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 H - Offences relating to use of carriage service for sharing of abhorrent violent material

View history note

SECTION 474.36 Notice issued by eSafety Commissioner in relation to a hosting service - presumptions

(1)
The eSafety Commissioner may issue a written notice stating that, at the time the notice was issued:

(a) specified material was hosted on a specified hosting service; and

(b) the specified material was abhorrent violent material.

(2)
The eSafety Commissioner must not issue a notice under subsection (1) unless the eSafety Commissioner is satisfied on reasonable grounds that, at the time the notice was issued:

(a) the specified material was hosted on the specified hosting service; and

(b) the specified material was abhorrent violent material.

(3)
As soon as practicable after issuing a notice under subsection (1), the eSafety Commissioner must give a copy of the notice to the person who provides the hosting service concerned.

(4)
The eSafety Commissioner is not required to observe any requirements of procedural fairness in relation to the issue of a notice under subsection (1).

Presumptions

(5)
If:

(a) a notice under subsection (1) is issued in relation to a hosting service provided by a person; and

(b) in a prosecution of the person for an offence against subsection 474.34(5) , it is proven that the material specified in the notice was hosted on the hosting service at the time the notice was issued;

then, in that prosecution, it must be presumed that the person was reckless as to whether the specified material was hosted on the hosting service at the time the notice was issued, unless the person adduces or points to evidence that suggests a reasonable possibility that the person was not reckless as to whether specified material was hosted on the hosting service at the time the notice was issued.

(6)
If a notice under subsection (1) is issued in relation to a hosting service provided by a person, then, in a prosecution of the person for an offence against subsection 474.34(5) , it must be presumed that, at the time the notice was issued, the person was reckless as to whether the material specified in the notice was abhorrent violent material, unless the person adduces or points to evidence that suggests a reasonable possibility that, at the time the notice was issued, the person was not reckless as to whether the specified material was abhorrent violent material.

Other evidentiary matters

(7)
A document purporting to be a notice issued under subsection (1) must, unless the contrary is established, be taken to be such a notice and to have been properly issued.

(8)
The eSafety Commissioner may certify that a document is a copy of a notice issued under subsection (1).

(9)
Subsections (5), (6) and (7) apply to the certified copy as if it were the original.

Application

(10)
This section extends to matters and things outside Australia.

View history note

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