Special Legal Notice for all Australians, others can ignore it

[Deadly Ernest]

G'day All,

I wish to bring your attention to a little know and very well hidden part of Australian law that may bite your posterior one day.

I live in New South Wales and frequently run searches to check on what the relevant laws say on many things, especially in relation to stories and porn. For many years there wasn't an issue, until the NSW Crimes Act got changed to incorporate text as child porn. The key aspect being the minimum age for most things in regards to sex being 16, thus stories etc for anyone 16 and up were legal (exception being 18 for paid sex related activities and for those with authority over the 16 / year-olds). A check of the Commonwealth laws said much the same thing. However, very well hidden in the Commonwealth laws is a sneaky item:

In the Commonwealth Criminal Code Act of 1995

https://www.comlaw.gov.au/Series/C2004A04868

Section 272 deals with crimes against children and sets  the age at 16 years of age, as do the main definitions in the act. But way down in Sections 473 and 474 there hidden surprises that were snuck into the act on 1st March 2005 with no media fanfare of any sort worth talking about. Down in:

Chapter 10 - National Infrastructure
- Part 10.6 - Telecommunications Services
- - Division 473 - Preliminary
- - - 473.1 - Definitions - - this includes a definition of child set at 18 years of age and what constitutes child pornography for this part of the act.
- - Division 474 - Telecommunications Offences
- - - in Sub-division D are sections 474.19 and 474.20 which set out offences in the use of the telecommunications system to download or upload child pornography and simple possession of said child pornography with the intent of transmitting it over the telecommunications system.

There's a lot more to it than just that, but the important aspect is doing a search on law as 'Australian child porn laws,' or something similar, will not show a link to section 474 of the Commonwealth Criminal Code - - although the search engines may upgrade their parameters after recent searches on this by me. Under NSW state law writing a story about a 16 y/o and a 17 y/o having sex isn't a crime, under the section on crimes against children (272 of the Commonwealth Criminal Code) it isn't a crime, but to use a telecommunications system to send that to someone for any reason is a crime under section 474 of the Commonwealth Criminal Code. To download a story that has anyone under 18 involved in a sexual act is a violation of this law, as is any image if they look like they may be under 18 years of age (in the mind of the cops).

If you live in Australia you should use the link above and read the relevant section of the act, then make sure you don't have anything on your systems that involves sex with persons under 18 years of age in any shape or form. This makes me wonder what other nuggets have been hidden in the laws of various countries.

Regards,

Ernest

[Crumbly Writer]

Alas, yet another reason NOT to move to Australia. I wouldn't mind seeing the sites, but I'm not about to give up my porn in exchange.

 Deadly Ernest wrote:

I wish to bring your attention to a little know and very well hidden part of Australian law that may bite your posterior one day.

...

[rbhol...@charter.net]

The problem is if one country's political powers have done this type of underhanded laws.  How many other countries political powers have done the same darn thing.   A good example might be the tobacco industry in America.  All those political tears about all the health risks.  Yet its the highest taxed farm commodity in the country.  I read a farm report over 15 years ago where it stated that per acre it generated over a Million in taxes before the sales tax was ever added to the price.  I never could find out where all those tax dollars were being spent but you can bet they will never outlaw their money cow.

[Sagacious]

Follow the money. Some states are already feeling the crunch. Mass has 4 other states within an hour of Boston. I have some friends who drive out of state every month and pick up a half a dozen cartons at less than half the price in Mass. They could be in big trouble if caught, but the police can't be everywhere. 

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Rock on into the night.

[Crumbly Writer]

So you're saying, if we write all our stories about teenage sex on dried tobacco leafs, we won't be prosecuted? 'D

The problem with these new-generation censorship laws, is that they generate a ton of publicity when passed, but are unlikely to hold up in court. Unfortunately, with the demise of the major publisher, no one wants to invest in taking a publishing lawsuit to the Supreme Court (in the US, at least). I suspect they aren't prosecuting many people because the lawyers, politicians and police realize they won't win. Literature has a long history of established rights.

