7.3.24 - Production of Child Abuse Material

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Commencement information

  1. Section 51C of the Crimes Act 1958 establishes that it is an offence to produce child abuse material. The section came into effect on 1 July 2017 (Crimes Amendment (Sexual Offences) Act 2016 s 2).
  2. The section replaced the former Crimes Act 1958 s 68 and no longer uses the terminology “child pornography”. The Act now uses the term “child abuse material”, which incorporates material depicting non-sexual child abuse (Crimes Act 1958 s 51A(1)).

    Overview of elements

  3. The offence requires that the prosecution prove three elements beyond reasonable doubt:
  1. The prosecution must prove the accused intentionally produced the material in question (Crimes Act 1958 s 51C(1)(a)).
  2. Material is defined in Crimes Act 1958 s 51A(1) to include film, audio, photographs, printed matter, computer games, text, electronic material or any other thing of any kind.
  3. Images can be still, moving, recorded or unrecorded (Crimes Act 1958 s 51A(2)).
  4. Electronic material is defined as including data from which text, images or sound may be generated (Crimes Act 1958 s 51A(2)).
  5. Material may extend to tactile items, such as sex dolls (CD v Hamence [2017] VSC 753, [28]).
  6. The definition of material may be wider than the definitions that applied to the former child pornography offences, which covered film, photograph, publication or computer game, and where publication was defined as any written or pictorial matter, but did not include a film, computer game or an advertisement for a publication, film or computer game (Crimes Act 1958 s 67A (as in force before 1 July 2017); Classification (Publications, Films and Computer Games) Act 1995 (Cth) s 5). In particular, the new definition may cover text or printed matter which is not intended for distribution, whereas under the previous legislation such material was not child pornography as it was not a ‘publication’ (compare R v Quick (2004) 148 A Crim R 51).
  7. Producing material includes filming, printing, photographing, recording, writing, drawing or otherwise generating material (Crimes Act 1958 s 51C(3)(a)).
  8. Producing material also includes copying, reproducing, altering or collating material (Crimes Act 1958 ss 51C(3)(b), (c)).
  9. The Department of Justice’s report, ‘Crimes Amendment Sexual Offences Act 2016: An Introduction’, notes that this means the same image can be “produced” multiple times. If an image is intentionally downloaded on to a new device or added to a collage, the subsequent action will also amount to producing material.
  10. When a computer user views an image on the Internet, that image will automatically be copied to a "temporary Internet cache", where it will remain until the user deletes it, or until the computer overwrites the image after a certain period of time. If a particular user is unaware of the existence and operation of this cache, they cannot be said to have intentionally copied that image to their computer (R v Smith [2003] 1 Cr App R 13; DPP v Kear [2006] NSWSC 1145). In that situation, the offence of accessing child abuse material under Crimes Act 1958 s 51H may be relevant.

    Child abuse material

  11. The prosecution must prove that the material is child abuse material.
  12. Child abuse material is defined as material that:

    (a) depicts or describes—

    (i) a person who is, or who appears or is implied to be, a child—

    (A) as a victim of torture, cruelty or physical abuse (whether or not the torture, cruelty or abuse is sexual); or

    (B) as a victim of sexual abuse; or

    (C) engaged in, or apparently engaging in, a sexual pose or sexual activity (whether or not in the presence of another person); or

    (D) in the presence of another person who is engaged in, or apparently engaged in, a sexual pose or sexual activity; or

    (ii) the genital or anal region of a person who is, or who appears or is implied to be, a child; or

    (iii) the breast area of a person who is, or who appears or is implied to be, a female child; and

    (b) reasonable persons would regard as being, in the circumstances, offensive;

