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Child pornography offences: Production

Every Australian jurisdiction has enacted legislation criminalising the production, dissemination and/or possession of child pornography. However, only offences that involved the actual production of child pornography were considered as part of this review (see Table 7). The definition of child pornography and the age of the child represented in the materials for each Australian jurisdiction is provided in Table 6. While it is acknowledged that some jurisdictions use different terms (for example ‘child exploitation material’ or ‘child abuse material’) for consistency, the term child pornography is used throughout this report.

This section of the report also includes a description of ‘upskirt’ offences, which involve the unlawful recording of another person’s anal or genital region (whether covered with underwear or not) and offences involving the recording of persons without their consent in situations where they would expect to have privacy. However, offences relating to the production of ‘Refused Classification’ (RC) materials are not included in this section as they were beyond the scope of the review.

Table 6: Definition of child pornography, by jurisdiction
Jurisdiction Relevant legislation Definition of child pornography Age of child represented
Australian Capital Territory

Crimes Act 1900

Anything that represents:

  1. the sexual parts of a child, or
  2. a child engaged in an activity of a sexual nature; or
  3. someone else engaged in an activity of a sexual nature in the presence of the child:

substantially for the sexual arousal or sexual gratification of someone other than the child.

<16 years old

New South Wales

Crimes Act 1900

Materials that depicts or describes, in a way that reasonable persons would regard as being, in all circumstances, offensive:

  1. a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or
  2. 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
  3. 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
  4. the private parts of a person who is, appears to be or is implied to be, a child.

<16 years old

Northern Territory

Criminal Code Act 1983

Material that depicts, describes or represents, in a manner that is likely to cause offence to a reasonable adult, a person who is a child or who appears to be a child:

  1. engaging in sexual activity;
  2. in a sexual, offensive or demeaning context; or
  3. being subjected to torture, cruelty or abuse.

<18 years old

Queensland

Criminal Code Act 1899

Material that, in a way likely to cause offence to a reasonable adult, describes or depicts a person, or a representation of a person, who is, or apparently is, a child under 16 years:

  1. in a sexual context, including for example, engaging in a
  2. sexual activity; or
  3. in an offensive or demeaning context; or
  4. being subjected to abuse, cruelty or torture.

<16 years old

South Australia

Criminal Law Consolidation Act 1935

Material that:

  1. describes or depicts a child under, or apparently under, the age of 17 years engaging in sexual activity or consists of, or contains, the image of (or what appears to be the image of) a child under, or apparently under, the age of 17 years, or of the bodily parts of such a child, or in the production of which such a child has been or appears to have been involved; and
  2. that is intended or apparently intended:
    1. to excite or gratify sexual interest; or
    2. to excite or gratify a sadistic or other perverted interest in violence or cruelty

<17 years old

Tasmania

Criminal Code Act 1924

Material (film, printed matter, electronic data and any other thing of any kind (including any computer image or other depiction) that describes or depicts, in a way that a reasonable person would regard as being, in all the circumstances, offensive, a person who is or who appears to be under the age of 18 years–

  1. engaged in sexual activity; or
  2. in a sexual context; or
  3. as the subject of torture, cruelty or abuse (whether or not in a sexual context).

<18 years old

Victoria

Crimes Act 1958

A film, photograph, publication of computer game that describes or depicts a person who is, or appears to be, a minor engaging in sexual activity or depicted in an indecent sexual manner.

<18 years old

Western Australia

The Criminal Code Act Compilation Act1913

  1. material that, in a way likely to offend a reasonable person, describes, depicts or represents a person, or part of a person, who is, or appears to be, a child engaging in sexual activity or in a sexual context or;
  2. material that, in a way likely to offend a reasonable person, describes, depicts or represents a person, or part of a person, who is, or appears to be, a child:
    1. in an offensive or demeaning context; or
    2. being subjected to abuse, cruelty or torture
    3. (whether or not in a sexual context).

<16 years old

Commonwealth

Criminal Code Act 1995

Child abuse materials:

  1. Material that depicts a person, or a representation of a person, who:
    1. is, or appears to be, under 18 years of age; and
    2. is, or appears to be, a victim of torture, cruelty or physical abuse; and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
    3. material that describes a person who:
    4. is, or is implied to be, under 18 years of age; and
    5. is, or is implied to be, a victim of torture, cruelty or physical abuse;

and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive.

