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This is a Bill, not an Act. For current law, see the Acts databases.
2002-2003-2004
The Parliament
of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Crimes
Legislation Amendment (Telecommunications Offences and Other Measures) Bill
(No. 2) 2004
No. ,
2004
(Justice and
Customs)
A Bill for an Act to amend the
Criminal Code Act 1995, and for related purposes
Contents
Part 1—Main
amendments 3
Criminal Code Act
1995 3
Part 2—Consequential
amendments 38
Broadcasting Services Act
1992 38
Crimes Act
1914 38
Criminal Code Act
1995 38
Customs Act
1901 41
Telecommunications (Interception) Act
1979 43
Part 3—Saving
provisions 45
Criminal Code Act
1995 46
Criminal Code Act
1995 53
Part 1—Alternative
verdicts 56
Criminal Code Act
1995 56
Part 2—Obtaining financial
advantage 57
Criminal Code Act
1995 57
Part 3—Knowledge of
law 58
Criminal Code Act
1995 58
Crimes (Aviation) Act
1991 59
Customs Act
1901 59
Cybercrime Act
2001 60
Mutual Assistance in Criminal Matters Act
1987 61
A Bill for an Act to amend the Criminal Code Act
1995, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Crimes Legislation Amendment
(Telecommunications Offences and Other Measures) Act (No. 2)
2004.
(1) Each provision of this Act specified in column 1 of the table
commences, or is taken to have commenced, in accordance with column 2 of the
table. Any other statement in column 2 has effect according to its
terms.
|
Commencement information |
||
|---|---|---|
|
Column 1 |
Column 2 |
Column 3 |
|
Provision(s) |
Commencement |
Date/Details |
|
1. Sections 1 to 3 and anything in this Act not elsewhere covered by
this table |
The day on which this Act receives the Royal Assent. |
|
|
2. Schedule 1 |
On the day after the end of the period of 6 months beginning on the day on
which this Act receives the Royal Assent. |
|
|
3. Schedules 2, 3 and 4 |
The 28th day after the day on which this Act receives the Royal
Assent. |
|
|
4. Schedule 5, items 1 to 8 |
The 28th day after the day on which this Act receives the Royal
Assent. |
|
|
5. Schedule 5, item 9 |
Immediately after the commencement of item 6 of Schedule 1 to the
Cybercrime Act 2001. |
|
|
6. Schedule 5, items 10 to 16 |
The 28th day after the day on which this Act receives the Royal
Assent. |
|
Note: This table relates only to the provisions of this Act
as originally passed by the Parliament and assented to. It will not be expanded
to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part
of this Act. Information in this column may be added to or edited in any
published version of this Act.
Each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its
terms.
1 Part 10.6 of the Criminal
Code
Repeal the Part, substitute:
In this Part:
access in relation to material includes:
(a) the display of the material by a computer or any other output of the
material from a computer; or
(b) the copying or moving of the material to any place in a computer or to
a data storage device; or
(c) in the case of material that is a program—the execution of the
program.
account identifier means:
(a) something that:
(i) contains subscription-specific secure data; and
(ii) is installed, or capable of being installed, in a mobile
telecommunications device; or
(b) anything else that:
(i) allows a particular mobile telecommunications account to be
identified; and
(ii) is prescribed by the regulations as an account identifier for the
purposes of this Part.
Note: Paragraph (a)—This would include a SIM
card.
carriage service provider has the same meaning as in the
Telecommunications Act 1997.
Note: See also section 474.3 respecting persons who are
taken to be carriage service providers in relation to certain
matters.
carrier has the same meaning as in the Telecommunications
Act 1997.
Note: See also section 474.3 respecting persons who are
taken to be carriers in relation to certain matters.
carry includes transmit, switch and receive.
child abuse material means:
(a) material that depicts a person, or a representation of a person,
who:
(i) is, or appears to be, under 18 years of age; and
(ii) is, or appears to be, a victim of torture, cruelty or physical
abuse;
and does this in a way that reasonable persons would regard as being, in
all the circumstances, offensive; or
(b) material that describes a person who:
(i) is, or is implied to be, under 18 years of age; and
(ii) is, or is implied to be, a victim of torture, cruelty or physical
abuse;
and does this in a way that reasonable persons would regard as being, in
all the circumstances, offensive.