  13. For the purposes of the offence, a child is a person under the age of 18 years (Crimes Act 1958 s 51A(1)).
  14. This definition of child abuse material mirrors the use of the terminology in some other Australian jurisdictions (see, e.g., Criminal Code Act 1995 (Cth) s 473.1; Crimes Act 1900 (NSW) s 91FB).
  15. The use of the term “breast” connotates a ‘visible degree of sexual development’ which does not include the chest region of prepubescent girls (Turner v R (2017) 271 A Crim R 54, [59]).
  16. Material is not child abuse material if the only reason it would fall within the definition is because it includes descriptions or depictions of prescribed body regions and the body regions are covered up by clothing (Turner v R (2017) 271 A Crim R 54, [51]).
  17. Under the definition, the person depicted may be, appear to be, or be implied to be, a child. This reduces the need to prove the chronological age of the child, which can often be difficult to establish beyond reasonable doubt, as it is sufficient to prove that the person appears to be or is implied to be a child (see, on similar legislation, R v Morcom (2015) 122 SASR 154, [76]-[77]).This extends the definition to material produced by artistic means or material that describes fictitious persons. For example, a fictional story that contains explicit descriptions of children being sexually abused will be child abuse material (Martin v R [2014] NSWCCA 124).
  18. This element is determined objectively. The court is not required to decide whether the accused intended for the material to be child abuse material. For example, photographs of children fully clothed in non-sexual situations would not constitute child abuse material even if the accused took the photographs for their own sexual gratification (Turner v R (2017) 271 A Crim R 54, [29]-[35]. See also R v Morcom (2015) 122 SASR 154, [22]-[63]).

    Offensive to reasonable persons

  19. Material will only be child abuse material if reasonable persons would regard the material as being, in the circumstances, offensive (Crimes Act 1958 s 51A(1)).
  20. The Department of Justice’s report, ‘Crimes Amendment Sexual Offences Act 2016: An Introduction’, notes that this is a common standard in criminal law and directs attention to the discussion of the matter in Monis v The Queen (2013) 249 CLR 92.
  21. The reasonable person standard requires that the circumstances of the allegedly offensive conduct be examined through objective eyes (Monis v The Queen (2013) 249 CLR 92, [44]).
  22. Offensive material is material which is likely to ‘arouse significant anger, significant resentment, outrage, disgust, or hatred in the mind of a reasonable person in all the circumstances’ (Monis v The Queen (2013) 249 CLR 92, [57]).
  23. In relation to similar legislation in the Queensland Criminal Code, it has been held that, on appeal, the onus is on the appellant to demonstrate that there was a need for the trial judge to elaborate on the meaning of offensive (R v SDI [2019] QCA 135, [49]-[50]).

    Knowledge that the material is child abuse material

  24. The accused must have known the material was, or probably was, child abuse material (Crimes Act 1958 s 51C(1)(c)).
  25. As noted above, the definition of child abuse material has a content limb, such as depicting or describing the genital or anal region of a person who is or appears to be a child, and an offensiveness limb, that reasonable persons would regard the material as being, in the circumstances, offensive.
  26. Crimes Act 1958 s 51U states:

    It is not a defence to a charge for a child abuse material offence that, at the time of the conduct constituting the offence, A was under a mistaken but honest and reasonable belief that reasonable persons would not regard the child abuse material as being, in the circumstances, offensive.

  27. It has not been determined how this interacts with the definition of child abuse material. In a case where it arises, the judge should take submissions on how it applies. As a matter of prudence, the model charge assumes that s 51U does not affect the scope of this element. The prosecution must therefore prove the accused knew the material meets both the content limb and the offensiveness limb of the definition.

    Exceptions and defences

  28. The Crimes Act 1958 provides three exceptions and six defences to the offence of producing child abuse material (see Crimes Act 1958 ss 51J, 51K, 51L, 51M, 51N, 51O, 51P, 51Q, 51R).
  29. Four of the defences are only available if the accused has not distributed the child abuse material to a person other than the child depicted (Crimes Act 1958 s 51P, 51Q, 51R), or at all (Crimes Act 1958 s 51O). Distribution for the purposes of these defences includes publishing, exhibiting, communicating, sending, supplying or transmitting the material or making it available to another person (Crimes Act 1958 s 51A(2)(b)).

