Criminal Code Act 1995

Schedule - The Criminal Code  

Section 3

CHAPTER 10 - NATIONAL INFRASTRUCTURE  

Part 10.6 - Telecommunications Services  

Division 474 - Telecommunications offences  

Subdivision H - Offences relating to use of carriage service for sharing of abhorrent violent material  

SECTION 474.34   Removing, or ceasing to host, abhorrent violent material   Content service

474.34(1)  
A person commits an offence if:


(a) the person provides a content service; and


(b) the content service can be used to access material; and


(c) the material is abhorrent violent material; and


(d) the person does not ensure the expeditious removal of the material from the content service.

474.34(2)  
For the purposes of subsection (1), it is immaterial whether the content service is provided within or outside Australia.

474.34(3)  
Subsection (1) does not apply to material unless the material is reasonably capable of being accessed within Australia.

474.34(4)  
The fault element for paragraphs (1)(b) and (c) is recklessness. Hosting service

474.34(5)  
A person commits an offence if:


(a) the person provides a hosting service; and


(b) material is hosted on the hosting service; and


(c) the material is abhorrent violent material; and


(d) the person does not expeditiously cease hosting the material.

474.34(6)  
For the purposes of subsection (5), it is immaterial whether the hosting service is provided within or outside Australia.

474.34(7)  
Subsection (5) does not apply to material unless the material is reasonably capable of being accessed within Australia.

474.34(8)  
The fault element for paragraphs (5)(b) and (c) is recklessness. Penalty for individual

474.34(9)  
An offence against subsection (1) or (5) committed by an individual is punishable on conviction by imprisonment for a period of not more than 3 years or a fine of not more than 10,000 penalty units, or both. Penalty for body corporate

474.34(10)  
An offence against subsection (1) or (5) committed by a body corporate is punishable on conviction by a fine of not more than the greater of the following:


(a) 50,000 penalty units;


(b) 10% of the annual turnover of the body corporate during the period (the turnover period ) of 12 months ending at the end of the month in which the conduct constituting the offence occurred.

474.34(11)  
For the purposes of this section, the annual turnover of a body corporate, during the turnover period, is the sum of the values of all the supplies that the body corporate, and any body corporate related to the body corporate, have made, or are likely to make, during that period, other than the following supplies:


(a) supplies made from any of those bodies corporate to any other of those bodies corporate;


(b) supplies that are input taxed;


(c) supplies that are not for consideration (and are not taxable supplies under section 72-5 of the A New Tax System (Goods and Services Tax) Act 1999 );


(d) supplies that are not made in connection with an enterprise that the body corporate carries on.

474.34(12)  
For the purposes of subsection (11), it is immaterial whether the supplies were made, or are likely to be made, within or outside Australia.

474.34(13)  
Expressions used in subsections (11) and (12) that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning in those subsections as they have in that Act.

474.34(14)  
The question whether 2 bodies corporate are related to each other is to be determined for the purposes of this section in the same way as for the purposes of the Corporations Act 2001 . When material is removed from a content service

474.34(15)  
For the purposes of this section, material is removed from a content service if the material is not accessible to any of the end-users using the service.




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