Criminal Code Act 1995

Schedule - The Criminal Code  

Section 3

CHAPTER 10 - NATIONAL INFRASTRUCTURE  

Part 10.6 - Telecommunications Services  

Division 474 - Telecommunications offences  

Subdivision H - Offences relating to use of carriage service for sharing of abhorrent violent material  

SECTION 474.35   Notice issued by eSafety Commissioner in relation to a content service - presumptions  

(1)    
The eSafety Commissioner may issue a written notice stating that, at the time the notice was issued:

(a) a specified content service could be used to access specified material; and

(b) the specified material was abhorrent violent material.

(2)    
The eSafety Commissioner must not issue a notice under subsection (1) unless the eSafety Commissioner is satisfied on reasonable grounds that, at the time the notice was issued:

(a) the specified content service could be used to access the specified material; and

(b) the specified material was abhorrent violent material.

(3)    
As soon as practicable after issuing a notice under subsection (1), the eSafety Commissioner must give a copy of the notice to the person who provides the content service concerned.

(4)    
The eSafety Commissioner is not required to observe any requirements of procedural fairness in relation to the issue of a notice under subsection (1).

Presumptions

(5)    
If:

(a) a notice under subsection (1) is issued in relation to a content service provided by a person; and

(b) in a prosecution of the person for an offence against subsection 474.34(1) , it is proven that the content service could be used to access the material specified in the notice at the time the notice was issued;

then, in that prosecution, it must be presumed that the person was reckless as to whether the content service could be used to access the specified material at the time the notice was issued, unless the person adduces or points to evidence that suggests a reasonable possibility that the person was not reckless as to whether the content service could be used to access the specified material at the time the notice was issued.

(6)    
If a notice under subsection (1) is issued in relation to a content service provided by a person, then, in a prosecution of the person for an offence against subsection 474.34(1) , it must be presumed that, at the time the notice was issued, the person was reckless as to whether the material specified in the notice was abhorrent violent material, unless the person adduces or points to evidence that suggests a reasonable possibility that, at the time the notice was issued, the person was not reckless as to whether the specified material was abhorrent violent material.

Other evidentiary matters

(7)    
A document purporting to be a notice issued under subsection (1) must, unless the contrary is established, be taken to be such a notice and to have been properly issued.

(8)    
The eSafety Commissioner may certify that a document is a copy of a notice issued under subsection (1).

(9)    
Subsections (5), (6) and (7) apply to the certified copy as if it were the original.

Application

(10)    
This section extends to matters and things outside Australia.