Sexting Laws in Tasmania: The Narrow Section 130E(2) Peer Defence Explained

In Tasmania, child exploitation material offences under the Criminal Code Act 1924 apply to anyone under 18, and Tasmania is one of only three Australian jurisdictions with a statutory peer defence, but that defence, section 130E(2), covers only production, possession and access, never distribution, and only applies where the underlying activity independently qualifies for Tasmania's own close-in-age defence.

The Age Threshold and the Offences in Tasmania

Tasmania's Criminal Code Act 1924 defines child exploitation material in Schedule 1, clause 1A, as material that a reasonable person would regard as offensive, depicting a person who is or appears to be under 18 years of age, engaged in sexual activity, in a sexual context, or as the subject of torture, cruelty or abuse. Under 18 is Tasmania's confirmed threshold, read directly from the operative definition. It is worth being precise about a second number in the same Code that gets confused with it: Tasmania's age of consent for sexual intercourse, set in section 124, is 17, not 18. The child exploitation material threshold and the age of consent are two different figures serving two different purposes, and this page keeps them separate throughout.

Five offences sit in Part IV of the Code and share that Schedule 1 definition. Section 130 covers involving a person under 18 in producing the material. Section 130A covers producing it. Section 130B covers distributing it, defined broadly to include sending, selling, supplying, exhibiting, transmitting, communicating or making it available to another person. Section 130C covers possessing it. Section 130D covers accessing it with intent. None of these five sections writes its own penalty into the text. Tasmania's Code sets penalties this way deliberately: section 389(3), in Chapter XLIII, provides that where a crime does not otherwise expressly state its punishment, the maximum is imprisonment for 21 years. Since none of sections 130 to 130D otherwise provides, that 21-year ceiling is the maximum that applies to each of them. That is the statutory ceiling a sentencing court could reach, not a typical sentence, and a person under 18 at the time of the offence would ordinarily also be dealt with through Tasmania's youth justice framework rather than facing the adult Code's maximum directly, a point this page has not independently verified against that framework's own text.

The Narrow Peer Defence: Section 130E(2)

Section 130E sets out several defences to a charge under sections 130 to 130D. The first group, in section 130E(1), covers classified material, a genuine child protection, scientific, medical, legal, artistic or public-benefit purpose reasonably pursued, and police or classification officers acting in their official duties. None of those four is a youth or peer sexting defence; the "reasonable person" language that appears in this part of the Code governs whether conduct pursued for one of those stated purposes was reasonable, not whether two people sexting each other were a similar age.

The provision that actually matters for peer sexting is section 130E(2), and it does exist. It provides a defence to a charge under section 130, 130A, 130C or 130D where the accused proves the material depicts sexual activity between the accused and a person under 18 that is not an unlawful sexual act. Two limits on this defence matter more than anything else on this page. First, it lists only sections 130, 130A, 130C and 130D. Section 130B, distribution, is not on that list, and there is no other defence anywhere in section 130E that reaches distribution. Second, the defence requires the material to depict activity "between the accused person and" the other person, which on the plain wording of the section calls for a two-person depiction. Whether a solo self-portrait, an image most real-world teen sexting actually involves, falls inside that wording has not been confirmed by a court decision or official guidance; it is a real open question this page flags rather than resolves.

The defence carries a second condition beyond the two-person point: the underlying "sexual activity" depicted has to independently qualify as lawful. Section 130E(4) defines "unlawful sexual act" by cross-reference to several other sections, including section 124 (unlawful sexual intercourse) and section 125B (indecent act). Both of those sections set Tasmania's age of consent at 17, and both carry an identical close-in-age defence, at sections 124(3) and 125B(3): consent is a defence where the other person was 15 or older and the accused was no more than 5 years older, or where the other person was 12 or older and the accused was no more than 3 years older. Put together, section 130E(2) can shield production, possession or access of a two-person image, but only where the pair's underlying activity would itself already be lawful because their ages fall within one of those close-in-age bands.

Section 130E also contains a third, separate defence at section 130E(3), narrower still: material that came to the accused unsolicited, where the accused took reasonable steps to dispose of it once aware it was child exploitation material. That defence applies to possession and is not specific to youth or peer scenarios.

What the Defence Does Not Cover

Two gaps are worth stating plainly rather than assuming away. Distribution is the first and larger one: section 130B has no equivalent defence anywhere in section 130E, so forwarding, sending or otherwise passing on an image is exposed to the full offence regardless of the ages involved or how narrowly section 130E(2) might otherwise apply to a production or possession charge over the same image. Two teenagers who lawfully photographed themselves together, squarely within section 130E(2), could each still be committing an undefended section 130B offence the moment either one sends that same image to the other or to a third person.

The second gap is the two-person wording itself. Most reported teen sexting involves a person photographing themselves alone, not a photograph of two people together, and section 130E(2)'s "between the accused person and" phrasing has not been confirmed to extend to that more common, solo scenario. A young person, parent or school should not assume a solo self-generated image is automatically covered by this defence.

Forwarding an Image to Others

As set out above, section 130B, distribution, sits entirely outside section 130E(2)'s reach. There is no peer or close-in-age defence to forwarding a peer's image on Tasmania's current Code, whether the image was originally covered by section 130E(2) or not.

Registration If Convicted

This point could not be verified from a primary Tasmanian source in researching this page. Tasmania has a sex offender reporting scheme under the Community Protection (Offender Reporting) Act 2005, and its current regulations were confirmed to be in force, but the Act's own text, including whether sections 130 to 130D trigger reportable-offender status and whether any young-person exemption or court-discretion model like South Australia's applies, was not reached. This page does not state a position on Tasmanian registration for a young person either way; anyone facing that question in practice needs to check with Legal Aid Tasmania or a lawyer rather than relying on an assumption drawn from another state's rules.

Adult Sharing and the Separate Non-Consensual Image Regime

Sexting between consenting adults is lawful in Tasmania. A separate law covers non-consensual sharing of an adult's image: the Police Offences Act 1935 (Tas), section 13B, which covers an actual, unaltered recording shared without consent, but does not extend to an altered or wholly AI-generated image. That regime is covered in full on deepfake and intimate image laws in Australia, which this page defers to rather than repeating.

If Police Want to Talk to Your Teenager

What happens if police want to question a young person, including whether they have to answer, whether a parent or support person should be present, and the right to a lawyer, is covered on Miranda rights in Australia, since those processes are not specific to this topic. For the national picture across all eight Australian states and territories, including the full age-threshold comparison table and how Tasmania's defence compares with New South Wales and Victoria, see sexting laws in Australia. A young person or family facing an actual charge can get free advice from Legal Aid Tasmania. See also the everyday law hub for related topics.