Victorian Numbered Acts Victorian Numbered ActsSee:
Act No. 90/1995. Reprint No. 3
as at 17 January 2013 and amending
Act No. 37/2014.
LawToday:
www.
legislation.
vic.gov.au
After section 57A(2) of the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 insert —
"(3) Subsection (1) does not apply to a minor (A) if—
(a) the objectionable material is an image; and
(b) the image depicts A alone or with an adult; and
(c) the image is child pornography because of its depiction of A.
(4) Subsection (1) does not apply to a minor (A) if—
(a) the objectionable material is an image; and
(b) the image depicts A with another minor; and
(c) the image is child pornography because of its depiction of A or another minor; and
(d) where the image is child pornography because of its depiction of a minor other than A, at the time at which the image is published or transmitted, or made available for transmission—
(i) A is not more than 2 years older than the youngest minor whose depiction in the image makes it child pornography; or
(ii) A believes on reasonable grounds that they are not more than 2 years older than the youngest minor whose depiction in the image makes it child pornography; and
(e) the image does not depict an act that is a criminal offence punishable by imprisonment.
Example
The image depicts the minor (A) taking part in an act of sexual penetration with another minor who is not more than 2 years younger. Both are consenting to the act. The offence in subsection (1) does not apply to A in respect of the image.
(5) Subsection (1) does not apply to a minor (A) if—
(a) the objectionable material is an image; and
(b) the image depicts A alone or with another person; and
(c) the image depicts an act that is a criminal offence; and
(d) A is a victim of that offence.
Example
The image depicts the minor (A) being raped by another person. The offence in subsection (1) does not apply to A in respect of the image.
(6) Subsection (1) does not apply to a minor (A) if—
(a) the objectionable material is an image; and
(b) the image does not depict A; and
(c) the image—
(i) does not depict an act that is a criminal offence punishable by imprisonment; or
(ii) depicts an
act that is a criminal offence punishable by imprisonment but A believes on
reasonable grounds that it does not; and
s. 28
(d) at the time at which the image is published or transmitted, or made available for transmission—
(i) A is not more than 2 years older than the youngest minor whose depiction in the image makes it child pornography; or
(ii) A believes on reasonable grounds that they are not more than 2 years older than the youngest minor whose depiction in the image makes it child pornography.
Example
The image depicts a minor being sexually penetrated. A believes on reasonable grounds that they are not more than 2 years older than the minor is at the time at which the image is transmitted. The offence in subsection (1) does not apply to A in respect of the image.
(7) In subsections (4) and (6), a reference to the age of the youngest minor whose depiction in the image makes it child pornography is a reference to the age of that minor at the time at which the image was made or produced.
(8) The accused bears the burden of proving (on the balance of probabilities) the matter referred to in subsection (4)(d)(ii) or (6)(c)(ii) or (d)(ii).
(9) In this section—
child pornography has the meaning given by section 67A of the Crimes Act 1958 .
Note
Section 72 of the Criminal Procedure Act 2009 applies to subsections (3), (4) (other than paragraph (d)(ii)), (5) and (6) (other than paragraphs (c)(ii) and (d)(ii)).".