    Administration of law

  30. Section 51J of the Crimes Act 1958 provides that a person has not committed a child abuse material offence if the production of child abuse material occurred in connection with the administration of the criminal justice system.
  31. The section replaces ss 68(2) and (3), 70(4) and (5) and 70AAAB(6)(a)(i) of the Crimes Act 1958. The new exception operates in a similar fashion as its predecessors, though it condenses the previously extensive list of exempt persons into two broad categories.
  32. Actions undertaken in connection with the administration of the criminal justice system includes the investigation or prosecution of offences (Crimes Act 1958 s 51J(a)).
  33. The exception extends to employees of the Department of Justice and Regulation who are authorised to engage in the relevant conduct by the Secretary of the Department (Crimes Act 1958 s 51J(b)).
  34. Exempt individuals must have undertaken the relevant conduct in good faith (Crimes Act 1958 s 51J).

    Classification

  35. Section 51K of the Crimes Act 1958 provides that the accused has not committed a child abuse material offence if the relevant material was classified, or would if classified be, anything other than RC.
  36. The section replaces ss 68(1A), 69(2) and 70(2)(a) of the Crimes Act 1958. The updated section recategorizes the classification defence as an exception and extends the range of exempt material to include material rated X 18+.
  37. Section 51A(1) of the Crimes Act 1958 provides that the relevant classification is one made under the Classification (Publications, Films and Computer Games) Act 1995.
  38. The classification of RC means Refused Classification (Classification (Publications, Films and Computer Games) Act 1995 s 7).

    Artistic merit or public benefit

  39. Section 51L of the Crimes Act 1958 provides that the accused will have a defence when the child abuse material has public benefit or artistic merit.
  40. The section replaces s 70(2)(b) of the Crimes Act 1958. The new section has added a requirement to the artistic merit defence that requires that the child abuse material was produced without the involvement of persons aged under the age of 18 years (Crimes Act 1958 s 51L(1)(a)(ii)).
  41. Materials that possess public benefit include materials that are for a genuine medical, legal, scientific or educational purpose (Crimes Act 1958 s 51L(2)).
  42. In Nugent v Western Australia, the Court of Appeal in Western Australia considered a differently worded exception that applied where the material had recognised scientific merit. The court held that there was a difference between material that may be studied for the purpose of science (including social sciences), and material that is a product of scientific study, and that only the latter type of material fell within the exception (Nugent v Western Australia (2014) 246 A Crim R 165, [66]).
  43. The accused bears the burden of proving, on the balance of probabilities, that the material possesses artistic merit or public benefit (Crimes Act 1958 s 51L(3)).[1]

    Depictions of the accused

  44. Section 51M of the Crimes Act 1958 provides the accused has not committed a child abuse material offence if the accused is a child and:
  1. Section 51N of the Crimes Act 1958 provides a defence where the accused is a child and the child abuse material depicts those of a similar age.
  2. The section replaces elements of ss 70AAA(2) and 70AAA(4) of the Crimes Act 1958. The defence now requires that the accused is no more than 2 years older than the youngest child depicted in the image, regardless of whether that child makes the image child abuse material.
  3. The defence is available if:
  1. It is immaterial for this defence whether the accused is depicted in the image (Crimes Act 1958 s 51N(1)(c)).
  2. The accused carries the burden of proving, on the balance of probabilities that they reasonably believed that they were no more than two years older than the youngest child and that the image did not depict a criminal act punishable by imprisonment (Crimes Act 1958 s 51N(3)).[2]

    Material depicts accused as a child

  3. Section 51O of the Crimes Act 1958 provides a defence where the child abuse material depicts the accused as a child.
  4. This section replaces s 70(2)(e) of the Crimes Act 1958 and introduces new safeguards regarding the distribution of the material and the subject matter depicted.
  5. Unlike s 51M of the Crimes Act 1958, this defence is available to an accused over the age of 18 years. This broader application is circumscribed by tighter restrictions on the distribution of the material and depictions of criminal activity.
  6. The defence is available if:
  1. The accused bears the burden of proving, on the balance of probabilities, that the image depicts them as a child (Crimes Act 1958 s 51O(3)).[3]

