Criminal Code Act 1995 (Australia, unsourced)/Chapter 10/10.6/10.6.Div474

Division 474—Telecommunications offences
Subdivision A—Dishonesty with respect to carriage services

474.1 Dishonesty


 * (1) For the purposes of this Subdivision, dishonest means:


 * (a) dishonest according to the standards of ordinary people; and


 * (b) known by the defendant to be dishonest according to the standards of ordinary people.


 * (2) In a prosecution for an offence against this Subdivision, the determination of dishonesty is a matter for the trier of fact.

474.2 General dishonesty with respect to a carriage service provider

Obtaining a gain


 * (1) A person is guilty of an offence if the person does anything with the intention of dishonestly obtaining a gain from a carriage service provider by way of the supply of a carriage service.

Penalty: Imprisonment for 5 years.

Causing a loss


 * (2) A person is guilty of an offence if the person does anything with the intention of dishonestly causing a loss to a carriage service provider in connection with the supply of a carriage service.

Penalty: Imprisonment for 5 years.


 * (3) A person is guilty of an offence if:


 * (a) the person dishonestly causes a loss, or dishonestly causes a risk of loss, to a carriage service provider in connection with the supply of a carriage service; and


 * (b) the person knows or believes that the loss will occur or that there is a substantial risk of the loss occurring.

Penalty: Imprisonment for 5 years.

Subdivision B—Interference with telecommunications

474.3 Person acting for a carrier or carriage service provider


 * (1) For the purposes of this Subdivision, a person who does any thing for or on behalf of a carrier, or on behalf of persons at least one of whom is a carrier, is, in respect of:


 * (a) the doing by that person of that thing; or


 * (b) any rental, fee or charge payable for or in relation to the doing by that person of that thing; or


 * (c) the operation by that person of a facility in connection with the doing of that thing; or


 * (d) a facility belonging to that person; or


 * (e) the operation by that person of a satellite;

taken to be a carrier.


 * (2) For the purposes of this Subdivision, a person who does any thing for or on behalf of a carriage service provider, or on behalf of persons at least one of whom is a carriage service provider, is, in respect of:


 * (a) the doing by that person of that thing; or


 * (b) any rental, fee or charge payable for or in relation to the doing by that person of that thing; or


 * (c) the operation by that person of a facility in connection with the doing of that thing; or


 * (d) a facility belonging to that person; or


 * (e) the operation by that person of a satellite;

taken to be a carriage service provider.

474.4 Interception devices


 * (1) A person is guilty of an offence if:


 * (a) the person:


 * (i) manufactures; or


 * (ii) advertises, displays or offers for sale; or


 * (iii) sells; or


 * (iv) possesses;

an apparatus or device (whether in an assembled or unassembled form); and


 * (b) the apparatus or device is an interception device.

Penalty: Imprisonment for 5 years.


 * (2) A person is not criminally responsible for an offence against subsection (1) if the person possesses the interception device in the course of the person’s duties relating to the interception of communications that does not constitute a contravention of subsection 7(1) of the Telecommunications (Interception) Act 1979.

Note:         A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).


 * (3) A person is not criminally responsible for an offence against subsection (1) if the applicable conduct mentioned in subparagraphs (1)(a)(i) to (iv) is in circumstances specified in regulations made for the purposes of this subsection.

Note:         A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).

474.5 Wrongful delivery of communications


 * (1) A person is guilty of an offence if:


 * (a) a communication is in the course of telecommunications carriage; and


 * (b) the person causes the communication to be received by a person or carriage service other than the person or service to whom it is directed.

Penalty: Imprisonment for 1 year.


 * (2) A person is not criminally responsible for an offence against subsection (1) if the person engages in the conduct referred to in paragraph (1)(b) with the consent or authorisation of the person to whom, or the person operating the carriage service to which, the communication is directed.

Note:         A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).

474.6 Interference with facilities


 * (1) A person is guilty of an offence if the person tampers with, or interferes with, a facility owned or operated by:


 * (a) a carrier; or


 * (b) a carriage service provider; or


 * (c) a nominated carrier.

Penalty: Imprisonment for 1 year.


 * (2) For the purposes of an offence against subsection (1), absolute liability applies to the physical element of circumstance of the offence, that the facility is owned or operated by a carrier, a carriage service provider or a nominated carrier.


