Criminal Code Act 1995

Schedule - The Criminal Code  

Section 3

CHAPTER 10 - NATIONAL INFRASTRUCTURE  

Part 10.6 - Telecommunications Services  

Division 474 - Telecommunications offences  

Subdivision C - General offences relating to use of telecommunications  

SECTION 474.17A   Aggravated offences involving private sexual material - using a carriage service to menace, harass or cause offence  
Standard aggravated offence

(1)    

A person commits an offence against this subsection if:

(a)    the person commits an offence (the underlying offence ) against subsection 474.17(1) ; and

(b)    the commission of the underlying offence involves the transmission, making available, publication, distribution, advertisement or promotion of material; and

(c)    the material is private sexual material.

Penalty: Imprisonment for 6 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.

Special aggravated offence

(4)    
A person commits an offence against this subsection if:

(a)    the person commits an offence (the underlying offence ) against subsection 474.17(1) ; and

(b)    the commission of the underlying offence involves the transmission, making available, publication, distribution, advertisement or promotion of material; and

(c)    the material is private sexual material; and

(d)    

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.

(5)    
There is no fault element for the physical element described in paragraph (4)(a) other than the fault elements (however described), if any, for the underlying offence.

(6)    
To avoid doubt, a person does not commit the underlying offence for the purposes of paragraph (4)(a) if the person has a defence to the underlying offence.

(7)    
Absolute liability applies to paragraph (4)(d) .

Note:

For absolute liability, see section 6.2 .

Double jeopardy etc.

(8)    
A person who has been convicted or acquitted of an offence (the aggravated offence ) against subsection (1) may not be convicted of an offence against subsection 474.17(1) or subsection (4) of this section in relation to the conduct that constituted the aggravated offence.

(9)    
Subsection (8) does not prevent an alternative verdict under section 474.17B .

(10)    
A person who has been convicted or acquitted of an offence (the aggravated offence ) against subsection (4) may not be convicted of an offence against subsection 474.17(1) or subsection (1) of this section in relation to the conduct that constituted the aggravated offence.

(11)    
Subsection (10) does not prevent an alternative verdict under section 474.17B .

(12)    
A person who has been convicted or acquitted of an offence (the underlying offence ) against subsection 474.17(1) may not be convicted of an offence against subsection (1) or (4) of this section in relation to the conduct that constituted the underlying offence.

When conviction must be set aside

(13)    
If:

(a)    

a person has been convicted by a court of an offence against subsection (4) 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) 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.

(14)    
If:

(a)    a person has been convicted by a court of an offence (the aggravated offence ) against subsection (4) ; and

(b)    the court sets aside the conviction under subsection (13) ;

the setting aside of the conviction does not prevent proceedings from being instituted against the person for an offence against subsection 474.17(1) or subsection (1) of this section in relation to the conduct that constituted the aggravated offence.