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Contents (1900 - 40)
Crimes Act 1900 No 40
Current version for 25 September 2017 to date (accessed 16 December 2017 at 18:09)
Part 3 Division 15A
Division 15A Child abuse material
91FA   Definitions
For the purposes of this Division:
child means a person who is under the age of 16 years.
child abuse material—see section 91FB.
data includes:
(a)  information in any form, or
(b)  any program (or part of a program).
material includes any film, printed matter, data or any other thing of any kind (including any computer image or other depiction).
91FB   Child abuse material—meaning
(1)  In this Division:
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)  a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or
(b)  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
(c)  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
(d)  the private parts of a person who is, appears to be or is implied to be, a child.
(2)  The matters to be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive, include:
(a)  the standards of morality, decency and propriety generally accepted by reasonable adults, and
(b)  the literary, artistic or educational merit (if any) of the material, and
(c)  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
(d)  the general character of the material (including whether it is of a medical, legal or scientific character).
(3)  Material that depicts a person or the private parts of a person includes material that depicts a representation of a person or the private parts of a person (including material that has been altered or manipulated to make a person appear to be a child or to otherwise create a depiction referred to in subsection (1)).
(4)  The private parts of a person are:
(a)  a person’s genital area or anal area, or
(b)  the breasts of a female person.
91G   Children not to be used for production of child abuse material
(1)  Any person who:
(a)  uses a child who is under the age of 14 years for the production of child abuse material, or
(b)  causes or procures a child of that age to be so used, or
(c)  having the care of a child of that age, consents to the child being so used or allows the child to be so used,
is guilty of an offence.
Maximum penalty: imprisonment for 14 years.
(2)  Any person who:
(a)  uses a child who is of or above the age of 14 years for the production of child abuse material, or
(b)  causes or procures a child of that age to be so used, or
(c)  having the care of a child of that age, consents to the child being so used or allows the child to be so used,
is guilty of an offence.
Maximum penalty: imprisonment for 10 years.
(3)    (Repealed)
(4)  For the purposes of this section, a person may have the care of a child without necessarily being entitled by law to have the custody of the child.
(5)  Where on the trial of a person for an offence under subsection (1) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under subsection (2), it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly.
91H   Production, dissemination or possession of child abuse material
(1)  In this section:
disseminate child abuse material, includes:
(a)  send, supply, exhibit, transmit or communicate it to another person, or
(b)  make it available for access by another person, or
(c)  enter into any agreement or arrangement to do so.
possess child abuse material includes, in relation to material in the form of data, being in possession or control of data (within the meaning of section 308F (2)).
produce child abuse material includes:
(a)  film, photograph, print or otherwise make child abuse material, or
(b)  alter or manipulate any image for the purpose of making child abuse material, or
(c)  enter into any agreement or arrangement to do so.
(2)  A person who produces, disseminates or possesses child abuse material is guilty of an offence.
Maximum penalty: imprisonment for 10 years.
91HA   Defences
(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.