This article was written by Trudie Cameron - Practice Director – Sydney

Trudie is an accredited specialist in criminal law and practises exclusively in criminal and traffic law. Trudie defends clients charged with both state and commonwealth offences and appears on their behalf in Local and District Courts. Trudie has also instructed counsel in the Supreme Court of New South Wales, New South Wales Court of Criminal Appeal and the High Court....

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.

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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