(2) For the purposes of subsection (1), it is irrelevant whether the material transmitted:
(a) is in an unaltered form; or
(b) has been created, or altered in any way, using technology.
Note: Paragraph (b) includes images, videos or audio depicting a person that have been edited or entirely created using digital technology (including artificial intelligence), generating a realistic but false depiction of the person. Examples of such material are “deepfakes”.
Exceptions
(3) Subsection (1) does not apply if:
(a) transmitting the material is necessary for, or of assistance in:
(i) enforcing a law of the Commonwealth, a State or a Territory; or
(ii) monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or a Territory; or
(b) transmitting the material is for the purposes of proceedings in a court or tribunal; or
(c) transmitting the material is for a genuine medical or scientific purpose; or
(d) a reasonable person would consider transmitting the material to be acceptable, having regard to the following:
(i) the nature and content of the material;
(ii) the circumstances in which the material was transmitted;
(iii) the age, intellectual capacity, vulnerability or other relevant circumstances of the person depicted, or appearing to be depicted, in the material;
(iv) the degree to which the transmission of the material affects the privacy of the person depicted, or appearing to be depicted, in the material;
(v) the relationship between the person transmitting the material and the person depicted, or appearing to be depicted, in the material;
(vi) any other relevant matters.
Note: A defendant bears an evidential burden in relation to the matters in subsection (3). See subsection 13.3(3).
Interpretation
(4) In this section:
transmit includes make available, publish, distribute, advertise and promote.
(5) In this section, being reckless in relation to consent includes not giving any thought to whether or not the person is consenting.
474.17AA Aggravated offences involving transmission of sexual material without consent
Aggravated offence—transmission of sexual material without consent after certain civil penalty orders were made
(1) A person commits an offence against this subsection if:
(a) the person commits an offence (the underlying offence) against subsection 474.17A(1); and
(b) before the commission of the underlying offence, 3 or more civil penalty orders were made against the person under the Regulatory Powers (Standard Provisions) Act 2014 in relation to either or both of the following:
(i) contraventions of subsection 75(1) of the Online Safety Act 2021;
(ii) contraventions of section 91 of the Online Safety Act 2021 that relate to removal notices given under section 89 of that Act.
Penalty: Imprisonment for 7 years.
(2) There is no fault element for the physical element described in paragraph (1)(a) other than the fault elements (however described), if any, for the underlying offence.
(3) To avoid doubt, a person does not commit the underlying offence for the purposes of paragraph (1)(a) if the person has a defence to the underlying offence.
(4) Absolute liability applies to paragraph (1)(b).
Aggravated offence—creation or alteration of sexual material transmitted without consent
(5) A person commits an offence against this subsection if:
(a) the person commits an offence (the underlying offence) against subsection 474.17A(1); and
(b) the person was responsible for the creation or alteration of the material.
Penalty: Imprisonment for 7 years.
(6) There is no fault element for the physical element described in paragraph (5)(a) other than the fault elements (however described), if any, for the underlying offence.
(7) To avoid doubt, a person does not commit the underlying offence for the purposes of paragraph (5)(a) if the person has a defence to the underlying offence.
474.17AB Double jeopardy etc. provisions—offences involving transmission of sexual material without consent
Double jeopardy
(1) A person who has been convicted or acquitted of an offence (the aggravated offence) specified in column 1 of an item of the following table may not be convicted of an offence specified in column 2 of the item in relation to the conduct that constituted the aggravated offence.
1 subsection 474.17AA(1) subsection 474.17A(1) or 474.17AA(5)
2 subsection 474.17AA(5) subsection 474.17A(1) or 474.17AA(1)
(2) Subsection (1) does not prevent an alternative verdict under section 474.17B.
(3) A person who has been convicted or acquitted of an offence (the underlying offence) against subsection 474.17A(1) may not be convicted of an offence against subsection 474.17AA(1) or (5) in relation to the conduct that constituted the underlying offence.
When conviction must be set aside
(4) If:
(a) a person has been convicted by a court of an offence against subsection 474.17AA(1) on the basis that 3 or more civil penalty orders were made against the person under the Regulatory Powers (Standard Provisions) Act 2014 in relation to either or both of the following:
(i) contraventions of subsection 75(1) of the Online Safety Act 2021;
(ii) contraventions of section 91 of the Online Safety Act 2021 that relate to removal notices given under section 89 of that Act; and
(b) one or more of those civil penalty orders are set aside or reversed on appeal; and
(c) if the civil penalty orders covered by paragraph (b) of this subsection had never been made, the person could not have been convicted of the offence; and
(d) the person applies to the court for the conviction to be set aside;
the court must set aside the conviction.