child pornography material means:
(a) material that depicts a person, or a representation of a person, who
is, or appears to be, under 18 years of age and who:
(i) is engaged in, or appears to be engaged in, a sexual pose or sexual
activity (whether or not in the presence of other persons); or
(ii) is in the presence of a person who is engaged in, or appears to be
engaged in, a sexual pose or sexual activity;
and does this in a way that reasonable persons would regard as being, in
all the circumstances, offensive; or
(b) material the dominant characteristic of which is the depiction, for a
sexual purpose, of:
(i) a sexual organ or the anal region of a person who is, or appears to
be, under 18 years of age; or
(ii) a representation of such a sexual organ or anal region; or
(iii) the breasts, or a representation of the breasts, of a female person
who is, or appears to be, under 18 years of age;
in a way that reasonable persons would regard as being, in all the
circumstances, offensive; or
(c) material that describes a person who is, or is implied to be, under 18
years of age and who:
(i) is engaged in, or is implied to be engaged in, a sexual pose or sexual
activity (whether or not in the presence of other persons); or
(ii) is in the presence of a person who is engaged in, or is implied to be
engaged in, a sexual pose or sexual activity;
and does this in a way that reasonable persons would regard as being, in
all the circumstances, offensive; or
(d) material that describes:
(i) a sexual organ or the anal region of a person who is, or is implied to
be, under 18 years of age; or
(ii) the breasts of a female person who is, or is implied to be, under 18
years of age;
and does this in a way that reasonable persons would regard as being, in
all the circumstances, offensive.
communication in the course of telecommunications carriage
means a communication that is being carried by a carrier or carriage service
provider, and includes a communication that has been collected or received by a
carrier or carriage service provider for carriage, but has not yet been
delivered by the carrier or carriage service provider.
connected, in relation to a telecommunications network,
includes connection otherwise than by means of physical contact (for example, a
connection by means of radiocommunication).
control of data, or material that is in the form of data, has
the meaning given by section 473.2.
depict includes contain data from which a visual image
(whether still or moving) can be generated.
describe includes contain data from which text or sounds can
be generated.
emergency call person has the same meaning as in the
Telecommunications Act 1997.
emergency service number has the same meaning as in the
Telecommunications Act 1997.
emergency service organisation has the same meaning as in
section 147 of the Telecommunications (Consumer Protection and Service
Standards) Act 1999.
facility has the same meaning as in the Telecommunications
Act 1997.
intelligence or security officer means an officer or employee
of:
(a) the Australian Security Intelligence Organisation; or
(b) the Australian Secret Intelligence Service; or
(c) the Office of National Assessments; or
(d) that part of the Department of Defence known as the Defence Signals
Directorate; or
(e) that part of the Department of Defence known as the Defence
Intelligence Organisation;
and includes a staff member (within the meaning of the Intelligence
Services Act 2001) of the Australian Security Intelligence Organisation, the
Australian Secret Intelligence Service or the Defence Signals
Directorate.
interception device means an apparatus or device
that:
(a) is of a kind that is capable of being used to enable a person to
intercept a communication passing over a telecommunications system;
and
(b) could reasonably be regarded as having been designed:
(i) for the purpose of; or
(ii) for purposes including the purpose of;
using it in connection with the interception of communications passing
over a telecommunications system; and
(c) is not designed principally for the reception of communications
transmitted by radiocommunications.
Terms used in this definition that are defined in the Telecommunications
(Interception) Act 1979 have the same meaning in this definition as they
have in that Act.
Internet content host has the same meaning as in
Schedule 5 to the Broadcasting Services Act 1992.
Internet service provider has the same meaning as in
Schedule 5 to the Broadcasting Services Act 1992.
law enforcement officer means any of the following:
(a) the Commissioner of the Australian Federal Police, a Deputy
Commissioner of the Australian Federal Police, an AFP employee or a special
member of the Australian Federal Police (all within the meaning of the
Australian Federal Police Act 1979);
(b) a member, or employee, of the police force of a State or
Territory;
(c) a member of the staff of the Australian Crime Commission (within the
meaning of the Australian Crime Commission Act 2002);
(d) a member of a police force, or other law enforcement agency, of a
foreign country;
(e) the Director of Public Prosecutions or a person performing a similar
function under a law of a State or Territory;
(f) a member of the staff of the Office of the Director of Public
Prosecutions (within the meaning of the Director of Public Prosecutions Act
1983) or of a similar body established under a law of a State or
Territory.
loss means a loss in property, whether temporary or
permanent, and includes not getting what one might get.
material includes material in any form, or combination of
forms, capable of constituting a communication.
mobile telecommunications account means an account with a
carriage service provider for the supply of a public mobile telecommunications
service to an end-user.
mobile telecommunications device means an item of customer
equipment (within the meaning of the Telecommunications Act 1997) that is
used, or is capable of being used, in connection with a public mobile
telecommunications service.
nominated carrier has the same meaning as in the
Telecommunications Act 1997.