    Accused is of similar age to child and had child’s consent

  2. Section 51P of the Crimes Act 1958 provides a defence where the depicted child is close in age to the accused and the accused reasonably believed that the depicted child had consented to the accused producing the material.
  3. This section replaces s 70(2)(d) of the Crimes Act 1958 and adds new requirements concerning consent and depictions of criminal conduct.
  4. The defence is available if:
  1. The accused bears the burden of proving, on the balance of probabilities, that the accused is no more than two years older than the depicted child and he or she reasonably believed the depicted child had consented (Crimes Act 1958 s 51P(4)).[4]

    Accused is married to or in domestic partnership with child

  2. Section 51Q of the Crimes Act 1958 provides a defence where the child depicted in the child abuse material was married or in a domestic partnership with the accused.
  3. The defence is available if:
  1. If the accused was in a domestic partnership with the other person, the defence also requires that:
  1. The accused bears the burden of proving, on the balance of probabilities, that they reasonably believed the depicted child had consented (Crimes Act 1958 s 51Q(4)).[5]

    Reasonable belief in marriage or domestic partnership

  2. Section 51R of the Crimes Act 1958 provides a defence where the accused believed that they were married to or in a domestic partnership with the child depicted in the child abuse material.
  3. The defence is available if:
  1. If the accused reasonably believed that they were in a domestic partnership with the other person, they must also prove, on the balance of probabilities, that they reasonably believed that:

Last updated: 17 March 2020

Notes

[1] An evidential burden applies to the requirement that material possessing artistic merit was produced without the involvement of persons under the age of 18 years.

[2] An evidentiary burden applies to all other requirements of the defence.

[3] An evidentiary burden applies to all other requirements of the defence.

[4] An evidentiary burden applies to all other requirements of the defence.

[5] An evidentiary burden applies to all other requirements of the defence.

[6] An evidentiary burden applies to these elements.

In This Section

7.3.24.1 - Charge: Production of Child Abuse Material

7.3.24.2 - Checklist: Production of Child Abuse Material

See Also

7.3 - Sexual Offences

7.3.1 - Consent and Consent-related Fault Element

7.3.2 - Rape (From 1/1/92)

7.3.3 - Rape and Aggravated Rape (Pre-1/1/92)

7.3.4 - Assault with Intent to Rape (Pre-1/7/15)

7.3.5 - Sexual Assault (From 1/7/15)

7.3.6 - Indecent Assault (1/1/92 - 30/6/15)

7.3.7 - Indecent assault (Pre-1/1/92)

7.3.8 - Incest (From 1/7/17)

7.3.9 - Incest (Pre-1/7/17)

7.3.10 - Sexual penetration of a child under 12 (From 1/7/17)

7.3.11 - Sexual penetration of a child under 16 (From 1/7/17)

7.3.12 - Sexual penetration of a child under 16 (1/1/92 – 30/6/17)

7.3.13 - Sexual Penetration of a 16 or 17 Year Old Child (From 1/7/17)

7.3.14 - Sexual penetration of a 16 or 17 year old child (1/1/92 – 30/6/17)

7.3.15 - Sexual Assault of a child under 16 (From 1/7/17)

7.3.16 - Indecent Act with a Child under 16 (1/1/92 – 30/6/17)

7.3.17 - Sexual Assault of a child aged 16 or 17 under care, supervision or authority (From 1/7/17)

7.3.18 - Indecent Act with a 16 or 17 year old Child (1/12/06 – 30/6/17)

7.3.19 - Indecent act with a 16 year old child (5/8/91 – 30/11/06)

7.3.20 - Sexual Activity in the presence of a child under 16 (From 1/7/17)

7.3.21 - Sexual Activity in the presence of a child aged 16 or 17 under care, supervision or authority (From 1/7/17)

7.3.22 - Persistent sexual abuse of a child (From 1/7/17)

7.3.23 - Sexual Offences Against Children (Pre-1/1/92)

7.3.25 - Distributing Child Abuse Material

7.3.26 - Production of Child Pornography

7.3.27 - Possessing Child Abuse Material

7.3.28 - Possession of Child Pornography