Using Child Pornography Material Overseas

Offences involving child pornography material outside Australia are contained in Division 273 of the Commonwealth Criminal Code Act 1995. The term ‘child pornography’ is no longer used. Instead, the material is known as child exploitation material. Commonwealth offences include possessing, controlling, producing, distributing and obtaining child exploitation material outside Australia.

Penalties the court can impose for these offences include:

• Imprisonment
• Intensive correction order (previously periodic detention)
• Community Service Order
• Suspended Sentence
• Good behaviour order
• Fine order
• Section 17: proven but dismissed

What Is child exploitation material?

Child pornography offences criminalise conduct relating to child exploitation material and pornographic performances involving children.

Specifically, section 64(5) of the Crimes Act 1900 defines “child exploitation material” as anything that represents either:-

• The sexual parts of a child; or
• A child engaged in an activity of a sexual nature; or
• Someone else engaged in an activity of a sexual nature in the presence of a child;

substantially for the sexual arousal or sexual gratification of someone other than the child.

It is worthwhile noting that the word “represent” is defined in section 64(5) of the Crimes Act 1900 as “depict or otherwise represent on or in a film, photograph, drawing, audiotape, videotape, computer game, the internet or anything else.” This extends what is considered child pornography well beyond just photographs and videos.

Section 64(5) of the Crimes Act 1900 further defines “pornographic performance” as:-

• A performance by a child engaged in an activity of a sexual nature; or
• A performance by someone else engaged in an activity of a sexual nature in the presence of a child;

substantially for the sexual arousal or sexual gratification of someone other than the child.

Offences Involving Using Child exploitation material Overseas

Section 273.5 of the Criminal Code Act 1995 states that it is an offence if:

• The person:
  • Has possession or control of material outside Australia; or
  • Produces, distributes or obtains material outside Australia; or
  • Facilitates the production or distribution of material outside Australia; and

• The material is child pornography material.

The maximum penalty for this offence is 15 years imprisonment.

However, if the offence is committed on three or more separate occasions and involves two or more people, it is considered an aggravated offence and the maximum penalty is 25 years imprisonment. This is contained in section 273.7 of the Criminal Code Act 1995.

In order to be charged with one of these offences, at the time of the offence you must have been:

• An Australian citizen; or
• A resident of Australia; or
• A body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or
• Any other body corporate that carries on its activities principally in Australia.

This is specified in section 273.2 of the Criminal Code Act 1995.

For the purpose of these offences, “having possession or control of material” includes reference to the person:-

• Having possession of a computer or data storage device that holds or contains the material; or
• Having possession of a document in which the material is recorded; or
• Having control of material held in a computer that is in the possession of another person (whether inside or outside Australia).

This is defined in section 273.1(2) of the Criminal Code Act 1995.

For the purpose of these offences, “producing, distributing or obtaining material” includes a reference to the person:-

• Producing, distributing or obtaining material held or contained in a computer or data storage device; or
• Producing, distributing or obtaining a document in which the material is recorded.

This is defined in section 273.1(3) of the Criminal Code Act 1995.

For the purpose of these offences, child exploitation material is:-

• Material that depicts a person, or a representation of a person, who is, or appears to be, under 18 years of age and who:
  • Is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or
  • Is in the presence of a person who is engaged in, or appears to be engaged in, a sexual pose or sexual activity;
  • and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

• Material the dominant characteristic of which is the depiction, for a sexual purpose, of:-
  • A sexual organ or the anal region of a person who is, or appears to be, under 18 years of age; or
  • A representation of such a sexual organ or anal region; or
  • The breasts, or a representation of the breasts, of a female person who is, or appears to be, under 18 years of age;
  • in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

• Material that describes a person who is, or is implied to be, under 18 years of age and who:-
  • Is engaged in, or is implied to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or
  • Is in the presence of a person who is engaged in, or is implied to be engaged in, a sexual pose or sexual activity;
  • and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

• Material that describes:-
  • A sexual organ or the anal region of a person who is, or is implied to be, under 18 years of age; or
  • The breasts of a female person who is, or is implied to be, under 18 years of age;
  • and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive.

However, it is a defence under section 273.9 of the Criminal Code Act 1995 if your conduct is of public benefit and does not extend beyond what is of public benefit. Your conduct will be of public benefit if:-

• Your conduct was necessary for:
  • Enforcing a law; or
  • Monitoring compliance with, or investigating a contravention of a law; or
  • Administration of justice; or
  • Conducting scientific, medical or educational research; or

• At the time of the offence you were a law enforcement officer, intelligence or security office, or an officer or employee of the government of a foreign country performing similar duties to an intelligence or security officer and:-
  • You were acting in the course of your duties; and
  • Your conduct was reasonable in the circumstances for the purpose of performing that duty; or

• You engaged in the conduct in good faith for the sole purpose of:-
  • Assisting the eSafety Commissioner to detect prohibited content or potential prohibited content; or
  • Manufacturing, developing or updating content filtering technology in accordance with a recognised or designated alternative access-prevention arrangement.

The defendant bears the evidential burden in relation to the above defences.

What Actions Might Constitute Possessing, Producing, Distributing or Obtaining Child exploitation material Outside Australia?

Examples of what would constitute possessing, controlling, producing, distributing or obtaining child pornography material outside Australia:-

• You are an Australian resident who used to live in Malaysia. You have since returned to Australia, however, while you were living in Malaysia you took photographs of a young couple engaging in oral sex through their open window.
• You are an Australian citizen doing a Contiki tour around Europe. You take your laptop with you while you are travelling and that laptop contains pornographic videos, including videos of adults who are over the age of 18 years but who look like they are around 15 years old, involved in sexual acts.
• You are an Australian artist trying to make a name for yourself overseas. For shock value, you draw cartoon figures of children in sexual poses, including their genitals, and hand samples out on the street in New York.

Examples of what would NOT constitute possessing, controlling, producing, distributing or obtaining child pornography material outside Australia:-

• You are an Australian photographer trying to make a name for yourself overseas. You display your newborn photos in a gallery, depicting naked newborn babies in a range of colourful beanies.

What the Police Must Prove

To convict you of an offence under section 273.5 of the Criminal Code Act 1995, the prosecution must prove each of the following matters beyond reasonable doubt:

• That you:-
  • Possessed or had control of material outside Australia; or
  • Produced, distributed or obtained material outside Australia; or
  • Facilitated the production or distribution of material outside Australia; and

• That the material is child pornography material.

Possible Defences for Possessing, Controlling, Producing, Distributing Or Obtaining Child exploitation material Outside Australia

The common ways to defend a charge under section 273.5 of the Criminal Code Act 1995 are:

• To maintain your innocence if you did not commit the offence; or
• To argue that the possession, control, production, distribution or obtaining of child pornography was not done outside of Australia; or
• To argue that the material was not child pornography material; or
• To argue that your conduct was of public benefit and did not extend beyond what was of public benefit.

Which Court Will Hear Your Matter?

These offences are strictly indictable and must be dealt with in the ACT Supreme Court.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.