Criminal Code Act 1995. Act nº 12 of 1995 as amended. Amendments up to Act nº 170 of 2012

Criminal Code Act 1995. Act nº 12 of 1995 as amended. Amendments up to Act nº 170 of 2012

An Act relating to the criminal law

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Part 10.5.-Postal services

Division 470.-Preliminary

470.1.- Definitions

In this Part:

article has the same meaning as in the Australian Postal Corporation Act 1989.

article in the course of post means an article that is being carried by post, and includes an article that has been collected or received by or on behalf of Australia Post for carriage by post, but has not been delivered by or on behalf of Australia Post.

Australia Post means the Australian Postal Corporation.

carry, in relation to an article, has the same meaning as in the Australian Postal Corporation Act 1989.

carry by post has the same meaning as in the Australian Postal Corporation Act 1989.

constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.

mail-receptacle means a mail-bag, package, parcel, container, wrapper, receptacle or similar thing that:

(a) belongs to, or is in the possession of, Australia Post; and

(b) is used, or intended for use, in the carriage of articles by post (whether or not it actually contains such articles).

postage stamp has the same meaning as in the Australian Postal Corporation Act 1989.

postal message means:

(a) a material record of an unwritten communication:

(i) carried by post; or

(ii) collected or received by Australia Post for carriage by post; or

(b) a material record issued by Australia Post as a record of an unwritten communication:

(i) carried by post; or

(ii) collected or received by Australia Post for carriage by post.

postal or similar service means:

(a) a postal service (within the meaning of paragraph 51(v) of the Constitution); or

(b) a courier service, to the extent to which the service is a postal or other like service (within the meaning of paragraph 51(v) of the Constitution); or

(c) a packet or parcel carrying service, to the extent to which the service is a postal or other like service (within the meaning of paragraph 51(v) of the Constitution); or

(d) any other service that is a postal or other like service (within the meaning of paragraph 51(v) of the Constitution); or

(e) a courier service that is provided by a constitutional corporation; or

(f) a packet or parcel carrying service that is provided by a constitutional corporation; or

(g) a courier service that is provided in the course of, or in relation to, trade or commerce:

(i) between Australia and a place outside Australia; or

(ii) among the States; or

(iii) between a State and a Territory or between 2 Territories; or

(h) a packet or parcel carrying service that is provided in the course of, or in relation to, trade or commerce:

(i) between Australia and a place outside Australia; or

(ii) among the States; or

(iii) between a State and a Territory or between 2 Territories.

property has the same meaning as in Chapter 7.

unwritten communication has the same meaning as in the Australian Postal Corporation Act 1989.

470.2.- Dishonesty

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.

470.3.- Determination of dishonesty to be a matter for the trier of fact

In a prosecution for an offence against this Part, the determination of dishonesty is a matter for the trier of fact.

470.4.- Meaning of expressions used in Subdivisions B and C of Division 471

(1) Subject to subsections (2) and (3), an expression used in Subdivision B or C of Division 471 that is defined in Part 10.6 has the same meaning in that Subdivision as it has in that Part.

(2) A reference in Subdivision B or C of Division 471 to a person having possession or control of material includes a reference to the person:

(a) having possession of a computer or data storage device that holds or contains the material; or

(b) having possession of a document in which the material is recorded; or

(c) having control of material held in a computer that is in the possession of another person (whether inside or outside Australia).

(3) A reference in Subdivision B or C of Division 471 to a person producing, supplying or obtaining material includes a reference to the person:

(a) producing, supplying or obtaining material held or contained in a computer or data storage device; or

(b) producing, supplying or obtaining a document in which the material is recorded.

(4) Section 473.4 applies in relation to Subdivisions B and C of Division 471 as if the reference in that section to Part 10.6 were a reference to those Subdivisions.

Division 471.-Postal offences

Subdivision A-General postal offences

471.1 Theft of mail-receptacles, articles or postal messages

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

(a) the person dishonestly appropriates:

(i) a mail-receptacle; or

(ii) an article in the course of post (including an article that appears to have been lost or wrongly delivered by or on behalf of Australia Post or lost in the course of delivery to Australia Post); or

(iii) a postal message; and

(b) the person does so with the intention of permanently depriving another person of the mail-receptacle, article or postal message.

Penalty: Imprisonment for 10 years.

Dishonesty

(2) For the purposes of this section, a person´s appropriation of a mail-receptacle, article or postal message may be dishonest even if the person or another person is willing to pay for the mail-receptacle, article or postal message.

Intention of permanently depriving a person of a mail-receptacle, article or postal message

(3) For the purposes of this section, if:

(a) a person appropriates a mail-receptacle, article or postal message without meaning another permanently to lose the thing itself; and

(b) the person´s intention is to treat the thing as the person´s own to dispose of regardless of the other´s rights;

the person has the intention of permanently depriving the other of it.

(4) For the purposes of subsection (3), a borrowing or lending of a thing amounts to treating the thing as the borrower´s or lender´s own to dispose of regardless of another´s rights if, and only if,

the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.

471.2.- Receiving stolen mail-receptacles, articles or postal messages

(1) A person is guilty of an offence if the person dishonestly receives stolen property, knowing or believing the property to be stolen.

Penalty: Imprisonment for 10 years.

Stolen property

(2) For the purposes of this section, property is stolen property if, and only if:

(a) it is original stolen property (as defined by subsection (3)); or

(b) it is tainted property (as defined by subsection (5)).

This subsection has effect subject to subsection (4).

Original stolen property

(3) For the purposes of this section, original stolen property is property, or a part of property, that:

(a) was appropriated in the course of an offence against section 471.1 (whether or not the property, or the part of the property, is in the state it was in when it was so appropriated); and

(b) is in the possession or custody of the person who so appropriated the property.

(4) For the purposes of this section, property ceases to be original stolen property:

(a) after the property is restored:

(i) to the person from whom it was appropriated; or

(ii) to other lawful possession or custody; or

(b) after:

(i) the person from whom the property was appropriated ceases to have any right to restitution in respect of the property; or

(ii) a person claiming through the person from whom the property was appropriated ceases to have any right to restitution in respect of the property.

Tainted property

(5) For the purposes of this section, tainted property is property that:

(a) is (in whole or in part) the proceeds of sale of, or property exchanged for, original stolen property; and

(b) is in the possession or custody of the person who so appropriated the original stolen property.