[Deadly Ernest]

CW,

The problem with the one I mentioned, and why I did mention it, is that it didn't have any publicity and is extremely well concealed down in a section of legislation with nothing to do with porn of any sort and only loosely a technical issue in a section on technical matters as well as using a different age standard to the other laws. Part 10.6 is all about the operation of telecommunications companies and covers how they can't deceive users or the government and similar stuff, and then bang, out of no where, is this bit about child porn. It's worse than the cop sitting behind the bushes with the radar gun, this guy is in camo gear and in the middle of the bushes talking to another cop down the road in a cop car in a garage with the door shut until told to move over the radio. Slipped in on the quiet.

Ernest

[Crumbly Writer]

That's because, most of the time, the politicians have no clue what's in the law they're signing. In fact, the people sponsoring the bill rarely know what's in it. There are lowly interms and who craft the details of the bill. They take the wording of the bill from special interest groups.

[rbhol...@charter.net]

No those taxes are hidden as well.  I was surprised at the huge difference in taxes per farm commodity.  If they placed all those hidden taxes you know they could and probably have hidden other things as well.  Heck we have seen an example already of how a simple missing comma affects a law.  If a comma can do that, you know there are other ways and methods.  And who ever heard of or believed in an honest politician?

[The Black Knight]

rbhol allegedly wrote:

And who ever heard of or believed in an honest politician?

There's all kinds of honest politicians. They may not have been honest while they were breathing, but with the exception of Mayor Daley, once they're dead... they stop being dishonest. (The Mayor has probably voted in every election since his death, tho...)

[Sagacious]

One of the things I liked about the "Fair Tax" idea was that it removed all the taxes during production that did nothing but drive up the cost of the product. 

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[Bill]

Does that mean that if the police raid a brothel and make an arrest including some 17 year olds, then identify them,k or even write about the 17 year old prostitutes, and someone downloads the newspaper, they can be picked up for having porn on their computer?  How about if one of the coppers who made the arrest emails a buddy about it, are the arresting officer and his buddy liable for arrest?

[Crumbly Writer]

Bill, the laws in question (both the Australian and Canadian laws) consist of "I'll know it when I see it". In short, you can summarize the details, but if it sounds to graphical (i.e. likely to excite someone), it's illegal. Thus if you stick to facts, you should be OK. In my case, I wrote a story where the kids tease the adults about their fooling around, it's OK because no kids were 'getting off', they were simply acknowledging what the adults were doing. (i.e. news reports are safe, stroke stories aren't).

There's also a double standard. Big name writers from the mainstream publishers get a LOT more leeway than someone they discover cranking out porn. Again, it's mostly a judgement call, which makes the entire subject highly convoluted. Essentially, if the police break into your house, grab your computers and find stories about kids having sex, your ass is grass (after you swallow all the brownies in the house). And in the end, the details are in how it's practiced. The laws are mostly up to the DAs who are looking to garner attention. They may not use these laws for the next couple of years, but some jerk looking forward to an election will randomly pick one or two suckers and bring the full force of the prosecutors office down on them.

[Deadly Ernest]

If anyone pays someone under 18 for sex or posing for sexual photos it's against the law - state and federal and as per the normal sections on sexual crimes. If two 16 or 17 y/o people take a photo of them having sex and no money is involved it's legal under the state and federal laws on sexual crimes. But, this section (hidden well down in the same area as a telco overcharging people) makes it a crime to send someone a copy of that photo via email, but sending a print copy by normal mail is legal. It makes it unlawful to send the image, unlawful to receive the image, and unlawful to keep a copy on your computer if sent; the having a copy gets a bit dicey on the law if the copy is transferred physically on a disc. Under the laws on sexual crimes it's legal to write a story with a graphic sexual description of two 16 or 17 y/o people having consensual sex, and it's legal to print it, send a print my mail, hand a copy over physically (print or electronic) but unlawful to send or receive as an email or have a copy on a computer with the intent to send it by email.

I do wonder how come they aren't using this law to hit the media on stories about sex involving 16 and 17 y/o people, and similar issues.

Ernest

[SlightlyJaded]

. To download a story that has anyone under 18 involved in a sexual act is a violation of this law, as is any image if they look like they may be under 18 years of age (in the mind of the cops).

This bit is just nuts. There is no such thing as subjective law. If any cop is dumb enough to try taking this to court, then they're hoping your dumb enough not to have a lawyer representing you. If the "looks like they're under the age of 18" is part of law it's completely subjective, and they're unable to prosecute. They'll have their case thrown out unless they've got overwhelming evidence on other acts.