NRS provider has the same meaning as in Part 3 of the
Telecommunications (Consumer Protection and Service Standards) Act
1999.
obtaining includes:
(a) obtaining for another person; and
(b) inducing a third person to do something that results in another person
obtaining.
obtaining data, or material that is in the form of data, has
the meaning given by section 473.3.
possession of data, or material that is in the form of data,
has the meaning given by section 473.2.
producing data, or material that is in the form of data, has
the meaning given by section 473.3.
property has the same meaning as in Chapter 7.
public mobile telecommunications service has the same meaning
as in the Telecommunications Act 1997.
radiocommunication has the same meaning as in the
Radiocommunications Act 1992.
serious offence against a foreign law means an offence
against a law of a foreign country constituted by conduct that, if it had
occurred in Australia, would have constituted a serious offence against a law of
the Commonwealth, a State or a Territory.
serious offence against a law of the Commonwealth, a State or a
Territory means an offence against a law of the Commonwealth, a State or
a Territory that is punishable by imprisonment:
(a) for life; or
(b) for a period of 5 or more years.
subscription-specific secure data means data that is used, or
is capable of being used, to:
(a) allow a carrier to identify a particular mobile telecommunications
account (whether an existing account or an account that may be set up in the
future); and
(b) allow a mobile telecommunications device in which an account
identifier that contains the data is installed to access the public mobile
telecommunication service to which that account relates.
supplying data, or material that is in the form of data, has
the meaning given by section 473.3.
telecommunications device identifier means:
(a) an electronic identifier of a mobile telecommunications device that
is:
(i) installed in the device by the manufacturer; and
(ii) is capable of being used to distinguish that particular device from
other mobile telecommunications devices; or
(b) any other form of identifier that is prescribed by the regulations as
a telecommunications device identifier for the purposes of this Part.
Note: Paragraph (a)—For example, GSM mobile
phones use an industry-recognised International Mobile Equipment Identity (IMEI)
number. This number identifies the particular phone, as compared to the SIM card
number which identifies a particular telecommunications account. Carriers are
able to block service to lost and stolen mobile phones based on their IMEI
numbers.
telecommunications network has the same meaning as in the
Telecommunications Act 1997.
A reference in this Part to a person having possession or control of
data, or material that is in the form of data, includes a reference to the
person:
(a) having possession of a computer or data storage device that holds or
contains the data; or
(b) having possession of a document in which the data is recorded;
or
(c) having control of data held in a computer that is in the possession of
another person (whether inside or outside Australia).
A reference in this Part to a person producing, supplying or obtaining
data, or material that is in the form of data, includes a reference to the
person:
(a) producing, supplying or obtaining data held or contained in a computer
or data storage device; or
(b) producing, supplying or obtaining a document in which the data is
recorded.
The matters to be taken into account in deciding for the purposes of this
Part whether reasonable persons would regard particular material, or a
particular use of a carriage service, as being, in all the circumstances,
offensive, include:
(a) the standards of morality, decency and propriety generally accepted by
reasonable adults; and
(b) the literary, artistic or educational merit (if any) of the material;
and
(c) the general character of the material (including whether it is of a
medical, legal or scientific character).
(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.
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.
(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.
(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).
(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).
(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.
(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.
(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.
(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.
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.
(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.
(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.
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.
(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).
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.
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.
(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.
(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.
(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.
(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).
(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 Broadcasting 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).
(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.
(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).
(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 Broadcasting 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).
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.
(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.
(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.
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.
(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.
(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.
(1) This Part is not intended to exclude or limit the operation of any
other law of the Commonwealth or any law of a State or Territory.
(2) Without limiting subsection (1), a provision in this Part to the
effect that a person is not criminally responsible for an offence against a
provision of this Part in relation to particular conduct does not make the
conduct lawful if it would otherwise be unlawful under the
Radiocommunications Act 1992.
Section 15.1 (extended geographical jurisdiction—category A)
applies to each offence against this Part.
Part 2—Consequential
amendments
Broadcasting Services Act
1992
2 Paragraph 1(3)(b) of
Schedule 5
Repeal the paragraph, substitute:
(b) Subdivision C (Offences related to use of telecommunications) of
Division 474 of Part 10.6 of the Criminal Code.
Note: The heading to subclause 1(3) is replaced by the
heading “State/Territory laws and telecommunications offence provisions
of the Criminal Code”.
3 At the end of
section 15HB
Add:
(2) Without limiting subsection (1), an offence against
section 474.19, 474.20, 474.22, 474.23, 474.26 or 474.27 of the Criminal
Code is a serious Commonwealth offence for the purposes of
this Part.
4 After paragraph 15Y(1)(c)
Insert:
(ca) an offence against section 474.26 or 474.27 of the Criminal
Code (use of carriage service to procure or groom persons under 16 years of
age); or
5 Part VIIB
Repeal the Part.
6 Subsections 471.11(3), (4) and (5) of the
Criminal Code
Repeal the subsections, substitute:
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.
7 Paragraph 471.12(b) of the Criminal
Code
Repeal the paragraph, substitute:
(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.
8 Subsection 476.1(1) of the Criminal Code
(definition of data)
Repeal the definition.