Alternative verdicts

(6) If, in a prosecution for an offence against section 471.1, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence against this section, the trier of fact may find the defendant not guilty of the offence against section 471.1 but guilty of the offence against this section, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

(7) If, in a prosecution for an offence against this section, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence against section 471.1, the trier of fact may find the defendant not guilty of the offence against this section but guilty of the offence against section 471.1, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

Receiving stolen property before commencement

(8) For the purposes of this section:

(a) it is to be assumed that section 471.1 had been in force at all times before the commencement of this section; and

(b) property that was appropriated at a time before the commencement of this section does not become stolen property unless the property was appropriated in circumstances that (apart from paragraph (a)) amounted to an offence against a law of the Commonwealth in force at that time.

471.3.- Taking or concealing of mail-receptacles, articles or postal messages

A person is guilty of an offence if the person dishonestly takes or conceals:

(a) a mail-receptacle; or

(b) an article in the course of post (including an article that appears to have been lost or wrongly delivered by or on behalf of Australia Post or lost in the course of delivery to Australia Post); or

Penalty: Imprisonment for 5 years.

471.4.- Dishonest removal of postage stamps or postmarks

A person is guilty of an offence if the person dishonestly:

(a) removes any postage stamp affixed to, or printed on, an article; or

(b) removes any postmark from a postage stamp that has previously been used for postal services.

Penalty: Imprisonment for 12 months.

471.5.- Dishonest use of previously used, defaced or obliterated stamps

(1) A person is guilty of an offence if the person dishonestly uses for postal services a postage stamp:

(a) that has previously been used for postal services; or

(b) that has been obliterated; or

Penalty: Imprisonment for 12 months.

(2) If, in proceedings for an offence against subsection (1), it is proved that the defendant caused an article to or on which was affixed or printed a postage stamp:

(a) that had previously been used for postal services; or

(b) that had been obliterated; or

to be carried by post, it is presumed, in the absence of evidence to the contrary, that the defendant used the stamp for postal services.

(3) The burden of proof in respect of evidence to the contrary is an evidential burden of proof.

471.6.- Damaging or destroying mail-receptacles, articles or postal messages

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

(a) the person engages in conduct; and

(b) the person´s conduct causes damage to, or the destruction of:

(i) a mail-receptacle; or

(iii) a postal message; and

(i) intends that his or her conduct cause that damage; or

(ii) is reckless as to whether his or her conduct causes that damage.

Penalty: Imprisonment for 10 years.

(2) For the purposes of this section, a person´s conduct is taken to cause the destruction of a thing if the person´s conduct causes the physical loss of the thing by interfering with the thing (including by removing any restraint over the thing or abandoning the thing).

(3) For the purposes of this section, a person´s conduct is taken to cause damage to a thing if:

(a) the person´s conduct causes any loss of a use of the function of the thing by interfering with the thing; or

(b) the person´s conduct causes the thing to be defaced.

471.7.- Tampering with mail-receptacles

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

(a) opens a mail-receptacle; or

(b) tampers with a mail-receptacle.

Penalty: Imprisonment for 5 years.

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

(a) the person intentionally opens a mail-receptacle; and

(b) the person is not authorised by Australia Post to open the mail-receptacle; and

Penalty: Imprisonment for 2 years.

471.8.- Dishonestly obtaining delivery of articles

A person is guilty of an offence if the person dishonestly obtains delivery of, or receipt of, an article in the course of post that is not directed to the person.

Penalty: Imprisonment for 5 years.

471.9.- Geographical jurisdiction

Section 15.3 (extended geographical jurisdiction-category C) applies to an offence against section 471.1, 471.2, 471.3, 471.4, 471.5, 471.6, 471.7 or 471.8.

471.10.- Hoaxes-explosives and dangerous substances

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

(a) the person causes an article to be carried by a postal or similar service; and

(b) the person does so with the intention of inducing a false belief that:

(i) the article consists of, encloses or contains an explosive or a dangerous or harmful substance or thing; or

(ii) an explosive, or a dangerous or harmful substance or thing, has been or will be left in any place.

Penalty: Imprisonment for 10 years.

(2) To avoid doubt, the definition of carry by post in section 470.1 does not apply to this section.

471.11.- Using a postal or similar service to make a threat

Threat to kill

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

(a) the first person uses a postal or similar 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 postal or similar 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.

471.12.- Using a postal or similar service to menace, harass or cause offence

A person is guilty of an offence if:

(a) the person uses a postal or similar 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 2 years.

471.13.- Causing a dangerous article to be carried by a postal or similar service

Offence

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

(a) the first person causes an article to be carried by a postal or similar service; and

(b) the person does so in a way that gives rise to a danger of death or serious harm to another person; and

Penalty: Imprisonment for 10 years.

Danger of death or serious harm

(2) For the purposes of this section, if a person´s conduct exposes another person to the risk of catching a disease that may give rise to a danger of death or serious harm to the other person, the conduct is taken to give rise to a danger of death or serious harm to the other person.

(3) For the purposes of this section, a person´s conduct gives rise to a danger of death or serious harm if the conduct is ordinarily capable of creating a real, and not merely a theoretical, danger of death or serious harm.

(4) For the purposes of this section, a person´s conduct may give rise to a danger of death or serious harm whatever the statistical or arithmetical calculation of the degree of risk of death or serious harm involved.

(5) In a prosecution for an offence against subsection (1), it is not necessary to prove that a specific person was actually placed in danger of death or serious harm by the conduct concerned.

Definition

(6) To avoid doubt, the definition of carry by post in section 470.1 does not apply to this section.

471.14.- Geographical jurisdiction

Section 15.1 (extended geographical jurisdiction-category A) applies to an offence against section 471.10, 471.11, 471.12 or 471.13.

471.15.- Causing an explosive, or a dangerous or harmful substance, to be carried by post

Offence

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

(a) the person causes an article to be carried by post; and

(b) the article consists of, encloses or contains:

(i) an explosive; or

(ii) a dangerous or harmful substance or thing that the regulations say must not, without exception, be carried by post.

Penalty: Imprisonment for 10 years.

Geographical jurisdiction

(2) Section 15.3 (extended geographical jurisdiction-category C) applies to an offence against subsection (1).

Subdivision B.-Offences relating to use of postal or similar service for child pornography material or child abuse material

471.16.- Using a postal or similar service for child pornography material

(1) A person commits an offence if:

(a) the person causes an article to be carried by a postal or similar service; and

(b) the article is, or contains, child pornography material.

Penalty: Imprisonment for 15 years.

(2) A person commits an offence if:

(a) the person requests another person to cause an article to be carried by a postal or similar service; and

(b) the article is, or contains, child pornography material.

Penalty: Imprisonment for 15 years.

471.17.- Possessing, controlling, producing, supplying or obtaining child pornography material for use through a postal or similar service

(1) A person commits 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 471.16 (using a postal or similar service for child pornography material).

Penalty: Imprisonment for 15 years.

