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Engaging in the act of Possessing, Disseminating, or Producing Child Abuse Material is a criminal offence according to section 91H of the Crimes Act 1900, with a maximum penalty of 10 years imprisonment.
To prove the offence, the prosecution must demonstrate, beyond a reasonable doubt, the following elements:
1. You possessed, disseminated, or produced material.
2. The material in question qualifies as child abuse material.
For the purpose of this law, 'possession' encompasses both physical custody and control over material or data.
'Child abuse material' refers to content that depicts or describes, in a manner that reasonable individuals would find offensive:
1. The intimate body parts of a person who is, appears to be, or is implied to be a child, or
2. A person who is, appears to be, or is implied to be a child:
a. As a victim of torture, cruelty, or physical abuse, or
b. Engaged in or apparently engaged in a sexual pose or sexual activity, or in the presence of another person who is engaged in or apparently engaged in a sexual pose or sexual activity.
To determine whether material is offensive to a reasonable person, the following factors must be considered:
1. The prevailing standards of morality, decency, and propriety accepted by reasonable adults.
2. The potential literary, artistic, or educational value (if any) of the material.
3. The journalistic value (if any) of the material.
4. The overall character of the material.
The term “possess” regarding child abuse material includes, concerning material in the form of data, the act of being in possession or control of data (as defined in section 308F(2)).
(2) Anyone who produces, disseminates, or possesses child abuse material is committing an offence.
The maximum penalty for this offence is imprisonment for 10 years.
(3) Proceedings for an offence under this section involving a child or young person can only be initiated by or with the approval of the Director of Public Prosecutions.
1. The genital or anal area, whether exposed or covered by underwear, or
2. The breasts of a female, transgender, or intersex person identifying as female, whether developed or not.
For this offence, a ‘child’ is considered a person under the age of 16 years.
1. You were unaware, and there were no reasonable means for you to know that you possessed, disseminated, or produced such material.
2. Your actions were undertaken to serve public benefit through law enforcement, administration, or the administration of justice and did not extend beyond that scope.
3. The material received a classification for publication.
4. The use of the material was approved by the Attorney-General for research purposes.
5. The material depicts you and would not be considered child abuse material in the absence of your image.
An additional defence for possessing child abuse material is when you received it unsolicited and promptly took reasonable steps to dispose of it upon becoming aware of its nature.
There is an exception to the offence, wherein:
1. The possession of the material occurred when you were under 18, and
2. A reasonable person would consider the possession acceptable considering:
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