Criminal Code Act 1995

Schedule - The Criminal Code

Section 3

CHAPTER 10 - NATIONAL INFRASTRUCTURE

Part 10.6 - Telecommunications Services

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 C - General offences relating to use of telecommunications

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SECTION 474.17A Using a carriage service to transmit sexual material without consent

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Offence

(1)

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A person (the first person ) commits an offence if:

(a) the first person uses a carriage service to transmit material of another person; and

(b) the other person is, or appears to be, 18 years of age or older; and

(c) the material depicts, or appears to depict:

(i) the other person engaging in a sexual pose or sexual activity (whether or not in the presence of other persons); or

(ii) a sexual organ or the anal region of the other person; or

(iii) if the other person is female - the other person ' s breasts; and

(d) the first person:

(i) knows that the other person does not consent to the transmission of the material; or

(ii) is reckless as to whether the other person consents to the transmission of the material.

Note:

For material that relates to a person who is, or appears to be, under 18 years of age, see:

(a) the definition of child abuse material ; and

(b) the offences relating to child abuse material in Subdivision D .

Penalty: Imprisonment for 6 years.

(2)
For the purposes of subsection (1) , it is irrelevant whether the material transmitted:

(a) is in an unaltered form; or

(b) has been created, or altered in any way, using technology.

Note:

Paragraph (b) includes images, videos or audio depicting a person that have been edited or entirely created using digital technology (including artificial intelligence), generating a realistic but false depiction of the person. Examples of such material are " deepfakes " .

Exceptions

(3)
Subsection (1) does not apply if:

(a) transmitting the material is necessary for, or of assistance in:

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

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

(b) transmitting the material is for the purposes of proceedings in a court or tribunal; or

(c) transmitting the material is for a genuine medical or scientific purpose; or

(d) a reasonable person would consider transmitting the material to be acceptable, having regard to the following:

(i) the nature and content of the material;

(ii) the circumstances in which the material was transmitted;

(iii) the age, intellectual capacity, vulnerability or other relevant circumstances of the person depicted, or appearing to be depicted, in the material;

(iv) the degree to which the transmission of the material affects the privacy of the person depicted, or appearing to be depicted, in the material;

(v) the relationship between the person transmitting the material and the person depicted, or appearing to be depicted, in the material;

(vi) any other relevant matters.

Note:

A defendant bears an evidential burden in relation to the matters in subsection (3) . See subsection 13.3(3) .

Interpretation

(4)
In this section:

transmit
includes make available, publish, distribute, advertise and promote.

(5)
In this section, being reckless in relation to consent includes not giving any thought to whether or not the person is consenting.

View history note

History

S 474.17A substituted by No 78 of 2024, s 3 and Sch 1 item 5, applicable in relation to material that is transmitted after 3 September 2024 (regardless of whether the material was created or altered before or after 3 September 2024). S 474.17A formerly read:

SECTION 474.17A Aggravated offences involving private sexual material - using a carriage service to menace, harass or cause offence
Standard aggravated offence

(1)
A person commits an offence against this subsection if:
(a) the person commits an offence (the underlying offence ) against subsection 474.17(1); and
(b) the commission of the underlying offence involves the transmission, making available, publication, distribution, advertisement or promotion of material; and
(c) the material is private sexual material.
Penalty: Imprisonment for 6 years.

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History

S 474.17A(1) amended by No 77 of 2021, s 3 and Sch 2 item 65, by substituting " 6 years " for " 5 years " in the penalty, effective 23 January 2022.

(2)
There is no fault element for the physical element described in paragraph (1)(a) other than the fault elements (however described), if any, for the underlying offence.

(3)
To avoid doubt, a person does not commit the underlying offence for the purposes of paragraph (1)(a) if the person has a defence to the underlying offence.