(2) A person may be found guilty of an offence against subsection (1) even if committing the offence against section 471.16 (using a postal or similar service for child pornography material) is impossible.

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

471.18.- Defences in respect of child pornography material

(1) A person is not criminally responsible for an offence against section 471.16 (using a postal or similar service for child pornography material) or 471.17 (possessing etc. child pornography material for use through a postal or similar 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.

(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

(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 471.16 (using a postal or similar service for child pornography material) or 471.17 (possessing etc. child pornography material for use through a postal or similar 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.

471.19.- Using a postal or similar service for child abuse material

(1) A person commits an offence if:

(a) the person causes an article to be carried by a postal or similar service; and

(b) the article is, or contains, child abuse material.

Penalty: Imprisonment for 15 years.

(2) A person commits an offence if:

(a) the person requests another person to cause an article to be carried by a postal or similar service; and

(b) the article is, or contains, child abuse material.

Penalty: Imprisonment for 15 years.

471.20.- Possessing, controlling, producing, supplying or obtaining child abuse material for use through a postal or similar service

(1) A person commits 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 471.19 (using a postal or similar service for child abuse material).

Penalty: Imprisonment for 15 years.

(2) A person may be found guilty of an offence against subsection (1) even if committing the offence against section 471.19 (using a postal or similar service for child abuse material) is impossible.

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

471.21.- Defences in respect of child abuse material

(1) A person is not criminally responsible for an offence against section 471.19 (using a postal or similar service for child abuse material) or 471.20 (possessing etc. child abuse material for use through a postal or similar 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.

(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

(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 471.19 (using a postal or similar service for child abuse material) or 471.20 (possessing etc. child abuse material for use through a postal or similar 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.

471.22.- Aggravated offence-offence involving conduct on 3 or more occasions and 2 or more people

(1) A person commits an offence against this section if:

(a) the person commits an offence against one or more of the following provisions on 3 or more separate occasions:

(i) section 471.16 (using a postal or similar service for child pornography material);

(ii) section 471.17 (possessing etc. child pornography material for use through a postal or similar service);

(iii) section 471.19 (using a postal or similar service for child abuse material);

(iv) section 471.20 (possessing etc. child abuse material for use through a postal or similar service); and

(b) the commission of each such offence involves 2 or more people.

Penalty: Imprisonment for 25 years.

(2) There is no fault element for any of the physical elements described in paragraph (1)(a) other than the fault elements (however described), if any, for the offence against section 471.16, 471.17, 471.19 or 471.20.

(3) To avoid doubt, a person does not commit an offence against section 471.16, 471.17, 471.19 or 471.20 for the purposes of paragraph (1)(a) if the person has a defence to that offence.

Offence or conduct need not be the same

(4) For the purposes of subsection (1), it is immaterial whether the offence, or the conduct constituting the offence, is the same on each occasion.

Double jeopardy etc.

(5) A person who has been convicted or acquitted of an offence (the aggravated offence) against this section may not be convicted of an offence against section 471.16, 471.17, 471.19 or 471.20 in relation to the conduct that constituted the aggravated offence.

(6) Subsection (5) does not prevent an alternative verdict under section 471.23.

(7) A person who has been convicted or acquitted of an offence (the underlying offence) against section 471.16, 471.17, 471.19 or 471.20 may not be convicted of an offence against this section in relation to the conduct that constituted the underlying offence.

471.23.- Alternative verdict if aggravated offence not proven

If, on a trial for an offence (the aggravated offence) against subsection 471.22(1), the trier of fact:

(a) is not satisfied that the defendant is guilty of the aggravated offence; but

(b) is satisfied beyond reasonable doubt that he or she is guilty of an offence (the underlying offence) against section 471.16, 471.17, 471.19 or 471.20;

it may find the defendant not guilty of the aggravated offence but guilty of the underlying offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

Subdivision C.-Offences relating to use of postal or similar service involving sexual activity with person under 16

471.24.- Using a postal or similar service to procure persons under 16

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

(a) the sender causes an article to be carried by a postal or similar service to another person (the recipient); and

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

(d) the sender is at least 18.

Penalty: Imprisonment for 15 years.

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

(a) the sender causes an article to be carried by a postal or similar service to another person (the recipient); and

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

(d) the participant is someone who is, or who the sender believes to be, at least 18.

Penalty: Imprisonment for 15 years.

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

(a) the sender causes an article to be carried by a postal or similar service to another person (the recipient); and

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

(d) the other person referred to in paragraph (b) is someone who is, or who the sender believes to be, under 18; 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 (the participant) who is, or who the sender believes to be, at least 18.

Penalty: Imprisonment for 15 years.

471.25.- Using a postal or similar service to «groom» persons under 16

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

(a) the sender causes an article to be carried by a postal or similar service to another person (the recipient); and

(b) the sender does this with the intention of making it easier to procure the recipient to engage in sexual activity with the sender; and

(d) the sender is at least 18.

Penalty: Imprisonment for 12 years.

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

(a) the sender causes an article to be carried by a postal or similar service to another person (the recipient); and

(b) the sender does this with the intention of making it easier to procure the recipient to engage in sexual activity with another person (the participant); and

(d) the participant is someone who is, or who the sender believes to be, at least 18.

Penalty: Imprisonment for 12 years.

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

(a) the sender causes an article to be carried by a postal or similar service to another person (the recipient); and

(b) the sender does this with the intention of making it easier to procure the recipient to engage in sexual activity with another person; and

(d) the other person referred to in paragraph (b) is someone who is, or who the sender believes to be, under 18; 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 (the participant) who is, or who the sender believes to be, at least 18.

Penalty: Imprisonment for 15 years.

471.26.- Using a postal or similar service to send indecent material to person under 16

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

(a) the sender causes an article to be carried by a postal or similar service to another person (the recipient); and

(b) the article is, or contains, material that is indecent; and

(d) the sender is at least 18.

Penalty: Imprisonment for 7 years.

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

(3) In this section:

indecent means indecent according to the standards of ordinary people.

471.27.- Age-related provisions relating to offences against this Subdivision

Application of absolute liability

(1) For the purposes of an offence against this Subdivision, absolute liability applies to the physical element of circumstance of the offence that the recipient is someone who is under 16.

(2) For the purposes of an offence against subsection 471.24(2) or (3) or 471.25(2) or (3), absolute liability applies to the physical element of circumstance of the offence that the participant is at least 18.

Proof of belief about age-evidence of representation

(3) For the purposes of this Subdivision, 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 471.24 and 471.25, evidence that the participant was represented to the sender as being:

(a) at least 18; or

(b) over or of a particular age;

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

Determining age-admissible evidence

(5) In determining for the purposes of this Subdivision 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;

(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 this Subdivision, 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.

