Young people, online pornography and the law
This section refers specifically to pornography and youth. It outlines the law around viewing, producing and
sending pornography and the relationship to sexting.
This section cannot be summarised. It is essential that parents and school read the relevant state and gain an
understanding of the extent of the law that a sexting teen may get themselves into. Most states rely on the
discretion of police for single incidents, but any hint of a threat or element of intimidation will bring down the full
weight of the law on your teen. These incidents are the ones police will and do prosecute under.
A position on the sex offender’s registry is not something any community would wish upon their teen, yet many
are unaware of the legal charges available to victims of this kind of harassment.
It has become increasingly simple for Australian children to access pornographic material online. So easy, that
recent figures show that the age a child is exposed to porn in Australia has dropped to four years old.
It is a problem being debated at a State and Federal level across the country.
There are legal ramifications for teens in some circumstances, and parents need a stern warning – they cannot
simply plead ignorance about both the social media their children use, and their own abilities to navigate and
understand the content their children are accessing. It is shockingly easy for children to come across pornography online which means parents must take an interest in their child’s life online.
Of additional concern is that a number of teenagers are, under law – creating and distributing material that can
be classified as child pornography on a regular basis. Sexting has some unexpected legal consequences that
parents and many teens are simply not aware of, and this is aside from the fact that over 90% of all sexting images will end up on other social media sites.
Compounding the problem in Australia is the disparity between Federal and State laws.
This makes it all the more important that an awareness of what our laws are, and when they apply is taught to
both parents and their children.
Outlined below are the current national and state positions on these matters.
It can be confusing when determining which law applies in which circumstances.
Federal law may apply with the permission of the Attorney General in most states, or depending on the exact
nature of the incident that occurred, it must be remembered that this law takes precedent over the law in each
Generally speaking, in the eyes of Australian law, it is not illegal for someone under the age of 18 to view
pornography personally and in private.(Such videos found online maybe restricted by ACMA (Australian Communication and Media authority). This body focuses around requesting content be removed that breaches ratings legalities, but does not regulate viewers itself.)
In certain circumstances there are exceptions ,and this is where some teens can be in breach of the law.
1. When the material is classified as child exploitation/abuse/pornography – nude and sexual images of an
individual under the age of 18.
2. When pornographic material is sent to other people who are under 18.
3. When pornographic material is shown to others under 18. This applies to your home as well.
4. When pornography is sold to someone under 18.
5. When an individual attends a showing of an 18+ film when they are under 18+.
6. When a school’s enrolment policy, ICT use policy, Wi-Fi or free server has specific rules about content that can be
accessed and pornography is accessed against these standards.
7. Various pornographic sites such as Porn Hub etc have the age requirements specifically listed. By answering the initial question that will appear on the sites around age restrictions with a lie, an individual is breaching the Terms and Conditions of the website. The UK has recently introduced a required credit card age verification system for those accessing porn sites with 18+ content. The Australian eSafety Commissioner is tracking the progress of this new law.
When images viewed cross the line into child exploitation material pornography the rules change.
Child pornography is defined as a photo, video or image that shows a person under 18 engaging in sexual
activity or being depicted in a sexual manner or context (showing private parts included). This includes cartoons, and individuals masquerading as under 18’s. Nudity and suggestive photos and videos are included, and the burden of proof must be to what a reasonable person finds offensive.
Making, sending, asking for, sharing and possessing child pornography are all offences under the law – including pictures of someone you know, or making pictures of yourself to send to another person.
Currently Federal Child pornography laws found in the Criminal Code 1995 (Cth) state that it is illegal to take,
share, keep and distribute images of a sexual nature (AND this includes the individual if they are sending images of themselves) if the person involved is under 18, by phone or online.
The most relevant section is s474.19 – Using a carriage service for child pornography material. The offence lists the following criteria to prove guilt in an individual.
An offence is recorded if a person:
• Accesses material or causes material to be transmitted to himself/herself
• Transmits, makes available, publishes, distributes, advertises or promotes said material
• Asks for material.
The above behaviours fit into this crime definition when the person performs any of these above behaviours using a carriage service (phone, internet) and when the material is classified as child pornography.
The charge for any of the listed offenses can be up to 15 years jail, and a listing on the sex offenders register or
NCOS - National Child Offender System. It is theoretically possible for a child or a young adult to be charged under this Commonwealth offence, as it applies to children under the age of 18 years or those who appear to be under 18 years of age.
