Child Pornography Laws in NSW: Charges, Penalties and Defences

People searching for information about “child pornography” laws in NSW are often doing so because they or someone they know is under investigation or has been charged with a serious criminal offence. This article explains what the law actually says, what conduct is prohibited, what the penalties are, and what options are available.

This is a legal information article about NSW criminal law. It does not reproduce, describe, or endorse any illegal material, and is written for people seeking to understand their legal position. It is general information only and does not constitute legal advice.

Key Takeaways

  KEY TAKEAWAYS

• In NSW, the term “child abuse material” (CAM) replaced “child pornography” in 2009. This is now the correct legal terminology under both NSW state law and Commonwealth law.
• As of September 2025, NSW law defines a “child” for CAM purposes as a person under the age of 18 — increased from the previous threshold of under 16. This aligns with Commonwealth law.
• The main NSW offence is under section 91H of the Crimes Act 1900 (NSW): producing, disseminating or possessing child abuse material carries a maximum penalty of 10 years imprisonment.
• Using a carriage service (the internet or a phone network) to access or transmit CAM is also a serious Commonwealth offence under the Criminal Code Act 1995 (Cth), with maximum penalties up to 15 years or higher.
• The consequences extend far beyond any prison sentence — mandatory sex offender registration, loss of employment, working with children prohibitions, and lasting reputational damage.
• Do not speak to police without legal advice. These investigations are thorough and forensically complex. What you say at the outset can significantly affect the outcome of your matter.

What Is Child Abuse Material?

The term “child pornography” was widely used until 2009. NSW law has since replaced it with “child abuse material” — a term that more accurately reflects the nature of the conduct and the harm caused. The Crimes Amendment (Sexual Offences) Act 2008 (NSW) introduced this change to the Crimes Act 1900 (NSW), and the Commonwealth followed suit with a similar consolidation in 2019.

The use of the word “pornography” was considered misleading because it implied consent — which children cannot give to sexual exploitation. “Child abuse material” reflects the reality that any such material depicts actual abuse or exploitation.

The legal definition of child abuse material is set out in section 91FB of the Crimes Act 1900 (NSW). Child abuse material means material that depicts or describes, in a way that reasonable persons would regard as being — in all the circumstances — offensive:

• A person who is, appears to be, or is implied to be a child as a victim of torture, cruelty or physical abuse
• A person who is, appears to be, or is implied to be a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons)
• A person who is, appears to be, or is implied to be a child in the presence of another person who is engaged in or apparently engaged in a sexual pose or sexual activity

Critically, the definition extends beyond photographs or video to include drawings, cartoons, computer-generated images, written descriptions, and any other form of media. A fictional or digitally created depiction of a child in a sexual context can constitute child abuse material — no real child needs to have been involved in its creation for the offence to be established.

The 2025 Age Threshold Change

Following the Crimes Amendment (Sexual Offences and Female Genital Mutilation) Act 2025 (NSW), passed on 11 September 2025, the definition of “child” for NSW child abuse material offences was increased from under 16 to under 18 years of age. This brings NSW state law into alignment with Commonwealth law, which has always used the under-18 threshold. Material depicting a person who is 16 or 17 years old is now within the scope of NSW state CAM law.

Child Abuse Material Offences in NSW

NSW child abuse material offences arise under both NSW state law and Commonwealth law. The two frameworks operate concurrently — a person can be charged under both — and investigators will select the most appropriate charge depending on the conduct involved.

NSW State Offences — Crimes Act 1900 (NSW)

The principal NSW state offences are under sections 91G and 91H of the Crimes Act 1900 (NSW).

Commonwealth Offences — Criminal Code Act 1995 (Cth)

Commonwealth offences under Division 474 of the Criminal Code Act 1995 (Cth) apply where a carriage service — meaning any phone or internet service — was used in the offending. Because almost all CAM offences today involve the internet or a phone network, Commonwealth charges are extremely common and frequently charged alongside or instead of state charges.