471.28.- Other provisions relating to offences against this Subdivision

Impossibility of sexual activity taking place

(1) A person may be found guilty of an offence against section 471.24 or 471.25 even if it is impossible for the sexual activity referred to in that section to take place.

Fictitious recipient

(2) For the purposes of an offence against this Subdivision, it does not matter that the recipient to whom the sender believes the sender is causing an article to be carried is a fictitious person represented to the sender as a real person.

Attempt not offence

(3) It is not an offence to attempt to commit an offence against section 471.24 or 471.25.

471.29.- Defences to offences against this Subdivision

Belief that recipient at least 16

(1) It is a defence to a prosecution for an offence against this Subdivision if the defendant proves that, at the time he or she caused the article to be carried, the defendant believed that the recipient was at least 16.

Offences involving procuring or «grooming» child for sexual activity with other participant-belief that participant under 18

(2) It is a defence to a prosecution for an offence against subsection 471.24(2) or (3) or 471.25(2) or (3) if the defendant proves that, at the time he or she caused the article to be carried, the defendant believed that the participant was under 18.

Trier of fact may take into account whether belief reasonable

(3) In determining whether the defendant had the belief mentioned in subsection (1) or (2), the trier of fact may take into account whether the alleged belief was reasonable in the circumstances.

Subdivision D.-Miscellaneous

471.30.- Geographical jurisdiction

Section 15.1 (extended geographical jurisdiction-category A) applies to an offence against Subdivision B or C of this Division.

471.31.- Definition of carry by post does not apply

To avoid doubt, the definition of carry by post in section 470.1 does not apply in relation to Subdivision B or C of this Division.

Division 472.-Miscellaneous

472.1.- Saving of other laws

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.

472.2.- Interpretation of other laws

In determining the meaning of a provision of:

(a) Part VIIA of the Crimes Act 1914; or

(b) the Australian Postal Corporation Act 1989;

this Part is to be disregarded.

Part 10.6.-Telecommunications Services

Division 473.-Preliminary

473.1.- Definitions

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

(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.

carriage service provider has the same meaning as in the Telecommunications Act 1997.

carrier has the same meaning as in the Telecommunications Act 1997.

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

(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.

Defence Department means the Department of State that deals with defence and that is administered by the Minister administering section 1 of the Defence Act 1903.

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

(d) that part of the Defence Department known as the Defence

Signals Directorate; or

(e) that part of the Defence Department 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

Terms used in this definition that are defined in the Telecommunications (Interception and Access) 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;

(g) a member of the New South Wales Crime Commission or a member of the staff of that Commission;

(h) an officer of the Independent Commission Against Corruption of New South Wales, being a person who is an officer as defined by the Independent Commission Against Corruption Act 1988 of New South Wales;

(i) the Commissioner of the Police Integrity Commission of New South Wales, an Assistant Commissioner of that Commission or a member of the staff of that Commission;

(j) an officer of the Corruption and Crime Commission of Western Australia within the meaning of the Corruption and Crime Commission Act 2003 of Western Australia;

(k) an authorised commission officer of the Crime and Misconduct Commission of Queensland within the meaning of the Crime and Misconduct Act 2001 of Queensland.

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.

National Relay Service has the same meaning as in the Telecommunications Universal Service Management Agency Act 2012.

nominated carrier has the same meaning as in the Telecommunications Act 1997.

NRS provider means:

(a) a person who:

(i) is a contractor (within the meaning of the Telecommunications Universal Service Management Agency Act 2012); and

(ii) provides the whole or a part of the National Relay Service; or

(b) a person who:

(i) is a grant recipient (within the meaning of the Telecommunications Universal Service Management Agency Act 2012); and

(ii) provides the whole or a part of the National Relay Service.

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.

telecommunications network has the same meaning as in the Telecommunications Act 1997.

use, a carriage service, has a meaning affected by section 473.5.

473.2.- Possession or control of data or material in the form of data

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).

473.3.- Producing, supplying or obtaining data or material in the form of data

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.

473.4.- Determining whether material is offensive

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

473.5.- Use of a carriage service

For the purposes of this Part, 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.

Division 474.-Telecommunications offences

Subdivision A.-Dishonesty with respect to carriage services

474.1.- Dishonesty

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

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

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

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

474.2.- General dishonesty with respect to a carriage service provider

Obtaining a gain

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

Penalty: Imprisonment for 5 years.

Causing a loss

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

Penalty: Imprisonment for 5 years.

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

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

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

Penalty: Imprisonment for 5 years.

Subdivision B.-Interference with telecommunications

474.3.- Person acting for a carrier or carriage service provider

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

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

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

(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

(d) a facility belonging to that person; or

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

taken to be a carriage service provider.

474.4.- Interception devices

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

(a) the person:

(i) manufactures; or

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

(iii) sells; or

(iv) possesses;

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

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

Penalty: Imprisonment for 5 years.

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

(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.

474.5.- Wrongful delivery of communications

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

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

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

Penalty: Imprisonment for 1 year.

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

474.6.- Interference with facilities

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

(a) a carrier; or

(b) a carriage service provider; or

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.

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

474.7.- Modification etc. of a telecommunications device identifier

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

(a) modifies a telecommunications device identifier; or

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

Penalty: Imprisonment for 2 years.

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

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

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

(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.

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

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

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

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

(i) by the person; or

(ii) by another person;

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

Penalty: Imprisonment for 2 years.

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

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

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

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

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

(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.

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

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

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

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

(i) by the person; or

(ii) by another person;

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

Penalty: Imprisonment for 2 years.

(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

(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.

474.10.- Copying subscription-specific secure data

Copying subscription-specific secure data from an existing account identifier

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

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

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

(i) is an account identifier; or

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

Penalty: Imprisonment for 2 years.

Copying subscription-specific secure data onto a new account identifier

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

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

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

(i) is an account identifier; or

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

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

Penalty: Imprisonment for 2 years.

Defences

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

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

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

(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.

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

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

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

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

(i) by the person; or

(ii) by another person;

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

Penalty: Imprisonment for 2 years.

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

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

Defences

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

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

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

(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.

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

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

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

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

(i) by the person; or

(ii) by another person;

Penalty: Imprisonment for 2 years.

(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

(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.

Subdivision C.-General offences relating to use of telecommunications

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

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

(a) the person:

(i) connects equipment to a telecommunications network; and

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

(b) the offence is:

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

(ii) a serious offence against a foreign law.

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

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

(b) the offence is:

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

(ii) a serious offence against a foreign law.

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

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

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

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

474.15.- Using a carriage service to make a threat

Threat to kill

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

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

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

Penalty: Imprisonment for 10 years.

