Possession, dissemination, or production of Child Abuse Material constitutes an offence under section 91H of the Crimes Act 1900, with a maximum penalty of 10 years imprisonment. To establish the offence, the prosecution must prove, beyond reasonable doubt, the following elements: 1. You possessed, disseminated, or produced material. 2. The material in question qualifies as child abuse material. 'Production' includes:
Section 91H provides defences for the offence of “production, dissemination, or possession of child abuse material.”
These subsections are outlined as follows:
91H Production, dissemination, or possession of child abuse material
(1) For the purpose of this section:
– “Produce” child abuse material includes:
(a) Filming, photographing, printing, or otherwise creating child abuse material, or
(b) Altering or manipulating any image with the intention of creating child abuse material, or
(c) Entering into any agreement or arrangement to engage in any of the above activities.
(2) An individual who produces, disseminates, or possesses child abuse material commits 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.
‘Child abuse material’ refers to content that, in a manner reasonable individuals would find offensive, depicts or describes:
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:
In determining whether material is offensive to a reasonable person, the following factors must be taken into account:
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.
‘Private parts’ are defined as:
For the purposes of the 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 aimed to benefit the public 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, taking into account:
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