Possession of Child Abuse Material

NSW — Section 91H(2)

Under section 91H(2) of the Crimes Act 1900 (NSW), it is an offence to possess child abuse material. “Possession” is defined to include being in possession or control of data — meaning that material stored on a device, in cloud storage, or cached on a computer or phone can constitute possession even if the person did not download it intentionally in every instance. Maximum penalty: 10 years imprisonment.

Commonwealth — Section 474.22A

Possessing or controlling child abuse material obtained or accessed using a carriage service is a separate Commonwealth offence under section 474.22A of the Criminal Code Act 1995 (Cth). Maximum penalty: 15 years imprisonment. The prosecution must prove the accused possessed or controlled the material, that the material was child abuse material, and that it was obtained or accessed using a carriage service (which includes the internet).

Child Sex Offences NSW →

Accessing Child Abuse Material

Commonwealth — Section 474.22

Using a carriage service to access, transmit, make available, publish, distribute, advertise, promote or solicit child abuse material is an offence under section 474.22 of the Criminal Code Act 1995 (Cth). “Accessing” includes deliberately viewing material online, even without downloading it. Maximum penalty: 15 years imprisonment.

This provision captures a broad range of conduct — including viewing material on a website, receiving it via messaging applications, or transmitting it by email or file-sharing. The use of virtual private networks (VPNs), encryption, or the dark web does not exempt a person from liability; in fact, these features may be treated as aggravating factors in sentencing.

Producing or Distributing Child Abuse Material

NSW — Section 91G: Using a Child to Produce CAM

Section 91G of the Crimes Act 1900 (NSW) creates a separate and more serious offence of using a child to produce child abuse material, or causing, procuring or allowing a child to be so used.

• Maximum penalty: 14 years (where the child is under 14 years old)
• Maximum penalty: 10 years (where the child is 14 years old or older, but under 18)
• Aggravated circumstances can increase the maximum penalty to 20 years imprisonment

NSW — Section 91H: Producing or Disseminating CAM

Producing or disseminating child abuse material under section 91H(1) carries the same maximum penalty as possession — 10 years imprisonment. “Disseminating” is defined to include sending, supplying, exhibiting, transmitting or communicating material to another person, making it available for access by another person, or entering into any agreement or arrangement to do so.

Commonwealth — Sections 474.22 and 474.23

Using a carriage service to produce, supply, or transmit child abuse material is also captured by Commonwealth provisions with maximum penalties of up to 15 years imprisonment. More serious Commonwealth offences under section 474.24A (aggravated use of carriage service for CAM) can carry penalties of up to 20 years or higher in the most serious cases.

Penalties for Child Abuse Material Offences

Maximum Penalties — Summary

Actual Sentencing Outcomes

Maximum penalties are reserved for the most serious cases and are rarely imposed. Actual sentences vary widely based on the facts of each case. For possession offences under section 91H(2), sentencing data from the NSW Court of Criminal Appeal indicates outcomes ranging from community corrections orders (in less serious first-offence matters) through to substantial terms of imprisonment in cases involving large volumes of material or particularly serious categories of content.

Courts in NSW categorise child abuse material into severity tiers for sentencing purposes. The classification of material — including the age and vulnerability of children depicted, the nature and severity of the abuse shown, and the volume of material held — are all critical sentencing factors.

What Factors Can Affect Sentencing?

Aggravating factors (which increase severity):

• The volume of material possessed or distributed — greater volume is treated more seriously
• The severity category of the material — content depicting more serious abuse or younger children attracts heavier penalties
• Whether the accused produced or distributed material, rather than merely possessed it
• Whether a real child was used in the production of material
• Whether the accused held a position of trust or authority over a child victim
• Whether the offending was persistent and sustained over time
• Use of encryption, VPNs, or other methods to avoid detection

Mitigating factors (which may reduce severity):

• No prior criminal history
• An early guilty plea — which can attract a discount of up to 25% on sentence in NSW
• Genuine remorse and insight into the harm caused
• Cooperation with police at an early stage
• Evidence of rehabilitation, including engagement with psychological treatment
• Substance abuse or mental health conditions that were a contributing factor
• The accused’s personal circumstances, including the impact of imprisonment on family members

Sex Offender Registration

A conviction for any child abuse material offence in NSW results in the person becoming a registrable person under the Child Protection (Offenders Registration) Act 2000 (NSW). Depending on the offence, this can mean registration for 8 years, 15 years, or life. Registration imposes ongoing reporting obligations and restrictions on activities and employment.

