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 474.37 Defences in respect of abhorrent violent material
Content service

(1)
Subsection 474.34(1) does not apply to material that can be accessed using a service if:

(a) the accessibility of the material is necessary for enforcing a law of:

(i) the Commonwealth; or

(ii) a State; or

(iii) a Territory; or

(iv) a foreign country; or

(v) a part of a foreign country; or

(b) the accessibility of the material is necessary for monitoring compliance with, or investigating a contravention of, a law of:

(i) the Commonwealth; or

(ii) a State; or

(iii) a Territory; or

(iv) a foreign country; or

(v) a part of a foreign country; or

(c) the accessibility of the material is for the purposes of proceedings in a court or tribunal; or

(d) both:

(i) the accessibility of the material is necessary for, or of assistance in, conducting scientific, medical, academic or historical research; and

(ii) the accessibility of the material is reasonable in the circumstances for the purpose of conducting that scientific, medical, academic or historical research; or

(e) the material relates to a news report, or a current affairs report, that:

(i) is in the public interest; and

(ii) is made by a person working in a professional capacity as a journalist; or

(f)

View history reference

both:

(i) the accessibility of the material is in connection with the performance by a public official of the official ' s duties or functions; and

(ii) the accessibility of the material is reasonable in the circumstances for the purpose of the public official performing that duty or function; or

(g) both:

(i) the accessibility of the material is in connection with an individual assisting a public official in relation to the performance of the public official ' s duties or functions; and

(ii) the accessibility of the material is reasonable in the circumstances for the purpose of the individual assisting the public official in relation to the performance of the public official ' s duties or functions; or

(h) the accessibility of the material is for the purpose of advocating the lawful procurement of a change to any matter established by law, policy or practice in:

(i) the Commonwealth; or

(ii) a State; or

(iii) a Territory; or

(iv) a foreign country; or

(v) a part of a foreign country;

and the accessibility of the material is reasonable in the circumstances for that purpose; or

(i) the accessibility of the material relates to the development, performance, exhibition or distribution, in good faith, of an artistic work.

Note:

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

View history note

Hosting service

(2)
Subsection 474.34(5) does not apply to material that is hosted on a hosting service if:

(a) the hosting of the material is necessary for enforcing a law of:

(i) the Commonwealth; or

(ii) a State; or

(iii) a Territory; or

(iv) a foreign country; or

(v) a part of a foreign country; or

(b) the hosting of the material is necessary for monitoring compliance with, or investigating a contravention of, a law of:

(i) the Commonwealth; or

(ii) a State; or

(iii) a Territory; or

(iv) a foreign country; or

(v) a part of a foreign country; or

(c) the hosting of the material is for the purposes of proceedings in a court or tribunal; or

(d) both:

(i) the hosting of the material is necessary for, or of assistance in, conducting scientific, medical, academic or historical research; and

(ii) the hosting of the material is reasonable in the circumstances for the purpose of conducting that scientific, medical, academic or historical research; or

(e) the material relates to a news report, or a current affairs report, that:

(i) is in the public interest; and

(ii) is made by a person working in a professional capacity as a journalist; or

(f)

View history reference

both:

(i) the hosting of the material is in connection with the performance by a public official of the official ' s duties or functions; and

(ii) the hosting of the material is reasonable in the circumstances for the purpose of the public official performing that duty or function; or

(g) both:

(i) the hosting of the material is in connection with an individual assisting a public official in relation to the performance of the public official ' s duties or functions; and

(ii) the hosting of the material is reasonable in the circumstances for the purpose of the individual assisting the public official in relation to the performance of the public official ' s duties or functions; or

(h) the hosting of the material is for the purpose of advocating the lawful procurement of a change to any matter established by law, policy or practice in:

(i) the Commonwealth; or

(ii) a State; or

(iii) a Territory; or

(iv) a foreign country; or

(v) a part of a foreign country;

and the hosting of the material is reasonable in the circumstances for that purpose; or

(i) the hosting of the material relates to the development, performance, exhibition or distribution, in good faith, of an artistic work.

Note:

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

View history note

Functions

(3)
The references in this section to function or functions do not, by implication, affect the meaning of the expressions duty or duties when used in any other provision of this Code.

Application

(4)
This section extends to matters and things outside Australia.

View history note

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