Production, dissemination or possession of child abuse material

It is an offence under the Crimes Act 1900 – Sect 91H to produce, disseminate, or possess child abuse material (child pornography). The maximum penalty for this offence is 10 years imprisonment.

What constitutes production of child abuse material?

Under the Act production is defined as:
(a) film, photograph, print or otherwise make child abuse material, or
(b) alter or manipulate any image for the purpose of making child abuse material, or
(c) enter into any agreement or arrangement to do so.

What does dissemination of child abuse material involve?

Dissemination involves the following:
(a) send, supply, exhibit, transmit or communicate it to another person, or
(b) make it available for access by another person, or
(c) enter into any agreement or arrangement to do so.

What does possession include?

Possession or control of data includes:
(a) possession of a computer or data storage device holding or containing the data or of a document in which the data is recorded, and
(b) control of data held in a computer that is in the possession of another person (whether the computer is in this jurisdiction or outside this jurisdiction).

What is child abuse material?

Child abuse material is material that depicts or describes, in a way that a reasonable person would regard as being offensive:
(a) a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or
(b) a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or
(c) a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or
(d) the private parts of a person who is, appears to be or is implied to be, a child.

What does a reasonable person regard as offensive?

(a) the standards of morality, decency and propriety generally accepted by reasonable adults, and
(b) the literary, artistic or educational merit (if any) of the material, and
(c) the journalistic merit (if any) of the material, being the merit of the material as a record or report of a matter of public interest, and
(d) the general character of the material (including whether it is of a medical, legal or scientific character).

Production, dissemination or possession of child abuse material is a Table 1 offence. This means that the DPP (Police prosecution) or the accused can elect to have the matter dealt with in the District court. If no election is made it will be dealt with in the Local Court.

Child abuse material, pornography and technology

There are a number of offences that relate to transmitting child abuse material using technology. These offences are contained within the Criminal Code Act of 1995. It is an offence under this code for an adult to use a carriage service to have communications with a person the sender believes to be (whether they are not) a child under the age of 16, intending to engage in sexual activity with the child. This has a maximum sentence of 15 years imprisonment
Carriage services include mobile phone, Internet services, email, Skype or social media such as Facebook, Twitter, Instagram, Snapchat and WeChat.

Depending on the particulars of your case there may be a defence available to you. Common defences include:

  • Attempting to get rid of all child abuse material as soon as you became aware that you possess it
  • Where you could not have reasonably known that you produced, possessed or disseminated child abuse material

If you have been charged with producing, possessing or disseminating child abuse material and child pornography you need to seek legal advice. William Vahl of North Shore Criminal Law has over 20 years experience dealing with criminal law matters, including the offences of production, possession, and dissemination of child abuse material.

Call us before you call the police on our 24/7 emergency service 0400 4464 24 or (02) 9955 2298.