Sexual Assault Charges NSW →

Possible Legal Defences and Issues

Lack of Knowledge

A person is not guilty of possessing child abuse material if they did not know the material was on their device, or genuinely did not know the nature of the material. This can arise in cases involving shared devices, workplace computers, or unsolicited file transfers. The question is whether the prosecution can prove knowledge, and what inferences can properly be drawn from the circumstances.

Unsolicited Receipt and Prompt Deletion

The Crimes Act 1900 (NSW) provides that a person is not guilty of possessing child abuse material if they did not ask for the material and, as soon as they became aware of it, took reasonable steps to delete or destroy it. This defence is more limited than many people assume — it requires genuinely prompt action upon becoming aware of the material.

Legitimate Purpose Defences

Section 91HA of the Crimes Act 1900 (NSW) provides specific defences for persons who possess or produce child abuse material for a genuine and legitimate purpose — such as law enforcement officers and child protection workers. These defences are narrowly defined and require specific circumstances.

Technical and Forensic Challenges

Child abuse material prosecutions are typically evidence-heavy and technically complex. A skilled criminal lawyer can scrutinise whether the forensic examination of devices was conducted properly, whether attribution of the material to the accused can be established beyond reasonable doubt, whether shared access to devices or accounts creates reasonable doubt, whether metadata and timestamps are consistent with the prosecution’s case, and whether any admissions were obtained in circumstances that may make them inadmissible.

Bail Applications →

Criminal Defences NSW →

What Happens If Police Are Investigating You?

Child abuse material investigations in NSW are typically conducted by NSW Police or the Australian Federal Police (AFP). The AFP’s Australian Centre to Counter Child Exploitation (ACCCE) coordinates the most serious cases. Investigations often begin with referrals from overseas law enforcement agencies, internet service providers, or online platforms that detect suspicious activity.

By the time police contact you, they may already have significant evidence. Police are required to disclose what they are investigating to some extent, but are not required to tell you the full extent of what they know.

If police contact you: do not answer questions about any alleged offence — you have a right to silence. You should contact a criminal lawyer immediately, before answering any questions. A police interview in a child abuse material investigation can be one of the most significant events in the entire matter.

Criminal Lawyers NSW →

What to Do If You Have Been Charged

Obtain legal advice immediately — this is the single most important step.

• Comply with all bail conditions. Any breach of bail conditions is a separate criminal offence and will seriously damage your prospects.
• Do not discuss the matter with anyone other than your lawyer. Conversations with friends or family are not protected by privilege.
• Do not attempt to access or delete any material from your devices. Doing so can result in additional charges, and is unlikely to be effective.
• Engage with any psychological support your lawyer recommends. Demonstrating genuine engagement with treatment is a significant sentencing consideration.

Criminal Offences NSW →

How a Criminal Lawyer Can Help

Child abuse material charges are among the most serious and professionally demanding matters in NSW criminal law. They are technically complex, emotionally fraught, and carry consequences that extend far beyond any criminal penalty. The stakes are extremely high.

An experienced criminal defence lawyer can:

• Advise you whether to participate in a police interview, and how to approach it if you do
• Identify weaknesses in the prosecution’s forensic and digital evidence
• Assess whether any statutory defences apply to your specific circumstances
• Advise on the appropriate plea and the timing of any guilty plea to maximise any discount
• Prepare detailed sentencing submissions addressing remorse, rehabilitation, personal circumstances, and all mitigating factors
• Represent you in the Local Court, District Court, or Court of Criminal Appeal as required
• Advise on the consequences of any conviction, including sex offender registration requirements

At LY Lawyers, our criminal defence team has extensive experience in serious sexual offence matters, including child abuse material charges across both NSW state and Commonwealth jurisdictions. We treat these matters with the highest level of professional care — understanding that our clients are often people who made serious mistakes and are now facing life-altering consequences.

