CRIMES LEGISLATION AMENDMENT (TELECOMMUNICATIONS OFFENCES AND OTHER MEASURES) BILL 2004 Explanatory Memorandum

CRIMES LEGISLATION AMENDMENT (TELECOMMUNICATIONS OFFENCES AND OTHER MEASURES) BILL 2004

2002-2003-2004















THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA













SENATE















CRIMES LEGISLATION AMENDMENT

(TELECOMMUNICATIONS OFFENCES AND

OTHER MEASURES) BILL 2004

















EXPLANATORY MEMORANDUM

























(Circulated by authority of the Minister for Justice and Customs

Senator the Honourable Chris Ellison)

Crimes Legislation Amendment (Telecommunications Offences And Other Measures) Bill 2004



General Outline



This Bill will repeal the telecommunications offences in the Crimes Act 1914 and replace them with new and updated telecommunications offences in the Criminal Code. Updating and moving existing Crimes Act offences into the Criminal Code is a part of the process of placing all the Commonwealth’s serious offences in the Code.



Since the enactment of the existing telecommunications offences in 1989, the telecommunications environment has changed substantially, both in terms of the regulatory environment and the technology available. The offences account for this change and better reflect the community’s increased dependence on telecommunications and the harm that can be done by misuse or disruption.



The Bill contains important new offences that will prescribe appropriate penalties for persons involved in the sexual abuse of children in a number of different contexts. Producing, distributing and accessing child pornography and child abuse material rightly outrages the Australian community. New offences targeting the exploitation of children in this way are included in the Bill. The proposed offences prohibiting child pornography and child abuse material focus on the use offenders make of the anonymity of new technological tools, such as the Internet, to further their exploitative ends. In line with the tough federal crimes sex tourism offences in the Crimes Act 1914, new offences will also target online ‘grooming’ activities by sexual predators. Unfortunately, adults are increasingly exploiting the anonymity of the Internet to forge relationships with children as a first step in luring them for sexual abuse. The Bill provides a responsible criminal law response to these abhorrent practices.



Also among the new and updated offences proposed to be included in the Criminal Code are offences dealing with menacing, harassing or offensive use of a telecommunications service, including the Internet; Internet material that incites suicide or promotes a particular method of committing suicide; modification of the International Mobile Equipment Identity (IMEI) number of mobile phones; copying of mobile phone Subscriber Identity Module (SIM) card data; threats and hoaxes made using a telecommunications service; and improper use of the emergency call service.



The Bill also inserts into the Criminal Code Part 9.6 – ‘Contamination offences’ - which contains new offences targeting those who contaminate, falsely state that they have contaminated or threaten to contaminate, goods intending to cause public alarm, economic loss or (for some offences) harm to public health. These offences are designed to complement existing State and Territory offences, providing coverage for contamination or threatened contamination which is of national significance.



Schedule 3 of the Bill will insert new Part 10.8 – ‘Financial information offences’ – into Chapter 10 of the Criminal Code (‘National Infrastructure’). This Part will criminalise dishonestly obtaining, or dealing in, personal financial information without the consent of the person to whom the information relates. This Part will also criminalise possession, control or importation of a thing with the intention that the thing be used to commit the offence of dishonestly obtaining or dealing in personal financial information.



These amendments flow from the Model Criminal Code Officers’ Committee (MCCOC) March 2004 discussion paper on Credit Card Skimming Offences. Credit card skimming is the process by which legitimate credit card data is illicitly captured or copied, usually by electronic means. The MCCOC discussion paper identified a gap in federal, State and Territory laws in their coverage of that activity. These amendments will address that gap at a federal level, using the Australian Government’s power under the Constitution to make laws with respect to banking (section 51(xii)) and corporations (section 51(xx)).



The Bill also makes a number of minor amendments to Chapter 2 of the Criminal Code, which establishes the general principles of Commonwealth criminal law. The amendments will clarify the operation of the general principles, which now apply to all Commonwealth criminal law. The Bill also clarifies the fault elements of two offence provisions, and makes amendments to other criminal law and justice legislation.



Financial Impact



There is no financial impact flowing directly from the offence provisions of this Bill.



Abbreviations used in the Explanatory Memorandum

ADI Authorised deposit-taking institution

AFP Australian Federal Police

ATM Automatic Teller Machine

Crimes Act Crimes Act 1914

Criminal Code Criminal Code Act 1995

CSP Carriage service provider

Customs Act Customs Act 1901

ICH Internet content host

IMEI International mobile equipment identifier

ISP Internet service provider

MA Act Mutual Assistance in Criminal Matters Act 1987

MCCOC Model Criminal Code Officers’ Committee

SIM Subscriber identity module

Telecommunications Act Telecommunications Act 1997

Interception Act Telecommunications (Interception) Act 1979

NOTES ON CLAUSES

Clause 1 Short title



This is a formal clause which provides for the citation of the Bill.



Clause 2 Commencement



This clause set out when the various parts of the Bill commence.



Sections 1-3 of the Bill (the short title, the commencement and the schedules provision) will commence on the day that the Bill receives Royal Assent.



Schedule 1 of the Bill, which inserts new telecommunications offences into the Criminal Code Act 1995, will commence the day after a period of six months after the Bill receives Royal Assent. This will enable the orderly implementation of the measures, including the making of amendments to Regulations.



Schedule 2 (Contamination of goods offences), Schedule 3 (Financial information offences) and Schedule 4 (Other amendments of the Criminal Code) will each commence on the 28^th day after the Bill receives Royal Assent. These are simpler offences that can be implemented more quickly.



Schedule 5 of the Bill contains amendments to a number of Acts. Briefly, those amendments clarify the operation of part of the Customs Act 1901, make some minor amendments to the Crimes (Aviation) Act 1991 and make procedural amendments to the Mutual Assistance in Criminal Matters Act 1987. All of those items except one (Item 9 of Schedule 5) will commence on the 28^th day after the Bill receives Royal Assent.



Item 9 of Schedule 5 amends the Cybercrime Act 2001 to correct a misdescription of the date of another piece of legislation – it will amend ‘1997’ to the correct date, ‘1979’. This provision will commence at the time that the amended provision commenced. Given the technical nature of the amendment and the fact that the amendment does not effect any substantive change to the law, this backdating is not inappropriate.



Clause 3 Schedule(s)



This clause makes it clear that the Schedules to the Bill will amend the Acts set out in those Schedules in accordance with the provisions set out in each Schedule.



SCHEDULE 1 – TELECOMMUNICATIONS OFFENCES



PART 1- MAIN AMENDMENTS



Criminal Code Act 1995



Item 1 Part 10.6 of the Criminal Code

The offences in the Criminal Code Act 1995 are contained in a Schedule (the Criminal Code). This Item repeals the existing Part 10.6 (Telecommunications) of Chapter 10 of the Criminal Code and inserts a new Part 10.6 (Telecommunications Services) that contains the proposed telecommunications offences. Chapter 10 of the Criminal Code contains provisions concerning protection of the national infrastructure. Chapter 2 of the Criminal Code contains the general principles by which offences are interpreted, as well as ancillary offences (such as conspiracy and common purpose) which will apply alongside the new offences in Part 10.6.

Updating and moving existing Crimes Act offences into the Criminal Code is a part of the process of placing all the Commonwealth’s serious offences in the Code. The policy of having all serious offences together this way is not only a feature of the Commonwealth Criminal Code, but also the legislation of most jurisdictions throughout the world. It is also a feature of the Model Criminal Code which was developed by the Commonwealth, States and Territories.

The existing telecommunications offences in Part VIIB of the Crimes Act 1914 (Crimes Act), which were enacted in 1989, will be repealed by this Bill (see Item 5 below). Since the enactment of these offences, the telecommunications environment has changed substantially, diminishing their effectiveness. There are now many more telecommunications carriers and carriage service providers than in 1989 and an array of new technologies, such as the Internet and mobile telephones, have emerged and developed into items of everyday use. The existing offences require updating to account for the change in the environment and to better reflect the community’s increased dependence on telecommunications and the harm that can be done by misuse or disruption.

The proposed amendments introduce new offences dealing with the inappropriate use of telecommunications, including the Internet, and the modification of mobile telephones to evade measures to prevent theft. The proposed amendments also include updated versions of existing telecommunications offences from the Crimes Act, which take account of recent changes to computer and postal offences.



Division 473 - Preliminary



Proposed section 473.1 Definitions

Proposed section 473.1 contains definitions of terms used in Part 10.6 of the Criminal Code. A number of these have been drawn from definitions used in the Telecommunications Act 1997 (the Telecommunications Act) or refer directly to their meaning used in that Act.

Access is broadly defined so that it includes, amongst other things, being able to view the material on the monitor of a computer, the printing into hard copy of material held on a computer, the downloading of material onto the computer and the copying of the material onto a floppy disk or CD. This definition is consistent with the definition of the phrase ‘access to data held in a computer’ used in the computer offences in Part 10.7 of the Criminal Code.

Account identifier is defined as something that contains subscription-specific secure data and is installed or capable of being installed in a mobile telecommunications device. ‘Subscription-specific secure data’ and ‘mobile telecommunications device’ are also defined in proposed section 473.1. As the note to the definition provides, the definition includes ‘subscriber identity module’ (SIM) cards. A SIM card is a small card capable of holding data that, when inserted into a ‘global system for mobile communications’ (GSM) phone, enables that phone to access services over a telecommunications network for the purpose of making calls, sending SMS messages, etc. The subscription-specific secure data held on a SIM card is the particular form of data that facilitates this access (see the explanation for ‘subscription-specific secure data’ below).

The term ‘account identifier’ is also intended to cover cards or other devices that serve the same or similar purpose as SIM cards. The definition provides that regulations can prescribe that anything else that allows a particular mobile telecommunications account to be identified is an ‘account identifier’. This paragraph has been included to account for future developments in technology that may result in relevant cards or other devices not coming within the specific definition provided in paragraph (a). ‘Mobile telecommunications account’ is also defined in proposed subsection 473.1.

