Last updated 29 August 2016

Child pornography offences

Sections 228A to 228D of the Criminal Code Act 1899 (Qld) (Criminal Code) set out child pornography offences including the making of child exploitation material, and distributing and possessing such material.

‘Child exploitation material’ is defined in s 207A (Criminal Code) to mean material that, in a way likely to cause offence to a reasonable adult, describes or depicts a person, or a representation of a person, who is (or apparently is) a child under 16 years:

  • in a sexual context (e.g. engaging in a sexual activity)
  • in an offensive or demeaning context
  • being subjected to abuse, cruelty or torture.

For the purposes of sentencing, s 9 of the Penalties and Sentencing Act 1992 (Qld) states that an offender convicted of a ‘child images offence’ must serve a sentence of actual custody unless exceptional circumstances exist.

Observations and recordings in breach of privacy

Section 227A of the Criminal Code makes it an offence to observe or make a visual recording (moving or still image) of another person without their consent when they are:

  • in a private place (e.g. a toilet, bathroom, communal change room or bedroom)
  • engaging in a private act (e.g. using a toilet, showering, undressing or engaging in an intimate sexual activity not usually done in public).

It is also an offence under this provision to engage in covert up-skirt filming. This has been introduced in response to the widespread availability of mobile phone cameras, video cameras, digital cameras and the internet, and due to heightened privacy concerns. The maximum penalty for these offences is two years imprisonment.

Distributing prohibited visual recordings

It is an offence under s 227B of the Criminal Code to distribute a visual recording without the consent of the person visually recorded that was made in circumstances described above. ‘Distribute’ includes communicate, send, supply, transmit, make available and attempt to distribute. It is punishable by a maximum penalty of two years imprisonment.