Criminal Code Act 1995

Schedule - The Criminal Code  

Section 3

CHAPTER 10 - NATIONAL INFRASTRUCTURE  

Part 10.6 - Telecommunications Services  

Division 473 - Preliminary  

SECTION 473.1   Definitions  

(1)  
In this Part:

abattoir
means a place where animals are slaughtered (whether or not for human consumption), but does not include a restaurant.

access
in relation to material includes:


(a) the display of the material by a computer or any other output of the material from a computer; or


(b) the copying or moving of the material to any place in a computer or to a data storage device; or


(c) in the case of material that is a program - the execution of the program.

account identifier
means:


(a) something that:


(i) contains subscription-specific secure data; and

(ii) is installed, or capable of being installed, in a mobile telecommunications device; or


(b) anything else that:


(i) allows a particular mobile telecommunications account to be identified; and

(ii) is prescribed by the regulations as an account identifier for the purposes of this Part.
Note:

Paragraph (a) - This would include a SIM card.

AFP Minister
means the Minister administering the Australian Federal Police Act 1979 .

agricultural land
means land in Australia that is used for a primary production business. For the purposes of this definition, it is immaterial:


(a) whether a part of the land is used for residential purposes; or


(b) whether a part of the land is used for a business that is not a primary production business.

carriage service provider
has the same meaning as in the Telecommunications Act 1997 .

Note:

See also section 474.3 respecting persons who are taken to be carriage service providers in relation to certain matters.

carrier
has the same meaning as in the Telecommunications Act 1997 .

Note:

See also section 474.3 respecting persons who are taken to be carriers in relation to certain matters.

carry
includes transmit, switch and receive.

child abuse material
means:


(a) material that depicts a person, or a representation of a person, who:


(i) is, or appears to be, under 18 years of age; and

(ii) is, or appears to be, a victim of torture, cruelty or physical abuse;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or


(b) material that describes a person who:


(i) is, or is implied to be, under 18 years of age; and

(ii) is, or is implied to be, a victim of torture, cruelty or physical abuse;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or


(c) material that depicts a person, or a representation of a person, who is, or appears to be, under 18 years of age and who:


(i) is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or

(ii) is in the presence of a person who is engaged in, or appears to be engaged in, a sexual pose or sexual activity;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or


(d) material the dominant characteristic of which is the depiction, for a sexual purpose, of:


(i) a sexual organ or the anal region of a person who is, or appears to be, under 18 years of age; or

(ii) a representation of such a sexual organ or anal region; or

(iii) the breasts, or a representation of the breasts, of a female person who is, or appears to be, under 18 years of age;
in a way that reasonable persons would regard as being, in all the circumstances, offensive; or


(e) material that describes a person who is, or is implied to be, under 18 years of age and who:


(i) is engaged in, or is implied to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or

(ii) is in the presence of a person who is engaged in, or is implied to be engaged in, a sexual pose or sexual activity;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or


(f) material that describes:


(i) a sexual organ or the anal region of a person who is, or is implied to be, under 18 years of age; or

(ii) the breasts of a female person who is, or is implied to be, under 18 years of age;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or


(g) material that is a doll or other object that resembles:


(i) a person who is, or appears to be, under 18 years of age; or

(ii) a part of the body of such a person;
if a reasonable person would consider it likely that the material is intended to be used by a person to simulate sexual intercourse.

child pornography material
(Repealed by No 72 of 2019)

communication in the course of telecommunications carriage
means a communication that is being carried by a carrier or carriage service provider, and includes a communication that has been collected or received by a carrier or carriage service provider for carriage, but has not yet been delivered by the carrier or carriage service provider.

connected
, in relation to a telecommunications network, includes connection otherwise than by means of physical contact (for example, a connection by means of radiocommunication).

control
of data, or material that is in the form of data, has the meaning given by section 473.2.

Crown land
means land that is the property of:


(a) the Commonwealth, a State or a Territory; or


(b) a statutory authority;

but does not include land that is subject to a lease to a person other than:


(c) the Commonwealth, a State or a Territory; or


(d) a statutory authority.

Defence Department
means the Department of State that deals with defence and that is administered by the Minister administering section 1 of the Defence Act 1903 .

depict
includes contain data from which a visual image (whether still or moving) can be generated.

describe
includes contain data from which text or sounds can be generated.

emergency call person
has the same meaning as in the Telecommunications Act 1997 .

emergency service number
has the same meaning as in the Telecommunications Act 1997 .

emergency service organisation
has the same meaning as in section 147 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 .

facility
has the same meaning as in the Telecommunications Act 1997 .

forestry
means:


(a) planting or tending trees in a plantation or forest that are intended to be felled; or


(b) felling trees in a plantation or forest.

intelligence or security officer
means an officer or employee of:


(a) the Australian Security Intelligence Organisation; or


(b) the Australian Secret Intelligence Service; or


(ba) the Australian Signals Directorate; or


(c) the Office of National Intelligence; or


(d) (Repealed by No 25 of 2018)


(e) that part of the Defence Department known as the Defence Intelligence Organisation;

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 content host
has the same meaning as in Schedule 5 to the Broadcasting Services Act 1992 .

internet service provider
has the same meaning as in Schedule 5 to the Broadcasting Services Act 1992 .

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) the Independent Commissioner Against Corruption of South Australia, the Deputy Commissioner, a member of the staff of the Commissioner, or an examiner or investigator, within the meaning of the Independent Commissioner Against Corruption Act 2012 (SA).

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 1982 );


(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.

private sexual material
means:


(a) material that:


(i) depicts a person who is, or appears to be, 18 years of age or older and who is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); and

(ii) does so in circumstances that reasonable persons would regard as giving rise to an expectation of privacy; or


(b) material the dominant characteristic of which is the depiction of:


(i) a sexual organ or the anal region of a person who is, or appears to be, 18 years of age or older; or

(ii) the breasts of a female person who is, or appears to be, 18 years of age or older;
where the depiction is in circumstances that reasonable persons would regard as giving rise to an expectation of privacy.
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.
  • 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.

    subject
    of private sexual material means:


    (a) if the material is covered by paragraph (a) of the definition of private sexual material - the person first mentioned in that paragraph; or


    (b) if the material is covered by paragraph (b) of the definition of private sexual material - the person mentioned in whichever of subparagraph (b)(i) or (ii) of that definition is applicable.

    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 (IME) 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 .




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