Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Act 2023 (113 of 2023)
Schedule 2 Use of carriage service for violent extremist material
Criminal Code Act 1995
3 After Subdivision H of Division 474 of the Criminal Code
Insert:
Subdivision HA - Offences relating to use of carriage service for violent extremist material
474.45A Meaning of violent extremist material
(1) Material is violent extremist material if:
(a) the material:
(i) describes or depicts serious violence; or
(ii) provides instruction on engaging in serious violence; or
(iii) supports or facilitates serious violence; and
(b) a reasonable person would consider that, in all the circumstances, the material is intended to directly or indirectly advance a political, religious or ideological cause; and
(c) a reasonable person would consider that, in all the circumstances, the material is intended to assist, encourage or induce a person to:
(i) engage in, plan or prepare for an intimidatory act; or
(ii) do a thing that relates to engaging in, planning or preparing for an intimidatory act; or
(iii) join or associate with an organisation that is directly engaged in the doing of any intimidatory act, or that is preparing, planning, assisting in or fostering the doing of any intimidatory act.
(2) For the purposes of paragraph (1)(a), serious violence is action that falls within subsection 100.1(2).
(3) An intimidatory act is a violent action, or threat of violent action, where the action is done, or the threat is made, with the intention of:
(a) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or
(b) intimidating the public or a section of the public.
(4) To avoid doubt:
(a) material may be intended to do a thing referred to in paragraph (1)(b) or (c) even if the material is also intended, or mainly intended, to do one or more other things; and
(b) an action may be done, or a threat may be made, with an intention referred to in subsection (3) even if that intention is not the only intention, or the main intention, with which the action is done or the threat is made.
(5) Material is also violent extremist material if:
(a) it is reasonable to consider the material together with other material; and
(b) were all of the material to be taken to be a single item of material, it would constitute violent extremist material under subsection (1).
474.45B Using a carriage service for violent extremist material
(1) A person commits an offence if:
(a) the person:
(i) accesses material; or
(ii) causes material, or an electronic link that can be used to access material, to be transmitted to the person; or
(iii) transmits, makes available, publishes, distributes, advertises or promotes material or an electronic link that can be used to access material; or
(iv) solicits material or an electronic link that can be used to access material; and
(b) the person does so using a carriage service; and
(c) the material is violent extremist material.
Penalty: Imprisonment for 5 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 circumstance referred to in paragraph (1)(c).
(3) Absolute liability applies to paragraph (1)(b).
474.45C Possessing or controlling violent extremist material obtained or accessed using a carriage service
(1) A person commits an offence if:
(a) the person has possession or control of material; and
(b) the material is in the form of data held in a computer or contained in a data storage device; and
(c) the person used a carriage service to obtain or access the material; and
(d) the material is violent extremist material.
Penalty: Imprisonment for 5 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 circumstance referred to in paragraph (1)(d).
(3) Strict liability applies to paragraph (1)(b).
(4) Absolute liability applies to paragraph (1)(c).
(5) If the prosecution proves beyond reasonable doubt the matters mentioned in paragraphs (1)(a), (b) and (d), then it is presumed, unless the person proves to the contrary, that the person:
(a) obtained or accessed the material; and
(b) used a carriage service to obtain or access the material.
Note: A defendant bears a legal burden in relation to the matters in this subsection: see section 13.4.
474.45D Defences in respect of violent extremist material
(1) Subsection 474.45B(1) or 474.45C(1) does not apply to engaging in conduct in relation to material if:
(a) the conduct is necessary for enforcing a law of:
(i) the Commonwealth; or
(ii) a State; or
(iii) a Territory; or
(iv) a foreign country; or
(v) a part of a foreign country; or
(b) the conduct is necessary for monitoring compliance with, or investigating a contravention of, a law of:
(i) the Commonwealth; or
(ii) a State; or
(iii) a Territory; or
(iv) a foreign country; or
(v) a part of a foreign country; or
(c) the conduct is for the purposes of proceedings in a court or tribunal; or
(d) both:
(i) the conduct is necessary for, or of assistance in, conducting scientific, medical, academic or historical research; and
(ii) the conduct is reasonable in the circumstances for the purpose of conducting that scientific, medical, academic or historical research; or
(e) the material relates to a news report, or a current affairs report, that:
(i) is in the public interest; and
(ii) is made by a person working in a professional journalistic capacity; or
(f) both:
(i) the conduct is in connection with the performance by a public official of the official's duties or functions; and
(ii) the conduct is reasonable in the circumstances for the purpose of the public official performing that duty or function; or
(g) both:
(i) the conduct is in connection with an individual assisting a public official in relation to the performance of the public official's duties or functions; and
(ii) the conduct is reasonable in the circumstances for the purpose of the individual assisting the public official in relation to the performance of the public official's duties or functions; or
(h) the conduct is for the purpose of advocating the lawful procurement of a change to any matter established by law, policy or practice in:
(i) the Commonwealth; or
(ii) a State; or
(iii) a Territory; or
(iv) a foreign country; or
(v) a part of a foreign country;
and the conduct is reasonable in the circumstances for that purpose; or
(i) the conduct relates to the development, performance, exhibition or distribution, in good faith, of an artistic work.
Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
Functions
(2) The references in this section to function or functions do not, by implication, affect the meaning of the expressions duty or duties when used in any other provision of this Code.
474.45E 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 the defendant 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.