Child Abuse Material Offences (NSW)

In New South Wales, the Crimes Act 1900 contains a number of offences relating to child abuse material. The Commonwealth Criminal Code 1995 also contains offences related to child abuse material. This page deals with both state and commonwealth charges relating to child abuse material that can be laid against a person in New South Wales.

New South Wales child abuse material offences

Section 90FB of the Crimes Act 1900 defines child abuse material as material that depicts or describes, in a way that a reasonable person would regard as offensive:

A person who is, appears to be or is implied to be a child as a victim or torture, cruelty or physical abuse;
A person who is, is implied to be, or appears to be a child engaged in a sexual pose or sexual activity;
A person who is, is implied to be, or appears to be or a child in the presence of another person who is engaged in a sexual pose or sexual activity;
The private parts of someone who is, is implied to be or appears to be or a child.

In determining whether a reasonable person would regard material as offensive, the following matters are to be taken into account:

(a) the standards of morality, decency and propriety generally accepted by reasonable adults;

(b) the literary, artistic or educational merit of the material;

(d) the general character of the material.

Using child to produce child abuse material

Under section 91G of the Crimes Act 1900, a person commits an offence if they use a child in the production of child abuse material, cause or procure a child to be used in its production, or consent to a child under their care being used in its production.

The maximum penalty for this offence is imprisonment for 14 years if the child is under 14 and imprisonment for 10 years if the child is over 14.

Production, dissemination, or possession

Under section 91H of the Crimes Act 1900, a person commits an offence if they possess, produce, or disseminate child abuse material. This includes sending, supplying and transmitting such material, making it available to other, or agreeing to do so. Possessing material under this provision includes data stored on a computer.

The maximum penalty an offence under this provision is imprisonment for 10 years.

Administering a digital platform

Under section 91HAA of the Crimes Act 1900, a person commits an offence if they administer or assist with administering a digital platform that is used by another person to deal with child abuse material, intending or being aware that it is being used for that purpose.

The maximum penalty for an offence under this provision is imprisonment for 14 years.

Encouraging use of a digital platform

Under section 91HAB of the Crimes Act 1900, a person commits an offence if they:

Are over the age of 18;
Encourage someone else to use a digital platform; and
Intend them to use it to deal with child abuse material.

The maximum penalty for an offence under this section is imprisonment for 14 years.

Commonwealth child abuse material offences

The Commonwealth Criminal Code 1995, contains the following offences involving the post and internet:

Using a postal service for child abuse material (section 471.19)
Possessing, producing, controlling, supplying or obtaining child abuse material through a postal service or similar service (section 471.20)
Using a carriage service for child abuse material (section 474.22)
Possessing or controlling child abuse material obtained or accessed using a carriage service (section 474.22A)
Possessing, producing, controlling, supplying or obtaining child abuse material for use through a carriage service (section 474.23)

Defences

Under both the New South Wales and the Commonwealth legislation, a person has a defence to a charge if their conduct was for the public benefit and did not extend beyond what was of public benefit.

Under section 91Ha of the Crimes Act 1900, conduct is of public benefit if it is necessary for:

enforcing a state, territory or commonwealth law;
monitoring compliance with a state, territory or commonwealth law;
In the administration of justice.

Under section 474.24 of the Criminal Code 1995, conduct is of public benefit it is is necessary for any of the above-listed three purposes or:

while conducting medical, scientific, or educational research that has been approved by the AFP Minister in writing.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.

Author

Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.