When children participate in online sexual behaviour, such as ‘sexting’, there can be a range of legal and social consequences. Criminal law in Australia does not consistently address sexting, which means that in some jurisdictions, children who participate in sexting can be liable for offences related to child sexual abuse material (CSAM). Children who are 16 or 17 years old have reached the age to consent to sexual activity, yet the law, in many jurisdictions, does not allow them to participate in sexting. This paper seeks to reconceptualise sexting among older children as a separate practice to possessing and/or distributing CSAM. It explores the socio-legal considerations which arise when older children possess and share intimate online material, including how the age of consent to sexual activity is relevant to their participation in sexting.

Criminal law balances community protection from children who commit criminal offences against supporting children to behave appropriately. Existing Australian law applies the rebuttable presumption of doli incapax to children from 10 years of age and then applies full criminal responsibility to children from 14 years of age. Imposing full criminal responsibility on older children is problematic because it does not account for their cognitive development, social and environmental risk factors and maturity. Extending doli incapax to older children is one response to address the challenges of older children's criminal culpability but it does not go far enough to protect children from the harms of the criminal justice system.

In 2020, the United Kingdom’s Divisional Court made international headlines for their decision in Bell v Tavistock (2020)

Children’s decision-making is complex. There are many factors that contribute to children’s decisional capacity including cognitive reasoning, developmental maturity, upbringing and circumstances. For healthcare decisions, Australian law acknowledges children’s autonomy, and permits mature children to consent to beneficial healthcare. Yet, it also protects them from making life-changing decisions that could contravene their best interests. The criminal law approaches to children’s decision-making in Australia’s jurisdictions involves holding older children fully responsible for their decision-making, regardless of circumstances or maturity. The two approaches conflict because health law offers a protective mechanism for children yet criminal law imposes a punitive approach to children’s decision-making. This article considers whether the dichotomous approaches for children’s capacity assessments in Australian law can be reconciled.