 * (3) A person is guilty of an offence if:


 * (a) the person tampers with, or interferes with, a facility owned or operated by:


 * (i) a carrier; or


 * (ii) a carriage service provider; or


 * (iii) a nominated carrier; and


 * (b) this conduct results in hindering the normal operation of a carriage service supplied by a carriage service provider.

Penalty: Imprisonment for 2 years.


 * (4) For the purposes of an offence against subsection (3), absolute liability applies to the following physical elements of circumstance of the offence:


 * (a) that the facility is owned or operated by a carrier, a carriage service provider or a nominated carrier;


 * (b) that the carriage service is supplied by a carriage service provider.


 * (5) A person is guilty of an offence if:


 * (a) the person uses or operates any apparatus or device (whether or not it is comprised in, connected to or used in connection with a telecommunications network); and


 * (b) this conduct results in hindering the normal operation of a carriage service supplied by a carriage service provider.

Penalty: Imprisonment for 2 years.


 * (6) For the purposes of an offence against subsection (5), absolute liability applies to the physical element of circumstance of the offence, that the carriage service is supplied by a carriage service provider.


 * (7) A person is not criminally responsible for an offence against subsection (5) if:


 * (a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in good faith in the course of his or her duties; and


 * (b) the conduct of the person is reasonable in the circumstances for the purpose of performing that duty.

Note 1:      A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).

Note 2:      See also subsection 475.1(2) for the interaction between this defence and the Radiocommunications Act 1992.


 * (8) For the purposes of this section, a facility is taken to be owned or operated by a nominated carrier if the Telecommunications Act 1997 applies, under section 81A of that Act, as if that facility were owned or operated by the nominated carrier.

474.7 Modification etc. of a telecommunications device identifier


 * (1) A person is guilty of an offence if the person:


 * (a) modifies a telecommunications device identifier; or


 * (b) interferes with the operation of a telecommunications device identifier.

Penalty: Imprisonment for 2 years.


 * (2) A person is not criminally responsible for an offence against subsection (1) if the person is:


 * (a) the manufacturer of the mobile telecommunications device in which the telecommunications device identifier is installed; or


 * (b) an employee or agent of the manufacturer who is acting on behalf of the manufacturer; or


 * (c) acting with the consent of the manufacturer.

Note:         A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).


 * (3) A person is not criminally responsible for an offence against subsection (1) if:


 * (a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in the course of his or her duties; and


 * (b) the conduct of the person is reasonable in the circumstances for the purpose of performing that duty.

Note 1:      A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).

Note 2:      This subsection merely creates a defence to an offence against subsection (1) and does not operate to authorise any conduct that requires a warrant under some other law.

474.8 Possession or control of data or a device with intent to modify a telecommunications device identifier


 * (1) A person is guilty of an offence if:


 * (a) the person has possession or control of any thing or data; and


 * (b) the person has that possession or control with the intention that the thing or data be used:


 * (i) by the person; or


 * (ii) by another person;

in committing an offence against subsection 474.7(1) (modification of a telecommunications device identifier).

Penalty: Imprisonment for 2 years.


 * (2) A person may be found guilty of an offence against subsection (1) even if committing the offence against subsection 474.7(1) (modification of a telecommunications device identifier) is impossible.


 * (3) It is not an offence to attempt to commit an offence against subsection (1).


 * (4) A person is not criminally responsible for an offence against subsection (1) if the person is:


 * (a) the manufacturer of the mobile telecommunications device in which the telecommunications device identifier is installed; or


 * (b) an employee or agent of the manufacturer who is acting on behalf of the manufacturer; or


 * (c) acting with the consent of the manufacturer.

Note:         A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).


 * (5) A person is not criminally responsible for an offence against subsection (1) if:


 * (a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in the course of his or her duties; and


 * (b) the conduct of the person is reasonable in the circumstances for the purpose of performing that duty.

Note 1:      A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).

Note 2:      This subsection merely creates a defence to an offence against subsection (1) and does not operate to authorise any conduct that requires a warrant under some other law.

474.9 Producing, supplying or obtaining data or a device with intent to modify a telecommunications device identifier


 * (1) A person is guilty of an offence if:


 * (a) the person produces, supplies or obtains any thing or data; and


 * (b) the person does so with the intention that the thing or data be used:


 * (i) by the person; or


 * (ii) by another person;

in committing an offence against subsection 474.7(1) (modification of a telecommunications device identifier).

Penalty: Imprisonment for 2 years.


 * (2) A person may be found guilty of an offence against subsection (1) even if committing the offence against subsection 474.7(1) (modification of a telecommunications device identifier) is impossible.