9 Subsection 476.1(1) of the Criminal Code
(definition of data held in a computer)
Repeal the definition.
10 Subsection 476.1(1) of the Criminal Code
(definition of data storage device)
Repeal the definition.
11 Subsection 476.1(1) of the Criminal Code
(definition of telecommunications service)
Repeal the definition.
12 Subsection 476.5(2A) of the Criminal
Code
Omit “telecommunications services”, substitute “carriage
services”.
13 Paragraph 477.1(1)(b) of the Criminal
Code
Omit “telecommunications service”, substitute “carriage
service”.
14 Subparagraph 477.2(1)(d)(iii) of the Criminal
Code
Omit “telecommunications service”, substitute “carriage
service”.
15 Subparagraph 477.2(1)(d)(vii) of the Criminal
Code
Omit “telecommunications service”, substitute “carriage
service”.
16 Subparagraph 477.3(1)(c)(i) of the Criminal
Code
Omit “telecommunications service”, substitute “carriage
service”.
17 Subparagraph 478.1(1)(d)(iii) of the Criminal
Code
Omit “telecommunications service”, substitute “carriage
service”.
18 Dictionary in the Criminal
Code
Insert:
carriage service has the same meaning as in the
Telecommunications Act 1997.
19 Dictionary in the Criminal
Code
Insert:
communication includes any communication:
(a) whether between persons and persons, things and things or persons and
things; and
(b) whether the communication is:
(i) in the form of text; or
(ii) in the form of speech, music or other sounds; or
(iii) in the form of visual images (still or moving); or
(iv) in the form of signals; or
(v) in the form of data; or
(vi) in any other form; or
(vii) in any combination of forms.
20 Dictionary in the Criminal
Code
Insert:
data includes:
(a) information in any form; or
(b) any program (or part of a program).
21 Dictionary in the Criminal
Code
Insert:
data held in a computer includes:
(a) data held in any removable data storage device for the time being held
in a computer; or
(b) data held in a data storage device on a computer network of which the
computer forms a part.
22 Dictionary in the Criminal
Code
Insert:
data storage device means a thing (for example, a disk or
file server) containing, or designed to contain, data for use by a
computer.
23 Dictionary in the Criminal Code
(definition of electronic communication)
Repeal the definition, substitute:
electronic communication means a communication by means of
guided or unguided electromagnetic energy or both.
24 Subsections 233BAB(3) and
(4)
Repeal the subsections, substitute:
(3) For the purposes of subsection (1) an item is taken to be an item
of child pornography if it is a document or other goods:
(a) that depicts a person, or a representation of a person, who is, or
appears to be, under 18 years of age and who:
(i) is engaged in, or appears to be engaged in, a sexual pose or sexual
activity (whether or not in the presence of other persons); or
(ii) is in the presence of a person who is engaged in, or appears to be
engaged in, a sexual pose or sexual activity;
and does this in a way that reasonable persons would regard as being, in
all the circumstances, offensive; or
(b) the dominant characteristic of which is the depiction, for a sexual
purpose, of:
(i) a sexual organ or the anal region of a person who is, or appears to
be, under 18 years of age; or
(ii) a representation of such a sexual organ or anal region; or
(iii) the breasts, or a representation of the breasts, of a female person
who is, or appears to be, under 18 years of age;
in a way that reasonable persons would regard as being, in all the
circumstances, offensive; or
(c) that describes a person who is, or is implied to be, under 18 years of
age and who:
(i) is engaged in, or is implied to be engaged in, a sexual pose or sexual
activity (whether or not in the presence of other persons); or
(ii) is in the presence of a person who is engaged in, or is implied to be
engaged in, a sexual pose or sexual activity;
and does this in a way that reasonable persons would regard as being, in
all the circumstances, offensive; or
(d) that describes:
(i) a sexual organ or the anal region of a person who is, or is implied to
be, under 18 years of age; or
(ii) the breasts of a female person who is, or is implied to be, under 18
years of age;
and does this in a way that reasonable persons would regard as being, in
all the circumstances, offensive.
(4) For the purposes of subsection (1), an item is taken to be an
item of child abuse material if it is a document or other goods:
(a) that depicts a person, or a representation of a person, who:
(i) is, or appears to be, under 18 years of age; and
(ii) is, or appears to be, a victim of torture, cruelty or physical
abuse;
and does this in a way that reasonable persons would regard as being, in
all the circumstances, offensive; or
(b) that describes a person who:
(i) is, or is implied to be, under 18 years of age; and
(ii) is, or is implied to be, a victim of torture, cruelty or physical
abuse;
and does this in a way that reasonable persons would regard as being, in
all the circumstances, offensive.
(4A) The matters to be taken into account in deciding for the purposes of
subsections (3) and (4) whether reasonable persons would regard a
particular document or other goods as being, in all the circumstances,
offensive, include:
(a) the standards of morality, decency and propriety generally accepted by
reasonable adults; and
(b) the literary, artistic or educational merit (if any) of the material;
and
(c) the general character of the material (including whether it is of a
medical, legal or scientific character).