(5) If:
(a) a person has been convicted by a court of an offence (the aggravated offence) against subsection 474.17AA(1); and
(b) the court sets aside the conviction under subsection (4) of this section;
the setting aside of the conviction does not prevent proceedings from being instituted against the person for an offence against subsection 474.17A(1) or 474.17AA(5) in relation to the conduct that constituted the aggravated offence.
474.17B Alternative verdict if aggravated offence not proven
(1) If, on a trial of a person for an offence specified in column 1 of an item of the following table, the trier of fact:
(a) is not satisfied that the person is guilty of the offence; and
(b) is satisfied beyond reasonable doubt that the person is guilty of an offence against a provision specified in column 2 of the item;
it may find the person not guilty of the offence specified in column 1 but guilty of an offence specified in column 2 of that item.
Alternative verdict if aggravated offence not proven
Item Column 1 For an offence against: Column 2 the alternative verdict is an offence against:
1 subsection 474.17AA(1) either of the following:(a) subsection 474.17A(1);(b) subsection 474.17AA(5)
2 subsection 474.17AA(5) either of the following:(a) subsection 474.17A(1);(b) subsection 474.17AA(1)
(2) Subsection (1) applies only if the person has been accorded procedural fairness in relation to the finding of guilt for the offence specified in column 2 of the relevant item.
474.17C Using a carriage service to make available etc. personal data of one or more individuals
(1) A person commits an offence if:
(a) the person uses a carriage service to make available, publish or otherwise distribute information; and
(b) the information is personal data of one or more individuals; and
(c) the person engages in the conduct in a way that reasonable persons would regard as being, in all the circumstances, menacing or harassing towards those individuals.
Note: Publishing the name, image and telephone number of an individual on a website and encouraging others to repeatedly contact the individual with violent or threatening messages is an example of conduct (commonly referred to as doxxing) that is covered by this subsection.
Penalty: Imprisonment for 6 years.
(2) For the purposes of paragraph (1)(b), personal data of an individual means information about the individual that enables the individual to be identified, contacted or located, and includes the following:
(a) the name of the individual;
(b) a photograph or other image of the individual;
(c) a telephone number of the individual;
(d) an email address of the individual;
(e) an online account of the individual;
(f) a residential address of the individual;
(g) a work or business address of the individual;
(h) a place of education of the individual;
(i) a place of worship of the individual.
474.17D Using a carriage service to make available etc. personal data of one or more members of certain groups
(1) A person commits an offence if:
(a) the person uses a carriage service to make available, publish or otherwise distribute information; and
(b) the information is personal data of one or more members of a group; and
(c) the person engages in the conduct in whole or in part because of the person’s belief that the group is distinguished by race, religion, sex, sexual orientation, gender identity, intersex status, disability, nationality or national or ethnic origin; and
(d) the person engages in the conduct in a way that reasonable persons would regard as being, in all the circumstances, menacing or harassing towards those members.
Note: Publishing the names, images and residential addresses of members of a private online religious discussion group across multiple websites and encouraging others to attend those addresses and block entryways, or otherwise harass the members of that group, is an example of conduct (commonly referred to as doxxing) that is covered by this subsection.
Penalty: Imprisonment for 7 years.
(2) For the purposes of paragraph (1)(b), personal data of one or more members of a group means information about the members that enables the members to be identified, contacted or located, and includes the following:
(a) the names of the members;
(b) photographs or other images of the members;
(c) telephone numbers of the members;
(d) email addresses of the members;
(e) online accounts of the members;
(f) residential addresses of the members;
(g) work or business addresses of the members;
(h) places of education of the members;
(i) places of worship of the members.
(3) For the purposes of paragraph (1)(c), it is immaterial whether the group is actually distinguished by race, religion, sex, sexual orientation, gender identity, intersex status, disability, nationality or national or ethnic origin.
474.18 Improper use of emergency call service
(1) A person commits an offence if the person:
(a) makes a call to an emergency service number; and
(b) does so with the intention of inducing a false belief that an emergency exists.
Penalty: Imprisonment for 3 years.
(2) A person commits an offence if:
(a) the person makes a call to an emergency service number; and
(b) the person makes the call otherwise than for the purpose of reporting an emergency; and
(c) the call is a vexatious one.
Penalty: Imprisonment for 3 years.
(3) In determining whether a call by a person to an emergency service number is a vexatious one, have regard to:
(a) the content of the call; and
(b) the number, frequency and content of previous calls the person has made to emergency service numbers otherwise than for the purpose of reporting emergencies; and
(c) any other relevant matter.