 * (3) It is not an offence to attempt to commit an offence against subsection (1).


 * (4) A person is not criminally responsible for an offence against subsection (1) if the person is:


 * (a) the manufacturer of the mobile telecommunications device in which the telecommunications device identifier is installed; or


 * (b) an employee or agent of the manufacturer who is acting on behalf of the manufacturer; or


 * (c) acting with the consent of the manufacturer.

Note:         A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).


 * (5) A person is not criminally responsible for an offence against subsection (1) if:


 * (a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in the course of his or her duties; and


 * (b) the conduct of the person is reasonable in the circumstances for the purpose of performing that duty.

Note 1:      A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).

Note 2:      This subsection merely creates a defence to an offence against subsection (1) and does not operate to authorise any conduct that requires a warrant under some other law.

474.10 Copying subscription‑specific secure data

Copying subscription‑specific secure data from an existing account identifier


 * (1) A person is guilty of an offence if the person:


 * (a) copies the subscription‑specific secure data from an account identifier; and


 * (b) does so with the intention that the data will be copied (whether by the person or by someone else) onto something that:


 * (i) is an account identifier; or


 * (ii) will, once the data is copied onto it, be capable of operating as an account identifier.

Penalty: Imprisonment for 2 years.

Copying subscription‑specific secure data onto a new account identifier


 * (2) A person is guilty of an offence if:


 * (a) subscription‑specific secure data is copied from an account identifier (whether by the person or by someone else); and


 * (b) the person copies that data onto something that:


 * (i) is an account identifier; or


 * (ii) will, once the data is copied onto it, be capable of operating as an account identifier.

This is so whether or not the person knows which particular account identifier the subscription‑specific secure data is copied from.

Penalty: Imprisonment for 2 years.

Defences


 * (3) A person is not criminally responsible for an offence against subsection (1) or (2) if the person is:


 * (a) the carrier who operates the facilities used, or to be used, in the supply of the public mobile telecommunications service to which the subscription‑specific secure data relates; or


 * (b) an employee or agent of that carrier who is acting on behalf of that carrier; or


 * (c) acting with the consent of that carrier.

Note:         A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).


 * (4) A person is not criminally responsible for an offence against subsection (1) or (2) if:


 * (a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in the course of his or her duties; and


 * (b) the conduct of the person is reasonable in the circumstances for the purpose of performing that duty.

Note 1:      A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).

Note 2:      This subsection merely creates a defence to an offence against subsection (1) or (2) and does not operate to authorise any conduct that requires a warrant under some other law.

474.11 Possession or control of data or a device with intent to copy an account identifier


 * (1) A person is guilty of an offence if:


 * (a) the person has possession or control of any thing or data; and


 * (b) the person has that possession or control with the intention that the thing or data be used:


 * (i) by the person; or


 * (ii) by another person;

in committing an offence against subsection 474.10(1) (copying subscription‑specific secure data from an account identifier) or 474.10(2) (copying subscription‑specific secure data onto an account identifier).

Penalty: Imprisonment for 2 years.


 * (2) A person may be found guilty of an offence against subsection (1) even if committing the offence against subsection 474.10(1) (copying subscription‑specific secure data from an account identifier) or 474.10(2) (copying subscription‑specific secure data onto an account identifier) is impossible.


 * (3) It is not an offence to attempt to commit an offence against subsection (1).

Defences


 * (4) A person is not criminally responsible for an offence against subsection (1) if the person is:


 * (a) the carrier who operates the facilities used, or to be used, in the supply of the public mobile telecommunications service to which the subscription‑specific secure data relates; or


 * (b) an employee or agent of that carrier who is acting on behalf of that carrier; or


 * (c) acting with the consent of that carrier.

Note:         A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).


 * (5) A person is not criminally responsible for an offence against subsection (1) if:


 * (a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in the course of his or her duties; and


 * (b) the conduct of the person is reasonable in the circumstances for the purpose of performing that duty.

Note 1:      A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).

Note 2:      This subsection merely creates a defence to an offence against subsection (1) and does not operate to authorise any conduct that requires a warrant under some other law.

474.12 Producing, supplying or obtaining data or a device with intent to copy an account identifier


 * (1) A person is guilty of an offence if:


 * (a) the person produces, supplies or obtains any thing or data; and


 * (b) the person does so with the intention that the thing or data be used:


 * (i) by the person; or


 * (ii) by another person;

in committing an offence against subsection 474.10(1) (copying subscription‑specific secure data from an account identifier) or 474.10(2) (copying subscription‑specific secure data onto an account identifier).