Carriage service provider is given the same meaning as in the Telecommunications Act. Section 87 of that Act provides the range of persons that are considered carriage service providers for the purposes of the Act. Under the proposed amendments, ‘carriage service’ will be defined in the Dictionary of the Criminal Code (see Item 18).

Carrier is given the same meaning as in the Telecommunications Act, which defines ‘carrier’ as the holder of a carrier licence. Under the Telecommunications Act, the owner of a network unit that is used to supply carriage services to the public must generally hold a carrier licence, unless responsibility for the network unit is transferred from the owner of the unit to an existing carrier under a nominated carrier declaration. There are a number of other exemptions that apply to this requirement, for example use of network units for defence or intelligence purposes. Part 2 of the Telecommunications Act outlines the types of telecommunications infrastructure that are considered ‘network units’. Part 3 of that Act provides for the granting of carrier licences and the making of nominated carrier declarations.

Part VIIB of the Crimes Act, which contains the existing telecommunications offences, defines ‘carrier’ to include carriage service providers. The proposed amendments separate the two terms to ensure consistency with the terminology used in the Telecommunications Act.

Carry includes transmit, switch or receive. This definition mirrors the definition used for this term in the Telecommunications Act.

Child abuse material is defined to cover material that depicts or describes a person who is under 18, or who appears or is implied to be under 18, as a victim of torture, cruelty or physical abuse, and does so in a way that reasonable persons would regard as being, in all the circumstances, offensive. Paragraph (a) of the definition deals with ‘depictions’ and is intended to cover all visual images, both still and motion, including representations of children, such as cartoons or animation. Paragraph (b) deals with ‘descriptions’ and is intended to cover all word-based material, such as written text, spoken words and songs.

Material that does not necessarily contain actual images of children is covered by the definition, because although it may not directly involve an abused child in the production, its availability can fuel further demand for similar material. This can lead to greater abuse of children in the production of material to meet this demand.

The qualification requiring that reasonable persons must regard the material, given all the circumstances, as offensive allows community standards and common sense to be imported into a decision on whether material is offensive. Proposed section 473.4 lists the matters that should be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive as follows:

• the standards of morality, decency and propriety generally accepted by reasonable adults

• the literary, artistic or educational merit (if any) of the material, and

• the general character of the material (including whether it is of a medical, legal or scientific character).

This Bill also contains amendments to the definition of ‘child abuse material’ in section 233BAB of the Customs Act 1901 so that it is essentially the same as this definition (see Item 24). Section 233BAB of the Customs Act contains offences for the importation and exportation of, amongst other things, child pornography and child abuse material in hard copy.

Child pornography material is defined to cover a range of material including that which depicts or describes persons under 18 engaged in a sexual pose or sexual activity, or in the presence of a person who is engaged in a sexual pose or sexual activity. The definition also covers material the dominant characteristic of which depicts for a sexual purpose the sexual organs, the anal region or the breasts (in the case of a female) of a person who is under 18. Paragraphs (a) and (b) of the definition deal with ‘depictions’ and are intended to cover all visual images, both still and motion, including representations of children, such as cartoons or animation. Paragraphs (c) and (d) deal with ‘descriptions’ and are intended to cover all word-based material, such as written text, spoken words and songs.

Material that does not necessarily contain actual images of children is covered by the definition, because although it may not directly involve an abused child in the production, its availability can fuel further demand for similar material. This can lead to greater abuse of children in the production of material to meet this demand.

Paragraph (b) of the definition covers material ‘the dominant characteristic of which is the depiction, for a sexual purpose’ of sexual organs, the anal region or the breasts (in the case of a female) of a person who is under 18. The use of the phrases ‘dominant characteristic’ and ‘for a sexual purpose’ is to clarify the types of images at which the paragraph is targeted. Innocent family photographs of children are not intended to come within the definition.

The qualification requiring that reasonable persons must regard the material, given all the circumstances, as offensive allows community standards and common sense to be imported into a decision on whether material is offensive. Proposed section 473.4 lists the matters that should be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive as follows:

• the standards of morality, decency and propriety generally accepted by reasonable adults

• the literary, artistic or educational merit (if any) of the material, and

• the general character of the material (including whether it is of a medical, legal or scientific character).

This Bill also contains amendments to the definition of ‘child pornography’ in section 233BAB of the Customs Act so that it is essentially the same as this definition (see Item 24). Section 233BAB of the Customs Act contains offences for the importation and exportation of, amongst other things, child pornography and child abuse material in hard copy.

Communication in the course of telecommunications carriage is drawn from the definition of the same phrase in the existing telecommunications offences provisions in Part VIIB of the Crimes Act (section 85ZB). The phrase has been slightly reworded to account for the separation of the terms ‘carrier’ and ‘carriage service provider’ under the proposed amendments, but is intended to carry the same meaning as the existing definition. It is only used in the proposed offence for the wrongful delivery of communications (proposed section 474.5).

The phrase does not apply to a communication that is within the internal telecommunications system of an organisation, for example a telephone call that has entered an organisation’s PABX system. Such a communication has already been delivered by a carrier or carriage service provider, so is no longer being carried by a carrier or carriage service provider.

Connected includes, for a telecommunications network, connection otherwise than by means of physical contact. This covers connections by means of wireless technologies, such as the connection of a mobile telephone to a telecommunications network. This definition is consistent with that used in the Telecommunications Act for connections to a telecommunication network.

Control of data, or material in the form of data, is defined in proposed section 473.2.

Depict includes containing data from which a visual image (whether still or moving) can be generated. A range of software can now be used to reduce a large computer file or document into a more compact form that is more readily sent or distributed by electronic mail and over the Internet. The reason for defining ‘depict’ in this way is to ensure the definitions of ‘child abuse material’ and ‘child pornography material’ cover data that, although in the form in which it is found does not contain an offending image, can be expanded to produce such an image.

Describe includes containing data from which text or sounds can be generated. A range of software can now be used to reduce a large computer file or document into a more compact form that is more readily sent or distributed by electronic mail and over the Internet. The reason for defining ‘describe’ in this way is to ensure the definitions of ‘child abuse material’ and ‘child pornography material’ cover data that, although in the form in which it is found does not contain offending text or sounds, can be expanded to produce such text or sounds.

Emergency call person is given the same meaning as in the Telecommunications Act, which covers persons who operate emergency call services, emergency call contractors (who operate an emergency call service on behalf of another person) and employees of these persons. ‘Emergency call service’ is defined in the Telecommunications Act as a service for receiving and handling calls to an emergency service number, and transferring those calls to the relevant emergency service organisation, for example a police force, fire service or ambulance service.

Emergency service number is given the same meaning as in the Telecommunications Act. Under section 466 of that Act, an ‘emergency service number’ is a number specified in a numbering plan developed by the Australian Communications Authority. Existing emergency service numbers are ‘000’, ‘112’ (for mobile phones) and ‘106’ (a text emergency call service for people who are deaf or have a hearing or speech impairment).

Emergency service organisation is given the same meaning as in section 147 of the Telecommunications (Consumer Protection Service Standards) Act 1999, which covers police forces/services, fire services, ambulance services and services for despatching these organisations.

Facility is given the same meaning as in the Telecommunications Act, which defines ‘facility’ to cover any part of the infrastructure of a telecommunications network or any structure or thing used, or for use, in or in connection with a telecommunications network.

Intelligence or security officer lists the types of officers who have a defence available to them under a number of the proposed offences. These include officers or employees of the Australian Security Intelligence Organisation, the Australian Secret Intelligence Service, the Office of National Assessments, or those parts of the Department of Defence known as the Defence Signals Directorate or the Defence Intelligence Organisation. The definition includes ‘staff member’, as defined in the Intelligence Services Act 2001.

Interception device is defined as an apparatus or device that is capable of being used to enable a person to intercept a communication passing over a telecommunications system, and could reasonably be regarded as having been designed for the purpose of, or for purposes including the purpose of, using it in connection with the interception of communications. The definition does not include an apparatus or device designed principally for the reception of communications transmitted by radiocommunications.

The definition provides that terms used in the definition that are defined in the Telecommunications (Interception) Act 1979 (the Interception Act) have the same meaning as in that Act. Specifically, ‘telecommunications system’ and ‘interception of a communication passing over a telecommunications system’ are defined in sections 5 and 6, respectively, of the Interception Act. ‘Radiocommunication’ is defined in proposed section 473.1 as having the same meaning as in the Radiocommunications Act 1992.

The term ‘interception device’ is only used in proposed section 474.4, which is intended to replace the existing section 85ZKB of the Crimes Act. Section 85ZKB does not specifically define ‘interception device’, rather a description of the type of apparatus or device can be drawn from various parts of the offence (specifically subsections 85ZKB(1) and (1A) and paragraph 85ZKB(2)(a)). The proposed definition of ‘interception device’ is taken from those parts of the existing offence, meaning the type of apparatus or device covered by the proposed new offence in section 474.4 will be the same as that which is currently dealt with under section 85ZKB.

The definition of ‘interception device’ does not cover ordinary telecommunications devices used by most people on a daily basis, for example, telephones, modems, mobile phones, etc. Although these devices may be capable of being used to ‘intercept a communication passing over a telecommunications system’ (as defined in the Interception Act), they cannot be regarded as having been designed for that purpose, or for a purpose including that purpose.

Internet content host is given the same meaning as in Schedule 5 of the Broadcasting Services Act 1992, which defines ‘Internet content host’ as a person who hosts Internet content in Australia, or who proposes to host Internet content in Australia.

Internet service provider is given the same meaning as in Schedule 5 of the Broadcasting Services Act, which provides a basic definition of ‘Internet service provider’ as a person who supplies, or proposes to supply, an Internet carriage service to the public. The Minister for Communications, Information Technology and the Arts may also declare a specified person to be an Internet service provider for the purposes of the Schedule.

Law enforcement officer lists the types of officers who have a defence available to them with respect to a number of the proposed offences. These include members of the Australian Federal Police, members of State and Territory police forces, members of the Australian Crime Commission, foreign police officers, the Commonwealth Director of Public Prosecutions and his/her State and Territory counterparts, and staff members of the Commonwealth Office of the Director of Public Prosecutions and the equivalent State and Territory offices. Foreign police officers are included, because due to the borderless nature of the Internet, operations targeting child pornography and paedophile groups often involve police from a range of countries.