Subdivision D—Offences relating to use of carriage service for child abuse material
474.22 Using a carriage service for child abuse material
(1) A person commits an offence if:
(a) the person:
(i) accesses material; or
(ii) causes material to be transmitted to himself or herself; or
(iii) transmits, makes available, publishes, distributes, advertises or promotes material; or
(iv) solicits material; and
(aa) the person does so using a carriage service; and
(b) the material is child abuse material.
Penalty: Imprisonment for 15 years.
(2) To avoid doubt, the following are the fault elements for the physical elements of an offence against subsection (1):
(a) intention is the fault element for the conduct referred to in paragraph (1)(a);
(b) recklessness is the fault element for the circumstances referred to in paragraph (1)(b).
Note: For the meaning of intention and recklessness see sections 5.2 and 5.4.
(2A) Absolute liability applies to paragraph (1)(aa).
Note: For absolute liability, see section 6.2.
(3) As well as the general defences provided for in Part 2.3, defences are provided for under section 474.24 in relation to this section.
474.22A Possessing or controlling child abuse material obtained or accessed using a carriage service
(1) A person commits an offence if:
(a) the person has possession or control of material; and
(b) the material is in the form of data held in a computer or contained in a data storage device; and
(c) the person used a carriage service to obtain or access the material; and
(d) the material is child abuse material.
Penalty: Imprisonment for 15 years.
(2) Absolute liability applies to paragraph (1)(c).
Note: For absolute liability, see section 6.2.
(3) If the prosecution proves beyond reasonable doubt the matters mentioned in paragraphs (1)(a), (b) and (d), then it is presumed, unless the person proves to the contrary, that the person:
(a) obtained or accessed the material; and
(b) used a carriage service to obtain or access the material.
Note: A defendant bears a legal burden in relation to the matters in this subsection: see section 13.4.
474.23 Possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service
(1) A person commits an offence if:
(a) the person:
(i) has possession or control of material; or
(ii) produces, supplies or obtains material; and
(b) the material is child abuse material; and
(c) the person has that possession or control, or engages in that production, supply or obtaining, with the intention that the material be used:
(i) by that person; or
(ii) by another person;
in committing an offence against section 474.22 (using a carriage service for child abuse material).
Penalty: Imprisonment for 15 years.
(2) A person may be found guilty of an offence against subsection (1) even if committing the offence against section 474.22 (using a carriage service for child abuse material) is impossible.
(3) It is not an offence to attempt to commit an offence against subsection (1).
474.23A Conduct for the purposes of electronic service used for child abuse material
(1) A person commits an offence if:
(a) the person engages in any of the following conduct:
(i) creating, developing, altering or maintaining an electronic service;
(ii) controlling or moderating an electronic service;
(iii) making available, advertising or promoting an electronic service;
(iv) assisting in doing anything covered by a preceding subparagraph; and
(b) the person does so with the intention that the electronic service be used:
(i) by that person; or
(ii) by another person;
in committing, or facilitating the commission of, an offence against section 474.22, 474.22A or 474.23.
Penalty: Imprisonment for 20 years.
(2) A person may be found guilty of an offence against subsection (1) even if:
(a) committing the offence against section 474.22, 474.22A or 474.23 is impossible; or
(b) the electronic service is incapable of being used as mentioned in paragraph (1)(b):
(i) at the time the person engages in the conduct mentioned in paragraph (1)(a); or
(ii) at any other time.
(3) It is not an offence to attempt to commit an offence against subsection (1).
(4) In this Code:
electronic service means a service a purpose of which is to:
(a) allow persons to access material using a carriage service; or
(b) deliver material to persons having equipment appropriate for receiving that material, where the delivery of the service is by means of a carriage service;
but does not include:
(c) a broadcasting service (within the meaning of the Broadcasting Services Act 1992); or
(d) a datacasting service (within the meaning of that Act).
474.24 Defences in respect of child abuse material
(1) A person is not criminally responsible for an offence against section 474.22, 474.22A, 474.23 or 474.23A because of engaging in particular conduct if the conduct:
(a) is of public benefit; and
(b) does not extend beyond what is of public benefit.
In determining whether the person is, under this subsection, not criminally responsible for the offence, the question whether the conduct is of public benefit is a question of fact and the person’s motives in engaging in the conduct are irrelevant.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
(2) For the purposes of subsection (1), conduct is of public benefit if, and only if, the conduct is necessary for or of assistance in:
(a) enforcing a law of the Commonwealth, a State or a Territory; or
(b) monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or a Territory; or
(c) the administration of justice; or
(d) conducting scientific, medical or educational research that has been approved by the AFP Minister in writing for the purposes of this section.
(3) A person is not criminally responsible for an offence against section 474.22, 474.22A, 474.23 or 474.23A 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: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).