Sexting Laws in New South Wales: The Section 91HA and 91HB Defences

In New South Wales, a sexting image of anyone under 18 can be child abuse material under the Crimes Act 1900, but sections 91HA and 91HB give a young person genuine legal protection for their own selfie and for holding onto a partner's image, protection that runs out the moment that image is forwarded to someone else.

The age threshold in New South Wales

Under section 91FA of the Crimes Act 1900 (NSW), a child is a person under the age of 18 years for the purposes of the child abuse material provisions in Part 3, Division 15A. That is the same figure that applies at the Commonwealth level and it is worth stating plainly, because it is easy to assume the relevant age is 16, matching the state's age of consent. It is not. The two figures serve different laws and are not interchangeable: a sexual image of a 16 or 17 year old can still be child abuse material in New South Wales even though sexual activity itself is lawful for that age group.

Section 91FB then defines child abuse material as material that a reasonable person would regard as offensive in the circumstances, depicting a person who is, appears to be, or is implied to be a child, in a sexual pose or activity, alongside someone else engaged in that way, as a victim of abuse, or with their private parts shown. This reach extends to altered, manipulated or AI-generated images made to appear as a child, not only genuine photographs.

The offences and their maximum penalties

Section 91G targets using, causing or procuring a child to be used in producing child abuse material. Where the child is under 14, the maximum is 14 years' imprisonment; where the child is 14 or older but still under 18, the maximum drops to 10 years. Circumstances of aggravation, such as the victim being under 10, actual or threatened harm, or the offender holding a position of authority over the victim, raise the maximum to 20 years. The prosecution does not need to prove the accused knew the child's age.

Section 91H is the broader, consolidated offence that most peer-sexting scenarios fall under: producing, disseminating or possessing child abuse material, with a maximum of 10 years' imprisonment covering all three limbs. Producing includes photographing, filming or altering an image to create the material; disseminating includes sending, sharing or making it available; possessing extends to material held as data, not only a physical file.

Sending your own image as a teenager

This is where New South Wales departs from a state with no defence at all. Section 91HA(9) provides that it is a defence to a possession charge under section 91H if the only person depicted in the material is the accused. Section 91HA(10) goes further, extending a defence to producing or disseminating that same self-image, provided the accused was a child when they made or sent it. In practical terms, a teenager who takes a photo of themselves and sends it to someone else has a statutory defence to both the taking and the sending, as long as the image shows nobody but themselves.

The defence carries a practical limit: if removing the accused's own image would leave no child abuse material at all, the material is treated as depicting only the accused, which helps in a cropped or ambiguous image. The accused bears the burden of proving, on the balance of probabilities, that the material depicts only themselves.

Receiving or keeping a peer's image

Section 91HB provides a separate, narrower exception for possessing (not producing or sending) another child's own image. It applies where the accused was a child at the time and a reasonable person would consider the possession acceptable, weighing the nature of the material, how it was produced and how it came into the accused's possession, the age and circumstances of the child depicted, the same circumstances for the accused, and the relationship between the two of them. This is a fact-specific test rather than a bright-line rule. It is the provision most likely to protect a teenager who received and kept a same-age partner's image, but it turns on the individual facts, not an automatic entitlement.

The gap: forwarding to someone else

Neither defence reaches a minor who forwards or redistributes someone else's self-image to a third person. Section 91HA's self-image defences require the accused to be the person shown in the material. Section 91HB's exception is limited to possession, not dissemination. Sending a peer's image on to a friend, a group chat or anyone else therefore remains a straightforward section 91H dissemination offence, entirely separate from New South Wales' non-consensual intimate-image offences described below.

Before any charge: the DPP approval gate

Sections 91G(6) and 91H(3) both provide that proceedings against a child under those sections may only be instituted with the approval of the Director of Public Prosecutions. Ordinary police charging discretion is not the last word here; a formal DPP approval step sits above it before a minor can be prosecuted over their own sexting.

Registration on the Child Protection Register

Whether a New South Wales conviction under these sections leads to inclusion on the Child Protection Register could not be confirmed from a primary source for this page. Readers should not assume either a yes or a no answer here; it is left as an open question rather than guessed at.

Adult sharing: lawful with consent

Sexting between consenting adults is lawful in New South Wales. Sharing an adult's intimate image without consent is a different, separate offence, covered under sections 91O to 91R of the Crimes Act 1900, most directly section 91Q, distributing an intimate image without consent. For the fuller picture across every state, including penalties and the deepfake-specific provisions, see the deepfake and intimate image laws in Australia.

If police contact your teenager

If police want to speak with a young person about a sexting matter, the same general rules around questioning and the right to have a support person present apply as in any other criminal matter. See Miranda rights in Australia for how those rules work in New South Wales.

Related reading

For the age thresholds, offences and defences across every state and territory, see the sexting laws in Australia. For more everyday law topics, see the Australia everyday law section.