(7) A person is not criminally responsible for an offence against subsection (5) if:
(a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in good faith in the course of his or her 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.
(7A) A person is not criminally responsible for an offence against subsection (5) if the conduct of the person:
(a) is in accordance with a technical assistance request; or
(b) is in compliance with a technical assistance notice; or
(c) is in compliance with a technical capability notice.
(8) For the purposes of this section, a facility is taken to be owned or operated by a nominated carrier if the Telecommunications Act 1997 applies, under section 81A of that Act, as if that facility were owned or operated by the nominated carrier.
474.7 Modification etc. of a telecommunications device identifier
(1) A person commits an offence if the person:
(a) modifies a telecommunications device identifier; or
(b) interferes with the operation of a telecommunications device identifier.
Penalty: Imprisonment for 2 years.
(2) A person is not criminally responsible for an offence against subsection (1) if the person is:
(a) the manufacturer of the mobile telecommunications device in which the telecommunications device identifier is installed; or
(b) an employee or agent of the manufacturer who is acting on behalf of the manufacturer; or
(c) acting with the consent of the manufacturer.
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:
(a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in the course of his or her 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: This subsection merely creates a defence to an offence against subsection (1) and does not operate to authorise any conduct that requires a warrant under some other law.
474.8 Possession or control of data or a device with intent to modify a telecommunications device identifier
(1) A person commits an offence if:
(a) the person has possession or control of any thing or data; and
(b) the person has that possession or control with the intention that the thing or data be used:
(i) by the person; or
(ii) by another person;
in committing an offence against subsection 474.7(1) (modification of a telecommunications device identifier).
Penalty: Imprisonment for 2 years.
(2) A person may be found guilty of an offence against subsection (1) even if committing the offence against subsection 474.7(1) (modification of a telecommunications device identifier) is impossible.
(3) It is not an offence to attempt to commit an offence against subsection (1).
(4) A person is not criminally responsible for an offence against subsection (1) if the person is:
(a) the manufacturer of the mobile telecommunications device in which the telecommunications device identifier is installed; or
(b) an employee or agent of the manufacturer who is acting on behalf of the manufacturer; or
(c) acting with the consent of the manufacturer.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
(5) A person is not criminally responsible for an offence against subsection (1) if:
(a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in the course of his or her 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: This subsection merely creates a defence to an offence against subsection (1) and does not operate to authorise any conduct that requires a warrant under some other law.
474.9 Producing, supplying or obtaining data or a device with intent to modify a telecommunications device identifier
(1) A person commits an offence if:
(a) the person produces, supplies or obtains any thing or data; and
(b) the person does so with the intention that the thing or data be used:
(i) by the person; or
(ii) by another person;
in committing an offence against subsection 474.7(1) (modification of a telecommunications device identifier).
Penalty: Imprisonment for 2 years.
(2) A person may be found guilty of an offence against subsection (1) even if committing the offence against subsection 474.7(1) (modification of a telecommunications device identifier) is impossible.
(3) It is not an offence to attempt to commit an offence against subsection (1).
(4) A person is not criminally responsible for an offence against subsection (1) if the person is:
(a) the manufacturer of the mobile telecommunications device in which the telecommunications device identifier is installed; or
(b) an employee or agent of the manufacturer who is acting on behalf of the manufacturer; or
(c) acting with the consent of the manufacturer.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
(5) A person is not criminally responsible for an offence against subsection (1) if:
(a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in the course of his or her 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: This subsection merely creates a defence to an offence against subsection (1) and does not operate to authorise any conduct that requires a warrant under some other law.
474.10 Copying subscription‑specific secure data
Copying subscription‑specific secure data from an existing account identifier
(1) A person commits an offence if the person:
(a) copies the subscription‑specific secure data from an account identifier; and
(b) does so with the intention that the data will be copied (whether by the person or by someone else) onto something that:
(i) is an account identifier; or
(ii) will, once the data is copied onto it, be capable of operating as an account identifier.
Penalty: Imprisonment for 2 years.
Copying subscription‑specific secure data onto a new account identifier
(2) A person commits an offence if:
(a) subscription‑specific secure data is copied from an account identifier (whether by the person or by someone else); and
(b) the person copies that data onto something that:
(i) is an account identifier; or
(ii) will, once the data is copied onto it, be capable of operating as an account identifier.
This is so whether or not the person knows which particular account identifier the subscription‑specific secure data is copied from.
Penalty: Imprisonment for 2 years.
Defences
(3) A person is not criminally responsible for an offence against subsection (1) or (2) if the person is:
(a) the carrier who operates the facilities used, or to be used, in the supply of the public mobile telecommunications service to which the subscription‑specific secure data relates; or
(b) an employee or agent of that carrier who is acting on behalf of that carrier; or
(c) acting with the consent of that carrier.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
(4) A person is not criminally responsible for an offence against subsection (1) or (2) if:
(a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in the course of his or her 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: This subsection merely creates a defence to an offence against subsection (1) or (2) and does not operate to authorise any conduct that requires a warrant under some other law.
474.11 Possession or control of data or a device with intent to copy an account identifier
(1) A person commits an offence if:
(a) the person has possession or control of any thing or data; and
(b) the person has that possession or control with the intention that the thing or data be used:
(i) by the person; or
(ii) by another person;
in committing an offence against subsection 474.10(1) (copying subscription‑specific secure data from an account identifier) or 474.10(2) (copying subscription‑specific secure data onto an account identifier).
Penalty: Imprisonment for 2 years.
(2) A person may be found guilty of an offence against subsection (1) even if committing the offence against subsection 474.10(1) (copying subscription‑specific secure data from an account identifier) or 474.10(2) (copying subscription‑specific secure data onto an account identifier) is impossible.