Loss is defined as a loss in property, whether temporary or permanent, and includes not getting what one might get. This definition reproduces that in the existing section 473.1 of the Criminal Code and is the same as that used for the existing general dishonesty offence in section 135.1 of the Criminal Code (see section 130.1). The definition follows the Model Criminal Code definition and is usually used in the same offences as ‘gain' to cover the `flip-side' consequence of dishonest behaviour. While there will invariably be a loss to someone whenever there is a gain for another, in some cases it is more appropriate to the facts of the case to prove the defendant dishonestly caused a loss rather than a gain. Either way there is a victim and the culprit should be penalised.

Material includes material in any form, or combination of forms, which is capable of constituting a communication. The proposed definition of a ‘communication’ in the Dictionary of the Criminal Code is analogous to the definition of ‘communications’ used in the Telecommunications Act (see Item 19). This definition includes communications in the form of text, any type of sound (including speech or music), visual images (still or moving), signals and data.

Mobile telecommunications account is defined as an account with a carriage service provider for the supply of a public mobile telecommunications service to an end-user. Section 87 of the Telecommunications Act provides the range of persons that are considered ‘carriage service providers’. Section 32 of that Act defines ‘public mobile telecommunications service’, which in general terms covers standard mobile phone services.

Mobile telecommunications device is defined as an item of customer equipment that is used, or is capable of being used, in connection with a public mobile telecommunications service. ‘Customer equipment’ and ‘public mobile telecommunications service’ are defined in sections 21 and 32, respectively, of the Telecommunications Act.

The definition is broad to ensure it covers mobile phones and all related devices that make use of GSM networks in particular. It is also intended that this definition apply to existing and future mobile communications technologies that make use of public mobile telecommunications services, but do not necessarily utilise GSM technology.

Nominated carrier is given the same meaning as in the Telecommunications Act, which defines ‘nominated carrier’ as a carrier in respect of whom a nominated carrier declaration is in force. The Telecommunications Act defines ‘carrier’ as the holder of a carrier licence. Under the Telecommunications Act, the owner of a network unit that is used to supply carriage services to the public must generally hold a carrier licence, unless responsibility for the network unit is transferred from the owner of the unit to an existing carrier under a nominated carrier declaration. The Telecommunications Act allows for the Australian Communications Authority to make declarations stating that a carrier is a nominated carrier with respect to particular network units.

NRS provider is given the same meaning as in Part 3 of the Telecommunications (Consumer Protection and Service Standards) Act 1999, which defines ‘NRS provider’ as the person who provides the National Relay Service (NRS). The NRS is a service for persons who are deaf, or have a hearing and/or speech impairment. It facilitates calls with a voice and/or text component between the A-Party and B-Party of the call. The NRS provides voice-to-text and text-to-voice relay. Either the A-Party or the B-Party (or both) could be deaf or have a hearing or speech impairment and be using particular technologies that assist them in communicating. A relay officer at the NRS provider’s call centre answers the call made by the A-Party to the NRS access number and then makes another telephone call to the B-Party and proceeds to relay the conversation between the A-Party and the B-Party. Thus all three parties are on the telephone at the same time.

Obtaining is defined to include obtaining for another. This is an important part of the proposed dishonesty offences. Often the defendant will be motivated to assist a relative or friend. Whether it is for themself or another - there will be a victim of dishonesty. In the Commonwealth jurisdiction it will invariably be the taxpayer. This definition is based on the definition of ‘obtaining’ in the 1995 Model Criminal Code Officers Committee Report on Theft, Fraud, Bribery and Related Offences (subsection 14.3(2)(a) of the Model Criminal Code).

The definition reproduces that in the existing section 473.1 of the Criminal Code and is the same as that used for the existing general dishonesty offence in section 135.1 of the Criminal Code (see section 130.1).

Obtaining data, or material in the form of data, is defined in proposed section 473.3.

Possession of data, or material in the form of data, is defined in proposed section 473.2.

Producing data, or material in the form of data, is defined in proposed section 473.3.

Property is given the same meaning as in Chapter 7 of the Criminal Code. This definition reproduces that in the existing section 473.1 of the Criminal Code. The definition of ‘property’ in Chapter 7 defines the term widely. It covers real and personal property, money, intangible property such as the right to recover funds, electricity and even wild creatures.

Public mobile telecommunications service is given the same meaning as in the Telecommunications Act. Subsection 32(1) of that Act defines this type of carriage service as one where (i) an end-user can use the service while moving continuously between places; (ii) the customer equipment used for or in relation to the supply of the service is not in physical contact with any part of the telecommunications network by means of which the service is supplied; (iii) the service is supplied by use of a telecommunications network with intercell hand-over functions; and (iv) the service is not an exempt service. ‘Exempt services’ are listed in subsections 32(2), (3) and (4) of the Telecommunications Act. ‘Intercell hand-over functions’ are defined in section 33 of the Telecommunications Act. They refer to the capacity of a telecommunications network to receive and transmit signals between a particular base station and customer equipment (most commonly a mobile phone) when the customer equipment is within a particular area (‘cell’). When the customer equipment moves into a different cell the base station in the first cell stops, and the base station in the second cell starts, receiving and transmitting signals with the customer equipment.

Radiocommunication is given the same meaning as in the Radiocommunications Act 1992. Section 6 of that Act defines radiocommunication as radio emission or the reception of radio emission for the purpose of communicating information between persons and persons, persons and things or things and things. Radio emission is defined in section 8 of that Act as any emission of electromagnetic energy of frequencies less than 420 terahertz without continuous artificial guide, whether or not any person intended the emission to occur.

Serious offence against a foreign law is defined to mean 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. A simple example of an offence that would come within this definition is murder. Murder is an offence in most countries, and if the same conduct that lead to the murder occurred in Australia it would be a serious offence against a law of a State or a Territory. This phrase only has application to proposed section 474.14, which deals with use of a telecommunications network to commit a serious offence.

Serious offence against a law of the Commonwealth, a State or Territory is defined to mean an offence against a law of the Commonwealth, a State or a Territory that is punishable by more than five years imprisonment (including life imprisonment). This phrase only has application to proposed section 474.14 which deals with use of a telecommunications network to commit a serious offence.

Subscription-specific secure data is data that is used, or capable of being used, to allow a carrier to identify a particular mobile telecommunications account and allow a mobile telecommunications device, in which an account identifier that contains the data is installed, to access the public mobile telecommunications service to which the account relates. An example of subscription-specific secure data is the ‘international mobile subscriber identity’ (IMSI) number used in GSM networks and stored on the SIM card within a GSM mobile phone. The IMSI number consists of data to identify the country and network of origin of the phone and the mobile telecommunications account.

An account identifier also holds other forms of data, which are unique to the account to which the account identifier is linked, but are not used to identify that particular account, such as phone book lists and SMS message boxes. These forms of data are not subscription-specific secure data.

Supplying data, or material in the form of data, is defined in proposed section 473.3.

Telecommunications device identifier is defined as an electronic identifier of a mobile telecommunications device that is installed in the device by the manufacturer and is capable of being used to distinguish that particular device from other mobile telecommunications devices. The telecommunications device identifier is capable of distinguishing a particular device from another, because in most cases the identifier will be unique to that device. As the note explains, the ‘international mobile equipment identity’ (IMEI) number of a GSM phone is an example of a telecommunications device identifier. The IMEI number can be used to identify each particular phone used in connection with a mobile network and carriers can block service to a lost or stolen mobile phone if they know its IMEI number. The ability to block service to these phones is significant for the proposed offence for modification of a telecommunications device identifier and the related preparatory offences (see proposed sections 474.7 to 474.9 and the explanation of those offences).

The definition also provides that regulations can prescribe any other form of identifier to be a ‘telecommunications device identifier’. This paragraph has been included to account for future developments in technology that may result in relevant identifiers not coming within the specific definition provided in paragraph (a).

Telecommunications network is given the same meaning as in the Telecommunications Act, which defines ‘telecommunications network’ as a system, or series of systems, that carries, or is capable of carrying, communications by means of guided and/or unguided electromagnetic energy. ‘Guided electromagnetic energy’ travels using some form of physical medium such as a wire, cable, optical fibre or tube. The definition of ‘line’ in section 7 of the Telecommunications Act lists the types of physical media used for guided electromagnetic energy. ‘Unguided electromagnetic energy’ refers to radiowaves, which require no artificial guide to travel from one point to another. Under proposed amendments to the Dictionary of the Criminal Code, a ‘communication’ will be broadly defined to cover any form of communication including in the form of text, speech, music, visual images (still or moving), signals and data (see Item 19).

Proposed section 473.2 Possession or control of data or material in the form of data

Proposed section 473.2 provides that a reference to possession or control of data, or material in the form of data, includes references to having possession of a computer or data storage device that holds or contains the data (for example, a computer disk or CD). It also includes having possession of a document in which the data is recorded, or having control of data held in a computer in another person’s possession (whether that person is inside or outside Australia).

This provision has application in the proposed offences dealing with possession or control of data with intent to modify a telecommunications device identifier (proposed section 474.8), possession or control of data with intent to copy an account identifier (proposed section 474.11) and possession or control of material in the form of data that is child pornography material, child abuse material or suicide promotion material (proposed sections 474.20, 474.23 and 474.31).

The provision corresponds with the definition of ‘possession or control of data’ which applies to the existing offence of possessing or controlling data with intent to commit a computer offence (section 478.3). The proposed definition extends the offences to which it applies beyond cases where data is physically held by the offender to encompass situations where the data is in the offender’s control even though it is in the possession of another person. An example of this, in the context of the proposed child pornography offence (proposed section 474.20), is where a person may have sole access to computer files containing child pornography even though those files are held on someone else’s computer, possibly in another country.