[Deadly Ernest]

Exactly, and that's why I see it as a major issue with this piece of law. I've played ten-pin bowls with a 30 y/o woman who didn't even need a training bra, and known 13 y/o girls with DD cup size bras - how the frac do you tell how old she is? Then there are those rare illnesses where people looking older or younger than their real age.

But the real issue is the fact you can have something in print being handed around or posted around by snail mail, but the moment you send it electronically it's against the law because it's about 16 & 17 y/o people - - that's plain crazy.

Ernest

[Crumbly Writer]

SlightlyJaded, the comment (about 'subjective law') was directed against Prosecutors, rather than law enforcement. Often, a prosecutor will make a big production of cracking down on 'porn', and make arrests on lousy law, knowing they'll be in elected office before the lawsuit finishes.

[Deadly Ernest]

CW,

That's the situation in the USA (and a few other places) but down here in Australia it's the cops who start the investigations and in NSW it's the Police Prosecutor who takes it to court - these are government employed solicitors and none are elected or eligible for election to a public position while in their employment. Which gives a slightly different twist to the way things go in the USA.

A cop starts the investigation and hands it over to the prosecutor when it's ready for court - that's usually the first time the legal people get to see it.

Ernest

[Crumbly Writer]

Ernest, that's how it is here (U.S.A,) as well, but the police are less likely to change policy, whereas a hungry prosecutor will 'let it be known' that he's interested in specific cases. The two branches are legally separate, but they reach across frequently in those situations.

[Deadly Ernest]

CW,

I've only heard of two serious porn cases in the USA (Red Rose and Frank), in both the case was initiated and organised by a district attorney - or so the documents indicate. Also in both, they were looking to use the cases as springboards to higher elected office.

Well, in Australia they can't do that because the individual prosecutors a public servants employed via the public service system and they don't get to start a case or select a case to handle. That makes it a bit different at that point.

Ernest

[Crumbly Writer]

Again, it's the same system here. But ... often, a prosecutor (DA) will initiate a BIG case which will act as a springboard for their entering the political race. If you finish your public service life with a huge 'message' trial, it gets your name repeated across the country. It doesn't happen often, but it's been known to occur throughout the years. And often, once the DA is out of office, he doesn't give a damn how the case turns out (see Frank's case where it dragged out without any resolution for so long, the DA's office simply 'lost interest' in it).

Normally, lawyers don't remain as public servants for long, and the DA is really the end of the career track for public service employment for lawyers. So ... they like going on with a big splash.

[Deadly Ernest]

Well, CW,

Down here the Police Prosecutor never gets their name in the media worth a mention. If the case is really big enough to be a media circus then the barristers enter into the picture, and they get assigned from the attorney general's office. Since they're on a huge salary to start with they aren't interested in elected jobs, anyway.

Ernest

[Tim Merrigan]

On 2015-08-16 10:51, Crumbly Writer wrote:

(see Frank's case where it dragged out without any resolution for so long, the DA's office simply 'lost interest' in it).

Nit:  U.S. Attorney.  DAs handle local cases, Franks (and Red Rose's) was a federal case.

[gr...@graybyrd.com]

I learned years ago that it's generally a good idea to 'never say never; never say always' as there are exceptions and gray areas in most situations. Having said that, I'm now inclined to say that the so-called system of justice in the U.S. is totally corrupt and dysfunctional.

It's now generally recognized that 95% of all felony convictions in the US are the result of plea bargains, a legal form of coercion and bullying by the prosecutor. Accept the plea bargain and get a 'lenient' sentence, or insist on a jury trial, and face a much greater maximum sentence if convicted. This is a legal side-step around one's constitutional guarantee of a trial by jury of one's peers. (I was once threatened by such a plea-bargain offer in a traffic citation! The charge was reckless driving, which was a totally bogus charge brought by a prison parolee who accosted my vehicle in a fit of road-rage and then hustled down to the Boise PD to file a false charge. He was sent back to prison for parole violation before the case could go to trial. The city prosecutor threatened me with maximum jail time and fines if I did not accept the plea bargain; my attorney advised me to plead guilty to avoid a very real threat of physical violence from the accuser who had a long history of aggravated assault and attempted murder! The very fact that a charge was brought cost me $600 in attorney fees, and would have gone to several thousand more at trial. My attorney later swore that if the Boise PD had simply done their job of running background checks on both of us, there never would have been a charge filed! Of course, the PD did not take the time to run the checks.)