Telecommunications
(Interception) Act 1979
25 Subsection 5(1) (paragraph (c) of the
definition of prescribed offence)
Omit “Part VIIB of the Crimes Act 1914”, substitute
“Part 10.6 of the Criminal Code”.
26 After subsection 5D(2)
Insert:
(2A) Without limiting subsection (2), an offence is also a
class 2 offence if it is an offence against section 474.19,
474.20, 474.22, 474.23, 474.26 or 474.27 of the Criminal Code.
27 Subparagraph 7(2)(a)(iii)
Omit “Part VIIB of the Crimes Act 1914”, substitute
“Part 10.6 of the Criminal Code”.
28 Subsection 11D(4)
Omit “Part VIIB of the Crimes Act 1914”, substitute
“Part 10.6 of the Criminal Code”.
Note: The heading to subsection 11D(4) is replaced by the
heading “Part 10.6 of the Criminal
Code”.
29 Subsection 11D(4) (note)
Omit “Part VIIB of the Crimes Act 1914”, substitute
“Part 10.6 of the Criminal Code”.
30 Saving—existing regulations respecting
interception devices
(1) Regulations made for the purposes of paragraph 85ZKB(2)(c) of the
Crimes Act 1914 and in force immediately before the commencement of
item 1 of this Schedule continue in force as if they had been made for the
purposes of subsection 474.4(3) of the Criminal Code as enacted by that
item.
(2) Subitem (1) does not prevent amendment or repeal of the
regulations referred to in that subitem.
31 Saving—offences against Part VIIB of
the Crimes Act 1914
(1) For the purposes of the Telecommunications (Interception) Act
1979, prescribed offence includes an offence in relation to
conduct (within the meaning of the Criminal Code) that:
(a) occurred before Part VIIB of the Crimes Act 1914 was
repealed by this Act; and
(b) constituted an offence against a provision of that Part.
(2) Subsection 7(1) of the Telecommunications (Interception) Act
1979 does not apply to, or in relation to, an act or thing done by an
employee of a carrier (within the meaning of that Act) in the course of his or
her duties for or in connection with the identifying or tracing of any person
who has contravened, or is suspected of having contravened, a provision of
Part VIIB of the Crimes Act 1914 before its repeal by this Act,
where it is reasonably necessary for the employee to do that act or thing in
order to perform those duties effectively.
1 After Part 9.4 of the Criminal
Code
Insert:
(1) In this Part:
constitutional trade and commerce means trade and
commerce:
(a) with other countries; or
(b) among the States; or
(c) between a State and a Territory; or
(d) between 2 Territories.
contaminate goods includes:
(a) interfere with the goods; or
(b) make it appear that the goods have been contaminated or interfered
with.
goods includes any substance:
(a) whether or not for human consumption; and
(b) whether natural or manufactured; and
(c) whether or not incorporated or mixed with other goods.
(2) A reference in this Part to economic loss caused through public
awareness of the contamination of goods includes a reference to economic loss
caused through:
(a) members of the public not purchasing or using those goods or similar
things; or
(b) steps taken to avoid public alarm or anxiety or to avoid harm to
members of the public.
Offence based on implied nationhood power
(1) A person is guilty of an offence if:
(a) the person contaminates goods; and
(b) the person does so with intent:
(i) to cause public alarm or anxiety in Australia; or
(ii) to cause widespread, or nationally significant, economic loss in
Australia through public awareness of the contamination, or possible
contamination, of the goods; or
(iii) to cause harm to, or create a risk of harm to, public health in
Australia.
Penalty: Imprisonment for 10 years.
Offences based on other constitutional powers
(2) A person is guilty of an offence if:
(a) the person contaminates goods; and
(b) the person does so with intent to cause:
(i) public alarm or anxiety; or
(ii) economic loss through public awareness of the contamination, or
possible contamination, of the goods; and
(c) any of the following subparagraphs applies:
(i) the loss is a loss to a constitutional corporation (other than a
foreign corporation within the meaning of paragraph 51(xx) of the
Constitution);
(ii) the loss is a loss to a constitutional corporation that is a foreign
corporation within the meaning of paragraph 51(xx) of the Constitution and the
goods have been produced, manufactured, assembled or otherwise processed in
Australia;
(iii) the goods belong to a constitutional corporation (other than a
foreign corporation within the meaning of paragraph 51(xx) of the
Constitution);
(iv) the goods belong to a constitutional corporation that is a foreign
corporation within the meaning of paragraph 51(xx) of the Constitution and the
goods have been produced, manufactured, assembled or otherwise processed in
Australia;
(v) the person is a constitutional corporation (other than a foreign
corporation within the meaning of paragraph 51(xx) of the
Constitution);
(vi) the person is a constitutional corporation that is a foreign
corporation within the meaning of paragraph 51(xx) of the Constitution and the
goods have been produced, manufactured, assembled or otherwise processed in
Australia;
(vii) the loss takes the form of detriment to constitutional trade and
commerce;
(viii) the goods are in the course of, or intended for, constitutional
trade and commerce;
(ix) the contamination occurs outside Australia and the goods have been
produced, manufactured, assembled or otherwise processed in Australia;
(x) the loss is a loss to the Commonwealth or a Commonwealth
authority.