Proposed section 473.3 Producing, supplying or obtaining data or material in the form of data

Proposed section 473.3 provides that a reference to a person producing, supplying or obtaining data, or material in the form of data, includes references to producing, supplying or obtaining data held or contained in a computer or data storage device (for example, a computer disk or CD), or producing, supplying or obtaining a document in which the data is recorded.

This provision has application in the proposed offences dealing with producing, supplying or obtaining data with intent to modify a telecommunications device identifier (proposed section 474.9), producing, supplying or obtaining data with intent to copy an account identifier (proposed section 474.12) and producing, supplying or obtaining material in the form of data that is child pornography material, child abuse material or suicide promotion material (proposed sections 474.20, 474.23 and 474.31).

The provision corresponds with the definition of ‘producing, supplying or obtaining data’ which applies to the existing offence of producing, supplying or obtaining data with intent to commit a computer offence (section 478.4). The proposed definition has similar coverage to that dealing with the possession or control of data (proposed section 473.2). However, the application of this provision, in the offences to which it applies, is targeted at those who create or distribute offending data, or material in the form of data, such as child pornography.

Proposed section 473.4 Determining whether material is offensive

Proposed section 473.4 lists the matters that should be taken into account in deciding whether reasonable persons would regard particular material, or a particular use of a carriage service, as being, in all the circumstances, offensive as follows:

• the standards of morality, decency and propriety generally accepted by reasonable adults

• the literary, artistic or educational merit (if any) of the material, and

• the general character of the material (including whether it is of a medical, legal or scientific character).

This provision is intended to act as a guide in determining whether particular material is considered ‘child pornography material’ or ‘child abuse material’ under the definitions in proposed section 473.1, or particular use of a carriage service is considered offensive under proposed section 474.17.

The factors listed are the same as the first three matters that are to be considered by the Classification Board in making decisions on the classification of publications, films and computer games under section 11 of the Classification (Publications, Films and Computer Games) Act 1995 (Classification Act). The fourth matter that must be considered under the Classification Act is ‘the persons or class of persons to or amongst whom it is published or intended or likely to be published’. This factor is not included, because the nature of the Internet is such that any person could come across particular material without intending to do so. This differs from accessing or viewing of publications, films and computer games in the traditional sense, where a person who does not want to, for example, see a particular film can easily avoid it. For child pornography and child abuse material, it is irrelevant to consider for whom the material is intended to be published.

Division 474 – Telecommunications offences

Subdivision A – Dishonesty with respect to carriage services

Proposed Subdivision A of Division 474 contains provisions reproducing existing sections 473.2, 473.3 and 474.1 of the Criminal Code, which create an offence of ‘general dishonesty with respect to a carriage service provider’. Apart from the definition of ‘carriage service’, which is reproduced in the Dictionary of the Criminal Code (see Item 18), the definitions for this offence in existing section 473.1 are reproduced in the proposed new section 473.1. The offence replaced the old section 85ZF of the Crimes Act under the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000, which introduced a range of ‘dishonesty’ offences.

Proposed section 474.1 Dishonesty

The two subsections of proposed section 474.1 reproduce existing sections 473.2 and 473.3 of the Criminal Code. Proposed subsection 474.1(1) uses the same definition of dishonesty as that found in existing section 130.3 of the Criminal Code and is repeated here for the convenience of readers. The definition is consistent with that in the 1995 Model Criminal Code Officers Committee Report on Theft, Fraud, Bribery and Related Offences (subsection 14.2(1) of the Model Criminal Code).

Paragraph 474.1(1)(a) links the definition of dishonesty to community standards (this is not novel, whether a person is negligent is assessed by a jury on the basis of what the reasonable person would have done in the circumstances). Paragraph 474.1(1)(b) of the definition requires knowledge on the part of the defendant that they are being dishonest according to the standards of ordinary people. This is crucial if the Criminal Code is to be true to the principle that for serious offences a person should not be convicted without a guilty mind. It reflects a preference for the law which existed prior to the decision of the High Court in Peters v R (1998) 151 ALR 51. The High Court in Peters developed a test for ‘dishonesty’ that did not include a subjective component. The proposed definition was preferred over the Peters approach by the Standing Committee of Attorneys-General at its April 1998 meeting.

Proposed subsection 474.1(2) is the same as existing section 130.4 of the Criminal Code and is derived from the 1995 Model Criminal Code Officers Committee Report on Theft, Fraud, Bribery and Related Offences (subsection 14.2(2) of the Model Criminal Code). It provides that the question of whether a person is dishonest is only appropriate for the jury (or court, if there is no jury) as the trier of fact to determine. It is the jury which is best able to judge community standards.

Proposed section 474.2 General dishonesty with respect to a carriage service provider

Proposed section 474.2 reproduces existing section 474.1 of the Criminal Code. It provides that a person is guilty of an offence if the person does anything with the intention of dishonestly obtaining a gain or causing a loss to a carriage service provider in connection with the supply of a carriage service. It also covers knowingly risking such a loss. This offence contains the key elements of the existing general dishonesty offence at section 135.1 of the Criminal Code and has the same penalty (a maximum of five years imprisonment). It does not include the ‘influencing a Commonwealth public official’ component because that aspect is not relevant to this context.

Each offence is punishable by a maximum term of five years imprisonment, a fine of 300 penalty units ($33,000) or both.

Proposed Subdivision B – Interference with telecommunications

Proposed Subdivision B contains offences and accompanying provisions concerning interference with telecommunications infrastructure or devices used in connection with such infrastructure, such as mobile phones.

Proposed section 474.3 Person acting for a carrier or carriage service provider

Proposed section 474.4 defines the categories of persons that may be taken to be ‘carriers’ and ‘carriage service providers’ for the purposes of the offences in proposed Subdivision B. The definitions reproduce the definition in existing section 85ZBA of the Crimes Act. However, the terms ‘carrier’ and ‘carriage service provider’ have been divided into separate subsections to make the definitions clearer given the separation of these terms under the proposed amendments (see the definitions of ‘carriage service provider’ and ‘carrier’ in proposed section 473.1 and the explanation of those terms).

Proposed section 474.4 Interception devices

Proposed section 474.4 will replace existing section 85ZKB of the Crimes Act as the offence provision dealing with the manufacturing, advertising, displaying or offering for sale, selling or possessing interception devices. ‘Interception device’ is defined in proposed section 473.1 (see also the explanation of this definition). The proposed offence will carry a maximum penalty of five years imprisonment, the same maximum penalty as the existing offence. The maximum fine will be $33,000 for a natural person and $165,000 for a body corporate under the existing $110 value for a penalty unit in section 4AA of the Crimes Act, and the provisions for calculating maximum fines in section 4B of that Act.

Proposed subsection 474.4(1)

By application of the default fault elements in section 5.6 of the Criminal Code, the fault element of intention will apply to each of the physical elements of the proposed offence that constitute conduct. This means that a person must intentionally engage in that conduct to be found guilty of the offence. Under proposed subsection 474.4(1) the conduct to which intention will apply is the manufacturing, advertising, displaying or offering for sale, selling or possessing of an apparatus or device.

The fact that an apparatus or device, to which the offending conduct applies, is an interception device constitutes a circumstance of the proposed offence. By application of the default fault elements in section 5.6 of the Criminal Code, the fault element of recklessness will apply to a physical element of an offence that is a circumstance. Under section 5.4 of the Criminal Code, a person is ‘reckless’ with respect to a circumstance if (a) he or she is aware of a substantial risk that the circumstance exists or will exist, and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

The fault element applying in the existing offence in section 85ZKB to the equivalent circumstance (that an apparatus or device is of a kind capable of intercepting communications) is knows, or ought reasonably to know. The applicable fault element to the circumstance has been updated to recklessness so that the proposed offence accords with one of the underlying policies of the Criminal Code, that a standard set of fault elements apply in all Commonwealth offences. ‘Ought reasonably to know’ is not one of these standard fault elements. Recklessness is the most appropriate of these standard fault elements for the proposed offence.

Proposed subsection 474.4(2)

Under subsection 474.4(2), a defence is available if the person possesses an interception device in the course of his or her duties relating to interception that is not in contravention of subsection 7(1) of the Telecommunications (Interception) Act 1979 (the Interception Act). This is drawn from one of the exceptions to the existing offence in section 85ZKB of the Crimes Act. Subsection 7(1) of the Interception Act prohibits the interception of communications passing over a telecommunications system, while subsections 7(2), (4) and (5) provide a range of situations in which interception of such communications can occur without contravening subsection 7(1). These include interception as part of installing lines or equipment, by an employee of a carrier, for use in connection with a telecommunications service, interception under a warrant, and interception for the purposes of tracing the location of a seriously injured or dying person.

Proposed subsection 474.4(3)

Subsection 474.4(3) provides a defence if the applicable conduct occurs in circumstances specified in regulations made for the provision. This reproduces another of the exceptions to the existing offence in section 85ZKB of the Crimes Act. Regulations created for section 85ZKB allow the manufacturing, advertising, displaying or offering for sale, selling or possessing of an offending apparatus or device for, amongst other things, purposes related to interception that do not contravene subsection 7(1) of the Interception Act (regulation 7 of the Crimes Regulations 1990). These regulations will continue to operate after the commencement of the Bill in relation to proposed section 474.4 (see the saving provision at Item 30). It is envisaged that future regulations developed specifically for proposed section 474.4 will cover the same types of circumstances.

The defendant bears the burden of pointing to evidence which supports these defences. It will generally be much easier for a defendant, rather than the prosecution, to produce evidence showing that the circumstances to which the defences apply do in fact exist. For example, an employee of a carrier may be able to produce work records showing the nature of the work they were doing at a designated time, or a manufacturer may have invoice records showing for whom it was producing interception devices.

Proposed section 474.5 Wrongful delivery of communications

Proposed section 474.5 will replace existing section 85ZD of the Crimes Act. The provision is drafted differently to the existing offence to distinguish the separate physical elements of the offence. The proposed offence will carry a maximum penalty of one year’s imprisonment, the same maximum penalty as the existing offence. The maximum fine will be $6600 for a natural person and $33,000 for a body corporate under the existing $110 value for a penalty unit in section 4AA of the Crimes Act, and the provisions for calculating maximum fines in section 4B of that Act.

