Creating adult content in Australia means you’ll need to understand a range of complex laws.
Is Filming Pornography Legal in Australia?
The rules about making pornography in Australia are tricky. They include different laws for classification, online content, and sex work in each State and Territory.
Pornography Classification in Australia
To sell, show, or share media in Australia, it needs a classification from the Australian Classification Board.
Movies and games can be marked as G, PG, M, MA 15+, R 18+, or X 18+. Publications can be Unrestricted, Category 1 (restricted), or Category 2 (restricted).
If a movie, game, or publication doesn’t fit these labels, it gets ‘Refused Classification‘ (RC). Selling, showing, or sharing RC content is illegal. This includes any media with illegal content like child abuse material.
For adult content with consenting adults, it needs an X 18+ rating (for films) or be a Category 2 (restricted) publication to be legal.
But, current rules limit what adult content can be classified.
If something shows ‘revolting or abhorrent phenomena,’ it will be RC. This includes offensive fetishes or practices. Fetishes can be mild like rubberwear or strong like bondage.
A pornographic film will be RC if it shows:
- Violence, even if it’s unrelated to sex.
- Fetishes like body piercing, candle wax, golden showers, bondage, spanking, or fisting.
- Adults acting as minors or wearing school uniforms.
- Incest fantasies or other offensive scenarios.
Many types of adult content with consenting adults don’t meet the criteria for Category 2 or X 18+, making them illegal to sell in Australia.
Compatibility of Pornography with Australian Sex Work Laws
Sex work laws in Australia vary widely. Some areas criminalise it heavily, while others have decriminalised it completely.
There’s an ongoing debate about whether producing pornography counts as running a brothel or if it needs to follow sex work laws in different States and Territories.
For example, in New South Wales (NSW), sex work is mostly decriminalised, but there are still some restrictions. Under section 15 of the Summary Offences Act (NSW), it’s illegal to live off the earnings of prostitution unless you work at, manage, or own a brothel. This can lead to up to 12 months in prison.
Prostitution under the Act includes various acts like sexual intercourse and masturbation for payment. So, if you hire performers to have sex on film and make money from selling that film, you might be breaking the law unless the place is considered a brothel.
Uploading Pornography Online in Australia: What Are the Rules?
The Online Safety Act 2021 (Cth) governs online content in Australia. It gives the eSafety Commissioner the power to remove content that’s considered harmful.
There are two types of harmful material under the Act: “Class 1 material” and “Class 2 material.”
- Class 1 material includes anything Refused Classification (RC) under current guidelines. This content is banned and can’t be shown online in Australia.
- Class 2 material includes content that would get an X 18+ rating. This content can be online but must be behind a “restricted access system” to prevent minors from seeing it. A more robust age verification system is being developed for this purpose.
The eSafety Commissioner can remove and block Class 1 material or unrestricted Class 2 content. Social media sites, web hosts, and internet service providers face heavy penalties if they don’t comply.
So, if you want to upload pornography online in Australia, make sure X 18+ content is behind a restricted access system and RC material is not accessible.
Offences for Creating Indecent or Objectionable Films
Most States and Territories in Australia have old laws about making and selling ‘indecent’ or ‘objectionable’ films. These laws are rarely used but can apply to all pornography, even if it shows consenting adults.
In New South Wales (NSW), section 578C of the Crimes Act 1900 makes it illegal to publish indecent articles, including films. Breaking this law can lead to a fine of up to $11,000 and/or 12 months in prison for individuals, or a fine of $27,500 for companies.
An act is considered “indecent” if most people would find it against community standards of decency. In Victoria, there’s a similar law against making an objectionable film. This law was used in 2009 to charge porn producer Garion Hall for films on his website Abbywinters.com.
Possessing, Exhibiting, or Selling Prohibited Pornography Offences
In Australia, having, showing, or selling certain types of prohibited pornography is a serious crime. This includes materials like child abuse content and bestiality.
Each State and Territory has strict laws against these illegal types of pornography, and breaking these laws can lead to severe penalties.
