Sections 18(3) and (4) of the Cybercrime Code Act 2016 provide the only defences to the child pornography offences.
Sections 18(3) and (4)
It is a defence to a charge for an offence under this section if the child pornography was for a bona fide law enforcement purpose or for the benefit of the public.
Section 18(4): Whether the doing of an act referred to in this section is for the benefit of the public, is a question of fact.
Section 17(2) applies only to paragraphs (b), (c) and (d) of section 17(1), excluding the production limb.
Section 18(3) applies to an offence under this section — so it covers both subsection (1), committing the underlying Criminal Code offences using a device, and subsection (2), accessing child pornography.
That breadth is necessary. Investigators and prosecutors must be able to obtain, hold, examine, copy and produce such material, and every one of those acts would otherwise be within section 18.
The law enforcement limb
Police executing a warrant under section 32, using the section 33 powers to operate devices and copy data, obtaining a production order under section 35, or examining material under a section 41 forensic tool order, will all handle the material.
So will prosecutors preparing a case, expert witnesses examining devices, and the court receiving the material in evidence — noting that section 43 confirms that evidence is not inadmissible merely because it was generated or stored electronically.
Bona fide is the control. The purpose must be genuine. A person who claims an investigative purpose but in truth has another is outside the defence — and the offence itself catches conduct in excess of a lawful excuse or justification, so an officer who goes beyond what the investigation requires cannot rely on the role.
The duty that comes with the defence
For the purposes of this section, if child pornography is stored for a bona fide law enforcement purpose, all traces, copies, or storage of such pornographic material shall be removed, deleted or otherwise destroyed once it is no longer lawfully required.
This is a mandatory obligation attached to the law enforcement defence, and it has no equivalent in section 17. See the article on the destruction duty.
The public benefit limb
Section 18(4) leaves the question entirely to the court on the evidence. The same formulation appears in section 17(3), section 21(6) and section 25(4).
Where might it apply? Realistically, in a narrow band of cases:
- Investigative journalism exposing abuse or trafficking, where handling material is unavoidable in verifying and reporting.
- Child protection organisations operating reporting and takedown services, which necessarily receive and assess material.
- Technical work on detection — developing and testing systems that identify such material.
- Judicial and legal proceedings — though these will usually fall within the law enforcement limb.
Given the seriousness of the offence, anyone whose work may bring them into contact with such material should establish a formal relationship with police or the relevant authority rather than rely on the public benefit limb alone. That converts a contestable question of fact into a documented law enforcement purpose — and brings with it the section 18(5) destruction duty, which is itself evidence of proper handling.
What is not a defence
| Argument | Why it fails |
|---|---|
| “I did not download or save it” | Section 18(2) applies whether or not for the purpose of downloading |
| “I did not share it with anyone” | Section 18(2) requires no distributive purpose |
| “I only forwarded it to report it” | Transmitting is within subsection (1). Report the location, do not send the material |
| “It was on a server overseas” | Section 3(1)(b) applies the Criminal Code jurisdiction provisions, including ss 12–14; and see mutual assistance and extradition |
| “The images were computer-generated” | The section 2 definition of pornography expressly includes representations produced by or from computer graphics, and covers a person depicted as engaged in sexual activity |
| “I was curious” or “I was researching” | Neither is a bona fide law enforcement purpose; and public benefit is a question of fact requiring evidence, not assertion |
Not in section 18(3) at all, but in the elements of the offence:
Intention. Both subsections require the act to be done intentionally. There is no recklessness limb. Material encountered accidentally is not accessed intentionally.
Whether the material is within the definition. That is a question of evidence about the material itself and the age of any person depicted.
Whether the accused did the act. Attribution of activity on a shared or compromised device is frequently the real issue, and is where the Part IV evidence-gathering powers and the Evidence Act do their work.
Sources
- Cybercrime Code Act 2016 — ss 2, 3, 17, 18, 21, 25, 32–36, 41, 43, 46, 47
- Criminal Code Act (Chapter 262) — ss 12–14, 229R–229T
The Evidence Act (Chapter 48), applied by section 43(2), is cited without a link as it is not currently available on PacLII.
Before relying on anything here, read the current text of the Cybercrime Code Act 2016 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.