Child Pornography and Child Abuse Material Offences Across Australia

The possession, production or distribution of sexually explicit images and videos of children is criminalised in all jurisdictions across Australia, some of which refer to these images as child pornography and others as child abuse material. These offences apply in the state or territory in which they have been created.

There are also federal offences against using a ‘carriage service’ such as the internet and postal service to possess or distribute such material. These offences apply nationwide.

The following outlines the main child pornography / child abuse material offences in Australia, including relevant penalties and possible defences that can be raised.

What is child pornography / child abuse material?

Child pornography / child abuse material encompasses depictions of the private parts of a child as well as children in sexualised positions, undertaking sexual activities or being tortured or otherwise abused.

Child abuse material can include written, drawn and AI generated material as well as photographs and videos of real-life children.

New South Wales child abuse material laws

Under New South Wales criminal law, section 91H(2) of the Crimes Act 1900 (NSW) outlines an offence related to the production, dissemination or possession of child abuse material.

The section reads:

(2) A person who produces, disseminates or possesses child abuse material is guilty of an offence.

“Child abuse material” is material which depicts or describes in a way that reasonable persons would regard as being offensive:

• A child that is the victim of torture, cruelty or physical abuse, or
• A child engaged in a sexual pose or a sexual activity, or
• A child in the presence of another person that is engaged in a sexual pose or sexual activity, or
• The private parts of a child.

In determining whether material is offensive to a reasonable person, the following matters must be taken into account:

• The standards of morality, decency and propriety accepted by reasonable adults
• The literary, artistic or educational merit (if any) of the material
• The journalistic merit (if any) of the material
• The general character of the material

Federal child abuse material laws

Under section 474.22 of the Criminal Code Act 1995(Cth), which applies across Australia, it is a criminal offence to use a carriage service, such as the internet, to:

• Access child abuse material;
• Cause child abuse material to be transmitted;
• Transmit, make available, publish, distribute, advertises or promote child abuse material; or
• Solicit child abuse material.

The section reads:

(1)  A person commits an offence if:

(a)  the person:

(i)  accesses material; or

(ii)  causes material to be transmitted to himself or herself; or

(iii)  transmits, makes available, publishes, distributes, advertises or promotes material; or

(iv)  solicits material; and

(aa)  the person does so using a carriage service; and

(b)  the material is child abuse material.

There is a further offence under s474.22A of the Code regarding the possession or control of child abuse material via a carriage service, which applies whether a person intended to access the material or not.

Section 471.19 prohibits the use of a postal or similar service for child abuse material, while section 471.20 prohibits possessing, controlling, producing, supplying or obtaining child abuse material for use through a postal or similar service.

Victoria

Under Victorian criminal law, offences related to the production, dissemination and possession of child pornography are outlined under sections 51B to 51H of the Crimes Act 1958 (VIC). 

Section 51G of the Act outlines the offence of possessing child abuse material and reads:

  (1)     A person (A) commits an offence if A knowingly possesses child abuse material.

Queensland

Under Queensland criminal law, offences related to the production, dissemination and possession of child pornography are outlined under sections 228H to 22HI of the Qld Criminal Code.

Section 228D of the Act outlines the offence of possessing child exploitation material and reads:

(1) A person who knowingly possesses child exploitation material commits a crime.

Australian Capital Territory

Under ACT criminal law, offences related to the production, dissemination and possession of child pornography are outlined under sections 64 to 65 of the Crimes Act 1900 (ACT).

Section 35 of the Act outlines the offence of possessing child exploitation material and reads:

(1)     A person commits an offence if—

(a)     the person intentionally possesses pornography; and

(b)     the pornography is child exploitation material.

Tasmania

Under Tasmanian criminal law, offences related to the production, dissemination and possession of child pornography are outlined under sections 130A to 130D of the Tas Criminal Code.

Section 130C of the Act outlines the offence of possessing child exploitation material and reads:

A person who –

(a) is in possession of child exploitation material; and

(b) knows, or ought to have known, that the material is child exploitation material –

is guilty of a crime.

