Crimes Act 1958

It is a defence to a charge for an offence against section 51B(1), 51C(1), 51D(1), 51G(1) or 51H(1) if—

the child abuse material is an image; and

the image is child abuse material because of its depiction of another person (B); and

the image does not depict a criminal offence punishable by imprisonment; and

A does not distribute the image to any person other than B; and

at the time at which the image was first made, A reasonably believed that—

B was 16 or 17 years of age; and

either A and B were married to each other and that the marriage was recognised as valid under the Marriage Act 1961 of the Commonwealth or A was B's domestic partner and was no more than 2 years older than B; and

where A was B's domestic partner, if B was under A's care, supervision or authority, the domestic partnership commenced before B came under A's care, supervision or authority; and

at the time of the conduct constituting the offence, A reasonably believed that—

either A and B were married to each other and that the marriage was recognised as valid under the Marriage Act 1961 of the Commonwealth or A was B's domestic partner and was no more than 2 years older than B; and

B consented to that conduct.

In subsection (1) a reference to an image, in relation to an offence against section 51B(1), is a reference to the image that A involves the child in producing.

For the purposes of subsection (1)(e), the reference to the time at which the image was first made does not include a reference to any later time at which a copy, reproduction or alteration of the image is made.

A bears the burden of proving (on the balance of probabilities) the matter referred to in subsection (1)(e) and (f).