Sylvia,

Maybe you would like to link to and quote the section of the Act you are referring to that clears this all up. As I said, as far as I can see its all the relevant bits have already been quoted here.

Regarding the link to the picture: I stuffed it up, sorry. This was the link I should have posted. These people show the cover, but aren't selling it. Right now Big W isn't showing the cover (they were last week), but will sell the album to you.

http://www.play4me.com.au/product/virgin_killer_1480945_5046.html

Finally, perhaps you don't realise this debate has been held here before, when the legislation concerned came into force.

http://www.onlineopinion.com.au/view.asp?article=5217

It was pretty obvious to me where it would end up then, and I was pissed off about it at the time, as you can see from my comments. Distressingly to me, just about everybody supported back then. The general public were caught up in the hysteria I guess. Perhaps, like you, they thought these laws were nuts and would not actually be enforced. Or perhaps they had too little imagination to see how such vaguely worded crap could be interpreted to their detriment.

To paraphrase my mother, all this posturing is fun and good until someone gets poked in the eye. Well, it looked to me like everyone did enjoy the posturing at the time. But now the eyes are getting poked it ain't so much fun.

rstuart,

This link didn't work, but I think you're referring to an album by the Scorpions - Virgin Killer. The cover was banned in many countries from the start, and was redesigned. The Scorpions I know best for their 1992 hit, Wind of Change.

rstuart

The privacy stuff, in sections 227A and 227B is a separate matter. Those are not the sections under which Chris Illingworth has been charged.

It appears to me that he has been charged under 228C and 228D.

http://www.austlii.edu.au/au/legis/qld/consol_act/cc189994/s228c.html
http://www.austlii.edu.au/au/legis/qld/consol_act/cc189994/s228d.html

In the first case they have to prove that he distributed material, and that the material was child exploitation material. In the second case they have to prove that he possessed material, and that the material was child exploitation material.

The distribution and possession aspects are unlikely to be contested, with the entire case depending on whether the material is child exploitation material.

That takes us to 227A.

"child exploitation material means material that [...] depicts someone who is, or apparently is, a child under 16 years--

(a) in a sexual context, including for example, engaging in a sexual activity; or

(b) in an offensive or demeaning context; or

(c) being subjected to abuse, cruelty or torture."

There is little doubt that the child is under 16. However, the context is clearly not sexual, so that leaves (a) out. The context is certainly not demeaning, and it's not offensive. People may be offended by the action, but the context itself is not offensive. That leaves out (b). The only remaining question is whether the child is being subject to abuse, cruelty or torture. These words are intended to cover the field of ill-treatment. The word "abuse" cannot be taken out separately, and have a distinct meaning attached to it that is unrelated to the other words. If it had been Parliament's intent to cover anything that people might consider improper, dangerous, unwise, etc, then Parliament would have said so. To my mind, that eliminates the final possible aspect, meaning that the video is not child exploitation material.

If it's not child exploitation material, then there is no offence under 228C or 228D.

Analysing the situation of the girl on the record cover goes much the same way... but I've reached the word limit.

Sylvia, we are going around in circles here, and given neither of us are lawyers and given that the law is a bit of a lottery it is probably beside the point. However, I can't help but notice you once again didn't quote these words from the statute:

"in a way likely to cause offence to a reasonable adult"

My point is that if an adult knows that swinging a 1 year old child around by the arms may cause it grave harm then they may well regard it as abuse and be offended. You are effectively saying it is not reasonable to take offence under any circumstances. I am saying there are undoubtedly quiet a few people who will be offended - regardless of what you or I think. Who knows if the judge who is assigned the case will be one of them.

This ambiguity is why laws based on feelings are bad laws. There is no objective way of measuring community feelings, except perhaps by doing poll of the population every once in a while. That doesn't happen.

Steel Mann,

I was aware the album was banned in some places. But it is being advertised as being available for sale here in Australia right now. And you can download the image off an Australian retailers web site right now. Yet, it appears that situation is changing and indeed has changed has changed between posts on this very thread. My point was the Australia I and many other here grew up in was a tolerant society, but now is becoming less so. Personally, I think the album cover is a very good example of just that.

No censorship is so effective as when you get people to censor themselves.

rstuart,

I left out the issue of offence to a reasonable person because I considered it irrelevant. To constitute child exploitation material it has depict a child in a way that is likely to cause offence to a reasonable person *AND* either fit (a) or (b) or (c). Since my argument is that it fits none of (a), (b) and (c), the issue of causing offence to a reasonable person doesn't arise. That is, regardless of whether a reasonable person would be offended, the material still wouldn't be child exploitation material, and therefore an offence wouldn't be committed in respect of the material.

"No censorship is so effective as when you get people to censor themselves."

This is most definitely true, and I am very concerned that merely the fear of being subject to search warrants, arrests and charges, even if for prosecutions that must ultimately fail, is causing people to refrain from what are in fact perfectly lawful activities.

It doesn't help that these dubious prosecutions take so long to be finalised. For example, the man charged with possessing child pornography as a result of filming children in their underwear on December 1st now has to wait until Feburary for a hearing.

http://www.news.com.au/dailytelegraph/story/0,22049,24801378-5006009,00.html

At least he's pleaded not guilty.

Sylvia

Sylvia Else: "offence to a reasonable person *AND* either ..."

OK. Point conceded. The AND isn't actually there but now I re-read it, it is obviously implied. I'll just assume you are correct about "abuse, cruelty or torture" - as I don't know how laws are meant to be read. We will see in a few months, I guess.

The album cover is a rather more iffy. Some will definitely regard it a sexual content, and there aren't any other words near that to it to qualify it further. It might pass via the "artistic" defence, though it probably should not as it was almost certainly intended to provoke in order to generate publicity. I don't know whether it worked when it was released, but it sure as hell worked when the IWF put it on its filters in the last couple of weeks. I wonder if that generated some more sales for them?

I presume you know Conroy is talking about just tacking the IWF blacklist onto our own - so we will have some international organisation based in another country deciding what we should see if these internet filters come in.

Finally, pelican. I presume you aren't watching but if you are, notice the album cover generated this sequence of events:

1. Album was an unheard of, lying in a quiet backwater of the internet.

2. IWF (International Watch Foundation) added it to its list of "back listed" URL's. The IWF list is used by many of the voluntary clean feeds around the world.

3. It was noticed the IWF banned that image - ie the IWF list "leaked". (Leaked is possibly a poor choice of works here.)

4. The number of people who looked at the image went through the roof.

5. The IWF removed the image from its list because it was counter productive - putting it on there caused more people to see it, not less.

http://www.vnunet.com/vnunet/news/2232298/iwf-backs-wikipedia-censorship

I had mentioned this would be one inevitable consequence of having such a list. This is a real life example of the effect in action.