Northern Territory

Under Northern Territory criminal law, offences related to the production, dissemination and possession of child pornography are outlined under sections 125B to 125E of the NT Criminal Code.

Section 125B of the Act outlines the offence of possessing child exploitation material and reads:

A person who possesses, distributes, produces, sells or offers or advertises for distribution or sale child abuse material is guilty of an offence.

South Australia

Under South Australian criminal law, offences related to the production, dissemination and possession of child pornography are outlined under sections 63 to 63B of the  Criminal Law Consolidation Act 1935 (SA).

Section 63A of the Act outlines the offence of possessing child exploitation material and reads:

(1) A person who—

(a) is in possession of child exploitation material, other than a child-like sex doll, knowing of its pornographic nature; or

(b) intending to obtain access to child exploitation material, other than a child-like sex doll, obtains access, or takes a step towards obtaining access, to child exploitation material (other than a child-like sex doll),

is guilty of an offence.

Western Australia

Under Western Australian criminal law, offences related to the production, dissemination and possession of child pornography are outlined under sections 217 to 220 of the WA Criminal Code.

Section 220 of the Act outlines the offence of possessing child exploitation material and reads:

A person who has possession of child exploitation material is guilty of a crime.

Understanding child pornography laws in Australia

It’s important to understand the various terms which constitute elements of child pornography  laws across Australia.

A child

Under Federal law and some state laws, a ‘child’ is a person depicted as under the age of 18. Under NSW law, a ‘child’ is a person depicted as under the age of 16.

Possession

‘Possession’ includes physical custody or control of material or data.

Dissemination

‘Dissemination’ includes:

1. Sending, supplying, exhibiting, transmitting or communicating to another,
2. Making available for access by another, and
3. Entering an agreement or arrangement to do so.

Production

‘Production’ includes:

1. Filming, photographing, printing or otherwise making,
2. Altering or manipulating, and
3. Entering an agreement or arrangement to do so.

What’s the punishment for child pornography offences in Australia?

Punishment for NSW child pornography offences

The maximum penalty for committing the child pornography offence under NSW criminal law is 10 years imprisonment.

Punishment for Federal child pornography offences

The maximum penalty for committing the any of the child pornography offences under Federal criminal law is 15 years imprisonment.

Punishment for Victoria child pornography offences

The maximum penalty for the offence of possessing child abuse material is 10 years imprisonment.

Punishment for Queensland child pornography offences

The maximum penalty for committing any of the child pornography offences under Queensland criminal law is 14 years imprisonment.

Punishment for ACT child pornography offences

The maximum penalty for for the offence of possessing child exploitation material is 7 years imprisonment.

Punishment for Tasmanian child pornography offences

The maximum penalty for committing child pornography offences under Tasmanian criminal law is 21 years imprisonment.

Punishment for Northern Territory child pornography offences

The maximum penalty for for the offence of possessing child exploitation material:

• in the case of an individual – to imprisonment for 10 years; and
• in the case of a corporation – to a fine of 10 000 penalty units.

Punishment for South Australian child pornography offences

The maximum penalty for for the offence of possessing child exploitation material is 12 years imprisonment.

Punishment for Western Australian child pornography offences

The maximum penalty for committing child pornography offences under WA criminal law is 7 years imprisonment.

Defences to child pornography laws

If you are facing charges of possession, dissemination or production of child pornography, there are a few defences that might apply in your situation.

You can’t be found guilty if you weren’t aware or could be reasonably believed to have suspected that the material was in your possession.

If you can provide evidence that the material came into your possession unintentionally, and you took all reasonable steps to get rid of it as soon as possible, you should not be found guilty.

Other defences include if the material was obtained for the purposes of justice or the administration of law.

If the material was in your possession for the purpose of the public benefit, this is considered to be a reasonable defence.

Going to court?

If you are going to court for a child pornography or child abuse material offence , call Sydney Criminal Lawyers® anytime on (02) 9261 8881 to arrange a free first conference with an experienced criminal defence lawyer, who will take the time to advise you of your options, the best path forward and the costs involved.

We offer fixed fees for most criminal and traffic cases.