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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 D - Offences relating to use of carriage service for child abuse material

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SECTION 474.24 Defences in respect of child abuse material

(1)

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A person is not criminally responsible for an offence against section 474.22 , 474.22A , 474.23 or 474.23A 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, nor criminally responsible for the offence, the question whether the conduct is of public benefit is a question of fact and the person ' s motives in engaging in the conduct are irrelevant.

Note:

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

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

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

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

(c) the administration of justice; or

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

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(3)

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A person is not criminally responsible for an offence against section 474.22 , 474.22A , 474.23 or 474.23A if:

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

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

Note:

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

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(4)

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A person is not criminally responsible for an offence against section 474.22 , 474.22A , 474.23 or 474.23A if the person engages in the conduct in good faith for the sole purpose of:

(a)

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assisting the eSafety Commissioner to perform the functions, or exercise the powers, conferred on the eSafety Commissioner by Part 9 of the Online Safety Act 2021 ; or

(b)

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

(i) an industry code registered under Division 7 of Part 9 of the Online Safety Act 2021 ; or

(ii) an industry standard registered under Division 7 of Part 9 of the Online Safety Act 2021 .

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History

S 474.24(4) amended by No 77 of 2021, s 3 and Sch 2 item 68, by substituting para (a) and (b), effective 23 January 2022. Para (a) and (b) formerly read:

(a) assisting the eSafety Commissioner 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 Commissioner ' 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).

Note:

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

S 474.24(4) amended by No 70 of 2020, s 3 and Sch 4 item 46, by substituting " , 474.23 or 474.23A " for " or 474.23 " , effective 23 June 2020.

S 474.24(4) amended by No 72 of 2019, s 3 and Sch 3 item 2, by substituting " 474.22, 474.22A or 474.23 " for " 474.22 (using a carriage service for child abuse material) or 474.23 (possessing etc. child abuse material for use through a carriage service) " , effective 21 September 2019.

S 474.24(4) amended by No 51 of 2017, s 3 and Sch 1 item 35, by substituting " eSafety Commissioner " for " Children ' s e-Safety Commissioner " in para (a), effective 23 June 2017. For transitional provision, see note under s 273.9 .

S 474.24(4) amended by No 25 of 2015, s 3 and Sch 2 items 13 and 14, by substituting " Children ' s e-Safety Commissioner " for " Australian Communications and Media Authority " and " Commissioner ' s " for " Authority ' s " in para (a), effective 1 July 2015.

S 474.24(4) amended by No 124 of 2007, s 3 and Sch 1 items 80 and 81, by substituting " Schedule 7 " for " Schedule 5 " in para (a)(i) and substituting " under Schedule 5 or Schedule 7 to that Act " for " under that Schedule " in para (a), effective 20 January 2008.

S 474.24(4) amended by No 45 of 2005, s 3 and Sch 3 item 2, by substituting " Australian Communications and Media Authority " for " Australian Broadcasting Authority " in para (a), effective on proclamation (or 1 July 2005).

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