Penalty: Imprisonment for 2 years.


 * (2) A person may be found guilty of an offence against subsection (1) even if committing the offence against subsection 474.10(1) (copying subscription‑specific secure data from an account identifier) or 474.10(2) (copying subscription‑specific secure data onto an account identifier) is impossible.


 * (3) It is not an offence to attempt to commit an offence against subsection (1).

Defences


 * (4) A person is not criminally responsible for an offence against subsection (1) if the person is:


 * (a) the carrier who operates the facilities used, or to be used, in the supply of the public mobile telecommunications service to which the subscription‑specific secure data relates; or


 * (b) an employee or agent of that carrier who is acting on behalf of that carrier; or


 * (c) acting with the consent of that carrier.

Note:         A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).


 * (5) A person is not criminally responsible for an offence against subsection (1) if:


 * (a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in the course of his or her duties; and


 * (b) the conduct of the person is reasonable in the circumstances for the purpose of performing that duty.

Note 1:      A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).

Note 2:      This subsection merely creates a defence to an offence against subsection (1) and does not operate to authorise any conduct that requires a warrant under some other law.

Subdivision C—Offences related to use of telecommunications

474.13 Use of a carriage service

For the purposes of this Subdivision, a person is taken not to use a carriage service by engaging in particular conduct if:


 * (a) the person is a carrier and, in engaging in that conduct, is acting solely in the person’s capacity as a carrier; or


 * (b) the person is a carriage service provider and, in engaging in that conduct, is acting solely in the person’s capacity as a carriage service provider; or


 * (c) the person is an Internet service provider and, in engaging in that conduct, is acting solely in the person’s capacity as an Internet service provider; or


 * (d) the person is an Internet content host and, in engaging in that conduct, is acting solely in the person’s capacity as an Internet content host.

474.14 Using a telecommunications network with intention to commit a serious offence


 * (1) A person is guilty of an offence if:


 * (a) the person:


 * (i) connects equipment to a telecommunications network; and


 * (ii) intends by this to commit, or to facilitate the commission of, an offence (whether by that person or another person); and


 * (b) the offence is:


 * (i) a serious offence against a law of the Commonwealth, a State or a Territory; or


 * (ii) a serious offence against a foreign law.


 * (2) A person is guilty of an offence if:


 * (a) the person uses equipment connected to a telecommunications network in the commission of, or to facilitate the commission of, an offence (whether by that person or another person); and


 * (b) the offence is:


 * (i) a serious offence against a law of the Commonwealth, a State or a Territory; or


 * (ii) a serious offence against a foreign law.


 * (3) A person who is guilty of an offence against subsection (1) or (2) is punishable, on conviction, by a penalty not exceeding the penalty applicable to the serious offence.


 * (4) Absolute liability applies to paragraphs (1)(b) and (2)(b).

Note:         For absolute liability, see section 6.2.


 * (5) A person may be found guilty of an offence against subsection (1) or (2) even if committing the serious offence is impossible.


 * (6) It is not an offence to attempt to commit an offence against subsection (1) or (2).

474.15 Using a carriage service to make a threat

Threat to kill


 * (1) A person (the first person) is guilty of an offence if:


 * (a) the first person uses a carriage service to make to another person (the second person) a threat to kill the second person or a third person; and


 * (b) the first person intends the second person to fear that the threat will be carried out.

Penalty: Imprisonment for 10 years.

Threat to cause serious harm


 * (2) A person (the first person) is guilty of an offence if:


 * (a) the first person uses a carriage service to make to another person (the second person) a threat to cause serious harm to the second person or a third person; and


 * (b) the first person intends the second person to fear that the threat will be carried out.

Penalty: Imprisonment for 7 years.

Actual fear not necessary


 * (3) In a prosecution for an offence against this section, it is not necessary to prove that the person receiving the threat actually feared that the threat would be carried out.

Definitions


 * (4) In this section:

fear includes apprehension.

threat to cause serious harm to a person includes a threat to substantially contribute to serious harm to the person.

474.16 Using a carriage service for a hoax threat

A person is guilty of an offence if:


 * (a) the person uses a carriage service to send a communication; and


 * (b) the person does so with the intention of inducing a false belief that an explosive, or a dangerous or harmful substance or thing, has been or will be left in any place.

Penalty: Imprisonment for 10 years.