Paragraph 474.5(1)(a) provides that the circumstance in which the offending conduct (outlined in paragraph 474.5(1)(b)) must occur is where the ‘communication is in the course of telecommunications carriage’. This phrase is defined in proposed section 473.1. By application of the default fault elements in section 5.6 of the Criminal Code, the fault element of recklessness will apply to a physical element of an offence that is a circumstance. ‘Recklessness’ as it applies to a circumstance is defined in section 5.4 of the Criminal Code.

Paragraph 474.5(1)(b) specifies the conduct that constitutes an offence under proposed subsection 474.5(1). That is that the person causes the communication to be received by a person or carriage service other than the person or service to whom it is directed. The existing offence in section 85ZD explicitly provides that the offending conduct must be intentional. The reference to intention has been removed in proposed section 474.5, because by application of the default fault elements of section 5.6 of the Criminal Code the fault element of intention will automatically apply to this physical element of conduct.

The proposed offence will not apply to the diversion of communications, such as telephone calls or emails, within an organisation’s internal telecommunications system. The phrase ‘communication in the course of telecommunications carriage’ does not cover such communications (see the definition of ‘communication in the course of telecommunications carriage’ in proposed section 473.1 and the explanation of this definition).

Proposed subsection 474.5(2) provides a defence to the proposed offence for persons who engage in the offending conduct with the consent or authorisation of the person to whom, or the person operating the carriage service to which, the communication is directed. In the existing telecommunications environment it is possible that telephone calls and emails can be diverted for legitimate reasons prior to when they have been technically ‘delivered by the carrier or carriage service provider’. This defence will ensure that where a person has consented to or authorised such conduct, the person who engages in that conduct cannot be held criminally responsible for it.

Proposed section 474.6 Interference with facilities

Proposed section 474.6 will replace existing sections 85ZG and 85ZJ of the Crimes Act. The two existing sections deal with similar issues, so have been drawn into the one section under the proposed amendments. They deal with the tampering or interfering with telecommunications facilities and the hindering of the supply of carriage services to the public.

Proposed subsections 474.6(1) and (2)

Subsections 474.6(1) and (2) reproduce the existing section 85ZJ with some minor alterations. The proposed offence has been slightly extended beyond tampering or interfering with a facility belonging to a carrier (which in the Crimes Act is defined to include ‘carriage service provider’), to the tampering or interfering with a facility that is owned or operated by a carrier, carriage service provider or a nominated carrier. These refinements reflect the slight change in terminology in the Bill (the separation of ‘carrier’ and ‘carriage service provider’) and the current telecommunications environment. A nominated carrier is a carrier that may not actually own or operate a network unit (which is a facility), but for the purposes of the Telecommunications Act is considered to own or operate the relevant network unit (see proposed subsection 474.6(8) and the definition of ‘nominated carrier’ in proposed section 473.1).

Existing section 85ZJ explicitly provides that the offending conduct must be intentional. The reference to intention has been removed in proposed subsection 474.6(1), because by application of the default fault elements of section 5.6 of the Criminal Code the fault element of intention will automatically apply to this physical element of conduct. This means that a person must intentionally tamper with or interfere with a facility to be found guilty of the offence.

Proposed subsection 474.6(2) effectively reproduces existing subsection 85ZJ(2) of the Crimes Act in providing that absolute liability applies to the circumstance that ‘the facility is owned or operated by a carrier, carriage service provider or a nominated carrier’ (as explained above, the equivalent circumstance in subsection 85ZJ(2) is that ‘the facility belongs to a carrier’). This means that it will not be necessary for the prosecution to prove a fault element for that particular physical element, and that the defence of mistake of fact will not be available to the defence (see section 6.2 of the Criminal Code). It will still be necessary to show that the facility is in fact owned or operated by a carrier, carriage service provider or a nominated carrier. This element of the offence does not affect the culpability of the offender, but rather sets the perimeters of the offence. If the prosecution was required to prove awareness on the part of the defendant that the facility with which they tampered or interfered with was, for example, operated by a carrier, many defendants would be able to evade liability by demonstrating that they did not turn their minds to that issue (despite the fact that they had committed the prohibited conduct).

The proposed offence in subsection 474.6(1) will continue to cover the same type of conduct as is presently covered by existing section 85ZJ of the Crimes Act. Given the broad definition of ‘facility’ this will include, for example, the tampering or interfering with telephone lines, mobile phone towers or satellite dishes operated by carriers. The proposed offence in subsection 474.6(1) will carry a maximum penalty of one year’s imprisonment, the same maximum penalty as the existing offence in section 85ZJ. The maximum fine will be $6600 for a natural person and $33,000 for a body corporate under the existing $110 value for a penalty unit in section 4AA of the Crimes Act, and the provisions for calculating maximum fines in section 4B of that Act.

Proposed subsections 474.6(3) to (6)

Proposed subsections 474.6(3) to (6) reproduce existing section 85ZG of the Crimes Act, with some minor alterations. Proposed subsection 474.6(3) does not expressly cover ‘manipulation of a facility’, as is the case in existing subsection 85ZG(1), because ‘tampering or interfering with a facility’ will effectively cover such conduct anyway.

Proposed subsection 474.6(3) applies to specified conduct that results in ‘hindering the normal operation of a carriage service supplied by a carriage service provider’. The existing subsection 85ZG(1) refers to a carriage service supplied by the same carrier as the one whose facility has been tampered or interfered with. This change slightly broadens the operation of the provision to better reflect the current telecommunications environment. Tampering or interfering with a particular facility may affect the service provided by a range of service providers, not just the service provided by the particular carrier who operates the facility.

In existing section 85ZG reference is made several times to a ‘carriage service supplied by a/the carrier’. However, proposed subsections 474.6(3) to (6) will refer to a ‘carriage service supplied by a carriage service provider’. Under the proposed amendments, the terms ‘carrier’ and ‘carriage service provider’ will be separated in accordance with the terminology of the Telecommunications Act (see the explanation of the definition of ‘carrier’ in proposed section 473.1). Under that Act, carriage service providers are responsible for the supply of carriage services and this will be reflected in proposed subsections 474.6(3) to (6).

By application of the default fault elements of section 5.6 of the Criminal Code, the fault element of intention will apply to the physical element of conduct in proposed subsections 474.6(3) and (5). This means that a person must intentionally engage in that conduct to be found guilty of the offence. Under the proposed offences, the conduct to which intention will apply is the tampering with or interfering with a facility, in the case of subsection 474.6(3), and the use or operation of any apparatus or device, in the case of subsection 474.6(5).

By application of the default fault elements of section 5.6 of the Criminal Code, the fault element of recklessness will apply to the physical element of a result of conduct in proposed subsections 474.6(3) and (5). ‘Recklessness’ as it applies to a result is defined in section 5.4 of the Criminal Code. Under both subsections 474.6(3) and (5), the result to which the fault element of recklessness will apply is that the normal operation of a carriage service is hindered.

Proposed subsections 474.6(4) and (6) reproduce existing subsections 85ZG(1A) and (3) of the Crimes Act, respectively, in providing that absolute liability applies to the physical elements of circumstance that are applicable to the respective provisions. This means that it will not be necessary for the prosecution to prove a fault element in relation to those particular physical elements, and that the defence of mistake of fact will not be available to the defence (see section 6.2 of the Criminal Code). It will still be necessary to show that those circumstances in fact exist. This element of the offence does not affect the culpability of the offender, but rather sets the perimeters of the offence. If the prosecution was required to prove awareness on the part of the defendant that, for example, a carriage service was supplied by a carriage service provider, many defendants would be able to evade liability by demonstrating that they did not turn their minds to that issue (despite the fact that they had committed the prohibited conduct).

The proposed offences in subsection 474.6(3) and (5) will continue to cover the same type of conduct leading to the same results as are presently covered by existing section 85ZG of the Crimes Act. Proposed subsection 474.6(3) will cover, for example, the tampering or interfering with telephone lines, mobile phone towers or satellite dishes operated by carriers resulting in the disruption of carriage services. Proposed subsection 474.6(5) will cover the use or operation of something, which is already a part of the telecommunications infrastructure, in a way that disrupts carriage services. It could also extend to the use or operation of a device, which is not necessarily part of the telecommunications infrastructure, but which nevertheless works in conjunction with the telecommunications network, for example, a device that connects to the network using mobile phone or other wireless technology.

The proposed offences in subsections 474.6(3) and (5) will both carry a maximum penalty of two years imprisonment, the same as those in the existing offences in section 85ZG. The maximum fine will be $13,200 for a natural person and $66,000 for a body corporate under the existing $110 value for a penalty unit in section 4AA of the Crimes Act, and the provisions for calculating maximum fines in section 4B of that Act. The penalty for these offences is higher than that for the proposed offence in subsection 474.6(1) of one year’s imprisonment, because of the added physical element that the offending conduct results in the normal operation of a carriage service being hindered. Such a result could potentially cause great disruption to the general operation of the telecommunications network, upon which government, business and many other elements of society very heavily rely.

Proposed subsection 474.6(7)

Proposed subsection 474.6(7) provides a defence for the offence in subsection 474.6(5) for law enforcement officers and intelligence or security officers acting in good faith and in the course of their duties where their conduct is reasonable for the purposes of performing that duty. ‘Law enforcement officer’ and ‘intelligence or security officer’ are defined in proposed section 473.1.

Officers of law enforcement agencies, and intelligence or security agencies, will in certain operations be required to use devices that would breach the offence in proposed subsection 474.6(5) in situations where they may not be able to rely on the general defence of lawful authority under section 10.5 of the Criminal Code. Under this provision officers must be acting in good faith, as well as in the course of their duties, for the defence to cover them. This would require them to be acting in accordance with their organisation’s protocols on the use of such devices.

