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
History
Div 474 substituted by No 127 of 2004, s 3 and Sch 1 item 1, effective 1 March 2005. For former wording of Div 474 see note under Pt
10.6
heading.
Subdivision F
-
Offences relating to use of carriage service involving sexual activity with, or causing harm to, person under 16
History
Subdiv F heading substituted by No 50 of 2017, s 3 and Sch 1 item 1, effective 23 June 2017.
Subdiv F inserted by No 42 of 2010, s 3 and Sch 1 item 29, effective 15 April 2010.
SECTION 474.28
Provisions relating to offences against this Subdivision
Age-related issues
-
application of absolute liability
(1)
For the purposes of an offence against this Subdivision, absolute liability applies to the physical element of circumstance of the offence that:
(a)
in the case of an offence against section
474.25A
or
474.27AA
-
the child is under 16 years of age; and
(b)
in the case of an offence against section
474.26
,
474.27
or
474.27A
-
the recipient is someone who is under 16 years of age.
Note 1:
For
absolute liability
, see section 6.2.
Note 2:
For a defence based on belief about age, see section 474.29.
History
S 474.28(1) amended by No 70 of 2020, s 3 and Sch 4 item 31, by inserting
"
or 474.27AA
"
in para (a), effective 23 June 2020.
S 474.28(1) (not including the notes) substituted by No 42 of 2010, s 3 and Sch 1 item 45, effective 15 April 2010. S 474.28(1) formerly read:
Age-related issues
(1)
For the purposes of an offence against section 474.26 or 474.27, absolute liability applies to the physical element of circumstance of the offence that the recipient is someone who is under 16 years of age.
(2)
For the purposes of an offence against subsection
474.25A(2)
,
474.26(2)
or
(3)
,
474.27(2)
or
(3)
or
474.27AA(2)
or
(3)
, absolute liability applies to the physical elements of circumstance of the offence that the participant is at least 18 years of age.
Note 1:
For
absolute liability
, see section
6.2
.
Note 2:
For a defence based on belief about age, see section
474.29
.
History
S 474.28(2) amended by No 70 of 2020, s 3 and Sch 4 item 32, by substituting
"
, 474.27(2) or (3) or 474.27AA(2) or (3)
"
for
"
or 474.27(2) or (3)
"
, effective 23 June 2020.
S 474.28(2) amended by No 42 of 2010, s 3 and Sch 1 items 46 and 47, by inserting
"
474.25A(2),
"
before
"
474.26(2) or (3) or 474.27(2) or (3)
"
and substituting
"
the participant
"
for
"
the other person referred to in paragraph 474.26(2)(b) or (3)(e) or 474.27(2)(c) or (3)(f)
"
, effective 15 April 2010.
Proof of belief about age
-
evidence of representation
(3)
For the purposes of sections
474.26
,
474.27
,
474.27AA
and
474.27A
, evidence that a person was represented to the defendant as being under, of, at least or over a particular age is, in the absence of evidence to the contrary, proof that the defendant believed the person to be under, of, at least or over that age (as the case requires).
History
S 474.28(3) substituted by No 70 of 2020, s 3 and Sch 4 item 33, effective 23 June 2020. S 474.28(3) formerly read:
(3)
For the purposes of sections 474.26, 474.27 and 474.27A, evidence that the recipient was represented to the sender as being under or of a particular age is, in the absence of evidence to the contrary, proof that the sender believed the recipient to be under or of that age.
S 474.28(3) amended by No 42 of 2010, s 3 and Sch 1 item 48, by substituting
"
474.26, 474.27 and 474.27A
"
for
"
474.26 and 474.27
"
, effective 15 April 2010.
(4)
(Repealed by No 70 of 2020)
History
S 474.28(4) repealed by No 70 of 2020, s 3 and Sch 4 item 33, effective 23 June 2020. S 474.28(4) formerly read:
(4)
For the purposes of sections 474.25A, 474.26 and 474.27, evidence that the participant was represented to the sender as being:
(a)
at least 18 years of age; or
(b)
over or of a particular age;
is, in the absence of evidence to the contrary, proof that the sender believed the participant to be at least 18 years of age or over or of that age.
S 474.28(4) amended by No 42 of 2010, s 3 and Sch 1 items 49 and 50, by substituting
"
sections 474.25A, 474.26 and 474.27, evidence that the participant
"
for
"
sections 474.26 and 474.27, evidence that the other person referred to in paragraph 474.26(2)(b) or (3)(e) or 474.27(2)(c) or (3)(f)
"
and substituting
"
participant
"
for
"
other person
"
(second occurring), effective 15 April 2010.