474.17 Using a carriage service to menace, harass or cause offence


 * (1) A person is guilty of an offence if:


 * (a) the person uses a carriage service; and


 * (b) the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.

Penalty: Imprisonment for 3 years.


 * (2) Without limiting subsection (1), that subsection applies to menacing, harassing or causing offence to:


 * (a) an employee of the NRS provider; or


 * (b) an emergency call person; or


 * (c) an employee of an emergency service organisation; or


 * (d) an APS employee in the Attorney‑General’s Department acting as a National Security Hotline call taker.

474.18 Improper use of emergency call service


 * (1) A person is guilty of an offence if the person:


 * (a) makes a call to an emergency service number; and


 * (b) does so with the intention of inducing a false belief that an emergency exists.

Penalty: Imprisonment for 3 years.


 * (2) A person is guilty of an offence if:


 * (a) the person makes a call to an emergency service number; and


 * (b) the person makes the call otherwise than for the purpose of reporting an emergency; and


 * (c) the call is a vexatious one.

Penalty: Imprisonment for 3 years.


 * (3) In determining whether a call by a person to an emergency service number is a vexatious one, have regard to:


 * (a) the content of the call; and


 * (b) the number, frequency and content of previous calls the person has made to emergency service numbers otherwise than for the purpose of reporting emergencies; and


 * (c) any other relevant matter.

474.19 Using a carriage service for child pornography material


 * (1) A person is guilty of an offence if:


 * (a) the person:


 * (i) uses a carriage service to access material; or


 * (ii) uses a carriage service to cause material to be transmitted to the person; or


 * (iii) uses a carriage service to transmit material; or


 * (iv) uses a carriage service to make material available; or


 * (v) uses a carriage service to publish or otherwise distribute material; and


 * (b) the material is child pornography material.

Penalty: Imprisonment for 10 years.


 * (2) To avoid doubt, the following are the fault elements for the physical elements of an offence against subsection (1):


 * (a) intention is the fault element for the conduct referred to in paragraph (1)(a);


 * (b) recklessness is the fault element for the circumstances referred to in paragraph (1)(b).

Note:         For the meaning of intention and recklessness see sections 5.2 and 5.4.


 * (3) As well as the general defences provided for in Part 2.3, defences are provided for under section 474.21 in relation to this section.

474.20 Possessing, controlling, producing, supplying or obtaining child pornography material for use through a carriage service


 * (1) A person is guilty of an offence if:


 * (a) the person:


 * (i) has possession or control of material; or


 * (ii) produces, supplies or obtains material; and


 * (b) the material is child pornography material; and


 * (c) the person has that possession or control, or engages in that production, supply or obtaining, with the intention that the material be used:


 * (i) by that person; or


 * (ii) by another person;

in committing an offence against section 474.19 (using a carriage service for child pornography material).

Penalty: Imprisonment for 10 years.


 * (2) A person may be found guilty of an offence against subsection (1) even if committing the offence against section 474.19 (using a carriage service for child pornography material) is impossible.


 * (3) It is not an offence to attempt to commit an offence against subsection (1).

474.21 Defences in respect of child pornography material


 * (1) A person is not criminally responsible for an offence against section 474.19 (using a carriage service for child pornography material) or 474.20 (possessing etc. child pornography material for use through a carriage service) because of engaging in particular conduct if the conduct:


 * (a) is of public benefit; and


 * (b) does not extend beyond what is of public benefit.

In determining whether the person is, under this subsection, not criminally responsible for the offence, the question whether the conduct is of public benefit is a question of fact and the person’s motives in engaging in the conduct are irrelevant.

Note:         A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).


 * (2) For the purposes of subsection (1), conduct is of public benefit if, and only if, the conduct is necessary for or of assistance in:


 * (a) enforcing a law of the Commonwealth, a State or a Territory; or


 * (b) monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or a Territory; or


 * (c) the administration of justice; or


 * (d) conducting scientific, medical or educational research that has been approved by the Minister in writing for the purposes of this section.


 * (3) A person is not criminally responsible for an offence against section 474.19 (using a carriage service for child pornography material) or 474.20 (possessing etc. child pornography material for use through a carriage service) if:


 * (a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in the course of his or her duties; and


 * (b) the conduct of the person is reasonable in the circumstances for the purpose of performing that duty.

Note:         A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).