The second note to proposed subsection 474.6(7) indicates that proposed subsection 475.1(2) outlines the interaction between this provision and the operation of the Radiocommunications Act 1992. Proposed subsection 475.1(2) provides that any defences to offences under Part 10.6 of the Criminal Code do not make any conduct lawful if the conduct would otherwise be unlawful under the Radiocommunications Act. This means that conduct for which the defence under proposed subsection 474.6(7) applies does not make that same conduct lawful if it happens to be prohibited under the Radiocommunications Act.

Proposed subsection 474.6(8)

The offences in proposed subsections 474.6(1) and (3) cover the tampering or interfering with ‘a facility owned or operated by a nominated carrier’. However, a nominated carrier may not necessarily actually own or operate a facility (see the explanation of the definition of ‘nominated carrier’ in proposed section 473.1). Under section 81A of the Telecommunications Act, a nominated carrier who does not own or operate a network unit (which may be either a facility or a number of facilities) for which there is a nominated carrier declaration in place, is nonetheless deemed to own or operate that network unit for the purposes of that Act. Proposed subsection 474.6(8) ensures that where a nominated carrier is considered to own or operate a facility under the Telecommunications Act, it will also be considered to own or operate that facility for the purposes of section 474.6.

Proposed section 474.7 Modification etc. of a telecommunications device identifier

Technology has been developed which enables carriers that operate ‘global system for mobile communications’ (GSM) networks to bar lost and stolen GSM mobile phones from accessing their networks. A carrier uses the telecommunications device identifier of a phone (in the case of GSM mobile phones, the IMEI number) to identify the correct phone to ‘block’ from using their network. Such technology reduces any benefit from stealing mobile phones, because once reported lost or stolen a mobile phone can be rendered useless by blocking that phone. The proposed offence is targeted at those who attempt to evade a mobile phone block by altering a mobile phone’s telecommunications device identifier.

Proposed subsection 474.7(1) will make it an offence to modify a telecommunications device identifier or interfere with the operation of a telecommunications device identifier. ‘Telecommunications device identifier’ is defined in proposed section 473.1.

The proposed offence is intended to apply to existing and future mobile communications technologies and not be restricted solely to conduct in relation to GSM mobile phones. Future mobile phones will not necessarily use GSM networks. There are also many devices currently available that use mobile phone networks, but are not strictly mobile phones, for example some types of hand-held electronic notebooks. To accommodate the array of technologies to which the offence is intended to apply, the terms ‘telecommunications device identifier’ and ‘mobile telecommunications device’, which are relevant to this offence, are broadly defined (see proposed section 473.1 and the explanation of these definitions).

The proposed offence will carry a maximum penalty of two years imprisonment. The maximum fine will be $13,200 for a natural person and $66,000 for a body corporate under the existing $110 value for a penalty unit in section 4AA of the Crimes Act, and the provisions for calculating maximum fines in section 4B of that Act.

By application of the default fault elements in section 5.6 of the Criminal Code, the fault element of intention will apply to each of the physical elements of the proposed offence that constitute conduct. This means that a person must intentionally engage in that conduct to be found guilty of the offence. Under proposed subsection 474.7(1) the conduct to which intention will apply is the modification of or the interfering with the operation of a telecommunications device identifier.

Subsection 474.7(2) creates a defence for manufacturers of mobile telecommunications devices, employees and agents acting on behalf of a manufacturer, and persons acting with the consent of a manufacturer. Manufacturers may in certain circumstances have to modify or interfere with the operation of a telecommunications device identifier, for example to rectify the faulty installation of a telecommunications device identifier or other software.

Subsection 474.7(3) creates a defence for law enforcement officers and intelligence or security officers acting in the course of their duties where their conduct is reasonable for the purposes of performing that duty. ‘Law enforcement officer’ and ‘intelligence or security officer’ are defined in proposed section 473.1. Officers of law enforcement agencies, and intelligence or security agencies, may for forensic and research purposes be required to engage in conduct that may technically breach the offence in subsection 474.7(1). In these situations, they may not be able to rely on the general defence of lawful authority under section 10.5 of the Criminal Code.

Proposed section 474.8 Possession or control of data or a device with intent to modify a telecommunications device identifier

Proposed subsection 474.8(1) will make it an offence for a person to possess or control any thing or data with the intention that it be used, by that person or another person, in committing an offence against proposed subsection 474.7(1) (the primary offence). A specific preparatory offence is necessary, because this conduct would not always be caught by the extension of criminal liability in Division 11of Part 2.4 of the Criminal Code. The proposed offence will carry a maximum penalty of two years imprisonment, the same as the primary offence. The maximum fine will be $13,200 for a natural person and $66,000 for a body corporate under the existing $110 value for a penalty unit in section 4AA of the Crimes Act, and the provisions for calculating maximum fines in section 4B of that Act.

Like the analogous computer offence, ‘possession or control of data with intent to commit a computer offence’ (section 478.3 of the Criminal Code), the proposed offence covers certain preparatory conduct undertaken with the intention to commit the primary offence. An example of the type of conduct covered by the proposed offence is the possession of software capable of modifying a telecommunications device identifier, with the intention to forward the software on to another person so that they can modify a telecommunications device identifier. Proposed section 473.2 outlines situations that are considered ‘possession or control of data’ for the purposes of this proposed offence (see also the explanation of proposed section 473.2).

Subsection 474.8(2) provides that a person can be found guilty of an offence against subsection 474.8(1), even if it is impossible to commit the primary offence. This provision reflects the emergent common law consensus that a person can be convicted of attempt – here, essentially a preparatory offence – even though completion of the offence was impossible in the circumstances. In other words, the law of attempt holds that it is irrelevant if a particular result does not occur. Subsection 474.8(3) provides that it is not an offence to attempt to commit an offence against subsection 474.8(1). Subsections 474.8(2) and (3) of the proposed offence are drawn from the offence of attempt under section 11.1 of the Criminal Code. Given that the conduct in proposed section 474.8 is preparatory to the primary offence, it is appropriate that it contain such provisions.

Subsections 474.8(4) and (5) provide defences to the proposed offence for the same persons as are protected under the primary offence.

Proposed section 474.9 Producing, supplying or obtaining data or a device with intent to modify a telecommunications device identifier

Proposed subsection 474.9(1) will make it an offence for a person to produce, supply or obtain any thing or data with the intention that it be used, by that person or another person, in committing an offence against proposed subsection 474.7(1) (the primary offence). A specific preparatory offence is necessary, because this conduct would not always be caught by the extension of criminal liability in Division 11 of Part 2.4 of the Criminal Code. The proposed offence will carry a maximum penalty of two years imprisonment, consistent with the primary offence. The maximum fine will be $13,200 for a natural person and $66,000 for a body corporate under the existing $110 value for a penalty unit in section 4AA of the Crimes Act, and the provisions for calculating maximum fines in section 4B of that Act.

Like the analogous computer offence, ‘producing, supplying or obtaining data with intent to commit a computer offence’ (section 478.4 of the Criminal Code), the proposed offence covers certain preparatory conduct undertaken with the intention to commit the primary offence. It is similar in application to the offence in proposed section 474.8. However, this offence is primarily targeted at those who devise or propagate software or devices that can be used to modify or interfere with the operation of telecommunications device identifiers. Proposed section 473.3 outlines situations that are considered ‘producing, supplying or obtaining data’ for the purposes of this proposed offence (see also the explanation of proposed section 473.3).

Subsection 474.9(2) provides that a person can be found guilty of an offence against subsection 474.9(1), even if it is impossible to commit the primary offence. This provision reflects the emergent common law consensus that a person can be convicted of attempt – here, essentially a preparatory offence – even though completion of the offence was impossible in the circumstances. In other words, the law of attempt holds that it is irrelevant if a particular result does not occur. Subsection 474.9(3) provides that it is not an offence to attempt to commit an offence against subsection 474.9(1). Subsections 474.9(2) and (3) of the proposed offence are drawn from the offence of attempt under section 11.1 of the Criminal Code. Given that the conduct in proposed section 474.9 is preparatory to the primary offence, it is appropriate that it contain such provisions.

Subsections 474.9(4) and (5) provide defences to the proposed offence for the same persons as are protected under the primary offence.

Proposed section 474.10 Copying subscription-specific secure data

A device is now available enabling the subscription-specific secure data held on up to 12 GSM mobile phone ‘subscriber identity module’ (SIM) cards to be copied onto a single SIM card. The copying of the subscription-specific secure data of a SIM card onto another SIM card enables that new SIM card, when installed in a mobile phone, to use the same phone number and make phone calls on the same account as on the original SIM card. A person who has possession of a SIM card containing copied data can fraudulently make phone calls on the same account as that linked to the original SIM card.

The copying of SIM cards also has the potential to seriously hamper law enforcement and security activities, particularly the analysis of call records and the interception of mobile phone calls. A device that can allow the data on up to 12 SIM cards to be duplicated onto one SIM card, will allow a person to make mobile phone calls from up to 12 different phone numbers from the one handset with relative ease. This enhanced ability to spread calls across various accounts would hide those calls that would otherwise attract interest, diminishing the effectiveness of call records analysis performed by law enforcement agencies. Easy access to many mobile phone numbers, compared to what has previously been possible, will also frustrate intercepting agencies’ ability to intercept all relevant phone calls.

Proposed subsection 474.10(1)

Proposed subsection 474.10(1) will make it an offence to copy the subscription-specific secure data from an account identifier with the intention that the data be copied onto another account identifier or something that will, once the data has been copied onto it, operate as an account identifier. ‘Account identifier’ and ‘subscription-specific secure data’ are defined in proposed section 473.1.

The key fault element for the conduct of copying the subscription-specific secure data from an account identifier is the intention that the data be copied onto another account identifier or something that is, once the data is copied onto it, capable of operating as an account identifier. For the purposes of the offence, it is irrelevant whether the person intends to copy the data onto the account identifier themself or intends that another person would perform this task.

The proposed offence will carry a maximum penalty of two years imprisonment. The maximum fine will be $13,200 for a natural person and $66,000 for a body corporate under the existing $110 value for a penalty unit in section 4AA of the Crimes Act, and the provisions for calculating maximum fines in section 4B of that Act.