Penalty: Imprisonment for 10 years.
(3) Absolute liability applies to paragraph (2)(c).
Offence based on implied nationhood power
(1) A person is guilty of an offence if:
(a) the person makes a threat that goods will be contaminated;
and
(b) the person does so with intent:
(i) to cause public alarm or anxiety in Australia; or
(ii) to cause widespread, or nationally significant, economic loss in
Australia through public awareness of the contamination, or possible
contamination, of the goods; or
(iii) to cause harm to, or create a risk of harm to, public health in
Australia.
Penalty: Imprisonment for 10 years.
Offences based on other constitutional powers
(2) A person is guilty of an offence if:
(a) the person makes a threat that goods will be contaminated;
and
(b) the person does so with intent to cause:
(i) public alarm or anxiety; or
(ii) economic loss through public awareness of the contamination, or
possible contamination, of the goods; and
(c) any of the following subparagraphs applies:
(i) the loss is a loss to a constitutional corporation (other than a
foreign corporation within the meaning of paragraph 51(xx) of the
Constitution);
(ii) the loss is a loss to a constitutional corporation that is a foreign
corporation within the meaning of paragraph 51(xx) of the Constitution and the
goods have been produced, manufactured, assembled or otherwise processed in
Australia;
(iii) the goods belong to a constitutional corporation (other than a
foreign corporation within the meaning of paragraph 51(xx) of the
Constitution);
(iv) the goods belong to a constitutional corporation that is a foreign
corporation within the meaning of paragraph 51(xx) of the Constitution and the
goods have been produced, manufactured, assembled or otherwise processed in
Australia;
(v) the person is a constitutional corporation (other than a foreign
corporation within the meaning of paragraph 51(xx) of the
Constitution);
(vi) the person is a constitutional corporation that is a foreign
corporation within the meaning of paragraph 51(xx) of the Constitution and the
goods have been produced, manufactured, assembled or otherwise processed in
Australia;
(vii) the loss takes the form of detriment to constitutional trade and
commerce;
(viii) the goods are in the course of, or intended for, constitutional
trade and commerce;
(ix) the person makes the threat in Australia using a postal or other like
service or an electronic communication;
(x) the person makes the threat outside Australia and the goods have been
produced, manufactured, assembled or otherwise processed in Australia;
(xi) the loss is a loss to the Commonwealth or a Commonwealth
authority;
(xii) the threat is made to the Commonwealth or a Commonwealth
authority.
Penalty: Imprisonment for 10 years.
(3) Absolute liability applies to paragraph (2)(c).
Offence based on implied nationhood power
(1) A person is guilty of an offence if:
(a) the person makes a statement that the person believes to be false;
and
(b) the person does so with the intention of inducing the person to whom
the statement is made or others to believe that goods have been contaminated;
and
(c) the person does so with intent:
(i) to cause public alarm or anxiety in Australia; or
(ii) to cause widespread, or nationally significant, economic loss in
Australia through public awareness of the contamination, or possible
contamination, of the goods; or
(iii) to cause harm to, or create a risk of harm to, public health in
Australia.
Penalty: Imprisonment for 10 years.
Offence based on other constitutional powers
(2) A person is guilty of an offence if:
(a) the person makes a statement that the person believes to be false;
and
(b) the person does so with the intention of inducing the person to whom
the statement is made or others to believe that goods have been contaminated;
and
(c) the person does so with intent to cause:
(i) public alarm or anxiety; or
(ii) economic loss through public awareness of the contamination, or
possible contamination, of the goods; and
(d) any of the following subparagraphs applies:
(i) the loss is a loss to a constitutional corporation (other than a
foreign corporation within the meaning of paragraph 51(xx) of the
Constitution);
(ii) the loss is a loss to a constitutional corporation that is a foreign
corporation within the meaning of paragraph 51(xx) of the Constitution and the
goods have been produced, manufactured, assembled or otherwise processed in
Australia;
(iii) the goods belong to a constitutional corporation (other than a
foreign corporation within the meaning of paragraph 51(xx) of the
Constitution);
(iv) the goods belong to a constitutional corporation that is a foreign
corporation within the meaning of paragraph 51(xx) of the Constitution and the
goods have been produced, manufactured, assembled or otherwise processed in
Australia;
(v) the person is a constitutional corporation (other than a foreign
corporation within the meaning of paragraph 51(xx) of the
Constitution);
(vi) the person is a constitutional corporation that is a foreign
corporation within the meaning of paragraph 51(xx) of the Constitution and the
goods have been produced, manufactured, assembled or otherwise processed in
Australia;
(vii) the loss takes the form of detriment to constitutional trade and
commerce;
(viii) the goods are in the course of, or intended for, constitutional
trade and commerce;
(ix) the person makes the statement in Australia using a postal or other
like service or an electronic communication;
(x) the person makes the statement outside Australia and the goods have
been produced, manufactured, assembled or otherwise processed in
Australia;
(xi) the loss is a loss to the Commonwealth or a Commonwealth
authority;
(xii) the statement is made to the Commonwealth or a Commonwealth
authority.
