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Criminal Code Act 1995

Schedule - The Criminal Code

Section 3

CHAPTER 10 - NATIONAL INFRASTRUCTURE

Part 10.6 - Telecommunications Services

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History

Pt 10.6 substituted by No 127 of 2004, s 3 and Sch 1 item 1, effective 1 March 2005. Pt 10.6 formerly read:

Part 10.6 - Telecommunications

Division 473 - Preliminary
Definitions
473.1
In this Part:
loss
means a loss in property, whether temporary or permanent, and includes not getting what one might get.

obtaining
includes:

(a) obtaining for another person; and

(b) inducing a third person to do something that results in another person obtaining.

property
has the same meaning as in Chapter 7 .

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

carriage service provider
has the same meaning as in the Telecommunications Act 1997 .
Dishonesty
473.2
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. Determination of dishonesty to be a matter for the trier of fact
473.3
In a prosecution for an offence against this Part, the determination of dishonesty is a matter for the trier of fact.
Division 474 - Telecommunications offences
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.

Division 475 - Miscellaneous
Saving of other laws
475.1
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.

Division 474 - Telecommunications offences

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Subdivision B - Interference with telecommunications

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

(1)
A person commits an offence if:

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

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

(i) by the person; or

(ii) by another person;

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

Penalty: Imprisonment for 2 years.

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

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

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

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

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

(c) acting with the consent of the manufacturer.

Note:

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

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

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

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

Note 1:

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

Note 2:

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

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