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What are pornography laws in NSW? There may have been confusion and questions raised on whether an image is an artistic expression or a pornographic display. When will a work of art amount to a violation of pornographic laws? What acts amount to a pornography offence?
In New South Wales (NSW), the Crimes Act 1900 deals with offences on pornography. This article discusses pornography laws in NSW.
Pornography Laws in NSW
Generally, pornography means the portrayal of a subject matter for the purpose of sexual arousal. It pertains to printed or visual material containing displays of sexual organs or activity.
Under the Crimes Act 1900, it is in an offence to observe, film or distribute intimate images without consent in NSW. The law in NSW makes it a specific offence to:
- Record an intimate image without consent (Section 91P),
- Distribute an intimate image without consent (Section 91Q), and
- Threaten to record or distribute an intimate image without consent (Section 91R).
The maximum penalty for these offences is three years’ imprisonment and/or a fine of $11,000.
Section 91N defines an “intimate image” as:
- An image of a person’s private parts, or of a person engaging in a private act, in circumstances in which a reasonable person would reasonably expect to have privacy, or
- An image that someone has altered to show their private parts, or a person engaging in a private act, in circumstances in which a reasonable person would reasonably expect to have privacy.
A “private act” includes depictions of someone in a state of undress, such as using the toilet, showering, bathing, or engaging in a sexual act.
Consent to the recording or distribution of an intimate image requires “free and voluntary agreement”. A party cannot give voluntary consent if they are incapacitated to give consent, or only complies to the recording or distribution because of threats.
Pornography laws in NSW, specifically Section 910 of the Crimes Act 1900 make it clear that consent to record for, or distribute an image to, a particular person does not mean consent for sharing that image with others.
Children are common victims of pornography. Child pornography is a crucial area on pornography laws in NSW. A “child” means a person who is under 16 years of age. The Crimes Act 1900 makes it illegal in NSW to create, distribute, or possess “child abuse material.” Child abuse material includes films, pictures, and computer images that shows a child:
- Being tortured or being subjected to physical abuse or child sexual abuse,
- in a sexual pose or engaged in real or apparent sexual activity, or
- in the presence of another person who is in a sexual pose or engaged in real or apparent sexual activity.
The pornography laws of NSW also prohibits the display of the “private parts” (the genital or anal area and female breasts) of a child, whether bare or covered by underwear.
In determining whether the material is offensive to reasonable people, the Court considers:
- Moral standards, decency, and propriety accepted by reasonable adults,
- The literary, artistic, journalistic, or educational merit of the material, or
- The general character of the material (medical, legal, or scientific).
Hence, a photograph that appears in a medical textbook might be acceptable while the same photograph in an entertainment magazine might be illegal.
Production of Child Abuse Material
Section 91H(1) of the Crimes Act 1900 states that the offence of producing child abuse material includes:
- The filming, photographing, printing, or otherwise making child abuse material,
- The altering or manipulating of any image of a child to make child abuse material, or
- Entering into any agreement or arrangement with any person to do so.
An example includes taking pictures of a naked child or filming a child in a sexual act.
Distribution of Child Abuse Material
In the same Section, the distribution or dissemination of child abuse material includes:
- The sending, supplying, exhibiting, transmitting, or communicating of material to another person,
- Making any child abuse material available for access by another person, or
- Entering into any agreement or arrangement with any person to do so.
Examples include posting a video of a child committing a sexual act on the internet, emailing a naked picture of a child, or making an agreement with another person to provide pornographic material of a child.
Obtaining Child Abuse Material
Possession includes intentional physical custody or control of child pornography or child abuse material in the form of data. Possession may be:
- On a computer or a data storage device holding or containing data
- On a computer that is in the possession of another person in the NSW jurisdiction or outside the NSW jurisdiction.
Examples of possessing child material are having a magazine of naked children under the age of 16 or having a video of a computer of a child being tortured.
Pornography laws in NSW include pornographic cartoon characters. This was the ruling of New South Wales Supreme Court judge, Justice Michael Adams in December 2008. He ruled that a pornographic cartoon parodying characters on the television animated series “The Simpsons” (Bart and Lisa), was child pornography.
In this case, the appellant, Alan John McEwan, was charged with the offence of possessing child pornography. The alleged pornography comprised a series of cartoons depicting sexual acts as being performed, in particular, by the “children” of the family. He was fined $3000.
Judge Adams explained the law was appropriate because cartoons could “fuel demand for material that does involve the abuse of children“, also adding “a cartoon character might well constitute the depiction of such a person“. He ruled that the mere fact that they were not realistic representations of human beings did not mean that they could not be considered people.
This case has attracted international attention, with author Neil Gaiman commenting on it: “I suspect the Judge might have just inadvertently granted human rights to cartoon characters. I think it’s nonsensical in every way that it could possibly be nonsensical.”
Using a child to produce child abuse material is punishable by a maximum sentence of:
- 14 years’ imprisonment if the child is under the age of 14; and
- 10 years’ imprisonment if the child is 14 or 15 years of age.
Distributing or possessing child abuse material is punishable by a maximum sentence of 10 years’ imprisonment.
Sexting is included under pornography laws of NSW. It involves taking naked or partly-naked photos or videos of yourself (posing in a sexual way) and sharing the photos or videos with others online or through your mobile phones. It includes receiving, forwarding or posting these photos or videos online or through mobile phones.
Sexting between consenting adults is legal, however, sexting between people under the age of 18 years is illegal, even if both parties were consenting.
Persons engaged in sexting have been charged with NSW child pornography offences. This is because sexually explicit photographs of a person under 18 is considered child abuse material or child pornography. Therefore, child abuse material offences have been dealt with under the same laws that regulate possession and dissemination of child abuse material and child pornography.
What if the Child Gives Consent To Take the Photo?
Pornography laws of NSW say that while you are under 18, you cannot consent to or give permission to ask for, take, send or keep sexual photos. The age of consent to sex in NSW is 16, but the age of consent when it comes to sexting is 18. As a result, even if the child consents to be filmed or photographed, it still amounts to a crime. In addition, you could face charges for asking someone to send you a sexual photo or video of themselves.
Seeking Legal Advice About Child Pornography Related Offences
Child pornography offences are serious offences. If you are a victim of these offences or are facing pornography charges, it is highly advisable to seek legal advice.
Do you have any more queries on pornography laws NSW? Contact us today.