Child pornography material:

  1. material that depicts a person, or a representation of a person, who is, or appears to be, under 18 years of age and who:
    1. is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or
    2. is in the presence of a person who is engaged in, or appears to be engaged in, a sexual pose or sexual activity;

and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

  1. material the dominant characteristic of which is the depiction, for a sexual purpose, of:
    1. a sexual organ or the anal region of a person who is, or appears to be, under 18 years of age; or
    2. a representation of such a sexual organ or anal region; or
    3. the breasts, or a representation of the breasts, of a female person who is, or appears to be, under 18 years of age;

in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

  1. material that describes a person who is, or is implied to be, under 18 years of age and who:
    1. is engaged in, or is implied to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or
    2. is in the presence of a person who is engaged in, or is implied to be engaged in, a sexual pose or sexual activity;

and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

  1. material that describes:
    1. a sexual organ or the anal region of a person who is, or is implied to be, under 18 years of age; or
    2. the breasts of a female person who is, or is implied to be, under 18 years of age;

and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive.

<18 years old

Table 7: Child pornography offences (production), by jurisdiction

Jurisdiction

Relevant legislation

Section

Offence

Aggravating factors

Age of victim

Maximum penalty & standard non-parole period (if applicable)

Australian Capital Territory

Crimes Act 1900

64(1)

Using child for production of child exploitation material etc

<12 years old

MP: 1,500 penalty units or 15 years imprisonment or both

64(3)

Using child for production of child exploitation material etc

12–16 years old

MP: 1,000 penalty units or 10 years imprisonment or both

64A(1)

Trading in child exploitation material (includes production)

<16 years old

MP: 1,200 penalty units or 12 years imprisonment

New South Wales

Crimes Act 1900

91G(1)

Children not to be used for the production of child abuse material

<14 years old

MP: 14 years imprisonment

SNPP: 6 years imprisonment

91G(2)

Children not to be used for the production of child abuse material

14–15 years old

MP: 10 years imprisonment

91H(2)

Production, dissemination or possession of child abuse material

<16 years old

MP: 10 years imprisonment

91K(1)

Filming a person engaged in a private act

MP: 100 penalty units or 2 years imprisonment or both

91K(3)

Filming a person engaged in a private act (aggravated)

Victim <16 years

Offender constructed or adapted the fabric of any building for the purpose of facilitating the commission of the offence

MP: 5 years imprisonment

91K(6)

Filming a person engaged in a private act (attempts)

Dependent on offence

MP: Offender is liable to the penalty provided for the commission of the offence

91L(1)

Filming a person’s private parts

MP: 100 penalty units or 2 years imprisonment or both

91L(3)

Filming a person’s private parts (aggravated)

Victim <16 years

Offender constructed or adapted the fabric of any building for the purpose of facilitating the commission of the offence

MP: 5 years imprisonment

91L(6)

Filming a person’s private parts (attempts)

Dependent on offence

MP: Offender is liable to the penalty provided for the commission of the offence

91M(1)

Installing device to facilitate observation or filming (facilitating offence against s 91J—91L)

MP: 100 penalty units or 2 years imprisonment or both

Northern Territory

Criminal Code Act 1983

125B(1)

Possession of child abuse material (includes production)

<16 years old

MP: 10 years imprisonment (individual)

MP: 10,000 penalty units (corporation)

125C(1)

Publishing indecent articles

MP: 2 years imprisonment (individual)

MP: 175 penalty units (corporation)

125E

Using child for production of child abuse material or pornographic or abusive performance

<16 years old

MP: 14 years imprisonment (individual)

MP: 15,000 penalty units (corporation)

132(2)(f)

Indecent dealing with child under 16 (takes or records an indecent visual image of a child)

Victim <10 years old

<16 years old

MP: 10 years imprisonment

MP: 14 years imprisonment (aggravated)

Queensland

Criminal Code Act 1899

210(1)(f)

Indecent treatment of children under 16 (takes indecent photograph or records any indecent visual image of a child)

Victim <12 years old

Offender was the victim’s guardian or was responsible for their care at time of offence

Child has an impairment of the mind

<16 years old

MP: 14 years imprisonment

MP: 20 years imprisonment (aggravated)

SNPP: 80% of imprisonment term or 15 years (whichever occurs first)

216(2)(f)

Abuse of persons with an impairment of the mind (indecent recording)

MP: 10 years imprisonment

SNPP: 80% of imprisonment term or 15 years (whichever occurs first)

227A(1)

Observations or recordings in breach of privacy

MP: 2 years imprisonment

227A(2)

Observations or recordings in breach of privacy (genital or anal region)

MP: 2 years imprisonment

228A(1)

Involving child in making child exploitation material

<16 years old

MP: 14 years imprisonment

228B(1)

Making child exploitation material

<16 years old

MP: 14 years imprisonment

Classification of Publications Act 1991

17(1)

Producing prohibited publication (including child abuse publication)

<16 years old

MP: 800 penalty units or 3 months imprisonment

18

Procurement of minor for RC publication or child abuse photograph

<16 years old

MP: 1,000 units or 3 years imprisonment

Classification of Films Act 1991

42(3)

Making child abuse films includes attempts)

<16 years old

MP: 1,000 penalty units or 5 years imprisonment

43

Procurement of minor for objectionable film

<16 years old

MP: 800 penalty units or 3 years imprisonment

Classification of Computer Games and Images Act 1995

27(3)