The welcome qualifier is that the Attorney General must first consent for the prosecution to continue against
someone under the age of 18 at the request of the police in each state. This is the Federal position. Using the internet and a mobile phone for pornography can make things a Federal
Across Australian States and Territories, there have been variances to their Criminal Codes to reflect the sexting behaviour of teens. This has been done in an effort not to criminalise the more benign incidents.
It is always a criminal act across the country to record or photograph any individual without their consent whilst
performing private actions (sex, undressing, going to the bathroom, bathing). The police consistently take a very dim view of individuals possessing underage images who try to use these for the purposes of harassment, or as a threat – this includes those that stem from teens sexting.
Each state has varied laws. They are not consistent across the country. Depending on which state you are in, a
different set of laws will apply with different consequences. But in all circumstances, Federal law is applicable –
this makes sexting for all individuals under 18 a crime, and they cannot consent legally to this activity.
NSW While the age of consent in NSW is 16+ - for both sex and sexting, sexting is still classified as a crime when it
involves individuals under the age of 18.
Unless the parties involved are of a similar age. This recent change to the law offers a defence for teens charged in NSW – called the ‘similar age defence”. It is important to note that should sexting be used to harass an individual in any way, it will be considered a crime. A similar position to the Federal law applies. Charges may be laid under the committing an indecent act facet of the law, especially if the persons involved have a disparity in age greater than 2 years. In changes made to child pornography laws in December 2018, there are two new things to consider - The law, which came into effect in New South Wales in December 2018 — provide a legal exception for children under 18 taking, sharing or keeping nude photographs of themselves and others, particularly if the sexting is consensual and parties are within a similar age of each other.
The changes will reduce the risk that children engaging in “normal sexual development and experimentation
among teenagers” becoming criminalised, the Government said. The laws also provide a “similar age” defence for consensual sex between children where both are at least 14 years old, and when the age gap between them is less than two years. The new laws are among a raft of changes introduced across the state in the wake of the Royal Commission into Institutional Responses to Child Sexual Abuse.
Attorney-General Mark Speakman said the reforms were “putting the safety of children front and centre and fixing shortcomings in the law” identified by the royal commission. Mr Speakman said from 1st December 2018, it would be an offence to groom the parent or carer of a child for sexual purposes. “The changes recognise sexual predators sometimes provide adults with gifts, money and other benefits as a way of
cultivating their trust and gaining access to their children,” Mr Speakman said. In many cases the police, who may act without the permission of the Attorney General, can charge younger offenders with less serious offences than child pornography. Warnings, cautions, youth justice conferencing, deferring to a school and parents are often solutions provided. Should the sexting cross the line into harassment, include threats to distribute or have any element of sexploitation, it is deemed image-based abuse. it is highly likely the police will choose to pursue a more serious course of action.
NB - if sexting occurs between a teen in NSW and a teens in QLD ( or any other interstate conversations) –
federal laws will apply and these currently lack the similar age defence.
For further information
• Anti-Discrimination Act 1997 (NSW)
• Child Protection (Offenders Registration) Act 2000 (NSW)
• Crimes Act 1900 (NSW)
• Criminal Code 1995 (Cth)
• Sex Discrimination Act 1984 (Cth)
The Crimes Act 1958 was amended in 2014 to deal with sexting. If a person is under 18 they will not be guilty of
child pornography if the picture:
Shows them by themselves or with an adult (in this instance the adult will attract the penalty)
Is taken with a person who is not more than 2 years younger (unless the image shows a crime – like
underage sex or drug use)
If the image shows a crime being committed against the person
The Summary Offences Act 1966 (Vic), was amended to curtail those who threaten people with sending images to others, and distribute them without consent. It is now illegal to do this and since this laws inception over 50 teens have been charged. The bulk of these children have been provided with police warnings but there have been charges laid in a number of incidents.
The police do not need the Attorney Generals permission under Victorian State law to proceed with child
pornography offences. If you are under 18 when charged with a child pornography offence you will not be placed on the sex offender’s registry in Victoria.
If you are 18 and older, the above protections do not apply.
The penalties in Victoria can extend to up to 15 years in jail, and a listing on NCOS.
For individuals under 16 years, the maximum penalty is 10 years in jail. For those cases involving a 16/17-year-old the penalty is up to 5 years in jail. The sentences were envisaged to prevent adults abusing children – hence the length of time available to sentencing judiciary. There was no consideration given at the formation of these laws that theses would eventually be used against young person’s taking images of themselves of others of a similar age.
Police do have the discretion in sexting case to avoid the child pornography legislation and can;
- Charge with a less serious crime
- Send an individual to youth justice conferencing
- Provide a warning or a caution
- Let the individual’s parents or school determine a punishment.