Special aggravated offence

(4)
A person commits an offence against this subsection if:
(a) the person commits an offence (the underlying offence ) against subsection 474.17(1); and
(b) the commission of the underlying offence involves the transmission, making available, publication, distribution, advertisement or promotion of material; and
(c) the material is private sexual material; and
(d) before the commission of the underlying offence, 3 or more civil penalty orders were made against the person under the Regulatory Powers (Standard Provisions) Act 2014 in relation to either or both of the following:

(i) contraventions of subsection 75(1) of the Online Safety Act 2021 ;

(ii) contraventions of section 91 of the Online Safety Act 2021 that relate to removal notices given under section 89 of that Act.

Penalty: Imprisonment for 7 years.

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History

S 474.17A(4) amended by No 77 of 2021, s 3 and Sch 2 item 66, by substituting para (d), effective 23 January 2022. Para (d) formerly read:

(d) before the commission of the underlying offence, 3 or more civil penalty orders were made against the person under the Regulatory Powers (Standard Provisions) Act 2014 in relation to contraventions of subsection 44B(1) of the Enhancing Online Safety Act 2015 .

(5)
There is no fault element for the physical element described in paragraph (4)(a) other than the fault elements (however described), if any, for the underlying offence.

(6)
To avoid doubt, a person does not commit the underlying offence for the purposes of paragraph (4)(a) if the person has a defence to the underlying offence.

(7)
Absolute liability applies to paragraph (4)(d).
Note:

For absolute liability, see section 6.2.

Double jeopardy etc.

(8)
A person who has been convicted or acquitted of an offence (the aggravated offence ) against subsection (1) may not be convicted of an offence against subsection 474.17(1) or subsection (4) of this section in relation to the conduct that constituted the aggravated offence.

(9)
Subsection (8) does not prevent an alternative verdict under section 474.17B.

(10)
A person who has been convicted or acquitted of an offence (the aggravated offence ) against subsection (4) may not be convicted of an offence against subsection 474.17(1) or subsection (1) of this section in relation to the conduct that constituted the aggravated offence.

(11)
Subsection (10) does not prevent an alternative verdict under section 474.17B.

(12)
A person who has been convicted or acquitted of an offence (the underlying offence ) against subsection 474.17(1) may not be convicted of an offence against subsection (1) or (4) of this section in relation to the conduct that constituted the underlying offence.

When conviction must be set aside

(13)
If:
(a) a person has been convicted by a court of an offence against subsection (4) on the basis that 3 or more civil penalty orders were made against the person under the Regulatory Powers (Standard Provisions) Act 2014 in relation to either or both of the following:

(i) contraventions of subsection 75(1) of the Online Safety Act 2021 ;

(ii) contraventions of section 91 of the Online Safety Act 2021 that relate to removal notices given under section 89 of that Act; and

(b) one or more of those civil penalty orders are set aside or reversed on appeal; and
(c) if the civil penalty orders covered by paragraph (b) had never been made, the person could not have been convicted of the offence; and
(d) the person applies to the court for the conviction to be set aside;
the court must set aside the conviction.

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History

S 474.17A(13) amended by No 77 of 2021, s 3 and Sch 2 item 67, by substituting para (a), effective 23 January 2022. Para (a) formerly read:

(a) a person has been convicted by a court of an offence against subsection (4) on the basis that 3 or more civil penalty orders were made against the person under the Regulatory Powers (Standard Provisions) Act 2014 in relation to contraventions of subsection 44B(1) of the Enhancing Online Safety Act 2015 ; and

(14)
If:
(a) a person has been convicted by a court of an offence (the aggravated offence ) against subsection (4); and
(b) the court sets aside the conviction under subsection (13);
the setting aside of the conviction does not prevent proceedings from being instituted against the person for an offence against subsection 474.17(1) or subsection (1) of this section in relation to the conduct that constituted the aggravated offence.

S 474.17A inserted by No 96 of 2018, s 3 and Sch 2 item 4, effective 1 September 2018.

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