As existing technology currently operates, the process of copying subscription-specific secure data off one account identifier and onto another account identifier occurs simultaneously. However, this offence, together with the offence in subsection 474.10(2), is intended to cover future contingencies where subscription-specific secure data may be able to be first copied onto some form of data storage device or computer for the purpose of copying it onto another account identifier at a later date.

‘Account identifier’ is broadly defined to cover SIM cards as well as future cards or devices that serve the same or similar purpose. However, under this definition a blank SIM card that is yet to hold subscription-specific secure data would not be considered an account identifier. Subparagraph 474.10(1)(b)(ii) is intended to cover the situation where the person intends that the data be copied onto a blank SIM card, or similar type of card.

Proposed subsection 474.10(2)

Proposed subsection 474.10(2) makes it an offence to copy subscription-specific secure data onto an account identifier, or something that will, once the data has been copied onto it, operate as an account identifier, if that data has previously been copied from another account identifier. The offence applies regardless of whether the person who engages in the offending conduct knows from which particular account identifier the subscription-specific secure data has been copied. ‘Account identifier’ and ‘subscription-specific secure data’ are defined in proposed section 473.1.

Paragraph 474.10(2)(a) provides that the circumstance in which the offending conduct (outlined in paragraph 474.10(2)(b)) must occur is where subscription-specific secure data has been copied from an account identifier. It is irrelevant whether that data was copied by the same person who engages in the offending conduct or someone else. By application of the default fault elements in section 5.6 of the Criminal Code, the fault element of recklessness will apply to a physical element of an offence that is a circumstance. ‘Recklessness’ as it applies to a circumstance is defined in section 5.4 of the Criminal Code.

Paragraph 474.10(2)(b) specifies the conduct that constitutes an offence under proposed subsection 474.10(2). That is that the person copies the subscription-specific secure data onto an account identifier or something that will, once the data is copied onto it, be capable of operating as an account identifier. By application of the default fault elements in section 5.6 of the Criminal Code, the fault element of intention will apply to a physical element of an offence that is conduct. This means that the person must intentionally engage in that conduct to be found guilty of the offence.

The proposed offence will carry a maximum penalty of two years imprisonment. The maximum fine will be $13,200 for a natural person and $66,000 for a body corporate under the existing $110 value for a penalty unit in section 4AA of the Crimes Act, and the provisions for calculating maximum fines in section 4B of that Act.

As existing technology currently operates, the process of copying subscription-specific secure data off one account identifier and onto another account identifier occurs simultaneously. However, this offence, together with the offence in subsection 474.10(1), is intended to cover future contingencies where subscription-specific secure data may be able to be first copied onto some form of data storage device or computer and copied onto another account identifier at a later date.

‘Account identifier’ is broadly defined to cover SIM cards as well as future cards or devices that serve the same or similar purpose. However, under this definition a blank SIM card that is yet to hold subscription-specific secure data would not be considered an account identifier. Subparagraph 474.10(2)(b)(ii) is intended to cover the situation where the data is copied onto a blank SIM card, or similar type of card.

Proposed subsection 474.10(3)

Proposed subsection 474.10(3) creates a defence for carriers who operate the facilities used, or to be used, in the supply of the public mobile telecommunications service to which the subscription-specific secure data relates. A defence is also provided for employees and agents acting on behalf of these carriers and persons acting with the consent of one of these carriers. Carriers who operate facilities through which public mobile telecommunications services are provided and SIM card vendors (people who sell SIM cards to the carriers) copy the subscription-specific secure data held on SIM cards for the legitimate purpose of developing and testing new SIM card functions and programs. SIM card vendors would require the consent of a carrier to be covered by this defence.

Proposed subsection 474.10(4)

Subsection 474.10(4) creates a defence for law enforcement officers and intelligence or security officers acting in the course of their duties where their conduct is reasonable for the purposes of performing that duty. ‘Law enforcement officer’ and ‘intelligence or security officer’ are defined in proposed section 473.1. Officers of law enforcement agencies, and intelligence or security agencies, may for forensic and research purposes be required to engage in conduct that may technically breach the offences in subsections 474.10(1) and (2). In these situations, they may not be able to rely on the general defence of lawful authority under section 10.5 of the Criminal Code.

Proposed section 474.11 Possession or control of data or a device with intent to copy an account identifier

Proposed subsection 474.11(1) will make it an offence for a person to possess or control any thing or data with the intention that it be used, by that person or another person, in committing an offence against proposed subsections 474.10(1) or 474.10(2) (the primary offences). A specific preparatory offence is necessary, because this conduct would not always be caught by the extension of criminal liability in Division 11 of Part 2.4 of the Criminal Code. The proposed offence will carry a maximum penalty of two years imprisonment, the same as the primary offences. The maximum fine will be $13,200 for a natural person and $66,000 for a body corporate under the existing $110 value for a penalty unit in section 4AA of the Crimes Act, and the provisions for calculating maximum fines in section 4B of that Act.

Like the analogous computer offence, ‘possession or control of data with intent to commit a computer offence’ (section 478.3 of the Criminal Code), the proposed offence covers certain preparatory conduct undertaken with the intention to commit one of the primary offences. An example of the type of conduct covered by the proposed offence is the possession of a device designed to copy the subscription-specific secure data of one account identifier onto another account identifier, with the intention that the device be used for this purpose. Proposed section 473.2 outlines situations that are considered ‘possession or control of data’ for the purposes of this proposed offence (see also the explanation of proposed section 473.2).

Subsection 474.11(2) provides that a person can be found guilty of an offence against subsection 474.11(1), even if it is impossible to commit a primary offence. This provision reflects the emergent common law consensus that a person can be convicted of attempt – here, essentially a preparatory offence – even though completion of the offence was impossible in the circumstances. In other words, the law of attempt holds that it is irrelevant if a particular result does not occur. Subsection 474.11(3) provides that it is not an offence to attempt to commit an offence against subsection 474.11(1). Subsections 474.11(2) and (3) of the proposed offence are drawn from the offence of attempt under section 11.1 of the Criminal Code. Given that the conduct in proposed section 474.11 is preparatory to the primary offences, it is appropriate that it contain such provisions.

Subsections 474.11(4) and (5) provide defences to the proposed offence for the same persons as are protected under the primary offences.

Proposed section 474.12 Producing, supplying or obtaining data or a device with intent to copy an account identifier

Proposed subsection 474.12(1) will make it an offence for a person to produce, supply or obtain any thing or data with the intention that it be used, by that person or another person, in committing an offence against proposed subsections 474.10(1) or 474.10(2) (the primary offences). A specific preparatory offence is necessary, because this conduct would not always be caught by the extension of criminal liability in Division 11 of Part 2.4 of the Criminal Code. The proposed offence will carry a maximum penalty of two years imprisonment, the same as the primary offences. The maximum fine will be $13,200 for a natural person and $66,000 for a body corporate under the existing $110 value for a penalty unit in section 4AA of the Crimes Act, and the provisions for calculating maximum fines in section 4B of that Act.

Like the analogous computer offence, ‘producing, supplying or obtaining data with intent to commit a computer offence’ (section 478.4 of the Criminal Code), the proposed offence covers certain preparatory conduct undertaken with the intention to commit one of the primary offences. It is similar in application to the offence in proposed section 474.11. However, this offence is primarily targeted at those who devise or propagate software or devices that can be used to copy subscription-specific secure data from one account identifier onto another. Proposed section 473.3 outlines situations that are considered ‘producing, supplying or obtaining data’ for the purposes of this proposed offence (see also the explanation of proposed section 473.3).

Proposed subsection 474.12(2) provides that a person can be found guilty of an offence against subsection 474.12(1), even if it is impossible to commit a primary offence. This provision reflects the emergent common law consensus that a person can be convicted of attempt – here, essentially a preparatory offence – even though completion of the offence was impossible in the circumstances. In other words, the law of attempt holds that it is irrelevant if a particular result does not occur.

Proposed subsection 474.12(3) provides that it is not an offence to attempt to commit an offence against subsection 474.12(1). Subsections 474.12(2) and (3) of the proposed offence are drawn from the offence of attempt under section 11.1 of the Criminal Code. Given that the conduct in proposed section 474.12 is preparatory to the primary offences, it is appropriate that it contain such provisions.

Proposed subsections 474.12(4) and (5) provide defences to the proposed offence for the same persons as are protected under the primary offences.

Proposed Subdivision C – Offences related to use of telecommunications

Proposed Subdivision C contains offences and accompanying provisions concerning use of telecommunications to engage in or facilitate criminal activity.

Proposed section 474.13 Use of a carriage service

Proposed section 474.13 provides that carriers, carriage service providers (CSPs), Internet service providers (ISPs) and Internet content hosts (ICHs) acting solely in their capacity as either a carrier, CSP, ISP or ICH, respectively, when engaging in particular conduct should not be considered to be ‘using a carriage service’.

This provision makes it clear that, for example, a CSP could not be held criminally liable if a person makes a menacing phone call using the service provided by that CSP. Similarly, an ISP could not be held criminally liable if a person used the service provided by that ISP to access child pornography. However, if an ISP is actually involved in making child pornography available on the Internet, it will be criminally liable for that conduct, because in actively engaging in such conduct it would be acting beyond the ordinary role of an ISP.

Proposed section 474.14 Using a telecommunications network with intention to commit a serious offence

The two offences in proposed section 474.14 will replace the existing offence in section 85ZK of the Crimes Act, which deals with the use of equipment connected to a telecommunications network for unlawful purposes.

Proposed subsection 474.14(1)

Proposed subsection 474.14(1) will make it an offence to connect equipment to a telecommunications network with the intention of committing or facilitating the commission of an offence that is a serious offence against a law of the Commonwealth, a State or a Territory, or a serious offence against a foreign law. The key fault element for the conduct of connecting equipment to a telecommunications network is the intention to commit, or facilitate the commission of, an offence (whether by that person or another person).

