“It isn’t a real child”: why AI-generated child abuse material is prosecuted exactly like the real thing in NSW and under Commonwealth law 

It is the defence people reach for immediately, and it is the one that fails fastest. The material was generated by a model. No child was photographed. No child was present. Nothing actually happened to anyone. Therefore, the reasoning goes, there is no victim and no offence. 

Australian law does not work that way, and it never has. The offence provisions in both NSW and Commonwealth legislation are framed around what material depicts, not around how it was produced or whether a real child was involved. If you have been contacted by police or the AFP about AI-generated material, the single most important thing to understand is that the technology used to create it does not change the charge. 

The case that put this beyond argument 

In June 2026 the AFP charged a 29 year old Seven Hills man over allegedly producing and possessing child abuse material, including around 100 images generated by artificial intelligence. Investigators executed a search warrant at a western Sydney residence and seized two mobile phones, a laptop and a hard drive. 

The charges laid illustrate the structure of this area precisely. They included two counts of possessing or controlling child abuse material contrary to section 474.22A of the Commonwealth Criminal Code, which carries a maximum penalty of 15 years imprisonment, together with a count of possessing child abuse material under section 91H(2) of the Crimes Act 1900 (NSW). The man was refused bail. 

The AFP position was stated plainly at the time: the creation, possession or distribution of any form of child abuse material, whether real or AI-generated, is illegal. That is not a novel interpretation. It is how the provisions have always been drafted. 

Why the definitions capture synthetic material 

Both the NSW and Commonwealth definitions turn on depiction and on the standards of ordinary reasonable people. Section 91FB of the Crimes Act 1900 (NSW) defines child abuse material by reference to material that depicts or describes a person who is, appears to be or is implied to be a child in circumstances that reasonable persons would regard as offensive. The Commonwealth definition operates on similar footing. 

Two phrases do the work: appears to be, and is implied to be. Material that appears to depict a child is caught whether or not any child exists. That drafting long predates generative AI – it was originally aimed at drawings, animations, digitally altered images and material where the age of the person could not be established. Generative models simply walk straight into a definition that was already wide enough to hold them. 

The same logic now runs through the adult image-based abuse provisions. NSW amended the Crimes Act with effect from 16 February 2026 so that it is a crime to create or share, or threaten to share, sexually explicit images, videos or audio of someone without consent, including content digitally altered or generated by AI to place a person in a sexual situation they were never in. As DCJ explains, the law now treats synthetic content with the same seriousness as real recordings, because the harm to the person depicted is the same. 

Production, not just possession 

This is where AI changes the practical picture, and it changes it against the accused rather than for them. 

Historically, possession charges and production charges described very different conduct. Possession meant downloading. Production meant abusing a child and recording it. Generative tools collapse that distinction: a person who enters a prompt and generates an image has, on the face of it, produced material. The Seven Hills matter was charged as producing as well as possessing. 

Production offences carry substantially higher maximum penalties than simple possession and are treated far more seriously on sentence. A person who believes they are in the least serious category because they never downloaded anything from anyone may in fact be exposed to the most serious charges available. 

Where a real child’s face or likeness has been used – a classmate, a neighbour, a family member – the position worsens again, because the material now depicts an identifiable child and the conduct sits alongside the grooming and image-based abuse offences we cover in our articles on online grooming and covert police operations and on how broadly NSW image-based abuse law actually reaches. 

How these investigations start 

Rarely with a complaint. Most begin with referrals: platform reports, international law enforcement referrals through the Australian Centre to Counter Child Exploitation, hash-matching against known material, cloud storage scanning, or intelligence gathered in an unrelated investigation. 

AI has made the referral pipeline larger. Google reported to the eSafety Commission that it had received dozens of user reports alleging its AI tools were being used to generate child exploitation material, alongside more than 250 complaints about AI-generated violent extremist content. Internationally, UNICEF has called for AI-generated sexualised images of children to be explicitly criminalised, warning of a rapid rise in the misuse of AI tools to create abusive content. The regulatory direction is one way, and it is towards more detection, not less. 

Commentary on the adult side makes the same point about scale. Reporting on generative tools has described platforms producing non-consensual sexualised deepfake imagery at extraordinary rates, with Australian law already criminalising the sharing or threatened sharing of such material. 

What actually happens when police attend 

A search warrant, seizure of every device in the house, and forensic examination. That examination will recover deleted files, browser history, prompt logs, application data, cloud sync records and metadata. It will also establish, in most cases, who was using the device and when. 

Bail is a serious hurdle in this category. Charges of this kind attract close scrutiny, and conditions restricting internet and device access are routine where bail is granted – the framework is set out in our article on what show cause bail means when you must justify why you should not be in custody. 

The most damaging thing a person can do at this stage is participate in a record of interview without advice. Investigators in this field are experienced, the material is usually already recovered, and the interview exists to establish knowledge, intention and authorship. An account offered to minimise – I was curious, it was only once, I did not save anything – routinely supplies the element that was otherwise missing. Our article on how the right to silence actually operates in NSW explains why saying nothing until you have spoken to a lawyer is not an admission of anything. 

Do not delete anything either. Deletion is recoverable, and it converts a possession case into a possession case plus destruction of evidence. 

Where genuine defences exist 

There are real issues in these cases, and they are technical rather than moral. The lawfulness of the warrant and the search is the first. The second is possession itself – which requires knowledge and control, and is genuinely contestable where devices are shared, where material arrived automatically through a group chat or cache, or where an account was accessed by someone else. 

The third is whether the material meets the statutory definition at all, which in the synthetic context can involve questions about what the material actually depicts and the apparent age of the depicted person. The fourth is attribution: proving who was at the keyboard is not the same as proving whose device it was, particularly in a shared household. 

Statutory defences and exemptions exist in narrow circumstances, and duplication between the NSW and Commonwealth charges is often a legitimate subject of negotiation. These are areas where early, expert engagement with the prosecution matters enormously. 

The consequences beyond the sentence 

A conviction in this category carries registration obligations under the child protection offender scheme, with reporting requirements that continue for years and affect travel, residence and employment. Employment consequences are immediate and usually permanent in any field involving children or vulnerable people. And the reputational consequences begin at charge, not at conviction. 

For anyone whose exposure arose through coercion – being pressured or blackmailed into generating or sharing material – that context matters and should be raised immediately, not left to sentence. The dynamics are the same ones we set out in our article on sextortion and online coercion cases. 

Contact Us 

If the AFP or NSW Police have executed a warrant, seized your devices, or asked you to attend for an interview about AI-generated material, the belief that no real child means no real offence is the most dangerous assumption you can make. These are among the most serious charges in Australian law, they carry maximums measured in decades, and the investigative and forensic capability behind them is substantial. 

At National Criminal Lawyers, we defend sexual offence matters including child abuse material charges brought under both NSW and Commonwealth law. We understand the forensic evidence, where possession and attribution can properly be challenged, and how to engage with the prosecution early on charge duplication and characterisation. 

Call us at 1800 CRIM LAW for a free consultation. Help us help you understand your situation and get you the best outcome possible.