Police and prosecutors in the US can effectively punish and intimidate anyone, regardless of guilt or innocence, simply by bringing a charge. There need be no evidence or cause. If the prosecutor files a charge, the necessity to defend oneself becomes the punishment! Consider: defendants waiting trial in the US can be held in jail for an indefinite period of time, depending on the court case schedule. Some have been held for as long as two or three years before coming to trial. In most cases, the prosecution and/or court will demand bail be posted to avoid being held before trial; bail is expensive, even for normal working families, and it is often unaffordable for poorer defendants.

Attorney fees are exorbitantly expensive, and a trial of any length may lead to losing one's savings, home, and job. Although one is presumed innocent until proven guilty, defending oneself against any charge in court is so costly as to be a severe punishment in itself.

Federal law mandates that all states/cities will provide "public defenders" for defendants unable to afford an attorney. This provision is so seriously abused by lack of funding and inexperienced and over-burdened defenders as to constitute a national nightmare and disgrace. Defendants have complained of their court-appointed attorney being incompetent, drunk or sleeping through the trial. The typical response is that the state was only required to provide an attorney, sober or drunk, awake or unconscious. No appeal was granted.

Juries are incredibly unpredictable. There is a class of expensive 'jury consultants' who earn high fees for advising attorneys during the jury selection process. Hand-picking a jury to favorably view one's case is considered a fine art and a costly process.

In short, most cases involving sexual deviancy or child porn or obscenity never go to trial in the US. There is a swift and quiet plea bargain followed by a one-paragraph story on page 12 of the  local newspaper. The next encounter with the law is likely to be for failure to register as a sex offender years later, after moving to a new address.

So the moral of the story is this: if there is the slightest chance of a local prosecutor somewhere in the US exercising a personal peeve against some author whose story gets downloaded by an outraged citizen in their jurisdiction, there need be no law or proof of any substance. Merely bringing a charge against the offender is punishment sufficient to bring hardship and ruin upon them.

[Crumbly Writer]

Yeah. In my last published/posted book, my character decided to kill the last remaining attorney in America, rather than allowing such negativity and corruption affect how mankind rebuilds itself. That chapter got a LOT of support-despite it's being a cold-blooded murder.

Lawyers bad, cops terrible (unless you're white), but they become 'misguided' if you fall prey to their actions.

I'm not sure that America's judicial system has Ever worked.

[Deadly Ernest]

I goofed and answered this with the other thread as well, but here it is here.


The local judicial system in America work reasonably well until sometime in 1776, then it went to hell - lol.

[Crumbly Writer]

I was reading both threads, and never even noticed the mismatch.

[Tim Merrigan]

The first thing we do, let's kill all the lawyers.
 --- Dick the Butcher - Henry VI, Part II, Act 4, Scene 2 - William Shakespeare

On 2015-08-18 08:11, Crumbly Writer wrote:

Yeah. In my last published/posted book, my character decided to kill the last remaining attorney in America, rather than allowing such negativity and corruption affect how mankind rebuilds itself. That chapter got a LOT of support-despite it's being a cold-blooded murder.

Lawyers bad, cops terrible (unless you're white)

White, upper (or upper middle) class, and the right kind of Protestant, or scion of a cop

, but they become 'misguided' if you fall prey to their actions.

I'm not sure that America's judicial system has Ever worked.

 graybyrd wrote:

I learned years ago that it's generally a good idea to 'never say never; never say always' as there are exceptions and gray areas in most situations. Having said that, I'm now inclined to say that the so-called system of justice in the U.S. is totally corrupt and dysfunctional. 

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[Crumbly Writer]

The point wasn't that it's an old problem, but that there's a certain 'blinder effect', where many people accept the 'competency delusion', and are often stunned when they discover everything doesn't operate as they were taught as kids (ex. think of how many racists insist that 'race no longer matters').

 Tim Merrigan wrote:

The first thing we do, let's kill all the lawyers.
 --- Dick the Butcher - Henry VI, Part II, Act 4, Scene 2 - William Shakespeare

, but they become 'misguided' if you fall prey to their actions.