Threat to cause serious harm

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

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

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

Penalty: Imprisonment for 7 years.

Actual fear not necessary

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

Definitions

(4) In this section:

fear includes apprehension.

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

474.16.- Using a carriage service for a hoax threat

A person is guilty of an offence if:

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

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

Penalty: Imprisonment for 10 years.

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

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

(a) the person uses a carriage service; and

Penalty: Imprisonment for 3 years.

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

(a) an employee of an NRS provider; or

(b) an emergency call person; or

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

474.18.- Improper use of emergency call service

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

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

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

Penalty: Imprisonment for 3 years.

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

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

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

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

Subdivision D.-Offences relating to use of carriage service for child pornography material or child abuse material

474.19.- Using a carriage service for child pornography material

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

(a) the person:

(i) accesses material; or

(ii) causes material to be transmitted to himself or herself; or

(iii) transmits, makes available, publishes, distributes, advertises or promotes material; or

(iv) solicits material; and

(aa) the person does so using a carriage service; and

(b) the material is child pornography material.

Penalty: Imprisonment for 15 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).

(2A) Absolute liability applies to paragraph (1)(aa).

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

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

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

(a) the person:

(i) has possession or control of material; or

(ii) produces, supplies or obtains material; and

(b) the material is child pornography material; and

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

(i) by that person; or

(ii) by another person;

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

Penalty: Imprisonment for 15 years.

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

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

474.21.- Defences in respect of child pornography material

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

(a) is of public benefit; and

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

(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

(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.

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

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

(i) prohibited content (within the meaning of Schedule 7 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 Schedule 5 or Schedule 7 to that Act; 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

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

(a) the person:

(i) accesses material; or

(ii) causes material to be transmitted to himself or herself; or

(iii) transmits, makes available, publishes, distributes, advertises or promotes material; or

(iv) solicits material; and

(aa) the person does so using a carriage service; and

(b) the material is child abuse material.

Penalty: Imprisonment for 15 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).

(2A) Absolute liability applies to paragraph (1)(aa).

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

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

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

(a) the person:

(i) has possession or control of material; or

(ii) produces, supplies or obtains material; and

(b) the material is child abuse material; and

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

(i) by that person; or

(ii) by another person;

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

Penalty: Imprisonment for 15 years.

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

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

474.24.- Defences in respect of child abuse material

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

(a) is of public benefit; and

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

(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

(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.

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

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

(i) prohibited content (within the meaning of Schedule 7 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 Schedule 5 or Schedule 7 to that Act; 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).

474.24A.- Aggravated offence-offence involving conduct on 3 or more occasions and 2 or more people

(1) A person commits an offence against this section if:

(a) the person commits an offence against one or more of the following provisions on 3 or more separate occasions:

(i) section 474.19 (using a carriage service for child pornography material);

(ii) section 474.20 (possessing etc. child pornography material for use through a carriage service);

(iii) section 474.22 (using a carriage service for child abuse material);

(iv) section 474.23 (possessing etc. child abuse material for use through a carriage service); and

(b) the commission of each such offence involves 2 or more people.

Penalty: Imprisonment for 25 years.

(3) To avoid doubt, a person does not commit an offence against section 474.19, 474.20, 474.22 or 474.23 for the purposes of paragraph (1)(a) if the person has a defence to that offence.

Offence or conduct need not be the same

(4) For the purposes of subsection (1), it is immaterial whether the offence, or the conduct constituting the offence, is the same on each occasion.

Double jeopardy etc.

(5) A person who has been convicted or acquitted of an offence (the aggravated offence) against this section may not be convicted of an offence against section 474.19, 474.20, 474.22 or 474.23 in relation to the conduct that constituted the aggravated offence.

(6) Subsection (5) does not prevent an alternative verdict under section 474.24B.

(7) A person who has been convicted or acquitted of an offence (the underlying offence) against section 474.19, 474.20, 474.22 or 474.23 may not be convicted of an offence against this section in relation to the conduct that constituted the underlying offence.

474.24B.- Alternative verdict if aggravated offence not proven

If, on a trial for an offence (the aggravated offence) against subsection 474.24A(1), the trier of fact:

(a) is not satisfied that the defendant is guilty of the aggravated offence; but

(b) is satisfied beyond reasonable doubt that he or she is guilty of an offence (the underlying offence) against section 474.19, 474.20, 474.22 or 474.23;

474.24C.- Consent to commencement of proceedings where defendant under 18

(1) Proceedings for an offence against this Subdivision must not be commenced without the consent of the Attorney-General if the defendant was under 18 at the time he or she allegedly engaged in the conduct constituting the offence.

(2) However, a person may be arrested for, charged with, or remanded in custody or on bail in connection with, such an offence before the necessary consent has been given.

Subdivision E.-Offence relating to obligations of internet service providers and internet content hosts

474.25.- Obligations of internet service providers and internet content hosts

A person commits an offence if the person:

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

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

(i) child pornography material; or

(ii) child abuse material; and

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

Penalty: 100 penalty units.

Subdivision F.-Offences relating to use of carriage service involving sexual activity with person under 16

474.25A.- Using a carriage service for sexual activity with person under 16 years of age

Engaging in sexual activity with child using a carriage service

(1) A person commits an offence if:

(a) the person engages in sexual activity with another person (the child) using a carriage service; and

(b) the child is under 16 years of age; and

Penalty: Imprisonment for 15 years.

Causing child to engage in sexual activity with another person

(2) A person (the defendant) commits an offence if:

(a) the defendant engages in conduct in relation to another person (the child); and

(b) that conduct causes the child to engage in sexual activity with another person (the participant) using a carriage service; and

(d) the participant is at least 18 years of age when the sexual activity is engaged in.

Penalty: Imprisonment for 15 years.

(3) The fault element for paragraph (2)(b) is intention.

Defence-child present but defendant does not intend to derive gratification

(4) It is a defence to a prosecution for an offence against subsection (1) or (2) if:

(a) the conduct constituting the offence consists only of the child being in the presence of a person while sexual activity is engaged in; and

(b) the defendant proves that he or she did not intend to derive gratification from the presence of the child during that activity.

474.25B.- Aggravated offence-child with mental impairment or under care, supervision or authority of defendant

(1) A person commits an offence against this section if:

(a) the person commits an offence against either of the following provisions in relation to another person (the child):

(i) subsection 474.25A(1) (engaging in sexual activity with child using a carriage service);

(ii) subsection 474.25A(2) (causing child to engage in sexual activity with another person); and

(b) either or both of the following apply at the time the person commits the offence:

(i) the child has a mental impairment;

(ii) the person is in a position of trust or authority in relation to the child, or the child is otherwise under the care, supervision or authority of the person.

