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Did Parliament Just Accidentally Criminalise Hardcore Porn?

The Abhorrent Violent Material Act was passed in the wake of the Christchurch terror attack, but its definition of torture is being accused of essentially forcing a ban on sadomasochist porn.

The potential oversight was revealed during a Senate Estimates hearings on Tuesday when Liberal Democrat Senator Duncan Spender questioned the committee on whether it intentionally targeted sadomasochism videos by not considering consensual torture.

Attorney-General Deputy Secretary, Sarah Chidgey said the bill was "clearly" a response to the events of Christchurch.

"But it is intended to capture any extreme violent material that's streamed or recorded and that is available on online platforms," she said.

Chidgey said the reason 'torture' was not distinguished between consensual and non-consensual was to limit complexity.

"It is intended to capture any extreme violent material that's streamed or recorded and is available on online platforms," Chidgey said.

"If the material is accessible within Australia and fits that definition of torture they will need to remove it once they become aware of it."

Torture is defined in the legislation as involving the infliction of "severe physical or mental pain" or "suffering" of a person who is under the custody or control of another.

Chidgey said the bill was not about necessarily banning websites, but requiring companies to take down abhorrent and violent content.

Spender said the bill's broad definition does not consider consensual torture in the form of sadomasochism websites, and would force these platforms to take down content because of the risk it would fall under this definition.

"The S&M community might not be too happy about that," Spender said.

But adult industry advisor and law lecturer Jarryd Bartle said Spender's claim that the legislation will apply to consensual sadomasochism was incorrect.

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Bartle told 10 daily the bill's explanatory memorandum clearly excludes consensual sexual acts.

"The definition of abhorrent violent material is not intended to capture footage of violent sporting events (for example, boxing), medical procedures, or consensual sexual acts that involve elements of violence," the memorandum states.

Australian Pornography Laws 'a grey area'

Bartle said that more generally pornography law is in a bit of a "grey area" in Australia.

"Media depicting consensual sadomasochism is prohibited under our classification laws," Bartle explained.

He said Australian law says any depiction of sexual activity cannot be sold, exhibited or broadcast in any state except the ACT and the Northern Territory as X18+ films, but even then there are strict classifications that exist.

Media that depicts consensual sex depicting 'fetishes' is refused classification and banned in Australia.

Image: Getty Images

The publication guidelines define fetishes as "an object, an action, or a non-sexual part of the body which gives sexual gratification."

"Mild fetishes include stylised domination and rubberwear," the guidelines state.

"Stronger fetishes include bondage and discipline."

But Bartle said more questions are emerging in the area of law with the rise of body modification cases around the consent to injury.

He explained that an old English case that is still applicable law in Australia means if somebody has consented to something that causes them actual injury, it potentially won't stop criminal charges raised against them.

A case from the early 1990s -- R v Brown -- set a precedent that in cases of where serious, grievous bodily harm is caused, consent cannot be used as a defence, Bartle said.

Featured Image: Getty

Contact the author: vgerova@networkten.com.au