Understanding the Law on Child Abuse Material
In Australia, it is illegal to create, share, or possess any material that sexualises children. This includes both real and fictional depictions.
Federal law, through the Criminal Code Act 1995 (Cth), makes it a serious crime to handle child abuse material. This can lead to up to 15 years in prison. Each state also has its own laws, like section 91H of the Crimes Act 1900 (NSW), which can result in a 10-year prison sentence.
These laws cover all forms of child abuse material, even if it involves performers who are adults but look like children or fictional characters. There are limited exceptions for material used for artistic, journalistic, or medical reasons, but any sexual content involving children is strictly banned.
Legal Risks of Bestiality and Animal Crush Pornography
Creating or sharing pornography involving animals, like bestiality or animal crush content, is illegal across Australia.
Laws in every State and Territory ban any material showing animal cruelty or sexual acts between humans and animals. In New South Wales, for example, section 547E of the Crimes Act 1900 (NSW) outlines severe penalties for both producing and possessing such material.
Bestiality or animal crush material is defined as anything depicting animals being harmed in extreme ways or used for sexual gratification. This includes acts of cruelty or sadistic violence towards animals.
The penalties for breaking these laws are harsh. Producing or distributing this type of content can lead to up to 5 years in prison. Even just having such material, including accessing it online, can result in up to 3 years behind bars.
Understanding Offenses for Prohibited Pornography
Not all pornography is legally accepted in Australia. Apart from specific restrictions on material involving extreme content, each State and Territory has its own rules for handling adult content that falls into certain categories, like X18+ or Refused Classification (RC).
For instance, in New South Wales, various laws cover the sale, exhibition, and possession of such material. The Classification (Publications, Films and Computer Games) Enforcement Act 1995 (NSW) details several offenses related to these categories.
Key points include:
- Selling or Showing Restricted Films: This can lead to fines up to $11,000 and/or a year in jail for individuals. Corporations can face fines up to $27,500.
- Possession on Premises: Holding unclassified or RC material where other classified films are sold also comes with hefty fines.
- Leaving Restricted Content: Leaving RC or X18+ films in public places or private premises without permission can result in similar penalties.
In contrast, the ACT has a licensing system for X18+ content, which gives it a unique reputation in Australia for managing adult material.
Is Producing Pornography Legal in Australia?
Filming pornography is generally legal in Australia as long as it features consensual acts between adults and does not involve violence. However, the content must comply with local laws and classification standards. If these conditions are met, the risk of severe legal consequences is minimal, though fines and other penalties can apply in some cases.
Ensuring Consent in Pornography Production
When making pornography, it’s vital to ensure that all participants give their clear and informed consent. This means that not only must the content comply with legal standards, but everyone involved must agree to what is happening on camera. Consent must be freely given, without any pressure, and should be ongoing throughout the production.
In Australia, adhering to these rules helps avoid legal troubles and ensures the safety and rights of everyone involved.
Age Requirements for Participating in Pornography
In Australia, while the age of consent for sexual activity varies—being 16 in most places and 17 in South Australia and Tasmania—the rules are stricter for appearing in pornography. To be legally filmed in a sexual context, you must be at least 18 years old.
This age requirement ensures that individuals are legally adults before they can participate in any form of adult filming.
Understanding Consent in Sexual Activity
Consent is a must for any sexual activity in Australia. It means all parties involved must agree freely and willingly. Without consent, sexual acts could be classified as sexual assault or rape.
Each state and territory in Australia defines consent a bit differently. Some places use terms like “free agreement” or “consent freely and voluntarily given.” Importantly, consent can be taken back at any time, and agreeing to one act doesn’t mean you’re agreeing to others.
In certain areas like Tasmania, the ACT, Victoria, and NSW, you must actively confirm consent. This means you can’t assume someone is consenting; they need to clearly agree.
Consent can be invalidated by threats, force, or deceit. In the context of pornography, this means:
- Pressuring performers to engage in acts.
- Threatening to share their content unless they comply.
- Offering extra payment for acts without the intention to pay.
