Offences Relating to Children Accessing or Being Shown Pornographic Material

Many people assume that once a person reaches the age of consent, they are free to pursue any (lawful) kind of sexual activity they wish, including participating in and/or accessing or being exposed to pornography.

However, this is not necessarily the case and breaking applicable laws can lead to serious consequences.

Age of consent to engage in sexual activity 

The age of consent refers to the minimum age a person can legally consent to sexual activity; in other words, the age at which the child is considered able to freely and voluntary participate in such activity.

The primary objective of age of consent laws is to protect children against abuse by adults.

Engaging in sexual activity with a person under the age of consent is a serious offence throughout the nation and, in New South Wales, can amount to sexual assault regardless of whether the child expresses consent. 

A person may also be charged with grooming and/or procuring for communicating with or meeting a person under the age of consent with a view to engaging in sexual activity.

What is the age of consent?

The general age of consent is 16 years in New South Wales, the ACT, the Northern Territory, Queensland, Victoria and Western Australia.

The age is 17 years in South Australia and Tasmania.

Relationships of special care

However, there are exceptions which can raise the age of consent to 18 years. In New South Wales, this exception is where a person over the age of 16 but under 18 is under the ‘special care’ of an adult.

Such a relationship exists if the adult is:

• His or her step-parent, guardian, authorised carer, or the de facto partner of his or her parent, guardian or authorised carer,
• A member of the teaching staff at his or her school,
• The relationship is in connection with the provision of religious, sporting, musical or other instruction,
• A custodial officer at an institution where he or she was an inmate, or
• A health professional and he or she was their patient.

Incest

Consensual sexual intercourse with a close family member can amount to the criminal offence of incest, whether or not a person is over the age of consent. 

A ‘close family member’ includes a parent, son, daughter, sibling (including a half-sibling), grandparent or grandchild.

Minimum age for participating in pornography

There is a difference between the age in which a person can consent to sexual activity and whether sexually explicit imagery of a young person constitutes a criminal offence.

Criminal offences for child exploitation material are outlined under both state and federal law, which are equally applicable in NSW.

Under section 91H of the Crimes Act 1900 (NSW), it is an offence to produce, disseminate or possess “child abuse material”. 

The definition of “child abuse material” under the Act is broad, encompassing all material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive:

• a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or
• a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or
• a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or
• the private parts of a person who is, appears to be or is implied to be, a child.

Notably, section 91FA of the Crimes Act 1900 of New South Wales defines “a child” as “a person who is under the age of 16 years”.

However, this is not the case under the Criminal Code Act 1995 (Cth) which outlines Federal offences related to the access, transmission, possession, supply or production of child abuse material via a “carriage service” including the internet. 

For the purposes of the Federal law, child abuse material carries a similar definition as that under NSW law, however a “child” is described as a person who “is, or appears to be, under 18 years of age”.

In short: the depiction of a person between the ages of 16 and 18 years old in a sexually explicit manner will not normally an offence under NSW criminal law, but will constitute an offence under Federal criminal law.

These laws apply even in situations where the image is produced by a young person taking a photo or video of themselves or where two young people are consensually exchanging sexually explicit imagery with each other (so-called “sexting”).

Children accessing or being exposed to pornography

Pornographic material is regulated by the National Classification Code, which classifies such material as either X18+ (legal adult pornography) or refused classification (which includes illegal pornography).  

The law does not directly prohibit those under the age of 18 years old from accessing legal adult pornography.  However, it be a crime to expose a child to such material. 

For example, exposing a person under the age of 16 years to “indecent material” is one of the elements of the offence of “grooming” under section 66EB of the Crimes Act 1900 (NSW).

In addition to this, the Classification (Publications, Films and Computer Games) Enforcement Act 1995 (NSW) prescribes a range of offences relating to the sale and exhibition of films, sale and delivery of publications, and sale, delivery and public demonstration of video games.

Several of these relate to minors, who are defined under the Act as persons under the age of 18 years.

Below are a number of offences which relate to ‘film’, which is defined broadly as including:

• A cinematograph film, a slide, video tape and video disc and any other form of recording from which a visual image, including a computer generated image, can be produced (together with its sound track)… [but not including] a computer game or an advertisement for a publication, a film or a computer game.

It might also be borne in mind that:

• A ‘public place’ is defined as ‘any place which the public is entitled to use or which is open to, or used by the public, whether on payment of money or otherwise’, which includes cinemas, theatres and stores which sell films, and

• A New South Wales penalty unit is currently $110.

The offences include:

Obligations on website hosts

The Online Safety Act 2021 (Cth) imposes various obligations on those who host online material, ostensibly designed to ensure harmful content is not made available to the public.

Under section 108 of the Act,  a website that hosts material which is, or could be, classified as X18+, must be behind a “restricted access system” designed to protect against access to content by children.