Recent crime statistics reported by the Canberra Times reveal that sexting teenagers are being snared by child pornography offences. 27 children between 10 and 17 have been charged with offences related to child pornography since 2009.

The article quotes an ACT Police spokeswoman as saying 'ACT Policing strongly suggests youths think before sending sexualised or inappropriate text messages that they would not like to be out in the public domain'.

Under ACT law, it is an offence to possess child pornography. Punishment for this offence includes a sentence of up to 7 years imprisonment, and a fine of up to $105,000. A person convicted of such an offence risks being placed on the ACT Child Sex Offenders Register.

Academics, such as Thomas Crofts and Murray Lee, have argued that child pornography laws such as these may be 'leading to an overreach of the criminal law'. Moreover, they point out that blanket laws that do not differentiate between 'childish playfulness and sexual experimentation' and 'cases of exploitation' may leave children 'more seriously harmed by the very laws designed to protect them'.

Victoria has recognised this issue, and has already moved to create legislation to address this trend. New laws, which we previously reported on, have been operative in Victoria since 3 November 2014. In effect, these laws lend nuance to the blanket sexting laws, and will now decriminalise the distribution of sexual images between children of similar age. They do however, also introduce an offence of sending or threatening to send an intimate image contrary to ‘community standards of acceptable conduct’. You can read more about the Victorian laws in our article.

In any case, it is clear that a national response is required because the transmission of child pornography images across networks such as mobile networks and the internet, also engages Commonwealth laws against child pornography. Different approaches by the States and Territories, such as those taken in NSW and Queensland, have meant that the law has also been applied differently depending on policing practices. For example, in NSW, police may choose to take the approach of youth justice conferencing rather than charging children under child pornography laws, and in Queensland, police guidelines have not been released. Tasmanian police have also raised the vexed issue and in comments reported by ABC News have said that the current laws are 'not an appropriate tool'.

In South Australia, John Rau, the Attorney-General, raised the issue with the national Law, Crime and Community Safety Council in April 2014, according to ABC News. Mr Rau is quoted as saying that 'we've got young people who are doing things which I think all of us would agree are not ideal, silly, but they are clearly in a different category from the people who are the predators those laws are designed to deal with'.

The results of those discussions, and any decision made by the Law, Crime and Community Safety Council - which brings together top law officials across Australia - have yet to come to fruition.