What Is Child Abuse Material in Victoria?

Content warning: This article on child abuse material contains topics that may be distressing for some readers. Readers discretion is advised.

Child abuse material is a serious issue in Australia that is punishable under the Crimes Act 1958 (VIC). In recent years, there has been a shift in terminology from “child pornography” to “child exploitation material” in some Australian jurisdictions, such as Victoria, Australia.

The impact of these offensive materials on children is devastating, causing physical and psychological trauma that can last a lifetime.

In this article, we will delve into the production, distribution, and administration of websites used to deal with child abuse materials and the legal implications under the Crimes Act 1958.

Section 51A: Definition of Terms

This section provides for an expansive meaning of the most common terms that appear in the subsequent provisions that this article outlines.

1. A child is any person under 18 years of age. 
2. The specific definition of child abuse material is:
   • One that depicts or describes a person who is, or who appears or is implied to be a child:
     • as a victim of torture, cruelty or physical abuse (whether or not the torture, cruelty or abuse is sexual); or
     • as a victim of sexual abuse; or
     • engaged in, or apparently engaging in, a sexual pose or sexual activity (whether or not in the presence of another person); or
     • in the presence of another person who is engaged in, or apparently engaged in, a sexual pose or sexual activity;
   • One that depicts or describes the genital or anal region of a person who is, or who appears or is implied to be, a child.
   • One that depicts or describes the breast area of a person who is, or who appears or is implied to be, a female child.
   • A material that reasonable persons would regard as offensive depending on the circumstances.

Other Definitions

1. To “distribute” a material includes the:
   • Publishing of the material
   • Exhibiting, communicating, sending, supplying or transmitting the material to any other person
   • Making the material available for access by any other person.
2. Law enforcement agency means:
   • Victoria Police or the police force or police service of any other State or of the Northern Territory of Australia or
   • The Australian Crime Commission established by the Australian Crime Commission Act 2002 of the Commonwealth; or
   • The Australian Federal Police; or
   • Any other authority or person responsible for the enforcement of laws of Victoria or any other State, the Commonwealth, the Australian Capital Territory (ACT), or the Northern Territory of Australia.
3. A material, in this article, refers to any film, audio, photograph, printed matter, image, computer game or text, any electronic material, or any other thing of any kind.

Section 51B: Involving a Child in the Production of Child Abuse Material

Section 51B provides that a person commits an offence if:

• A person intentionally involves another person in the production of a material.
• The person involved is a child.
• The offender knows that the other person is, or probably is, a child.
• The material is a child abuse material.

It also provides for the specific manners in which the offender involves a child in the production of a child abuse material:

1. inviting or encouraging the child to be involved, or offering child to be involved, in the production of the material; or
2. causing or allowing the child to be involved in the production of the material; or
3. using the child in the production of the material.

However, note that the material need not necessarily describe or depict the child.

Section 51C: Producing Child Abuse Material

Section 51C talks about the production of these materials and the penalty if the offender is found guilty of the commission of this offence. It provides that a person commits this offence if one intentionally produces the child abuse material and he or she knows that the material is actually a child abuse material.

The manners in which a party may produce the material may be through:

1. filming, printing, photographing, recording, writing, drawing or otherwise generating material; or
2. altering or manipulating material; or
3. reproducing or copying material.

Section 51D: Distributing Child Abuse Material

The law punishes not only the production of such material but also the distribution thereof. A person commits the offence of distributing child abuse materials if the offender intentionally and knowingly distributes the materials. 

For this offence, it is not necessary to prove the following:

1. the identity of any person to whom the offender distributed the material;
2. that another person accessed the material.

Another rule in this section also provides that as long as the criminal was in Victoria at some point during the time the material was distributed, it doesn’t matter if some or all of it was sent outside of Victoria. Also, it doesn’t matter if A was outside of Victoria at some point or during the whole time that the material was spread as long as some or all of it was distributed in Victoria.

Section 51E: Administering a Website Used to Deal With Child Abuse Material

Aside from the production and distribution of these offensive materials, section 51E punishes the administration of a website that is used to deal with it. The law provides that a person commits this offence if he or she administers or assists in the administration of website used by another person to deal with the materials.

Dealing, under section 51A, is the act of:

• viewing, uploading, or downloading child abuse material,
• making it available for viewing, uploading, or downloading,
• facilitating the viewing, uploading, or downloading.

Under s51E, the offender, to be liable:

1. must intend that another person will use the website to deal with the materials, or
2. must be aware that such a person is using the for the same purpose.

Furthermore, it doesn’t matter if some or all of the behaviour that is illegal took place outside of Victoria or if a computer or other device that a person used to run the website was outside of Victoria as long as: 

• the person using the website to deal with the offensive material was in Victoria; or
• the computer or other device that they used was in Victoria.

The penalty for these offences under sections 51B to 51E is a level 5 imprisonment (10 years maximum).

Contact a Legal Defender

Are you facing criminal charges or do you want to file a criminal case? You need an experienced and aggressive criminal defence lawyer who will fight for your rights. JB Solicitors can handle all types of criminal cases, from misdemeanours to felonies. 

Our lawyers have a track record of success and are passionate about providing clients with the best possible representation. 

For consultations, contact us here.