Penalty: Imprisonment for 25 years.

(2) To avoid doubt, a person does not commit the offence against subsection 474.25A(1 or (2) for the purposes of paragraph (1)(a) if the person has a defence to that offence.

Alternative verdicts

(3) If, on a trial for an offence (the aggravated offence) against subsection (1), the trier of fact:

(a) is not satisfied that the defendant is guilty of the aggravated offence; but

(b) is satisfied beyond reasonable doubt that he or she is guilty of an offence (the underlying offence) against subsection 474.25A(1) or (2);

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

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

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

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

(d) the participant 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 sexual activity with another person; 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 (the participant) who is, or who the sender believes to be, at least 18 years of age.

Penalty: Imprisonment for 15 years.

474.27.- Using a carriage service to «groom» persons under 16 years of age

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

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

(c) the sender does this with the intention of making it easier to procure the recipient to engage in 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

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

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

(e) the participant 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

(c) the sender does this with the intention of making it easier to procure the recipient to engage in 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 (the participant) who is, or who the sender believes to be, at least 18 years of age.

Penalty: Imprisonment for 15 years.

474.27A.- Using a carriage service to transmit indecent communication to person under 16 years of age

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

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

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

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

Penalty: Imprisonment for 7 years.

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

(3) In this section:

indecent means indecent according to the standards of ordinary people.

474.28 Provisions relating to offences against this Subdivision

Age-related issues-application of absolute liability

(1) For the purposes of an offence against this Subdivision, absolute liability applies to the physical element of circumstance of the offence that:

(a) in the case of an offence against section 474.25A-the child is under 16 years of age; and

(b) in the case of an offence against section 474.26, 474.27 or 474.27A-the recipient is someone who is under 16 years of age.

(2) For the purposes of an offence against subsection 474.25A(2), 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 participant is at least 18 years of age.

Proof of belief about age-evidence of representation

(3) For the purposes of sections 474.26, 474.27 and 474.27A, 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 474.25A, 474.26 and 474.27, evidence that the participant 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 participant to be at least 18 years of age or over or of that age.

Determining age-admissible evidence

(5) In determining for the purposes of this Subdivision 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;

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

(7) If, on a trial for an offence against a provision of this Subdivision, 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.

Issues relating to aggravated offence involving sexual activity

(7A) For the purposes of an offence against subsection 474.25B(1):

(a) there is no fault element for the physical element described in paragraph (a) of that subsection other than the fault elements (however described), if any, for the underlying offence; and

(b) absolute liability applies to the physical element of circumstance of the offence that the child has a mental impairment; and

(c) strict liability applies to the physical element of circumstance of the offence that the defendant is in a position of trust or authority in relation to the child, or the child is otherwise under the care, supervision or authority of the defendant.

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, 474.27 and 474.27A, 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.

474.29.- Defences to offences against this Subdivision

Offences involving sexual activity-belief that child at least 16 years of age

(1) It is a defence to a prosecution for an offence against section 474.25A if the defendant proves that, at the time the sexual activity was engaged in, he or she believed that the child was at least 16 years of age.

Offences involving sexual activity with other participant-belief that participant under 18 years of age

(2) It is a defence to a prosecution for an offence against subsection 474.25A(2) if the defendant proves that, at the time the sexual activity was engaged in, he or she believed that the participant was under 18 years of age.

Aggravated offence involving sexual activity-belief that child did not have mental impairment

(3) It is a defence to a prosecution for an offence against subsection 474.25B(1) (as that subsection applies because of subparagraph 474.25B(1)(b)(i)) if the defendant proves that, at the time the defendant committed the offence, he or she believed that the child did not have a mental impairment.

Offences involving procuring or «grooming» person for sexual activity with other participant-belief that participant under 18 years of age

(4) It is a defence to a prosecution for an offence against subsection 474.26(2) or (3) or 474.27(2) or (3) if the defendant proves that, at the time the communication was transmitted, he or she believed that the participant was under 18 years of age.

Offences involving transmission of communication-belief that recipient at least 16 years of age

(5) It is a defence to a prosecution for an offence against section 474.26, 474.27 or 474.27A if the defendant proves that, at the time the communication was transmitted, he or she believed that the recipient was at least 16 years of age.

Trier of fact may take into account whether belief reasonable

(6) In determining whether the defendant had the belief mentioned in one of the preceding subsections of this section, the trier of fact may take into account whether the alleged belief was reasonable in the circumstances.

Subdivision G.-Offences relating to use of carriage service for suicide related material

474.29A.- Using a carriage service for suicide related material

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

(a) the person:

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

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

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

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

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

(b) the material directly or indirectly counsels or incites committing or attempting to commit suicide; and

(i) intends to use the material to counsel or incite committing or attempting to commit suicide; or

(ii) intends that the material be used by another person to counsel or incite committing or attempting to commit suicide.

Penalty: 1,000 penalty units.

(2) 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 directly or indirectly:

(i) promotes a particular method of committing suicide; or

(ii) provides instruction on a particular method of committing suicide; and

(i) intends to use the material to promote that method of committing suicide or provide instruction on that method of committing suicide; or

(ii) intends that the material be used by another person to promote that method of committing suicide or provide instruction on that method of committing suicide; or

(iii) intends the material to be used by another person to commit suicide.

Penalty: 1,000 penalty units.

(3) To avoid doubt, a person is not guilty of an offence against subsection (1) merely because the person uses a carriage service to:

(a) engage in public discussion or debate about euthanasia or suicide; or

(b) advocate reform of the law relating to euthanasia or suicide;

if the person does not:

(d) intend that the material concerned be used by another person to counsel or incite committing or attempting to commit suicide.

(4) To avoid doubt, a person is not guilty of an offence against subsection (2) merely because the person uses a carriage service to:

(a) engage in public discussion or debate about euthanasia or suicide; or

(b) advocate reform of the law relating to euthanasia or suicide;

if the person does not:

(c) intend to use the material concerned to promote a method of committing suicide or provide instruction on a method of committing suicide; or

(d) intend that the material concerned be used by another person to promote a method of committing suicide or provide instruction on a method of committing suicide; or

(e) intend the material concerned to be used by another person to commit suicide.

474.29B.- Possessing, controlling, producing, supplying or obtaining suicide related material for use through a carriage service

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

(a) the person:

(i) has possession or control of material; or

(ii) produces, supplies or obtains material; and

(b) the material directly or indirectly:

(i) counsels or incites committing or attempting to commit suicide; or

(ii) promotes a particular method of committing suicide; or

(iii) provides instruction on a particular method of committing suicide; 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 474.29A (using a carriage service for suicide related material).