- Continuing acts after someone has withdrawn consent.
- Surprising performers with acts they weren’t prepared for.
- Performing acts on individuals who are unable to consent due to disability or intoxication.
For anyone involved in producing pornography, respecting these principles is crucial to ensure all activities are consensual and legal.
Consent and Intoxication
Intoxication can affect a person’s ability to give valid consent. In all Australian States and Territories, someone who is significantly drunk or high may not be able to consent to sexual activity.
Simply being tipsy or slightly buzzed doesn’t automatically mean someone can’t consent. However, if intoxication impairs their ability to agree freely and understand what’s happening, they can’t legally consent.
This includes situations where:
- A person is so drunk or high that they can’t communicate clearly or withdraw consent.
- They are too impaired to grasp what sexual acts are taking place or who is involved.
- They have passed out or are unconscious.
Can You Consent to Extreme BDSM?
Consent alone doesn’t make all forms of extreme BDSM legal. Even if everyone involved agrees to certain activities, the law may still view some actions as illegal.
In Australia, some BDSM practices that cause serious physical harm or injury might not be legally recognised, regardless of consent. This includes actions that cause bruising or break the skin.
Additionally, many Australian laws ban non-fatal strangulation, so acts involving choking or suffocation might be illegal, even if all parties consent.
So, while consent is crucial, it’s important to know that not all extreme BDSM activities are legally acceptable.
Ownership of Produced Pornographic Material
Ownership of pornographic content can be tricky. Often, questions arise about who truly owns the material after it’s produced. This might come up if content is stolen and shared online, or if a performer decides they no longer want their material distributed.
Generally, the producer or the company behind the production holds the rights to the material. However, performers may have some say over how their content is used or shared.
Steps to Take if Pornographic Content is Stolen
If your pornographic content has been stolen and posted online without your permission, you can take action under copyright law.
Copyright gives you control over how your work is used and shared. Unfortunately, stolen content often appears on sites like PornHub.
Start by requesting the removal of the video directly through the website’s takedown system. Most sites have a process for reporting copyright issues.
If that doesn’t work, send a takedown notice to the site’s host. You can find detailed instructions on how to do this through resources like ArtsLaw.
If those steps fail, check if the adult site is part of an industry association, such as the Eros Association in Australia.
Performers’ Rights to Object to Content Sharing
If a performer decides they no longer want their content shared, they might have legal options.
In Australia, the situation can get tricky. Even if the content was made with full consent, performers may still want to object to its further distribution.
Sharing or hosting pornographic material against a performer’s wishes can lead to serious legal consequences. This could fall under laws related to “revenge porn” or the non-consensual sharing of intimate images.
Most Australian states and territories, except Tasmania, have laws against distributing intimate images without consent. For example, in New South Wales, section 91Q of the Crimes Act 1900 covers this issue. If someone shares an intimate image without permission, they could face fines up to $11,000 and/or three years in prison.
The law defines “distribution” as sending, showing, or making the content available for others to see. Courts can also issue orders requiring the removal of these images, with further penalties for non-compliance.
Remember, consent can be withdrawn at any time. If a performer decides they don’t want their content shared anymore, the original consent to distribute doesn’t necessarily protect the producer from legal consequences.
While there is no specific case law yet, a performer’s change of mind about their content can still lead to legal trouble for the producer if they do not comply with the request. The law does include some defences, but it’s unclear if they would apply in cases involving porn performers changing their minds about content usage.
In any case, it’s important for performers to understand their rights and take action if they want to stop their content from being shared.
Navigating the Adult Content Maze: Your Legal Compass
Producing adult content in Australia requires careful navigation of complex laws. From classification and consent to online safety and copyright, the legal landscape is fraught with challenges. Ensure compliance to avoid severe penalties.
Need Help with Australian Pornography Laws?
If you need guidance on filming pornography under Australian laws, don’t hesitate to get in touch with KPT Legal. Our expert lawyers are ready to help you understand your situation and explore your options. We’ll review your case, give you clear advice, and discuss the best steps to take next.
*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action.*
