The Law Handbook 2024

162 SECTION 3: Fines, infringements and criminal law Crimes Act. Under section 51L of the Crimes Act, these exceptions only apply if: • the material was not produced with the involvement of a person who was, at the time of production, under the age of 18 years; and • the material possesses artistic merit; or • the material is of public benefit (i.e. the material is for a genuine medical, legal, scientific or educational purpose). Under section 51M of the Crimes Act, no offence is committed if the person in the image is a child and the image depicts them alone (e.g. if a 15-year-old girl takes a photo of herself on her phone). Under section 51N of the Crimes Act, it is not an offence if one person in an image is a child and the act depicted in that image is not punishable by imprisonment. And, the eldest person depicted in the image was no more than (or reasonably believed they were no more than) two years older than the youngest person depicted in the image. Under section 51P of the Crimes Act, material depicting a child is not an offence if: • the child depicted in the material was aged 16 or 17 years at the time; and • the child was not under the care or supervision or authority of the person who made the material; and • the person who made the material was no more than two years older than the child; and • the person who made the material believed the child consented; and • the material does not depict an offence punishable by imprisonment; and • the person who made the material did not distribute the material to anyone other than to the child depicted. Under section 51Q and 51R of the Crimes Act, material depicting a child is not an offence if, at the time an image was first made: • the child depicted in the image was 16 or 17 years; • the child depicted in the image and the person who made the image were, or reasonably believed they were, legally married to one another under the Marriage Act; and • the child depicted in the image and the person who made the image were no more than two years apart in age. Under section 51U of the Crimes Act, it is not a defence to a charge relating to child abuse material if a person was under a mistaken but honest and reasonable belief that reasonable people would not regard the child abuse material as being offensive in the circumstances. Sexual offences against people with a cognitive impairment or mental illness Offences Under section 52B of the Crimes Act, it is an offence for a person who provides therapeutic or support services to a person with a cognitive impairment or mental illness to intentionally engage in sexual penetration with them. This crime is punishable by up to 10 years’ imprisonment. Under section 52C of the Crimes Act, it is an offence for a person who provides therapeutic or support services to a person with a cognitive impairment or mental illness to intentionally engage in sexual touching with them that is contrary to community standards of acceptable conduct. Under section 52D of the Crimes Act, it is an offence for a person who provides therapeutic or support services to a person with a cognitive impairment or mental illness to intentionally engage in sexual activity in front of the person with the impairment or illness. Under section 52E of the Crimes Act, it is an offence for a worker to cause a person with a cognitive impairment or mental illness to be present while they engage in sexual activity with another person. The above-mentioned behaviour must be contrary to community standards of acceptable conduct. Whether the behaviour is contrary to these standards depends on a range of circumstances (e.g. the purpose of the sexual activity, or whether the worker gets sexual gratification from engaging in the activity in the presence of the person with the impairment or illness). It does not matter if the person with the cognitive impairment or mental illness consents. Each of these crimes is punishable by up to five years’ imprisonment.