and includes a staff member (within the meaning of the Intelligence Services Act 2001) of the Australian Security Intelligence Organisation, the Australian Secret Intelligence Service or the Australian Signals Directorate.
interception device means an apparatus or device that:
(a) is of a kind that is capable of being used to enable a person to intercept a communication passing over a telecommunications system; and
(b) could reasonably be regarded as having been designed:
(i) for the purpose of; or
(ii) for purposes including the purpose of;
using it in connection with the interception of communications passing over a telecommunications system; and
(c) is not designed principally for the reception of communications transmitted by radiocommunications.
Terms used in this definition that are defined in the Telecommunications (Interception and Access) Act 1979 have the same meaning in this definition as they have in that Act.
internet service provider has the same meaning as in the Online Safety Act 2021.
law enforcement officer means any of the following:
(a) the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee or a special member of the Australian Federal Police (all within the meaning of the Australian Federal Police Act 1979);
(b) a member, or employee, of the police force of a State or Territory;
(c) a member of the staff of the Australian Crime Commission (within the meaning of the Australian Crime Commission Act 2002);
(d) a member of a police force, or other law enforcement agency, of a foreign country;
(e) the Director of Public Prosecutions or a person performing a similar function under a law of a State or Territory;
(f) a member of the staff of the Office of the Director of Public Prosecutions (within the meaning of the Director of Public Prosecutions Act 1983) or of a similar body established under a law of a State or Territory;
(g) a member of the New South Wales Crime Commission or a member of the staff of that Commission;
(h) an officer of the Independent Commission Against Corruption of New South Wales, being a person who is an officer as defined by the Independent Commission Against Corruption Act 1988 of New South Wales;
(i) any of the following:
(i) the Chief Commissioner of the Law Enforcement Conduct Commission of New South Wales;
(ii) the Commissioner for Integrity of the Commission;
(iii) an Assistant Commissioner of the Commission;
(iv) a member of staff of the Commission (within the meaning of the Law Enforcement Conduct Commission Act 2016 (NSW));
(ia) an IBAC Officer within the meaning of the Independent Broad‑based Anti‑corruption Commission Act 2011 (Vic.);
(j) an officer of the Corruption and Crime Commission of Western Australia within the meaning of the Corruption and Crime Commission Act 2003 of Western Australia;
(k) an authorised commission officer of the Crime and Corruption Commission of Queensland within the meaning of the Crime and Corruption Act 2001 (Qld);
(l) any of the following:
(i) the Commissioner of the Independent Commission Against Corruption of South Australia;
(ii) the Deputy Commissioner of the Commission;
(iii) a person engaged as an employee of the Commission under subsection 12(1) of the Independent Commission Against Corruption Act 2012 (SA);
(iv) an examiner or investigator (within the meaning of that Act) of the Commission;
(m) a staff member of the NACC (within the meaning of the National Anti‑Corruption Commission Act 2022).
loss means a loss in property, whether temporary or permanent, and includes not getting what one might get.
material includes material in any form, or combination of forms, capable of constituting a communication.
meat by‑product includes skin, hide, tallow, meat meal and inedible offal.
mobile telecommunications account means an account with a carriage service provider for the supply of a public mobile telecommunications service to an end‑user.
mobile telecommunications device means an item of customer equipment (within the meaning of the Telecommunications Act 1997) that is used, or is capable of being used, in connection with a public mobile telecommunications service.
National Relay Service has the same meaning as in the Telecommunications (Consumer Protection and Service Standards) Act 1999.
nominated carrier has the same meaning as in the Telecommunications Act 1997.
NRS provider means:
(a) a person who:
(i) is a contractor (within the meaning of the Telecommunications (Consumer Protection and Service Standards) Act 1999); and
(ii) provides the whole or a part of the National Relay Service; or
(b) a person who:
(i) is a grant recipient (within the meaning of the Telecommunications (Consumer Protection and Service Standards) Act 1999); and
(ii) provides the whole or a part of the National Relay Service.
obtaining includes:
(a) obtaining for another person; and
(b) inducing a third person to do something that results in another person obtaining.
obtaining data, or material that is in the form of data, has the meaning given by section 473.3.
possession of data, or material that is in the form of data, has the meaning given by section 473.2.