Penalty: 1,000 penalty units.

(2) A person may be found guilty of an offence against subsection (1) even if committing the offence against section 474.29A (using a carriage service for suicide related material) is impossible.

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

Division 475.-Miscellaneous

475.1A.- Defences for NRS employees and emergency call persons

(1) A person is not criminally responsible for an offence against a provision of Subdivision C, D, E, F or G of Division 474 in relation to particular conduct if the person:

(a) is an employee of an 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 Subdivision C, D, E, F or G of Division 474 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.

475.1B.- Provisions relating to element of offence that particular conduct was engaged in using a carriage service

Presumption that conduct engaged in using carriage service

(1) If:

(a) a physical element of an offence against Subdivision C, D, E or F of Division 474 consists of a person using a carriage service to engage in particular conduct; and

(b) the prosecution proves beyond reasonable doubt that the person engaged in that particular conduct;

then it is presumed, unless the person proves to the contrary, that the person used a carriage service to engage in that conduct.

Absolute liability applies to physical element of offence that carriage service was used

(2) If:

(a) a physical element of an offence against Subdivision C, D, E or F of Division 474 consists of a person using a carriage service to engage in particular conduct; and

(b) the prosecution proves beyond reasonable doubt that the person intended to engage in that particular conduct;

then absolute liability applies to the physical element of the offence that a carriage service was used to engage in that particular conduct.

475.1.- Saving of other laws

(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.

475.2.- Geographical jurisdiction

Section 15.1 (extended geographical jurisdiction-category A) applies to each offence against this Part.

Part 10.7.-Computer offences

Division 476.-Preliminary

476.1.- Definitions

(1) In this Part:

access to data held in a computer means:

(a) the display of the data by the computer or any other output of the data from the computer; or

(b) the copying or moving of the data to any other place in the computer or to a data storage device; or

Commonwealth computer means a computer owned, leased or operated by a Commonwealth entity.

Defence Department means the Department of State that deals with defence and that is administered by the Minister administering section 1 of the Defence Act 1903.

electronic communication means a communication of information in any form by means of guided or unguided electromagnetic energy.

impairment of electronic communication to or from a computer includes:

(a) the prevention of any such communication; or

(b) the impairment of any such communication on an electronic link or network used by the computer;

but does not include a mere interception of any such communication.

modification, in respect of data held in a computer, means:

(a) the alteration or removal of the data; or

(b) an addition to the data.

unauthorised access, modification or impairment has the meaning given in section 476.2.

(2) In this Part, a reference to:

(a) access to data held in a computer; or

(b) modification of data held in a computer; or

is limited to such access, modification or impairment caused, whether directly or indirectly, by the execution of a function of a computer.

476.2.- Meaning of unauthorised access, modification or impairment

(1) In this Part:

(a) access to data held in a computer; or

(b) modification of data held in a computer; or

(d) the impairment of the reliability, security or operation of any data held on a computer disk, credit card or other device used to store data by electronic means;

by a person is unauthorised if the person is not entitled to cause that access, modification or impairment.

(2) Any such access, modification or impairment caused by the person is not unauthorised merely because he or she has an ulterior purpose for causing it.

(3) For the purposes of an offence under this Part, a person causes any such unauthorised access, modification or impairment if the person´s conduct substantially contributes to it.

(4) For the purposes of subsection (1), if:

(a) a person causes any access, modification or impairment of a kind mentioned in that subsection; and

(b) the person does so:

(i) under a warrant issued under the law of the Commonwealth, a State or a Territory; or

(ii) under an emergency authorisation given to the person under Part 3 of the Surveillance Devices Act 2004 or under a law of a State or Territory that makes provision to similar effect; or

(iii) under a tracking device authorisation given to the person under section 39 of that Act;

the person is entitled to cause that access, modification or impairment.

476.3.- Geographical jurisdiction

Section 15.1 (extended geographical jurisdiction-Category A) applies to offences under this Part.

476.4.- Saving of other laws

(1) This Part is not intended to exclude or limit the operation of any other law of the Commonwealth, a State or a Territory.

(2) Subsection (1) has effect subject to section 476.5.

476.5.- Liability for certain acts

(1) A staff member or agent of ASIS, DIGO or DSD (the agency) is not subject to any civil or criminal liability for any computer-related act done outside Australia if the act is done in the proper performance of a function of the agency.

(2) A person is not subject to any civil or criminal liability for any act done inside Australia if:

(a) the act is preparatory to, in support of, or otherwise directly connected with, overseas activities of the agency concerned; and

(b) the act:

(i) taken together with a computer-related act, event, circumstance or result that took place, or was intended to take place, outside Australia, could amount to an offence; but

(ii) in the absence of that computer-related act, event, circumstance or result, would not amount to an offence; and

(2A) Subsection (2) is not intended to permit any act in relation to premises, persons, computers, things, or carriage services in Australia, being:

(a) an act that ASIO could not do without a Minister authorising it by warrant issued under Division 2 of Part III of the Australian Security Intelligence Organisation Act 1979 or under Part 2-2 of the Telecommunications (Interception and Access) Act 1979; or

(b) an act to obtain information that ASIO could not obtain other than in accordance with Division 3 of Part 4-1 of the Telecommunications (Interception and Access) Act 1979.

(2AA) Subsections (1) and (2) have effect despite anything in a law of the Commonwealth or of a State or Territory, whether passed or made before or after the commencement of this subsection, unless the law expressly provides otherwise.

(2AB) Subsection (2AA) does not affect the operation of subsection (2A).

(2B) The Inspector-General of Intelligence and Security may give a certificate in writing certifying any fact relevant to the question of whether an act was done in the proper performance of a function of an agency.

(2C) In any proceedings, a certificate given under subsection (2B) is prima facie evidence of the facts certified.

(3) In this section:

ASIS means the Australian Secret Intelligence Service.

civil or criminal liability means any civil or criminal liability (whether under this Part, under another law or otherwise).

computer-related act, event, circumstance or result means an act, event, circumstance or result involving:

(a) the reliability, security or operation of a computer; or

(b) access to, or modification of, data held in a computer or on a data storage device; or

(d) the reliability, security or operation of any data held in or on a computer, computer disk, credit card, or other data storage device; or

(e) possession or control of data held in a computer or on a data storage device; or

(f) producing, supplying or obtaining data held in a computer or on a data storage device.

DIGO means that part of the Defence Department known as the Defence Imagery and Geospatial Organisation.