 * (4) A person is not criminally responsible for an offence against section 474.19 (using a carriage service for child pornography material) or 474.20 (possessing etc. child pornography material for use through a carriage service) if the person engages in the conduct in good faith for the sole purpose of:


 * (a) assisting the Australian Communications and Media Authority to detect:


 * (i) prohibited content (within the meaning of Schedule 5 to the Broadcasting Services Act 1992); or


 * (ii) potential prohibited content (within the meaning of that Schedule);

in the performance of the Authority’s functions under that Schedule; or


 * (b) manufacturing or developing, or updating, content filtering technology (including software) in accordance with:


 * (i) a recognised alternative access‑prevention arrangement (within the meaning of clause 40 of Schedule 5 to the Broadcasting Services Act 1992); or


 * (ii) a designated alternative access‑prevention arrangement (within the meaning of clause 60 of that Schedule).

Note:         A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).

474.22 Using a carriage service for child abuse material


 * (1) A person is guilty of an offence if:


 * (a) the person:


 * (i) uses a carriage service to access material; or


 * (ii) uses a carriage service to cause material to be transmitted to the person; or


 * (iii) uses a carriage service to transmit material; or


 * (iv) uses a carriage service to make material available; or


 * (v) uses a carriage service to publish or otherwise distribute material; and


 * (b) the material is child abuse material.

Penalty: Imprisonment for 10 years.


 * (2) To avoid doubt, the following are the fault elements for the physical elements of an offence against subsection (1):


 * (a) intention is the fault element for the conduct referred to in paragraph (1)(a);


 * (b) recklessness is the fault element for the circumstances referred to in paragraph (1)(b).

Note:         For the meaning of intention and recklessness see sections 5.2 and 5.4.


 * (3) As well as the general defences provided for in Part 2.3, defences are provided for under section 474.24 in relation to this section.

474.23 Possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service


 * (1) A person is guilty of an offence if:


 * (a) the person:


 * (i) has possession or control of material; or


 * (ii) produces, supplies or obtains material; and


 * (b) the material is child abuse material; and


 * (c) the person has that possession or control, or engages in that production, supply or obtaining, with the intention that the material be used:


 * (i) by that person; or


 * (ii) by another person;

in committing an offence against section 474.22 (using a carriage service for child abuse material).

Penalty: Imprisonment for 10 years.


 * (2) A person may be found guilty of an offence against subsection (1) even if committing the offence against section 474.22 (using a carriage service for child abuse material) is impossible.


 * (3) It is not an offence to attempt to commit an offence against subsection (1).

474.24 Defences in respect of child abuse material


 * (1) A person is not criminally responsible for an offence against section 474.22 (using a carriage service for child abuse material) or 474.23 (possessing etc. child abuse material for use through a carriage service) because of engaging in particular conduct if the conduct:


 * (a) is of public benefit; and


 * (b) does not extend beyond what is of public benefit.

In determining whether the person is, under this subsection, not criminally responsible for the offence, the question whether the conduct is of public benefit is a question of fact and the person’s motives in engaging in the conduct are irrelevant.

Note:         A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).


 * (2) For the purposes of subsection (1), conduct is of public benefit if, and only if, the conduct is necessary for or of assistance in:


 * (a) enforcing a law of the Commonwealth, a State or a Territory; or


 * (b) monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or a Territory; or


 * (c) the administration of justice; or


 * (d) conducting scientific, medical or educational research that has been approved by the Minister in writing for the purposes of this section.


 * (3) A person is not criminally responsible for an offence against section 474.22 (using a carriage service for child abuse material) or 474.23 (possessing etc. child abuse material for use through a carriage service) if:


 * (a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in the course of his or her duties; and


 * (b) the conduct of the person is reasonable in the circumstances for the purpose of performing that duty.

Note:         A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).


 * (4) A person is not criminally responsible for an offence against section 474.22 (using a carriage service for child abuse material) or 474.23 (possessing etc. child abuse material for use through a carriage service) if the person engages in the conduct in good faith for the sole purpose of:


 * (a) assisting the Australian Communications and Media Authority to detect:


 * (i) prohibited content (within the meaning of Schedule 5 to the Broadcasting Services Act 1992); or


 * (ii) potential prohibited content (within the meaning of that Schedule);

in the performance of the Authority’s functions under that Schedule; or


 * (b) manufacturing or developing, or updating, content filtering technology (including software) in accordance with:


 * (i) a recognised alternative access‑prevention arrangement (within the meaning of clause 40 of Schedule 5 to the Broadcasting Services Act 1992); or


 * (ii) a designated alternative access‑prevention arrangement (within the meaning of clause 60 of that Schedule).