primary production business means any of the following:
(a) a business of grazing;
(b) a business of operating animal feedlots;
(c) a business of dairy farming;
(d) a business of farming animals for the purpose of producing meat or meat by‑products;
(e) a business of poultry farming;
(f) a business of aquaculture;
(g) a business of bee‑keeping;
(h) a business of operating an abattoir;
(i) a business of operating livestock sale yards;
(j) a business of operating a registered establishment (within the meaning of the Export Control Act 2020);
(k) a business of operating a fish processing facility;
(l) a business of growing fruit;
(m) a business of growing vegetables;
(n) a business of growing nuts;
(o) a business of growing crops;
(p) a business of viticulture;
(pa) a business of operating:
(i) a wood processing facility; or
(ii) a wood fibre processing facility;
(q) a business of forestry that is carried on on private land.
private land means land other than Crown land.
producing data, or material that is in the form of data, has the meaning given by section 473.3.
property has the same meaning as in Chapter 7.
public mobile telecommunications service has the same meaning as in the Telecommunications Act 1997.
radiocommunication has the same meaning as in the Radiocommunications Act 1992.
serious offence against a foreign law means an offence against a law of a foreign country constituted by conduct that, if it had occurred in Australia, would have constituted a serious offence against a law of the Commonwealth, a State or a Territory.
serious offence against a law of the Commonwealth, a State or a Territory means an offence against a law of the Commonwealth, a State or a Territory that is punishable by imprisonment:
(a) for life; or
(b) for a period of 5 or more years.
statutory authority means a body established for a public purpose by or under a law of the Commonwealth, a State or a Territory.
subscription‑specific secure data means data that is used, or is capable of being used, to:
(a) allow a carrier to identify a particular mobile telecommunications account (whether an existing account or an account that may be set up in the future); and
(b) allow a mobile telecommunications device in which an account identifier that contains the data is installed to access the public mobile telecommunication service to which that account relates.
supplying data, or material that is in the form of data, has the meaning given by section 473.3.
telecommunications device identifier means:
(a) an electronic identifier of a mobile telecommunications device that is:
(i) installed in the device by the manufacturer; and
(ii) is capable of being used to distinguish that particular device from other mobile telecommunications devices; or
(b) any other form of identifier that is prescribed by the regulations as a telecommunications device identifier for the purposes of this Part.
Note: Paragraph (a)—For example, GSM mobile phones use an industry‑recognised International Mobile Equipment Identity (IMEI) number. This number identifies the particular phone, as compared to the SIM card number which identifies a particular telecommunications account. Carriers are able to block service to lost and stolen mobile phones based on their IMEI numbers.
telecommunications network has the same meaning as in the Telecommunications Act 1997.
use, a carriage service, has a meaning affected by section 473.5.
473.2 Possession or control of data or material in the form of data
A reference in this Part to a person having possession or control of data, or material that is in the form of data, includes a reference to the person:
(a) having possession of a computer or data storage device that holds or contains the data; or
(b) having possession of a document in which the data is recorded; or
(c) having control of data held in a computer that is in the possession of another person (whether inside or outside Australia).
473.3 Producing, supplying or obtaining data or material in the form of data
A reference in this Part to a person producing, supplying or obtaining data, or material that is in the form of data, includes a reference to the person:
(a) producing, supplying or obtaining data held or contained in a computer or data storage device; or
(b) producing, supplying or obtaining a document in which the data is recorded.
473.4 Determining whether material is offensive
The matters to be taken into account in deciding for the purposes of this Part whether reasonable persons would regard particular material, or a particular use of a carriage service, as being, in all the circumstances, offensive, include:
(a) the standards of morality, decency and propriety generally accepted by reasonable adults; and
(b) the literary, artistic or educational merit (if any) of the material; and
(c) the general character of the material (including whether it is of a medical, legal or scientific character).
473.5 Use of a carriage service
For the purposes of this Part, a person is taken not to use a carriage service by engaging in particular conduct if:
(a) the person is a carrier and, in engaging in that conduct, is acting solely in the person’s capacity as a carrier; or
(b) the person is a carriage service provider and, in engaging in that conduct, is acting solely in the person’s capacity as a carriage service provider; or
(c) the person is an internet service provider and, in engaging in that conduct, is acting solely in the person’s capacity as an internet service provider; or
(d) the person is an Australian hosting service provider and, in engaging in that conduct, is acting solely in the person’s capacity as an Australian hosting service provider.
Division 474—Telecommunications offences
Subdivision A—Dishonesty with respect to carriage services
474.1 Dishonesty
(1) For the purposes of this Subdivision, 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.
