It is an offence under Section 91H of the Crimes Act 1900 (NSW) relating to the production, dissemination, or possession of child abuse material.

Elements

Disseminating child abuse material includes:

• sending, supplying, exhibiting, transmitting, or communicating the material to another person
• making the material available for access by another person
• entering into any agreement or arrangement to do so

Possessing child abuse material includes:

• having possession or control of the material in relation to material in the form of data, within the meaning of section 308F(2)

Producing child abuse material includes:

• filming, photographing, printing, or otherwise creating such material
• altering or manipulating any image for the purpose of creating child abuse material
• entering into any agreement or arrangement to do so

Penalties

The maximum penalty for the offence is 10 years imprisonment.

If the accused person is a child, proceedings for an offence under this section may only be commenced by, or with the approval of, the Director of Public Prosecutions.

Definitions

Child abuse material means 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.

The matters to be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive, include:

• the standards of morality, decency and propriety generally accepted by reasonable adults, and
• the literary, artistic or educational merit (if any) of the material, and
• the journalistic merit (if any) of the material, being the merit of the material as a record or report of a matter of public interest, and
• the general character of the material (including whether it is of a medical, legal or scientific character).

About Post Author

Brian Walker

B.Acc., GradDipLegPrac, Juris Dr
Barrister & Accountant.
Former Criminal Defence Solicitor. Former Federal Prosecutor for the Commonwealth Director of Public Prosecutions prosecuting Commonwealth crimes relating to drugs and child exploitation. Former Australian Federal Police member litigating proceeds of crime matters. Former Australian Taxation Office employee investigating offshore tax evasion matters.

Post Created by Jesslyn Duong, paralegal.

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