Penalty: Imprisonment for 10 years.
(3) Absolute liability applies to paragraph (2)(d).
(4) For the purposes of this section, making a statement includes
conveying information by any means.
Section 15.4 (extended geographical jurisdiction—category D)
applies to an offence against subsection 380.2(1) or (2), 380.3 (1) or (2) or
380.4(1) or (2).
2 Dictionary in the Criminal
Code
Insert:
constitutional corporation means a corporation to which
paragraph 51(xx) of the Constitution applies.
1 At the end of Chapter 10 of the Criminal
Code
Add:
(1) In this Part:
ADI (authorised deposit-taking institution) means a
corporation that is an ADI for the purposes of the Banking Act
1959.
dealing in personal financial information includes supplying
or using financial information.
deception means an intentional or reckless deception, whether
by words or other conduct, and whether as to fact or as to law, and
includes:
(a) a deception as to the intentions of the person using the deception or
any other person; and
(b) conduct by a person that causes a computer, a machine or an electronic
device to make a response that the person is not authorised to cause it to
do.
dishonest has the meaning given by
section 480.2.
obtaining personal financial information includes possessing
or making personal financial information.
personal financial information means information relating to
a person that may be used (whether alone or in conjunction with other
information) to access funds, credit or other financial benefits.
(2) For the purposes of this Part, a person is taken to obtain or deal in
personal information without the consent of the person to whom the information
relates if the consent of that person is obtained by any deception.
(3) This Part extends to personal information relating to:
(a) an individual; or
(b) a corporation; or
(c) a living or dead person.
(1) For the purposes of this Part, 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 Part, the determination
of dishonesty is a matter for the trier of fact.
This Part applies to personal financial information only if:
(a) the funds concerned represent amounts that have been deposited with or
lent to, or are otherwise to be provided or made available by, an ADI or a
constitutional corporation; or
(b) the credit or other financial benefits concerned are provided, or made
available, by an ADI or a constitutional corporation.
A person is guilty of an offence if the person:
(a) dishonestly obtains, or deals in, personal financial information;
and
(b) obtains, or deals in, that information without the consent of the
person to whom the information relates.
Penalty: Imprisonment for 5 years.
(1) A person is guilty of an offence if:
(a) the person has possession or control of any thing; and
(b) the person has that possession or control with the intention that the
thing be used:
(i) by the person; or
(ii) by another person;
to commit an offence against section 480.4 (dishonestly obtaining or
dealing in personal financial information) or to facilitate the commission of
that offence.
Penalty: Imprisonment for 3 years.
(2) A person may be found guilty of an offence against subsection (1)
even if committing the offence against section 480.4 (dishonestly obtaining
or dealing in personal financial information) is impossible.
(3) It is not an offence to attempt to commit an offence against
subsection (1).
A person is guilty of an offence if the person:
(a) imports a thing into Australia; and
(b) does so with the intention that the thing be used:
(i) by the person; or
(ii) by another person;
in committing an offence against section 480.3 (dishonestly
obtaining or dealing in personal financial information) or to facilitate the
commission of that offence.
Penalty: Imprisonment for 3 years.
1 At the end of section 11.2 of the Criminal
Code
Add:
(7) If the trier of fact is satisfied beyond reasonable doubt that a
person either:
(a) is guilty of a particular offence otherwise than because of the
operation of subsection (1); or
(b) is guilty of that offence because of the operation of
subsection (1);
but is not able to determine which, the trier of fact may nonetheless find
the person guilty of that offence.
2 Application of amendment
The amendment made by item 1 applies to prosecutions brought after the
commencement of that item.
