Access or Possess Child Abuse Material
Child pornography, or Child Abuse Material, is illegal in Australia. It is an offence to possess it, access it, solicit (request) it, transmit (sent) it or produce (make) it. The Offences are Commonwealth Offences, however, each of the States also have their own offences under state laws. Often people charged with offences pertaining to child abuse material are charged with both state and Commonwealth offences. A person will typically be charged with possession under the state’s legislation whereas if they access, transmit or solicit they will be charged under commonwealth legislation.
What Is Child Abuse Material?
Child Abuse Material was previously referred to as Child Pornography. It includes material that depicts a person and representations of a person who is or appears to be under 18 years of age and involves one or more of the following:
- Torture, cruelty or physical abuse;
- A sexual pose or sexual activity (whether or not in the presence of other persons);
- A child in the presence of a person engaged in a sexual pose or sexual activity;
- A sexual organ, including the genitals, breasts or anus;
- A doll or sex toy.
“Material” can include pictures, videos, GIFs, written words or stories or physical objects such as figurines or toys.
Child Abuse Offences
The following offences are some of the more common offences:
Offence |
Criminal Code Section |
Maximum Penalty |
| Possessing, controlling, producing, distributing or obtaining child abuse material outside Australia | 273.6 | 15 years |
| Aggravated offence of possessing, controlling, producing, distributing or obtaining child abuse material outside Australia | 273.7 | 25 years |
| Possession of child-like sex dolls | 273A.1 | 15 years |
| Use carriage service for child abuse material (transmit, make available, publish, distribute, advertise or promote material | 474.22 | 15 years |
| Possess or control child abuse material obtained or accessed using carriage service | 474.22A | 15 years |
| Possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service | 474.23 | 15 years |
| Aggravated use of carriage service for child abuse material | 474A | 25 years |
Defences
Certain defences are available in relation to each of the above offences. A person may have a defence to certain offences if they can establish that the conduct (in possession, accessing, soliciting etc material) was of public benefit and did not extend beyond what is of public benefit.
Conduct may be considered to be for the public benefit if the conduct was necessary for:
- enforcing a law or for security purposes;
- monitoring compliance with, or investigating a contravention of a law; or
- administration of justice; or
- conducting scientific, medical or educational research.
The defendant bears the evidential burden in relation to the above defence.
Offences relating to prohibited material can also be contested on the basis that:
- the person did not do the acts alleged (factual defence);
- the possession was accidental;
- the person acted under duress.
If you require legal advice about child abuse material or any other legal matter, please contact Armstrong Legal.
This article was written by Trudie Cameron
Trudie Cameron is the Practice Director of Criminal Law and is responsible for supervising and managing the New South Wales Criminal Law team in addition to her own caseload. She practices in both NSW and the ACT. Trudie is an accredited specialist in criminal law, practising exclusively in criminal and traffic law. Trudie defends clients charged with both state and...