Section 91HA of the Crimes Act 1900 contains defences to child abuse material offences and is extracted below.
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Section 91HA of the Crimes Act 1900 reads as follows:
(1) Innocent production, dissemination or possession It is a defence in proceedings for an offence against section 91H that the defendant did not know, and could not reasonably be expected to have known, that he or she produced, disseminated or possessed (as the case requires) child abuse material.
(2) It is a defence in proceedings for an offence against section 91H not involving the production or dissemination of child abuse material that the material concerned came into the defendant’s possession unsolicited and the defendant, as soon as he or she became aware of its nature, took reasonable steps to get rid of it.
(3) Public benefit It is a defence in proceedings for an offence against section 91H that the conduct engaged in by the defendant:
(a) was of public benefit, and
(b) did not extend beyond what was of public benefit.
(4) Conduct is of public benefit if, and only if, the conduct is necessary for or of assistance in:
(a) enforcing or administering a law of the State, or of another State, a Territory or the Commonwealth, or
(b) monitoring compliance with, or investigating a contravention of, a law of the State, or of another State, a Territory or the Commonwealth, or
(c) the administration of justice.
(5) The question of whether a person’s conduct is of public benefit is a question of fact and the person’s motives for engaging in the conduct are irrelevant.
(6) Law enforcement officers It is a defence in proceedings for an offence against section 91H that:
(a) the defendant was, at the time of the offence, a law enforcement officer acting in the course of his or her duties, and
(b) the conduct of the defendant was reasonable in the circumstances for the purpose of performing that duty.
(7) Classified material It is a defence in proceedings for an offence against section 91H that the material concerned was classified (whether before or after the commission of the alleged offence) under the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth, other than as refused classification (RC).
(8) Approved research It is a defence in proceedings for an offence against section 91G or 91H that the conduct engaged in by the defendant:
(a) was necessary for or of assistance in conducting scientific, medical or educational research that has been approved by the Attorney General in writing for the purposes of this section, and
(b) did not contravene any conditions of that approval.
(9) Person producing, disseminating or possessing depictions of himself or herself It is a defence in proceedings for an offence against section 91H of possessing child abuse material if the only person depicted in the material is the accused person.
(10) It is a defence in proceedings for an offence against section 91H of producing or disseminating child abuse material if:
(a) the production or dissemination of the material occurred when the accused person was under the age of 18 years, and
(b) the only person depicted in the material is the accused person.
(11) Material that depicts a person other than the accused person is taken, for the purposes of this section, to depict only the accused person if the material would no longer be child abuse material were the depiction of the accused person to be removed.
(12) The onus of proving under subsection (9) or (10) that material depicts the accused person and no other person lies with the accused person on the balance of probabilities.
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