Page 3789 - Week 13 - Wednesday, 16 October 1991
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In the ACT the sale and distribution of X-rated pornographic material is not unlawful. It is in other Australian States. Accordingly, the traditional provision, which requires that the act, if committed in the ACT, would be a crime under the ACT law, is not present. In other words, the purveyor of porn commits no offence in this Territory, provided it is within the guidelines set down by the Commonwealth. However, proposed section 345A seeks to make it an offence for that purveyor to aid and abet a breach of a ban elsewhere in Australia.
There have been considerable difficulties in drawing this provision, principally because the sale of the videos interstate would, in contract law, apparently take place in the ACT, where that act is not illegal. Only the delivery of the video occurs outside the jurisdiction, and delivery itself, particularly via Australia Post, cannot be stopped by State laws, with the exception of the provision in the Commonwealth Crimes Act 1914 which proscribes the use of Australia Post for the sending of objectionable material. That provision - section 89 of the Crimes Act - has not been invoked by the Commonwealth Government to deal with the porn trade; nor is it clear that this would have any effect, given the large network of private courier services which exist in our nation.
There has been considerable criticism of the ACT Government by State jurisdictions over the porn trade. Indeed, interstate banning laws presumably reflect a democratic vote and, accordingly, it is not appropriate for this Territory to undermine the will of our compatriot States, whether or not we agree with their taste. It is now open to the States, perhaps after some legislative amendments of their own, to deal with the possession and/or delivery of videos so as to create an offence, the aiding and abetting of a breach of which will, if this amendment before the house today is passed, become punishable in the Australian Capital Territory.
Porn video outlets in the ACT have extensive interstate mailing lists, and it would appear that the evidence would be easily obtainable once a complaint had been made of a breach of a State law. The onus would be on the Commonwealth to ensure that the Australian Federal Police pursue, with vigour, information supplied to the AFP by interstate enforcement agencies.
We remind members that it was Commonwealth legislation, on the eve of self-government, that effectively saddled the ACT with the X-rated industry and the incapacity to deal with it. The self-government Act excluded the ACT from having legislative power. In my view, there is considerable doubt about the constitutional legality of the current ACT publications control legislation. Hence my expressed view that the Stevenson amendment Bills, even if enacted, would have been found ultimately to be invalid.
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