Making child abuse computer game

<16 years old

MP: 1,000 penalty units or 3 years imprisonment

28

Obtaining minor for objectionable computer game

<16 years old

MP: 800 penalty units or 3 years imprisonment

South Australia

Criminal Law Consolidation Act 1935

63(a)

Production or dissemination of child pornography

Victim <12 years old

The offender abused a position of authority, or a position of trust, in committing the offence

<17 years old

MP: 10 years imprisonment

MP: 12 years imprisonment (aggravated)

63B(1)(b)(ii)

Procuring child to commit indecent act etc (acting for purient purposes makes a record for which the image of a child engaged in a private act may be reproduced)

Victim <12 years old

The offender abused a position of authority, or a position of trust, in committing the offence

<17 years old

<18 years old (if offender is in a position of authority over the victim)

MP: 10 years imprisonment

MP: 12 years imprisonment (aggravated)

Summary Offences Act 1953

26B(1)

Humiliating or degrading filming

MP: 12 months imprisonment

26D(1)

Indecent filming

Victim <18 years old

MP: $10,000 fine or 2 years imprisonment

MP: $20,000 fine or 4 years imprisonment (aggravated)

33(2)(a)

Indecent or offensive material (production)

MP: $20,000 fine or 6 months imprisonment

Tasmania

Criminal Code Act 1924

130

Involving persons under 18 years in production of child exploitation materials

<18 years old

MP: 21 years imprisonment

130A

Production of child exploitation material

<18 years old

MP: 21 years imprisonment

Police Offences Act 1935

13A(1)

Observation or recording in breach of privacy

MP: 50 penalty units or 12 months imprisonment or both

13A(2)

Observation or recording in breach of privacy (recording a person’s genital or anal region)

MP: 50 penalty units or 12 months imprisonment or both

Classification (Publications, Films and Computer Games)
Enforcement Act 1995

72A

Offence to make or reproduce child exploitation material

<18 years old

MP: 300 penalty units or 3 years imprisonment or both

73

Offence to procure child to be involved in making child exploitation material

<18 years old

MP: 300 penalty units or 3 years imprisonment or both

Victoria

Crimes Act 1958

68(1)

Production of child pornography

<18 years old

MP: 10 years imprisonment

69(1)

Procurement of minor for child pornography

<18 years old

MP: 10 years imprisonment

Summary Offences Act 1966

41B

Visually capturing genital or anal region

MP: 2 years imprisonment

Classification (Publications, Films and Computer Games) (Enforcement) Act 1995

24(1)

Making objectionable film

MP: 240 penalty units or 2 years imprisonment

32(1)

Producing objectionable publications

MP: 240 penalty units or 2 years imprisonment

Western Australia

Criminal Code Act Compilation Act1913

217(2)

Involving child in child exploitation

<16 years old

MP: 10 years imprisonment

218

Producing child exploitation material

<16 years old

MP: 10 years imprisonment

320(6)

Child under 13, sexual offences against (indecently records a child)

<13 years old

MP: 10 years imprisonment

321(6)

Child of or over 13 and under 16, sexual offences against (indecently records a child)

13–15 years old

MP: 4 years imprisonment (where the offender is under the age of 18 years and the child is not under the care, supervision or authority of the offender)

MP: 7 years imprisonment

MP: 10 years imprisonment (where the child is under the care, supervision or authority of the offender)

322(6)

Child of or over 16, sexual offences against by person in authority etc (indecently records)

16–17 years old

MP: 5 years imprisonment

329(6)

Incest (indecently recording)

Victim <16 years old

<18 years old

MP: 5 years imprisonment

MP: 10 years imprisonment (aggravated)

330(6)

Incapable person, sexual offences against (indecent recording)

Incapable person is under the care, supervision, or authority of the offender

MP: 7 years imprisonment

MP: 10 years imprisonment (aggravated)

Commonwealth

Criminal Code Act 1995

471.17

Possessing, controlling, producing, supplying or obtaining child pornography material for use through a postal or similar service

<18 years old

MP: 15 years imprisonment

471.20

Possessing, controlling, producing, supplying or obtaining child abuse material for use through a postal or similar service

<18 years old

MP: 15 years imprisonment

471.22

Aggravated offence (offence under s 471.17 or s 471.20 conducted on 3 or more occasions and involved 2 or more people)

<18 years old

MP: 25 years imprisonment

474.20

Possessing, controlling, producing, supplying or obtaining child pornography material for use through a carriage service

<18 years old

MP: 15 years imprisonment

474.23

Possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service

<18 years old

MP: 15 years imprisonment

474.24A

Aggravated offence (offence under s 474.20 or s 474.23 conducted on 3 or more occasions and involved 2 or more people)

<18 years old

MP: 25 years imprisonment