Page 5053 - Week 16 - Wednesday, 27 November 1991
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The amendment to section 348 was presumably intended to cover the situation where a person produces X rated videos for the express purpose of exporting them to other States and/or Territories. There is no readily apparent reason why that amendment should not be made. Indeed, it would seem to me that if section 348 were to be further amended to encompass the actual distribution of such material to other States and/or territories in contravention of a local statute that it may be unnecessary to rely upon section 345A for the purpose of limiting the distribution of X rated videos.
He goes on to make some other points. Whilst Mr Crispin, I think, rightly points to a lot of problems in Mr Collaery's original Bill, perhaps he would have a different view, it would seem to me, of Mr Jensen's proposed amendment to Mr Collaery's further proposed amendment to create a new section 151A. I do not really know whether 151A is the ideal place to put that particular section. But it probably does not matter; it is fairly close to section 345.
The Crimes Act, as indicated by the Attorney-General, I think last week, has been so substantially amended that it bears very little resemblance, in many parts, to the New South Wales Crimes Act which was its parent. We do have a large swag of old sections which simply are not there any more. From about section 150 something up to about section 340 something there is just nothing. So, that probably does not matter.
Ken Crispin, QC, also indicated initial problems with Mr Collaery's proposed new subsection 92NB(1). He was effectively making it an absolute offence and there was no defence there for someone who might have a reasonable belief that the person depicted was not under the age of 16 years. He suggested putting in the word "knowingly".
Mr Collaery, in his proposed amendment, has amply covered that situation because he has now created a defence to a prosecution for that absolute offence by ensuring that, if the defendant reasonably believed the person depicted or otherwise represented as a young person was not under the age of 16 years, that would be a defence. That is entirely appropriate with other forms of criminal legislation and that is a necessary amendment. We accordingly have no problem with that. I note also that he proposes to insert the word "knowingly" on page 1 at line 13.
I do not think members should be in any doubt as to what Mr Collaery is attempting to do in relation to his proposed new section 151A. He is attempting, by Mr Jensen's amendment specifically, to make it illegal for anyone in the Territory to transmit X-rated films interstate.
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