Part 2—Obtaining
financial advantage
3 Paragraph 135.2(1)(a) of the Criminal
Code
Repeal the paragraph, substitute:
(a) the person engages in conduct; and
(aa) as a result of that conduct, the person obtains a financial advantage
for himself or herself from another person; and
(ab) the person knows or believes that he or she is not eligible to
receive that financial advantage; and
4 Paragraph 135.2(2)(a) of the Criminal
Code
Repeal the paragraph, substitute:
(a) the person engages in conduct; and
(aa) as a result of that conduct, the person obtains a financial advantage
for another person from a third person; and
(ab) the person knows or believes that the other person is not eligible to
receive that financial advantage; and
5 Subsection 9.3(2) of the Criminal
Code
Repeal the subsection, substitute:
(2) Subsection (1) does not apply, and the person is not criminally
responsible for the offence in those circumstances, if the Act is expressly to
the contrary effect.
6 Paragraph 9.4(2)(a) of the Criminal
Code
Omit “or impliedly”.
7 Paragraph 9.4(2)(b) of the Criminal
Code
Repeal the paragraph.
8 Transitional—pre-commencement
offences
(1) Despite the amendment or repeal of a provision by this Part, that
provision continues to apply, after the commencement of this item, in relation
to:
(a) an offence committed before the commencement of this item;
or
(b) proceedings for an offence alleged to have been committed before the
commencement of this item; or
(c) any matter connected with, or arising out of, such
proceedings;
as if the amendment or repeal had not been made.
(2) Subitem (1) does not limit the operation of section 8 of the
Acts Interpretation Act 1901.
1 Subsection 3(1) (subparagraph (a)(i) of the
definition of Division 2 aircraft)
Repeal the subparagraph, substitute:
(i) engaged in a flight in the course of trade and commerce with other
countries or among the States; or
(ia) engaged in a flight within a Territory, between 2 Territories or
between a State and a Territory; or
2 At the end of paragraph
15(1)(b)
Add:
; or (iii) the Prostitution Act 1992 of the Australian Capital
Territory in its application to the Jervis Bay Territory;
3 Subsection 233B(1)
Repeal the subsection, substitute:
(1) A person commits an offence if:
(a) the person:
(i) possesses goods on board a ship or aircraft; or
(ii) brings goods into Australia; or
(iii) imports goods into Australia; or
(iv) possesses goods that have been imported into Australia in
contravention of this Act; or
(v) conveys goods that have been imported into Australia in contravention
of this Act; or
(vi) possesses goods that are reasonably suspected of having been imported
into Australia in contravention of this Act; or
(vii) fails to disclose to an officer on demand any knowledge in his or
her possession or power concerning the importation or intended importation, or
bringing or intended bringing, into Australia of goods; and
(b) the goods are a prohibited import to which this section
applies.
(1AAB) Subparagraph (1)(a)(i), (ii), (iv), (v) or (vi) does not apply
if the person proves that the person had a reasonable excuse for doing the act
referred to in that subparagraph.
(1AAC) A person commits an offence if:
(a) the person:
(i) exports goods from Australia; or
(ii) fails to disclose to an officer on demand any knowledge in his or her
possession or power concerning the exportation or intended exportation from
Australia of goods; and
(b) the goods are a prohibited export to which this section
applies.
4 Subsection 233B(1AA)
Omit “paragraph (1)(a)”, substitute
“subparagraph (1)(a)(i)”.
5 Subsection 233B(1AB)
Omit “paragraph (1)(c) or (caa)”, substitute
“subparagraph (1)(a)(iv) or (v)”.
6 Subsection 233B(1AC)
Omit “paragraph (1)(ca)”, substitute
“subparagraph (1)(a)(vi)”.
7 Subsection 233B(1A)
Omit “paragraph (c) of that subsection”, substitute
“subparagraph (1)(a)(iv)”.
8 Subsection 233B(1B)
Omit “paragraph (ca) of that subsection”, substitute
“subparagraph (1)(a)(vi)”.
9 Schedule 1 (heading relating to the
Telecommunications (Interception) Act 1997)
Omit “1997”, substitute “1979”.
Mutual Assistance in
Criminal Matters Act 1987
10 Paragraph 15(1)(c)
Repeal the paragraph, substitute:
(c) the foreign country requests the Attorney-General to arrange for the
evidential material to be obtained;
11 Subsection 15(1)
Omit “the search warrant requested by the foreign country”,
substitute “a search warrant in respect of the evidential
material”.
12 Subsection 38ZA(1)
Repeal the subsection, substitute:
(1) Subject to subsection (2), if a police officer seizes a thing
while executing a warrant issued under Division 2, he or she
must:
(a) inform the Attorney-General that the thing has been so seized;
and
(b) retain the thing pending the Attorney-General’s direction under
subsection (4) about how to deal with the thing; and
(c) comply with any such direction that the Attorney-General
gives.
13 Subsection 38ZA(3)
Repeal the subsection.
14 Subsection 38ZA(4)
Omit “Commissioner”, substitute “police
officer”.
15 Subsection 38ZA(5)
Omit “Commissioner”, substitute “police
officer”.
16 Subsection 38ZA(6)
Omit “Commissioner”, substitute “police
officer”.