Note:         A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).

474.25 Obligations of Internet service providers and Internet content hosts

A person commits an offence if the person:


 * (a) is an Internet service provider or an Internet content host; and


 * (b) is aware that the service provided by the person can be used to access particular material that the person has reasonable grounds to believe is:


 * (i) child pornography material; or


 * (ii) child abuse material; and


 * (c) does not refer details of the material to the Australian Federal Police within a reasonable time after becoming aware of the existence of the material.

Penalty: 100 penalty units.

474.26 Using a carriage service to procure persons under 16 years of age


 * (1) A person (the sender) commits an offence if:


 * (a) the sender uses a carriage service to transmit a communication to another person (the recipient); and


 * (b) the sender does this with the intention of procuring the recipient to engage in, or submit to, sexual activity with the sender; and


 * (c) the recipient is someone who is, or who the sender believes to be, under 16 years of age; and


 * (d) the sender is at least 18 years of age.

Penalty: Imprisonment for 15 years.


 * (2) A person (the sender) commits an offence if:


 * (a) the sender uses a carriage service to transmit a communication to another person (the recipient); and


 * (b) the sender does this with the intention of procuring the recipient to engage in, or submit to, sexual activity with another person; and


 * (c) the recipient is someone who is, or who the sender believes to be, under 16 years of age; and


 * (d) the other person referred to in paragraph (b) is someone who is, or who the sender believes to be, at least 18 years of age.

Penalty: Imprisonment for 15 years.


 * (3) A person (the sender) commits an offence if:


 * (a) the sender uses a carriage service to transmit a communication to another person (the recipient); and


 * (b) the sender does this with the intention of procuring the recipient to engage in, or submit to, sexual activity with another person; and


 * (c) the recipient is someone who is, or who the sender believes to be, under 16 years of age; and


 * (d) the other person referred to in paragraph (b) is someone who is, or who the sender believes to be, under 18 years of age; and


 * (e) the sender intends that the sexual activity referred to in paragraph (b) will take place in the presence of:


 * (i) the sender; or


 * (ii) another person who is, or who the sender believes to be, at least 18 years of age.

Penalty: Imprisonment for 15 years.

474.27 Using a carriage service to “groom” persons under 16 years of age


 * (1) A person (the sender) commits an offence if:


 * (a) the sender uses a carriage service to transmit a communication to another person (the recipient); and


 * (b) the communication includes material that is indecent; and


 * (c) the sender does this with the intention of making it easier to procure the recipient to engage in, or submit to, sexual activity with the sender; and


 * (d) the recipient is someone who is, or who the sender believes to be, under 16 years of age; and


 * (e) the sender is at least 18 years of age.

Penalty: Imprisonment for 12 years.


 * (2) A person (the sender) commits an offence if:


 * (a) the sender uses a carriage service to transmit a communication to another person (the recipient); and


 * (b) the communication includes material that is indecent; and


 * (c) the sender does this with the intention of making it easier to procure the recipient to engage in, or submit to, sexual activity with another person; and


 * (d) the recipient is someone who is, or who the sender believes to be, under 16 years of age; and


 * (e) the other person referred to in paragraph (c) is someone who is, or who the sender believes to be, at least 18 years of age.

Penalty: Imprisonment for 12 years.


 * (3) A person (the sender) commits an offence if:


 * (a) the sender uses a carriage service to transmit a communication to another person (the recipient); and


 * (b) the communication includes material that is indecent; and


 * (c) the sender does this with the intention of making it easier to procure the recipient to engage in, or submit to, sexual activity with another person; and


 * (d) the recipient is someone who is, or who the sender believes to be, under 16 years of age; and


 * (e) the other person referred to in paragraph (c) is someone who is, or who the sender believes to be, under 18 years of age; and


 * (f) the sender intends that the sexual activity referred to in paragraph (c) will take place in the presence of:


 * (i) the sender; or


 * (ii) another person who is, or who the sender believes to be, at least 18 years of age.

Penalty: Imprisonment for 15 years.


 * (4) In a prosecution for an offence against subsection (1), (2) or (3), whether material is indecent is a matter for the trier of fact.


 * (5) In this section:

indecent means indecent according to the standards of ordinary people.

474.28 Provisions relating to offences against sections 474.26 and 474.27

Age‑related issues


 * (1) For the purposes of an offence against section 474.26 or 474.27, absolute liability applies to the physical element of circumstance of the offence that the recipient is someone who is under 16 years of age.

