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

View history note

Subdivision F - Offences relating to use of carriage service involving sexual activity with, or causing harm to, person under 16

View history note

SECTION 474.25A Using a carriage service for sexual activity with person under 16 years of age

View history reference

Engaging in sexual activity with child using a carriage service

(1)
A person commits an offence if:

(a) the person engages in sexual activity with another person (the child ) using a carriage service; and

(b) the child is under 16 years of age; and

(c) the person is at least 18 years of age.

Note:

Because of the definition of engage in sexual activity in the Dictionary, this offence covers (for example):

(a) a person using a carriage service to see or hear, in real time, a person under 16 engage in sexual activity; and

(b) a person engaging in sexual activity that is seen or heard, in real time, by a person under 16 using a carriage service.

Penalty: Imprisonment for 20 years.

View history note

Causing child to engage in sexual activity with another person

(2)
A person (the defendant ) commits an offence if:

(a) the defendant engages in conduct in relation to another person (the child ); and

(b) that conduct causes the child to engage in sexual activity with another person (the participant ) using a carriage service; and

(c) the child is under 16 years of age when the sexual activity is engaged in; and

(d) the participant is at least 18 years of age when the sexual activity is engaged in.

Note:

Because of the definition of engage in sexual activity in the Dictionary, this offence covers (for example) causing a person under 16:

(a) to engage in sexual activity that is seen or heard, in real time, by another person using a carriage service; or

(b) to use a carriage service to see or hear, in real time, another person engage in sexual activity.

Penalty: Imprisonment for 20 years.

View history note

(3)
The fault element for paragraph (2)(b) is intention.

Defence - child present but defendant does not intend to derive gratification

(4)
It is a defence to a prosecution for an offence against subsection (1) or (2) if:

(a) the conduct constituting the offence consists only of the child being in the presence of a person while sexual activity is engaged in; and

(b) the defendant proves that he or she did not intend to derive gratification from the presence of the child during that activity.

Note 1:

A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4 .

Note 2:

For other defences relating to this offence, see section 474.29 .

View history note

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