The Law on Importing Sexual Child Abuse Material into Australia

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It is reported that a 40-year-old man from Perth allegedly travelled from Singapore to Perth with sexual child abuse material contained on his mobile phone.

Following a bag examination by Australian Border Force, upon his arrival to Perth Airport, the 40-year-old man was found to have 41 images plus four videos of alleged sexual child abuse material on his mobile phone.

Authorities also found him to be in possession of a further mobile phone in addition to a laptop which have also been seized for examination by authorities.

The Perth man has been arrested and charged with importing child exploitation material, with possibly further charges to follow upon examination of the other phone and laptop that was seized from the man.

He has been granted bail by the court and is due to appear in court to face the charges at the Perth Magistrates Court.

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The Law on Importing Sexual Child Abuse Material into Australia

The Law on Importing Sexual Child Abuse Material into Australia

In Australia, it is a crime to intentionally import child abuse material where the person does so realising the possibility that it is child abuse material but imported it anyway under section 233BAB(5) Customs Act 1901 (Cmlth).

Anyone in breach of this offence will face a maximum penalty of 10-years imprisonment and/or a fine of up to $525,000.

What is ‘child abuse material’? child abuse material is outlined in s233BAB(4), and includes goods or a document that:

Depicts or represents a person who is or appears to be under 18-years-of-age and is or appears to be a victim of torture, cruelty or physical abuse in a way that reasonable persons would consider in all the circumstances as offensive; or
Describes a person who is or implied to be under the age of 18 and is or is implied to be a victim of torture, cruelty or physical abuse in a way that reasonable persons would consider in all the circumstances offensive; or
Depicts a person or representation of a person who is or appears to be under the age of 18 who does either of the below in a way that reasonable persons would consider in all the circumstances as offensive:
- Engaged in or appears to be engaged in a sexual pose or sexual activity; or
- In the presence of a person engaged in the same; or
Has as its dominant characteristic a depiction for a sexual purpose, either a sexual organ, anal region of a person who is or appears to be under the age of 18, or a representation of such a sexual organ or anal region; or the breasts or a representation of the breasts of a female person who either is or appears to be under the age of 18 in a way that reasonable persons would regard as in all the circumstances offensive; or
Is a doll or other object resembling either one of the below if a reasonable person would regard it likely that the doll or other object is intended to be used by a person to simulate sexual intercourse:
- A person who is or appears to be under the age of 18; or
- Resembles a body part of such a person

How does the court determine if a reasonable person would regard it as offensive in all the circumstances here?

Subsection 4A of section 233BAB outlines the factors that can be considered in determining this, namely:

The standards or decency, morality, generally accepted by reasonable adults.
Whether it was for literary, artistic or educational purposes.
General character of the material i.e. medical, scientific or legal.

Click here for an outline on the law, defences and penalties for possessing child abuse material covered in our previous article.

An alternative charge similar to this is the NSW state equivalent under section 91H Crimes Act 1900 (NSW), which prohibits the possession, production, or dissemination of ‘child abuse material’. This carries a maximum penalty of 10-years imprisonment.

Section 91HA of the Crimes Act 1900 (NSW) also outlined the defences to child abuse material charges.

For more information on this legal topic, contact our criminal lawyers from Sydney who are available for a free first consult on (02) 8606 2218.

Published on 07/11/2019