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Produce, Disseminate or Possess Child Abuse Material

Possessing, Disseminating or Producing Child Abuse Material is an offence under section 91H of the Crimes Act 1900 which carries a maximum penalty of 10 years in prison

To establish the offence, the prosecution must prove beyond reasonable doubt that you:

  1. Possessed, disseminated or produced material
  2. Which was child abuse material

‘Possession’ includes physical custody or control of material or data

‘Dissemination’ includes:

  1. sending, supplying, exhibiting, transmitting or communicating to another
  2. making available for access by another, and
  3. entering an agreement or arrangement to do so

‘Production’ includes:

  1. filming, photographing, printing or otherwise making
  2. altering or manipulating, and
  3. entering an agreement or arrangement to do so

‘Child abuse material’ is that which depicts or describes in a way that reasonable persons would regard as being offensive:

  1. The private parts of a person who is, or appears to be or is implied to be, a child, or
  2. A person who is, or appears to be or is implied to be, a child:

As a victim of torture, cruelty or physical abuse, or engaged in or apparently engaged in a sexual pose or sexual activity, or in the presence of another who is engaged in or apparently engaged in a sexual pose or sexual activity.

In determining whether material is offensive to a reasonable person, the following matters must be taken into account:

  • the standards of morality, decency and propriety accepted by reasonable adults
  • the literary, artistic or educational merit (if any) of the material
  • the journalistic merit (if any) of the material
  • the general character of the material

‘Private parts’ is defined as:

The genital or anal area, whether bare or covered by underwear, or the breasts of a female, or transgender or intersex person identifying as female whether or not the breasts are developed

For the purposes of the offence, a ‘child’ is a person under the age of 16 years

Defences to the charge include where:

  1. You did not know, and could not reasonable have known, that you possessed, disseminated or produced it
  2. Your conduct benefited the public through law enforcement or administration, or the administration of justice, and did not extend beyond it
  3. The material received a classification for publication
  4. The use of the material was approved by the Attorney-General for research
  5. The material depicts you and would not be child abuse material in the absence of your image

An additional defence to possessing child abuse material is where you received it unsolicited and took reasonable steps to get rid of it upon becoming aware of its nature

An exception to the offence is where:

  1. The possession of the material occurred when you were under 18, and
  2. A reasonable person would consider the possession acceptable considering:
  • The nature and content of the material
  • The circumstances whereby you came to possess it
  • The age, vulnerability and circumstances of the child depicted
  • Your age, vulnerability and circumstances, and
  • The relationship between you and the child depicted

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