Call LY Lawyers on 1300 595 299 — free, confidential consultation, available 24/7.

Or Contact us online. 

Child Sex Offences  |  Sexual Assault NSW  |  Bail Applications  |  Criminal Defence

Frequently Asked Questions

What is the difference between child pornography and child abuse material in NSW?

Child pornography was the term previously used in NSW legislation. In NSW, this was replaced by child abuse material in 2009. The Commonwealth made a similar change in 2019. Child abuse material is the current and correct legal terminology in both NSW state and Commonwealth law.

What is the penalty for possessing child abuse material in NSW?

The maximum penalty under NSW state law (s 91H Crimes Act 1900) is 10 years imprisonment. Under Commonwealth law (s 474.22A Criminal Code Act 1995), where the material was accessed or obtained using a carriage service such as the internet, the maximum is 15 years imprisonment. Actual sentences vary significantly depending on the volume of material, its classification, the accused’s history, and other factors.

Can I be charged if I did not know the material was on my device?

Lack of knowledge is a defence to possession. If you genuinely did not know the material was on your device, the prosecution must still prove knowledge beyond reasonable doubt. However, the presence of large quantities of material, deleted files, or evidence of deliberate searching will make a knowledge defence very difficult to sustain. You should seek legal advice immediately.

Does the law apply to drawings and computer-generated images?

Yes. The definition of child abuse material in NSW is not limited to photographs or videos of real children. It extends to drawings, cartoons, computer-generated images, written descriptions, and other media. A fictional or digitally created depiction of a child in a sexual context can constitute child abuse material even if no real child was involved.

What happens to my employment and working with children clearance if I am convicted?

A conviction for a child abuse material offence is likely to result in the cancellation of any Working With Children clearance and will result in mandatory sex offender registration. Many regulated industries — including healthcare, education, childcare, legal practice, and security — conduct criminal history checks, and a conviction of this kind will typically disqualify a person from those roles.

Do I have to speak to police if they contact me about a child abuse material investigation?

No. You have a right to silence and are not obliged to answer questions about any alleged offence beyond providing your name and address when lawfully required. In a child abuse material investigation, what you say in a police interview can be critical. You should not speak to police about the substance of any investigation without first obtaining legal advice from an experienced criminal lawyer.

Can charges be dropped or reduced?

It depends entirely on the evidence. Where there are genuine evidentiary weaknesses — for example, where attribution of material to a specific person cannot be established beyond reasonable doubt, or where a statutory defence applies — charges may be dropped or reduced. Negotiation with the prosecution about the scope of the charges or the agreed facts may also result in a more favourable outcome. An experienced criminal lawyer will assess the evidence and advise you on what is realistic in your specific circumstances.

What is sex offender registration and how long does it last?

Under the Child Protection (Offenders Registration) Act 2000 (NSW), a person convicted of a child abuse material offence becomes a registrable person. The registration period depends on the seriousness of the offence and the person’s history. For the most serious offences or for repeat offenders, registration may be for life. Registration imposes ongoing obligations to report personal information to police and imposes restrictions on certain activities and employment.

Conclusion

Child abuse material offences are among the most serious in NSW criminal law, with consequences that can affect every aspect of a person’s life permanently. The law changed significantly in 2025 — the age threshold for CAM offences under NSW state law was increased to under 18, and the legislative framework now captures an extremely broad range of conduct including digital and AI-generated imagery.

If you are under investigation, have been charged, or are simply trying to understand your legal position, getting experienced criminal defence advice as early as possible is the most important step you can take.

Call LY Lawyers on 1300 595 299 — free, confidential consultation, available 24/7.

Or Contact us online. 

Child Sex Offences  |  Sexual Assault  |  Bail Applications  |  Criminal Defence  |  Contact LY Lawyers

This article is general information only and does not constitute legal advice. The law changes regularly and individual circumstances vary significantly. You should obtain advice specific to your situation from a qualified NSW criminal lawyer.