Note 1:      For absolute liability, see section 6.2.

Note 2:      For a defence based on belief about age, see section 474.29.


 * (2) For the purposes of an offence against subsection 474.26(2) or (3) or 474.27(2) or (3), absolute liability applies to the physical elements of circumstance of the offence that the other person referred to in paragraph 474.26(2)(b) or (3)(e) or 474.27(2)(c) or (3)(f) is at least 18 years of age.

Note 1:      For absolute liability, see section 6.2.

Note 2:      For a defence based on belief about age, see section 474.29.


 * (3) For the purposes of sections 474.26 and 474.27, evidence that the recipient was represented to the sender as being under or of a particular age is, in the absence of evidence to the contrary, proof that the sender believed the recipient to be under or of that age.


 * (4) For the purposes of sections 474.26 and 474.27, evidence that the other person referred to in paragraph 474.26(2)(b) or (3)(e) or 474.27(2)(c) or (3)(f) was represented to the sender as being:


 * (a) at least 18 years of age; or


 * (b) over or of a particular age;

is, in the absence of evidence to the contrary, proof that the sender believed the other person to be at least 18 years of age or over or of that age.


 * (5) In determining for the purposes of sections 474.26 and 474.27 how old a person is or was at a particular time, a jury or court may treat any of the following as admissible evidence:


 * (a) the person’s appearance;


 * (b) medical or other scientific opinion;


 * (c) a document that is or appears to be an official or medical record from a country outside Australia;


 * (d) a document that is or appears to be a copy of such a record.


 * (6) Subsection (5) does not make any other kind of evidence inadmissible, and does not affect a prosecutor’s duty to do all he or she can to adduce the best possible evidence for determining the question.


 * (7) If, on a trial for an offence against sections 474.26 and 474.27, evidence may be treated as admissible because of subsection (5), the court must warn the jury that it must be satisfied beyond reasonable doubt in determining the question.

Impossibility of sexual activity taking place


 * 8) A person may be found guilty of an offence against section 474.26 or 474.27 even if it is impossible for the sexual activity referred to in that section to take place.

Fictitious recipient


 * (9) For the purposes of sections 474.26 and 474.27, it does not matter that the recipient to whom the sender believes the sender is transmitting the communication is a fictitious person represented to the sender as a real person.

Attempt not offence


 * (10) It is not an offence to attempt to commit an offence against section 474.26 or 474.27.

Definitions


 * (11) In sections 474.26 and 474.27 and this section:

procure a person to engage in sexual activity includes:


 * (a) encourage, entice or recruit the person to engage in that activity; or


 * (b) induce the person (whether by threats, promises or otherwise) to engage in that activity.

sexual activity means:


 * (a) sexual intercourse as defined in section 50AC of the Crimes Act 1914; or


 * (b) an act of indecency as defined in section 50AB of that Act; or


 * (c) any other activity of a sexual or indecent nature that involves the human body, or bodily actions or functions.

The activity referred to in paragraph (c) need not involve physical contact between people.

474.29 Defences to offences against section 474.26 or 474.27


 * (1) It is a defence to a prosecution for an offence against section 474.26 or 474.27 that the defendant believed at the time the communication was transmitted that the recipient was not under 16 years of age.

Note:         A defendant bears an evidential burden in relation to the matter in this section, see subsection 13.3(3).


 * (2) It is a defence to a prosecution for an offence against subsection 474.26(2) or (3) or 474.27(2) or (3) that the defendant believed at the time the communication was transmitted that the other person referred to in paragraph 474.26(2)(b) or (3)(e) or 474.27(2)(c) or (3)(f) was not at least 18 years of age.

Note:         A defendant bears an evidential burden in relation to the matter in this section, see subsection 13.3(3).


 * (3) In determining whether the defendant had the belief referred to in subsection (1) or (2), the jury may take into account whether the alleged belief was reasonable in the circumstances.

474.30 Defences for NRS employees and emergency call persons


 * (1) A person is not criminally responsible for an offence against a provision of this Subdivision in relation to particular conduct if the person:


 * (a) is an employee of the NRS provider; and


 * (b) engages in the conduct in good faith in the course of the person’s duties as such an employee.


 * (2) A person is not criminally responsible for an offence against a provision of this Subdivision in relation to particular conduct if the person:


 * (a) is an emergency call person; and


 * (b) engages in the conduct in good faith in the course of the person’s duties as such an emergency call person.