Produce Child Abuse Material (CAM)

Section 91H provides defences for the offence of “production, dissemination, or possession of child abuse material.”

These subsections are outlined as follows:

91H Production, dissemination, or possession of child abuse material
(1) For the purpose of this section:

– “Produce” child abuse material includes:
(a) Filming, photographing, printing, or otherwise creating child abuse material, or
(b) Altering or manipulating any image with the intention of creating child abuse material, or
(c) Entering into any agreement or arrangement to engage in any of the above activities.

(2) An individual who produces, disseminates, or possesses child abuse material commits an offence.

The maximum penalty for this offence is imprisonment for 10 years.

(3) Proceedings for an offence under this section involving a child or young person can only be initiated by or with the approval of the Director of Public Prosecutions.

‘Child abuse material’ refers to content that, in a manner reasonable individuals would find offensive, depicts or describes:

1. The intimate body parts of a person who is, appears to be, or is implied to be a child, or

2. A person who is, 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 person 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 factors must be taken into account:

1. The prevailing standards of morality, decency, and propriety accepted by reasonable adults.

2. The potential literary, artistic, or educational value (if any) of the material.

3. The journalistic value (if any) of the material.

4. The overall character of the material.

‘Private parts’ are defined as:

• The genital or anal area, whether exposed or covered by underwear, or
• The breasts of a female, transgender, or intersex person identifying as female, whether developed or not.

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

1. You were unaware, and there were no reasonable means for you to know that you possessed, disseminated, or produced such material.

2. Your actions aimed to benefit the public through law enforcement, administration, or the administration of justice and did not extend beyond that scope.

3. The material received a classification for publication.

4. The use of the material was approved by the Attorney-General for research purposes. 

5. The material depicts you and would not be considered child abuse material in the absence of your image.

An additional defence for possessing child abuse material is when you received it unsolicited and promptly took reasonable steps to dispose of it upon becoming aware of its nature.

There is an exception to the offence, wherein:

1. The possession of the material occurred when you were under 18, and

2. A reasonable person would consider the possession acceptable, taking into account:

• The nature and content of the material,
• The circumstances under which 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.