
to the matters set out in
subsection (3)
, the conduct was not for a legitimate public purpose.
(5) Law enforcement personnel and legal practitioners, or their agents,
acting in the course of law enforcement or legal proceedings do not commit an
offence against this section.
38—Forfeiture
(1) If a court
finds a person guilty of an offence against this Part, the court may order the
forfeiture of anything that has been seized and consists of, or contains,
material to which the offence relates or consists of equipment used for the
commission of the offence.
(2) A court making an order for forfeiture of any equipment or item under
subsection (1)
may, if it thinks fit, allow the offender or any other person an
opportunity to retrieve (in accordance with any directions of the court)
specified records, or other material, not involved in the commission of the
offence from the equipment or item before it is so forfeited.