Child pornography laws in Australia

The Australian law prohibits all sexual depictions of children under an age set by state and territory legislation. The relevant ages are under 16 in the Australian Capital Territory, New South Wales, Queensland and Western Australia, under 17 in South Australia, and under 18 in the other jurisdictions and under federal law.[1] The laws covering child pornography are differently defined in the various Australian jurisdictions, as are the penalties. The laws also cover depictions of sexual acts involving people over the threshold age who are simulating or otherwise alluding to being underage, even if all those involved are of a legal age.[2] People have been successfully prosecuted after describing acts of abuse via MMS.[3]

The maximum penalty for the possession, production, distribution, import, export, sale, or access over the internet of child pornography is 15 years imprisonment. This was increased from 10 years in March 2010.[4] A fine of up to A$275,000 may also come in place of, or in addition to, the prison sentence as well as sex offender register requirements. Furthermore, most convictions in this respect are for possession of child pornography, which is typically dealt with under state legislation, and there have been only a few convictions for production and/or distribution of such material (under commonwealth legislation).[5] Furthermore, there is a zero-tolerance policy in place, which covers real children as well as purely fictional children.[6] Operation Auxin in September 2004 led to the arrest of almost 200 people on charges of child pornography, and "sting" operations are common.

Anime and hentai

In August 2007, an Australian was sentenced to pay an A$9,000 fine for attempting to import eight DVDs of Japanese anime and hentai found to contain pornographic depictions of children and 14 found to contain depictions of sexual violence. No images of real children were involved. "Customs National Manager Investigations, Richard Janeczko, said that it was important to understand that even cartoons or drawings such as those depicted in anime were prohibited if they contained offensive sexual content."[7]

In October 2020, Japanese goods importer J-List reported that it had cancelled all sales of adult goods to Australia following the rejection of packages by the Australian Border Force, and a recommendation from DHL.[8] While J-List refer to this as the content being banned, another adult goods supplier, otonaJP, confirmed that they will continue shipping to Australia, including with DHL, and their situation has not changed.[9]

Other cartoon depictions

Also, in December 2008, a New South Wales Supreme Court judge, Justice Michael Adams, ruled to uphold a magistrate's decision that a pornographic cartoon parodying characters on The Simpsons (Bart and Lisa) was child pornography, because "[i]t follows that a fictional cartoon character, even one which departs from recognisable human forms in some significant respects, may nevertheless be the depiction of a person within the meaning of the Act."[10][11]

The appellant, Alan John McEwan, was fined $3000 Aus ($3,170 US). Judge Adams explained the law was appropriate because cartoons could "fuel demand for material that does involve the abuse of children", also adding "A cartoon character might well constitute the depiction of such a person".[12] A BBC reporter summarized the judge's decision: "he decided that the mere fact that they were not realistic representations of human beings did not mean that they could not be considered people".[13]

This case has attracted international attention, alongside attention to more local cases, with author Neil Gaiman commenting on it: "I suspect the Judge might have just inadvertently granted human rights to cartoon characters. I think it's nonsensical in every way that it could possibly be nonsensical."[14]

Case concerning a written work

In March 2011, a Tasmanian man was convicted of possessing child pornography after police investigators discovered an electronic copy of a nineteenth-century written work, The Pearl by Anonymous on his computer. HarperCollins is the most recent publisher of The Pearl, which is available for purchase within Australia.[15] However the conviction was overturned on appeal.[16]

See also

References
  1. Australian Institute of Criminology, Child pornography offences: Production
  2. "Ln: Child Exploitation Material Laws (Australia)". Archived from the original on 8 November 2015. Retrieved 20 February 2015.
  3. "Queensland man charged over SMS child pornography". Agence France-Presse. 17 July 2007. Archived from the original on 29 July 2008. Retrieved 22 November 2009.
  4. corporateName=Commonwealth Parliament; address=Parliament House, Canberra. "CHAPTER 2". www.aph.gov.au. Retrieved 12 September 2022.{{cite web}}: CS1 maint: multiple names: authors list (link)
  5. "Access or Possess Child Abuse Material". Armstrong Legal. Retrieved 12 September 2022.
  6. McLelland, Mark. The World of Yaoi: The Internet, Censorship and the Global "Boys’ Love" Fandom Australian Feminist Law Journal, 2005.
  7. Australian Customs Service: Man fined $9,000 for smuggling child pornography. Retrieved 17 August 2007. Archived 31 August 2007 at the Wayback Machine
  8. Australia Bans Waifus, Onaholes, and Fun!. Retrieved 5 November 2020. Archived 15 October 2020 at the Wayback Machine
  9. "Adult Toys and Hentai Shipping to Australia - our Statement". otonaJP. 3 November 2020. Retrieved 5 November 2020. otonaJP still ships to Australia, with Japan Post as well as DHL. Australia has already been one of the countries that has more strict rules in place than others when it comes to Hentai content for quite some time. The truth however also is that many countries in the world have similar laws and if worst comes to worst, customs officers in pretty much any country in the world can stop your package, based on their laws if they consider the shown characters too young. So beside being stricter than others, the situation in Australia is not much different from the US or even Europe.
  10. McEwen v. Simmons & Anor [2008] NSWSC 1292 Archived 19 October 2011 at the Wayback Machine
  11. "Simpsons cartoon rip-off is child porn: judge". The Age. 8 December 2008. Retrieved 18 November 2009. A NSW Supreme Court judge has ruled an internet cartoon in which lookalike child characters from The Simpsons engage in sexual acts is child pornography.
  12. Aussie convicted over Simpsons sex pics 8 December 2008
  13. BBC Asia-Pacific. Retrieved 9 December 2008.
  14. the word 'person' included fictional or imaginary characters... 8 December 2008
  15. "Tasmanian alderman David Traynor gets child porn conviction for book still sold in Australia". The Australian. 3 March 2011. Retrieved 7 April 2011
  16. Child porn finding revoked 11 August 2011
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