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:

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.