DSD means that part of the Defence Department known as the Defence Signals Directorate.

staff member means:

(a) in relation to ASIS-the Director-General of ASIS or a member of the staff of ASIS (whether an employee of ASIS, a consultant or contractor to ASIS, or a person who is made available by another Commonwealth or State authority or other person to perform services for ASIS); and

(b) in relation to DSD-the Director of DSD or a member of the staff of DSD (whether an employee of DSD, a consultant or contractor to DSD, or a person who is made available by another Commonwealth or State authority or other person to perform services for DSD); and

(c) in relation to DIGO-the Director of DIGO or a member of the staff of DIGO (whether an employee of DIGO, a consultant or contractor to DIGO, or a person who is made available by another Commonwealth or State authority or other person to perform services for DIGO).

Division 477.-Serious computer offences

477.1 Unauthorised access, modification or impairment with intent to commit a serious offence

Intention to commit a serious Commonwealth, State or Territory offence

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

(a) the person causes:

(i) any unauthorised access to data held in a computer; or

(ii) any unauthorised modification of data held in a computer; or

(iii) any unauthorised impairment of electronic communication to or from a computer; and

(b) the unauthorised access, modification or impairment is caused by means of a carriage service; and

(d) the person intends to commit, or facilitate the commission of, a serious offence against a law of the Commonwealth, a State or a Territory (whether by that person or another person) by the access, modification or impairment.

(2) Absolute liability applies to paragraph (1)(b).

(3) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the offence was:

(a) an offence against a law of the Commonwealth, a State or a Territory; or

(b) a serious offence.

Intention to commit a serious Commonwealth offence

(4) A person is guilty of an offence if:

(a) the person causes:

(i) any unauthorised access to data held in a computer; or

(ii) any unauthorised modification of data held in a computer; or

(iii) any unauthorised impairment of electronic communication to or from a computer; and

(b) the person knows the access, modification or impairment is unauthorised; and

(c) the person intends to commit, or facilitate the commission of, a serious offence against a law of the Commonwealth (whether by that person or another person) by the access, modification or impairment.

(5) In a prosecution for an offence against subsection (4), it is not necessary to prove that the defendant knew that the offence was:

(a) an offence against a law of the Commonwealth; or

(b) a serious offence.

Penalty

(6) A person who is guilty of an offence against this section is punishable, on conviction, by a penalty not exceeding the penalty applicable to the serious offence.

Impossibility

(7) A person may be found guilty of an offence against this section even if committing the serious offence is impossible.

No offence of attempt

(8) It is not an offence to attempt to commit an offence against this section.

Meaning of serious offence

(9) In this section:

serious offence means an offence that is punishable by imprisonment for life or a period of 5 or more years.

477.2.- Unauthorised modification of data to cause impairment

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

(a) the person causes any unauthorised modification of data held in a computer; and

(b) the person knows the modification is unauthorised; and

(i) access to that or any other data held in any computer; or

(ii) the reliability, security or operation, of any such data; and

(d) one or more of the following applies:

(i) the data that is modified is held in a Commonwealth computer;

(ii) the data that is modified is held on behalf of the Commonwealth in a computer;

(iii) the modification of the data is caused by means of a carriage service;

(iv) the modification of the data is caused by means of a Commonwealth computer;

(v) the modification of the data impairs access to, or the reliability, security or operation of, other data held in a Commonwealth computer;

(vi) the modification of the data impairs access to, or the reliability, security or operation of, other data held on behalf of the Commonwealth in a computer;

(vii) the modification of the data impairs access to, or the reliability, security or operation of, other data by means of a carriage service.

Penalty: 10 years imprisonment.

(2) Absolute liability applies to paragraph (1)(d).

(3) A person may be guilty of an offence against this section even if there is or will be no actual impairment to:

(a) access to data held in a computer; or

(b) the reliability, security or operation, of any such data.

(4) A conviction for an offence against this section is an alternative verdict to a charge for an offence against section 477.3 (unauthorised impairment of electronic communication).

477.3.- Unauthorised impairment of electronic communication

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

(a) the person causes any unauthorised impairment of electronic communication to or from a computer; and

(b) the person knows that the impairment is unauthorised; and

(i) the electronic communication is sent to or from the computer by means of a carriage service;

(ii) the electronic communication is sent to or from a Commonwealth computer.

Penalty: 10 years imprisonment.

(2) Absolute liability applies to paragraph (1)(c).

(3) A conviction for an offence against this section is an alternative verdict to a charge for an offence against section 477.2 (unauthorised modification of data to cause impairment).

Division 478.-Other computer offences

478.1.- Unauthorised access to, or modification of, restricted data

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

(a) the person causes any unauthorised access to, or modification of, restricted data; and

(b) the person intends to cause the access or modification; and

(d) one or more of the following applies:

(i) the restricted data is held in a Commonwealth computer;

(ii) the restricted data is held on behalf of the Commonwealth;

(iii) the access to, or modification of, the restricted data is caused by means of a carriage service.

Penalty: 2 years imprisonment.

(2) Absolute liability applies to paragraph (1)(d).

(3) In this section:

restricted data means data:

(a) held in a computer; and

(b) to which access is restricted by an access control system associated with a function of the computer.

478.2.- Unauthorised impairment of data held on a computer disk etc.

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

(a) the person causes any unauthorised impairment of the reliability, security or operation of data held on:

(i) a computer disk; or

(ii) a credit card; or

(iii) another device used to store data by electronic means; and

(b) the person intends to cause the impairment; and

(d) the computer disk, credit card or other device is owned or leased by a Commonwealth entity.

Penalty: 2 years imprisonment.

(2) Absolute liability applies to paragraph (1)(d).

478.3.- Possession or control of data with intent to commit a computer offence

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

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

(b) the person has that possession or control with the intention that the data be used, by the person or another person, in:

(i) committing an offence against Division 477; or

(ii) facilitating the commission of such an offence.

Penalty: 3 years imprisonment.

(2) A person may be found guilty of an offence against this section even if committing the offence against Division 477 is impossible.

No offence of attempt

(3) It is not an offence to attempt to commit an offence against this section.

Meaning of possession or control of data

(4) In this section, a reference to a person having possession or control 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).

478.4.- Producing, supplying or obtaining data with intent to commit a computer offence

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

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

(b) the person does so with the intention that the data be used, by the person or another person, in:

(i) committing an offence against Division 477; or

(ii) facilitating the commission of such an offence.

Penalty: 3 years imprisonment.

(2) A person may be found guilty of an offence against this section even if committing the offence against Division 477 is impossible.

No offence of attempt

(3) It is not an offence to attempt to commit an offence against this section.

Meaning of producing, supplying or obtaining data

(4) In this section, a reference to a person producing, supplying or obtaining 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.　

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Criminal Code Act 1995. Act nº 12 of 1995 as amended. Amendments up to Act nº 170 of 2012

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