(2) In a prosecution for an offence against this Subdivision, the determination of dishonesty is a matter for the trier of fact.
474.2 General dishonesty with respect to a carriage service provider
Obtaining a gain
(1) A person commits 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 commits 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 commits 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.
Subdivision B—Interference with telecommunications
474.3 Person acting for a carrier or carriage service provider
(1) For the purposes of this Subdivision, a person who does any thing for or on behalf of a carrier, or on behalf of persons at least one of whom is a carrier, is, in respect of:
(a) the doing by that person of that thing; or
(b) any rental, fee or charge payable for or in relation to the doing by that person of that thing; or
(c) the operation by that person of a facility in connection with the doing of that thing; or
(d) a facility belonging to that person; or
(e) the operation by that person of a satellite;
taken to be a carrier.
(2) For the purposes of this Subdivision, a person who does any thing for or on behalf of a carriage service provider, or on behalf of persons at least one of whom is a carriage service provider, is, in respect of:
(a) the doing by that person of that thing; or
(b) any rental, fee or charge payable for or in relation to the doing by that person of that thing; or
(c) the operation by that person of a facility in connection with the doing of that thing; or
(d) a facility belonging to that person; or
(e) the operation by that person of a satellite;
taken to be a carriage service provider.
474.4 Interception devices
(1) A person commits an offence if:
(a) the person:
(i) manufactures; or
(ii) advertises, displays or offers for sale; or
(iii) sells; or
(iv) possesses;
an apparatus or device (whether in an assembled or unassembled form); and
(b) the apparatus or device is an interception device.
Penalty: Imprisonment for 5 years.
(2) A person is not criminally responsible for an offence against subsection (1) if the person possesses the interception device in the course of the person’s duties relating to the interception of communications that does not constitute a contravention of subsection 7(1) of the Telecommunications (Interception and Access) Act 1979.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
(3) A person is not criminally responsible for an offence against subsection (1) if the applicable conduct mentioned in subparagraphs (1)(a)(i) to (iv) is in circumstances specified in regulations made for the purposes of this subsection.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
474.5 Wrongful delivery of communications
(1) A person commits an offence if:
(a) a communication is in the course of telecommunications carriage; and
(b) the person causes the communication to be received by a person or carriage service other than the person or service to whom it is directed.
Penalty: Imprisonment for 1 year.
(2) A person is not criminally responsible for an offence against subsection (1) if the person engages in the conduct referred to in paragraph (1)(b) with the consent or authorisation of the person to whom, or the person operating the carriage service to which, the communication is directed.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
474.6 Interference with facilities
(1) A person commits an offence if the person tampers with, or interferes with, a facility owned or operated by:
(a) a carrier; or
(b) a carriage service provider; or
(c) a nominated carrier.
Penalty: Imprisonment for 1 year.
(2) For the purposes of an offence against subsection (1), absolute liability applies to the physical element of circumstance of the offence, that the facility is owned or operated by a carrier, a carriage service provider or a nominated carrier.
(3) A person commits an offence if:
(a) the person tampers with, or interferes with, a facility owned or operated by:
(i) a carrier; or
(ii) a carriage service provider; or
(iii) a nominated carrier; and
(b) this conduct results in hindering the normal operation of a carriage service supplied by a carriage service provider.
Penalty: Imprisonment for 2 years.
(4) For the purposes of an offence against subsection (3), absolute liability applies to the following physical elements of circumstance of the offence:
(a) that the facility is owned or operated by a carrier, a carriage service provider or a nominated carrier;
(b) that the carriage service is supplied by a carriage service provider.
(4A) A person is not criminally responsible for an offence against subsection (1) or (3) if:
(a) the person is, at the time of the offence, an ASIO officer acting in good faith in the course of the person’s duties; and
(b) the conduct of the person is reasonable in the circumstances for the purpose of performing that duty.
Note 1: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
Note 2: See also subsection 475.1(2) for the interaction between this defence and the Radiocommunications Act 1992.
(5) A person commits an offence if:
(a) the person uses or operates any apparatus or device (whether or not it is comprised in, connected to or used in connection with a telecommunications network); and
(b) this conduct results in hindering the normal operation of a carriage service supplied by a carriage service provider.
Penalty: Imprisonment for 2 years.
(6) For the purposes of an offence against subsection (5), absolute liability applies to the physical element of circumstance of the offence, that the carriage service is supplied by a carriage service provider.