Any involvement of harassment or a threat in the sexting incident is likely to attract more serious charges.
If an individual under 18 is not on the sex offenders register in another state, they will not be placed on the
register. If an individual is 18 and has committed a sexting offence with another who is under 18, they will be placed on the register.
If you were unaware that you were filmed, and someone has taken an image of you
- On the toilet
- Taking a shower or bath
- Performing a sexual act
These circumstances will see the person who took the image, and then forwarded it on be liable for up to years in jail with a fine.
• Classification (Publications, Films and Computer Games) Enforcement Act 1995 (Vic)
• Crimes Act 1958 (Vic)
• Criminal Code Act 1995 (Cth)
• Equal Opportunity Act 2010 (Vic)
• Sexual Discrimination Act 1984 (Cth)
• Sex Offenders Registration Act 2004 (Vic)
• Summary Offences Act 1966 (Vic)
• Surveillance Devices Act 1999 (Vic)
This state considers that sexting can be a crime for those under the age of 18, but young persons in a consensual relationship are unlikely to be charged with a crime when they sext each other. The police have a general policy against laying charges in these circumstances. Charges are more likely in circumstances that involve harassment, secret recordings or where images are taken without consent from the other party.
Additionally, Tasmania differs from other states by allowing age-based defences where an individual of the age
of 15 may have a consensual relationship with an individual not more than 5 years older, and individual of 12 - 15 years may have a relationship with an individual up to three years older. This state law is a variation to all other states and federal law. Criminal Code Act 1924 (Tas) s 130E(2).
In Tasmania, the reasons individuals may not be charged with sexting are because
- Federal child pornography laws cannot be used against individuals under 18 without the permission of the
- Lawful sexual acts or consensual sexual acts between individuals of a similar age do not attract child
pornography and indecency laws
- The police have a general policy against laying charges in these circumstances
A big age difference between the parties is more likely to attract a charge.
Again, any threats or harassment involved in the sexting incident will attract harsher penalties. Under Tasmanian law penalties for child pornography can exceed the 15 years given under Federal law.
Any individual who will be considered by the court as unlikely to pose a risk of committing a similar crime will not be placed on the sex offenders register. More than one charge, will however result in the guilty party being placed on NCOS.
• Anti-Discrimination Act 1998 (Tas)
• Classification (Publications, Films and Computer Games) Enforcement Act 1995 (Tas)
• Community Protection (Offender Reporting) Act 2005 (Tas)
• Criminal Code Act 1995 (Cth)
• Criminal Code Act 1924 (Tas)
• Police Offences Act 1935 (Tas)
Western Australian law states that an individual may consent to both sex and sexting at the age of 16. This clash with Federal law sees the need for the permission of the Attorney General before proceeding with charges under Federal child pornography laws. This is not necessary under relevant state law.
The police have not yet provided a series of guideline to instruct the public how they will deal with sexting and
child pornography. They may choose to use discretion, mediation and warnings in lieu of actual charges, but
without a statement to that intent care should be used by individuals involved in sexting.
Harassment and threats are again likely to attract more serious charges.
In a rare occurrence a teenager male in WA has been placed on the sex offender’s registry for filming a friend
having sex with a girl, and forwarding it to another individual. Such happenstance is unusual, but teens should be aware this has happened in WA and charges are laid when police view it as necessary.
• Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA)
• Community Protection (Offender Reporting) Act 2004 (WA)
• Criminal Code Act 1995 (Cth)
• Criminal Code Act Compilation Act 1913 (WA)
• Equal Opportunity Act 1984 (WA)
• Surveillance Device Act 1998 (WA)
• Working with Children (Criminal Record Checking) Act 2004 (WA)
Queensland law states that an individual may consent to most forms of sexting at the age of 16. As with all other states the Federal law overrides that of the state, and makes sexting for those under the age of 18 an illegal act. As in Queensland, the police have not released a summary of intent stating how they will proceed with sexting offences for teenagers but their position seems to have a focus on educating individuals rather than penalising them.
However, there have been 1500 individuals under 18 who have been caught with material that can be classified as child exploitation in recent, but only 28 have been sentenced in court. The remainder have been warned,
cautioned or addressed by schools and parents. Queensland is active in pursuing sexting offenses.
When harassment and threats are involved the more serious penalties under the law are incurred.
Penalties in QLD include up to 14 years in jail for an indecent picture of a person under 16, and over 20 years if the person involved is under 12 years old.
Individuals charged with only one child pornography offense will not be placed on the sex offender’s registry.