(3) It is not an offence to attempt to commit an offence against subsection (1).
Defences
(4) A person is not criminally responsible for an offence against subsection (1) if the person is:
(a) the carrier who operates the facilities used, or to be used, in the supply of the public mobile telecommunications service to which the subscription‑specific secure data relates; or
(b) an employee or agent of that carrier who is acting on behalf of that carrier; or
(c) acting with the consent of that carrier.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
(5) A person is not criminally responsible for an offence against subsection (1) if:
(a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in the course of his or her 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: This subsection merely creates a defence to an offence against subsection (1) and does not operate to authorise any conduct that requires a warrant under some other law.
474.12 Producing, supplying or obtaining data or a device with intent to copy an account identifier
(1) A person commits an offence if:
(a) the person produces, supplies or obtains any thing or data; and
(b) the person does so with the intention that the thing or data be used:
(i) by the person; or
(ii) by another person;
in committing an offence against subsection 474.10(1) (copying subscription‑specific secure data from an account identifier) or 474.10(2) (copying subscription‑specific secure data onto an account identifier).
Penalty: Imprisonment for 2 years.
(2) A person may be found guilty of an offence against subsection (1) even if committing the offence against subsection 474.10(1) (copying subscription‑specific secure data from an account identifier) or 474.10(2) (copying subscription‑specific secure data onto an account identifier) is impossible.
(3) It is not an offence to attempt to commit an offence against subsection (1).
Defences
(4) A person is not criminally responsible for an offence against subsection (1) if the person is:
(a) the carrier who operates the facilities used, or to be used, in the supply of the public mobile telecommunications service to which the subscription‑specific secure data relates; or
(b) an employee or agent of that carrier who is acting on behalf of that carrier; or
(c) acting with the consent of that carrier.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
(5) A person is not criminally responsible for an offence against subsection (1) if:
(a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in the course of his or her 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: This subsection merely creates a defence to an offence against subsection (1) and does not operate to authorise any conduct that requires a warrant under some other law.
Subdivision C—General offences relating to use of telecommunications
474.14 Using a telecommunications network with intention to commit a serious offence
(1) A person commits an offence if:
(a) the person:
(i) connects equipment to a telecommunications network; and
(ii) intends by this to commit, or to facilitate the commission of, an offence (whether by that person or another person); and
(b) the offence is:
(i) a serious offence against a law of the Commonwealth, a State or a Territory; or
(ii) a serious offence against a foreign law.
(2) A person commits an offence if:
(a) the person uses equipment connected to a telecommunications network in the commission of, or to facilitate the commission of, an offence (whether by that person or another person); and
(b) the offence is:
(i) a serious offence against a law of the Commonwealth, a State or a Territory; or
(ii) a serious offence against a foreign law.
(3) A person who commits an offence against subsection (1) or (2) is punishable, on conviction, by a penalty not exceeding the penalty applicable to the serious offence.
(4) Absolute liability applies to paragraphs (1)(b) and (2)(b).
Note: For absolute liability, see section 6.2.
(5) A person may be found guilty of an offence against subsection (1) or (2) even if committing the serious offence is impossible.
(6) It is not an offence to attempt to commit an offence against subsection (1) or (2).
474.15 Using a carriage service to make a threat
Threat to kill
(1) A person (the first person) commits an offence if:
(a) the first person uses a carriage service to make to another person (the second person) a threat to kill the second person or a third person; and
(b) the first person intends the second person to fear that the threat will be carried out.
Penalty: Imprisonment for 10 years.
Threat to cause serious harm
(2) A person (the first person) commits an offence if:
(a) the first person uses a carriage service to make to another person (the second person) a threat to cause serious harm to the second person or a third person; and
(b) the first person intends the second person to fear that the threat will be carried out.
Penalty: Imprisonment for 7 years.
Actual fear not necessary
(3) In a prosecution for an offence against this section, it is not necessary to prove that the person receiving the threat actually feared that the threat would be carried out.
Definitions
(4) In this section:
fear includes apprehension.
threat to cause serious harm to a person includes a threat to substantially contribute to serious harm to the person.
474.16 Using a carriage service for a hoax threat
A person commits an offence if:
(a) the person uses a carriage service to send a communication; and
(b) the person does so with the intention of inducing a false belief that an explosive, or a dangerous or harmful substance or thing, has been or will be left in any place.
Penalty: Imprisonment for 10 years.
474.17 Using a carriage service to menace, harass or cause offence
(1) A person commits an offence if:
(a) the person uses a carriage service; and
(b) the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.
Penalty: Imprisonment for 5 years.
(2) Without limiting subsection (1), that subsection applies to menacing, harassing or causing offence to:
(a) an employee of an NRS provider; or
(b) an emergency call person; or
(c) an employee of an emergency service organisation; or
(d) an APS employee in the Department administered by the AFP Minister acting as a National Security Hotline call taker.
474.17A Using a carriage service to transmit sexual material without consent
Offence
(1) A person (the first person) commits an offence if:
(a) the first person uses a carriage service to transmit material of another person; and
(b) the other person is, or appears to be, 18 years of age or older; and
(c) the material depicts, or appears to depict:
(i) the other person engaging in a sexual pose or sexual activity (whether or not in the presence of other persons); or
(ii) a sexual organ or the anal region of the other person; or
(iii) if the other person is female—the other person’s breasts; and
(d) the first person:
(i) knows that the other person does not consent to the transmission of the material; or
(ii) is reckless as to whether the other person consents to the transmission of the material.
Note: For material that relates to a person who is, or appears to be, under 18 years of age, see:
(a) the definition of child abuse material; and
(b) the offences relating to child abuse material in Subdivision D.