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 474.37   Defences in respect of abhorrent violent material   Content service

474.37(1)  
Subsection 474.34(1) does not apply to material that can be accessed using a service if:


(a) the accessibility of the material is necessary for enforcing a law of:


(i) the Commonwealth; or

(ii) a State; or

(iii) a Territory; or

(iv) a foreign country; or

(v) a part of a foreign country; or


(b) the accessibility of the material is necessary for monitoring compliance with, or investigating a contravention of, a law of:


(i) the Commonwealth; or

(ii) a State; or

(iii) a Territory; or

(iv) a foreign country; or

(v) a part of a foreign country; or


(c) the accessibility of the material is for the purposes of proceedings in a court or tribunal; or


(d) both:


(i) the accessibility of the material is necessary for, or of assistance in, conducting scientific, medical, academic or historical research; and

(ii) the accessibility of the material is reasonable in the circumstances for the purpose of conducting that scientific, medical, academic or historical research; or


(e) the material relates to a news report, or a current affairs report, that:


(i) is in the public interest; and

(ii) is made by a person working in a professional capacity as a journalist; or


(f) both:


(i) the accessibility of the material is in connection with the performance by a public official of the official ' s duties or functions; and

(ii) the accessibility of the material is reasonable in the circumstances for the purpose of performing that duty or function; or


(g) both:


(i) the accessibility of the material is in connection with an individual assisting a public official in relation to the performance of the public official ' s duties or functions; and

(ii) the accessibility of the material is reasonable in the circumstances for the purpose of the individual assisting the public official in relation to the performance of the public official ' s duties or functions; or


(h) the accessibility of the material is for the purpose of advocating the lawful procurement of a change to any matter established by law, policy or practice in:


(i) the Commonwealth; or

(ii) a State; or

(iii) a Territory; or

(iv) a foreign country; or

(v) a part of a foreign country;

and the accessibility of the material is reasonable in the circumstances for that purpose; or


(i) the accessibility of the material relates to the development, performance, exhibition or distribution, in good faith, of an artistic work.

Note:

A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) ).

Hosting service

474.37(2)  
Subsection 474.34(5) does not apply to material that is hosted on a hosting service if:


(a) the hosting of the material is necessary for enforcing a law of:


(i) the Commonwealth; or

(ii) a State; or

(iii) a Territory; or

(iv) a foreign country; or

(v) a part of a foreign country; or


(b) the hosting of the material is necessary for monitoring compliance with, or investigating a contravention of, a law of:


(i) the Commonwealth; or

(ii) a State; or

(iii) a Territory; or

(iv) a foreign country; or

(v) a part of a foreign country; or


(c) the hosting of the material is for the purposes of proceedings in a court or tribunal; or


(d) both:


(i) the hosting of the material is necessary for, or of assistance in, conducting scientific, medical, academic or historical research; and

(ii) the hosting of the material is reasonable in the circumstances for the purpose of conducting that scientific, medical, academic or historical research; or


(e) the material relates to a news report, or a current affairs report, that:


(i) is in the public interest; and

(ii) is made by a person working in a professional capacity as a journalist; or


(f) both:


(i) the hosting of the material is in connection with the performance by a public official of the official ' s duties or functions; and

(ii) the hosting of the material is reasonable in the circumstances for the purpose of performing that duty or function; or


(g) both:


(i) the hosting of the material is in connection with an individual assisting a public official in relation to the performance of the public official ' s duties or functions; and

(ii) the hosting of the material is reasonable in the circumstances for the purpose of the individual assisting the public official in relation to the performance of the public official ' s duties or functions; or


(h) the hosting of the material is for the purpose of advocating the lawful procurement of a change to any matter established by law, policy or practice in:


(i) the Commonwealth; or

(ii) a State; or

(iii) a Territory; or

(iv) a foreign country; or

(v) a part of a foreign country;

and the hosting of the material is reasonable in the circumstances for that purpose; or


(i) the hosting of the material relates to the development, performance, exhibition or distribution, in good faith, of an artistic work.

Note:

A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) ).

Functions

474.37(3)  
The references in this section to function or functions do not, by implication, affect the meaning of the expressions duty or duties when used in any other provision of this Code. Application

474.37(4)  
This section extends to matters and things outside Australia.




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