Determining age
-
admissible evidence
(5)
In determining for the purposes of this Subdivision how old a person is or was at a particular time, a jury or court may treat any of the following as admissible evidence:
(a)
the person
'
s appearance;
(b)
medical or other scientific opinion;
(c)
a document that is or appears to be an official or medical record from a country outside Australia;
(d)
a document that is or appears to be a copy of such a record.
History
S 474.28(5) amended by No 42 of 2010, s 3 and Sch 1 item 51, by substituting
"
this Subdivision
"
for
"
sections 474.26 and 474.27
"
, effective 15 April 2010.
(6)
Subsection (5) does not make any other kind of evidence inadmissible, and does not affect a prosecutor
'
s duty to do all he or she can to adduce the best possible evidence for determining the question.
(7)
If, on a trial for an offence against a provision of this Subdivision, evidence may be treated as admissible because of subsection (5), the court must warn the jury that it must be satisfied beyond reasonable doubt in determining the question.
History
S 474.28(7) amended by No 42 of 2010, s 3 and Sch 1 item 52, by substituting
"
a provision of this Subdivision
"
for
"
sections 474.26 and 474.27
"
, effective 15 April 2010.
Issues relating to aggravated offence involving sexual activity
(7A)
For the purposes of an offence against subsection
474.25B(1)
:
(a)
there is no fault element for the physical element described in paragraph (a) of that subsection other than the fault elements (however described), if any, for the underlying offence; and
(b)
absolute liability applies to the physical element of circumstance of the offence that the child has a mental impairment; and
(c)
strict liability applies to the physical element of circumstance of the offence that the defendant is in a position of trust or authority in relation to the child, or the child is otherwise under the care, supervision or authority of the defendant.
Note 1:
For absolute liability, see section
6.2
.
Note 2:
For strict liability, see section
6.1
.
Note 3:
For a defence based on belief that the child did not have a mental impairment, see section
474.29
.
History
S 474.28(7A) inserted by No 42 of 2010, s 3 and Sch 1 item 53, effective 15 April 2010.
Impossibility of sexual activity taking place
(8)
A person may be found guilty of an offence against section
474.26
,
474.27
or
474.27AA
even if it is impossible for the sexual activity referred to in that section to take place.
History
S 474.28(8) amended by No 70 of 2020, s 3 and Sch 4 item 34, by substituting
"
, 474.27 or 474.27AA
"
for
"
or 474.27
"
, effective 23 June 2020.
Fictitious persons
(9)
For the purposes of sections
474.26
,
474.27
,
474.27AA
and
474.27A
, it does not matter that the recipient to whom the sender believes the sender is transmitting the communication is a fictitious person represented to the sender as a real person.
History
S 474.28(9) amended by No 70 of 2020, s 3 and Sch 4 item 36, by inserting
"
, 474.27AA
"
, effective 23 June 2020.
S 474.28(9) amended by No 42 of 2010, s 3 and Sch 1 item 54, by substituting
"
474.26, 474.27 and 474.27A
"
for
"
474.26 and 474.27
"
, effective 15 April 2010.
(9A)
For the purposes of an offence against section
474.27AA
, it does not matter that the child is a fictitious person represented to the sender as a real person.
History
S 474.28(9A) inserted by No 70 of 2020, s 3 and Sch 4 item 37, effective 23 June 2020.
Attempt not offence
(10)
It is not an offence to attempt to commit an offence against section
474.26
,
474.27
or
474.27AA
.
History
S 474.28(10) amended by No 70 of 2020, s 3 and Sch 4 item 38, by substituting
"
, 474.27 or 474.27AA
"
for
"
or 474.27
"
, effective 23 June 2020.
(11)
(Repealed by No 42 of 2010)
History
S 474.28(11) repealed by No 42 of 2010, s 3 and Sch 1 item 55, effective 15 April 2010. S 474.28(11) formerly read:
Definitions
(11)
In sections 474.26 and 474.27 and this section:
procure
a person to engage in sexual activity includes:
(a)
encourage, entice or recruit the person to engage in that activity; or
(b)
induce the person (whether by threats, promises or otherwise) to engage in that activity.
sexual activity
means:
(a)
sexual intercourse as defined in section 50AC of the
Crimes Act 1914
; or
(b)
an act of indecency as defined in section 50AB of that Act; or
(c)
any other activity of a sexual or indecent nature that involves the human body, or bodily actions or functions.
The activity referred to in paragraph (c) need not involve physical contact between people.
History
S 474.28 inserted by No 127 of 2004, s 3 and Sch 1 item 1, effective 1 March 2005.
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