Criminal Code Act 1995
1Repeal the Part, substitute:
(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 programthe execution of the
program.
(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.
"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.
(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.
"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.
(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 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.
"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.
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.
(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.
"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.
473.2 Possession or control of data or material in the form of data
(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).
473.3
Producing, supplying or obtaining data or material in the form of data
(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.
473.4 Determining whether material is offensive
(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).
Division 474Telecommunications offences
474.1 Dishonesty
(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.
474.2 General dishonesty with respect to a carriage service provider
Obtaining a gain
Penalty: Imprisonment for 5 years.
Causing a loss
Penalty: Imprisonment for 5 years.
(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 BInterference with telecommunications
474.3
Person acting for a carrier or carriage service provider
(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.
(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
(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.
474.5 Wrongful delivery of communications
(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.
474.6 Interference with facilities
(a) a carrier; or
(b) a carriage service provider; or
(c) a nominated carrier.
Penalty: Imprisonment for 1 year.
(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.
(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.
(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.
(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 2: See also subsection 475.1(2) for the interaction between this defence and the Radiocommunications Act 1992 .
474.7 Modification etc. of a telecommunications device identifier
(a) modifies a telecommunications device identifier; or
(b) interferes with the operation of a telecommunications device
identifier.
Penalty: Imprisonment for 2 years.
(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.
(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 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
(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.
(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.
(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 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
(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.
(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.
(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 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
(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
(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
(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.
(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 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
(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.
Defences
(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.
(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 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
(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.
Defences
(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.
(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 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 COffences related to use of telecommunications
474.13 Use
of a carriage service
(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
(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.
(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.
474.15 Using a carriage service to make a threat
Threat to kill
(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
(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
Definitions
"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) 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
(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.
(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
(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.
(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.
(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
(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.
(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).
474.20 Possessing, controlling, producing, supplying or obtaining child pornography material for use through a carriage service
(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.
474.21 Defences in respect of child pornography material
(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.
(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.
(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.
(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).
474.22 Using a carriage service for child abuse material
(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.
(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).
474.23 Possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service
(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.
474.24 Defences in respect of child abuse material
(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.
(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.
(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.
(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).
474.25 Obligations of Internet service providers and Internet content hosts
(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
(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.
(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.
(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
(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.
(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.
(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.
474.28 Provisions relating to offences against sections 474.26 and 474.27
Age-related issues
Note 2: For a defence based on belief about age, see section 474.29.
Note 2: For a defence based on belief about age, see section 474.29.
(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.
(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.
Impossibility of sexual activity taking place
Fictitious recipient
Attempt not offence
Definitions
(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.
(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
474.30 Defences for NRS employees and emergency call persons
(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.
(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.
Division 475Miscellaneous
475.1 Saving of other laws
475.2 Geographical jurisdiction
Part 2Consequential 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:
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.
Criminal Code Act 1995
6 Subsections 471.11(3), (4) and (5) of the Criminal Code
Repeal the subsections, substitute:
Actual fear not necessary
Definitions
"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:
19 Dictionary in the Criminal Code
Insert:
(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:
(a) information in any form; or
(b) any program (or part of a program).
21 Dictionary in the Criminal
Code
Insert:
(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:
23 Dictionary in the Criminal Code (definition of electronic communication )
Repeal the definition, substitute:
24 Subsections 233BAB(3) and (4)
Repeal the subsections, substitute:
(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.
(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.
(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:
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 ".
Part 3Saving provisions
30
Savingexisting 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 Savingoffences 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.