Criminal Code Act 1995

Schedule - The Criminal Code

Section 3

CHAPTER 8 - OFFENCES AGAINST HUMANITY AND RELATED OFFENCES

Division 273 - Offences involving child abuse material outside Australia

View history note

Subdivision C - Defences

View history note

SECTION 273.9 Defences to offences against this Division

View history reference

(1)

View history reference

A person is not criminally responsible for an offence against section 273.6 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.

Note:

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

View history note

(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 Territory, or a foreign country; or

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

(c) the administration of justice (whether within or outside Australia); or

(d) conducting scientific, medical or educational research.

(3)
Paragraph (2)(d) only applies if the person ' s conduct was, in all the circumstances, reasonable having regard to the purpose mentioned in that paragraph.

(4)

View history reference

A person is not criminally responsible for an offence against section 273.6 if:

(a) the person is, at the time of the offence:

(i) a law enforcement officer; or

(ii) an intelligence or security officer; or

(iii) an officer or employee of the government of a foreign country performing similar duties to an intelligence or security officer; and

(b) the person is acting in the course of his or her duties; and

(c) 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) .

View history note

(5)

View history reference

A person is not criminally responsible for an offence against section 273.6 if the person engages in the conduct in good faith for the sole purpose of:

(a)

View history reference

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)

View history reference

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 .

Note:

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

View history note

History

S 273.9(5) amended by No 77 of 2021, s 3 and Sch 2 item 59, 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).

S 273.9(5) amended by No 72 of 2019, s 3 and Sch 7 item 20, by omitting " 273.5 or " before " 273.6 " , effective 21 September 2019.

S 273.9(5) amended by No 51 of 2017, s 3 and Sch 1 item 33, by substituting " eSafety Commissioner " for " Children ' s e-Safety Commissioner " in para (a), effective 23 June 2017. No 51 of 2017, s 3 and Sch 1 item 51 contains the following transitional provision:

51 Transitional rules
(1)
The Minister may, by legislative instrument, make rules prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments made by this Act.

(2)
However, to avoid doubt, the rules may not do the following:

(a) create an offence or civil penalty;

(b) provide powers of:

(i) arrest or detention; or

(ii) entry, search or seizure;

(c) impose a tax;

(d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;

(e) directly amend the text of this Act.

(3)
This Act (other than subitem (2)) does not limit the rules that may be made for the purposes of subitem (1).

S 273.9(5) amended by No 25 of 2015, s 3 and Sch 2 items 9 and 10, 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.

View history note

Disclaimer and notice of copyright applicable to materials provided by CCH Australia Limited

CCH Australia Limited ("CCH") believes that all information which it has provided in this site is accurate and reliable, but gives no warranty of accuracy or reliability of such information to the reader or any third party. The information provided by CCH is not legal or professional advice. To the extent permitted by law, no responsibility for damages or loss arising in any way out of or in connection with or incidental to any errors or omissions in any information provided is accepted by CCH or by persons involved in the preparation and provision of the information, whether arising from negligence or otherwise, from the use of or results obtained from information supplied by CCH.

The information provided by CCH includes history notes and other value-added features which are subject to CCH copyright. No CCH material may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way, except that you may download one copy for your personal use only, provided you keep intact all copyright and other proprietary notices. In particular, the reproduction of any part of the information for sale or incorporation in any product intended for sale is prohibited without CCH's prior consent.