Criminal Code Act 1995

Schedule - The Criminal Code  

Section 3

CHAPTER 8 - OFFENCES AGAINST HUMANITY AND RELATED OFFENCES  

Division 273 - Offences involving child abuse material outside Australia  

Subdivision C - Defences  

SECTION 273.9   Defences to offences against this Division  

(1)  
A person is not criminally responsible for an offence against section 273.6 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 Territory, or a foreign country; or


(b) monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or Territory or a foreign country; or


(c) the administration of justice (whether within or outside Australia); or


(d) conducting scientific, medical or educational research.

(3)  
Paragraph (2)(d) only applies if the person ' s conduct was, in all the circumstances, reasonable having regard to the purpose mentioned in that paragraph.

(4)  
A person is not criminally responsible for an offence against section 273.6 if:


(a) the person is, at the time of the offence:


(i) a law enforcement officer; or

(ii) an intelligence or security officer; or

(iii) an officer or employee of the government of a foreign country performing similar duties to an intelligence or security officer; and


(b) the person is acting in the course of his or her duties; and


(c) 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) .

(5)  
A person is not criminally responsible for an offence against section 273.6 if the person engages in the conduct in good faith for the sole purpose of:


(a) assisting the eSafety Commissioner to detect:


(i) prohibited content (within the meaning of Schedule 7 to the Broadcasting Services Act 1992 ); or

(ii) potential prohibited content (within the meaning of that Schedule);
in the performance of the Commissioner ' s functions under Schedule 5 or Schedule 7 to that Act; or


(b) manufacturing or developing, or updating, content filtering technology (including software) in accordance with:


(i) a recognised alternative access-prevention arrangement (within the meaning of clause 40 of Schedule 5 to the Broadcasting Services Act 1992 ); or

(ii) a designated alternative access-prevention arrangement (within the meaning of clause 60 of that Schedule).
Note:

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


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