A serious offence is an offence carrying a penalty of five years or more imprisonment or life imprisonment. A ‘serious offence against a foreign law’ is defined in proposed section 473.1 as an offence against a law of a foreign country constituted by conduct that, if it occurred in Australia, would constitute a serious offence against a law of the Commonwealth, a State or a Territory (see also the explanation of the definition of ‘serious offence against a foreign law’).

Proposed subsection 474.14(1) will cover a broad range of preparatory activities that make use of telecommunications, undertaken with the intention to commit, or facilitate the commission of, a serious offence. ‘Connected’, as defined in proposed section 473.1, includes connection otherwise than by means of physical contact, for example connection by radiocommunication. This means the proposed offence extends to, for example, the wireless connection of a mobile phone or other device to a telecommunications network with the requisite intention, as well the physical connection to a telecommunications network of, for example, network maintenance equipment, a telephone or a computer.

Proposed subsection 474.14(2)

Proposed subsection 474.14(2) will make it an offence to use equipment that is already connected to a telecommunications network in the commission of, or to facilitate the commission of, a serious offence against a law of the Commonwealth, a State or a Territory, or a serious offence against a foreign law.

No fault elements are specified as applying to the conduct that constitutes the offence (use of equipment in the commission of, or to facilitate the commission of, an offence) or the circumstance that the equipment used is connected to a telecommunications network. By operation of section 5.6 of the Criminal Code, intention applies to the conduct and recklessness to the circumstance as the default fault elements for these physical elements of the offence. Sections 5.2 and 5.4 of the Criminal Code define ‘intention’ and ‘recklessness’, respectively, as they apply to these physical elements.

The proposed offence under subsection 474.14(2) will cover any use of equipment connected to a telecommunications network to commit, or facilitate the commission of, an offence. Examples of the type of conduct covered by the proposed offence range from the simple making of a telephone call to facilitate the commission of a bank robbery to the use of a computer connected to the Internet to electronically remove money from a financial institution’s computer system.

Proposed subsection 474.14(3)

The proposed offences under subsections 474.14(1) and (2) would carry a maximum penalty equal to the maximum penalty for the serious offence the person commits or is intending to commit.

Proposed subsection 474.14(4)

Proposed subsection 474.14(4) provides that for the offences in both subsection 474.14(1) and (2), absolute liability applies to the circumstance that the offence is ‘a serious offence against a law of the Commonwealth, a State or a Territory, or a serious offence against a foreign law’. This means that it will not be necessary for the prosecution to prove a fault element in relation to that particular physical element, and that the defence of mistake of fact will not be available to the defence (see section 6.2 of the Criminal Code). It will still be necessary to show that the circumstance in fact exists. This element of the offence does not affect the culpability of the offender, but rather sets the perimeters of the offence. If the prosecution was required to prove awareness on the part of the defendant that the offence was a serious offence against the Commonwealth, a State, a Territory or a foreign law, many defendants would be able to evade liability. A defendant would be able to do this by demonstrating that they did not turn their mind to the questions of whether the offence was a serious offence and in which particular jurisdiction the offence was a serious offence.

Proposed subsections 474.14(5) and (6)

Proposed subsection 474.14(5) provides that a person can be found guilty of an offence against subsection 474.14(1) or (2), even if it is impossible to commit the serious offence. This provision reflects the emergent common law consensus that a person can be convicted of attempt – here, essentially a preparatory offence – even though completion of the offence was impossible in the circumstances. In other words, the law of attempt holds that it is irrelevant if a particular result does not occur.

Proposed subsection 474.14(6) provides that it is not an offence to attempt to commit an offence against subsection 474.14(1) or (2). Subsections 474.14(5) and (6) are drawn from the offence of attempt under section 11.1 of the Criminal Code. Given that the conduct covered by proposed section 474.14 is preparatory to any particular serious offence to which it applies, it is appropriate that it contain such provisions.

Proposed section 474.15 Using a carriage service to make a threat

Proposed section 474.15 contains offences prohibiting the use of a carriage service to threaten to kill or cause serious harm. Subsection 474.15(1) will make it an offence for a person to use a carriage service to threaten to kill either the person they are communicating with or a third person. A maximum penalty of 10 years imprisonment will apply. The maximum fine will be $66,000 for a natural person and $330,000 for a body corporate under the existing $110 value for a penalty unit in section 4AA of the Crimes Act, and the provisions for calculating maximum fines in section 4B of that Act.

Subsection 474.15(2) will make it an offence for a person to use a carriage service to threaten to cause serious harm to either the person they are communicating with or a third person. A maximum penalty of 7 years imprisonment will apply. The maximum fine will be $46,200 for a natural person and $231,000 for a body corporate under the existing $110 value for a penalty unit in section 4AA of the Crimes Act, and the provisions for calculating maximum fines in section 4B of that Act.

The key fault element of the threat offences is the intention to intimidate or instil fear in the person to whom the threat is made. Subsection 474.15(3) provides that there is no requirement that the threat actually instil fear in the person who receives the threat. A threat can be express or implied and may be conditional or unconditional (see the definition of ‘threat’ in the Dictionary of the Criminal Code).

Any use of telecommunications to make a threat to kill or cause serious harm to another person will be covered by the proposed offences, including by way of making a telephone call, sending a message by facsimile, sending an SMS message, or sending a message by email or some other means using the Internet.

The offences in proposed section 474.15 are drawn from the Model Criminal Code Officers Committee Report of 1998 on Non-Fatal Offences Against the Person (sections 5.1.20 and 5.1.21 of the Model Criminal Code). They are also consistent with the offences in section 471.11 of the Criminal Code, which deal with threats using a postal or similar service.

Proposed section 474.16 Using a carriage service for a hoax threat

Proposed section 474.16 will make it an offence to use a carriage service to send a communication with the intention of inducing a false belief that an explosive, or a dangerous or harmful substance or thing, has been or will be left in any place. The key fault element of the offence is the intention to induce the false belief.

Under proposed amendments to the Dictionary of the Criminal Code, ‘communication’ will cover any form of communication including in the form of text, speech, music, visual images (still or moving), signals and data (see Item 19). Any use of telecommunications to send such a communication, including by way of making a telephone call, sending a message by facsimile, sending an SMS message, or sending a message by email or some other means using the Internet will be covered by the proposed offence.

The proposed offence will carry a maximum penalty of 10 years imprisonment, reflecting the seriousness of the conduct and the financial impact such conduct can have. The maximum fine will be $66,000 for a natural person and $330,000 for a body corporate under the existing $110 value for a penalty unit in section 4AA of the Crimes Act, and the provisions for calculating maximum fines in section 4B of that Act.

Proposed section 474.16 is consistent with and carries the same maximum penalty as the existing offence dealing with the use of a postal or similar service to create the same type of hoax (subparagraph 471.10(1)(b)(ii) of the Criminal Code). This existing offence was introduced by the Government in 2002 as part of the Criminal Code Amendment (Anti-Hoax and Other Measures) Act 2002. This offence responded to the spate of anthrax hoaxes that occurred in Australia similar to the post-September 11 anthrax scares in the United States.

Proposed section 474.17 Using a carriage service to menace, harass or cause offence

Proposed subsection 474.17(1)

Proposed section 474.17 will replace existing section 85ZE of the Crimes Act as the offence provision dealing with menacing, harassing or offensive use of carriage services. Proposed subsection 474.17(1) is drafted differently to existing subsection 85ZE(1) to ensure it is drafted consistently with the existing Criminal Code offence dealing with use of a postal or similar service to menace, harass or cause offence (section 471.12). The maximum penalty of the proposed offence will be increased from one to three years imprisonment to appropriately reflect the seriousness of such conduct. The maximum fine will be $19,800 for a natural person and $99,000 for a body corporate under the existing $110 value for a penalty unit in section 4AA of the Crimes Act, and the provisions for calculating maximum fines in section 4B of that Act.

The proposed offence is broader than existing subsection 85ZE(1) in relation to menacing or harassing use of a carriage service, because it removes the requirement that the recipient be in fact menaced or harassed and replaces it with an objective standard. The proposed offence provides that reasonable persons must regard the use of the carriage service, given all the circumstances, as menacing, harassing or offensive. This allows community standards and common sense to be imported into a decision on whether the conduct is in fact menacing, harassing or offensive.

The proposed offence also broadens the coverage of the existing offence in relation to use of a carriage service that is offensive. Existing subsection 85ZE(2) provides that the offence dealing with use of a carriage service in an offensive manner does not apply to ‘Internet content’, as defined in Schedule 5 to the Broadcasting Services Act 1992 (Broadcasting Services Act). This exception has been removed under the proposed amendments, so that use of a carriage service, by way of the Internet, in an offensive manner will be covered by the offence.

The inclusion of ‘whether by the method of use or the content of a communication, or both’ is intended to clarify the type of use of a carriage service that the offence covers. ‘The method of use’ refers to the actual way the carriage service is used, rather than what is communicated during that use. The continual making of unwanted telephone calls to a particular person would fall into this category. ‘The content of a communication’ refers to what is communicated during the use of the carriage service, for example an email making threats may be considered menacing use of a carriage service. It is proposed to amend the parallel postal offence to clarify its coverage in the same way (see Item 7).

The existing offence in section 85ZE explicitly provides that the offending conduct, of using a carriage service, must be intentional. The reference to intention is not included in proposed section 474.17, because by application of the default fault elements of section 5.6 of the Criminal Code the fault element of intention will automatically apply to this physical element of conduct. This means that a person must intentionally use the carriage service to be found guilty of the offence.

The fact that the use of the carriage service occurs in a way that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive constitutes a circumstance in which the offending conduct must occur. By application of the default fault elements in section 5.6 of the Criminal Code, the fault element of recklessness will apply to a physical element of an offence that is a circumstance. ‘Recklessness’ as it applies to a circumstance is defined in section 5.4 of the Criminal Code.

Examples of the type of use of a carriage service the proposed offence may cover include use that would make a person apprehensive as to their safety or well-being or the safety of their property, use that encourages or incites violence, and use that vilifies persons on the basis of their race or religion.

Proposed subsection 474.17(2)

Proposed subsection 474.17(2) is to make it clear that use of a carriage service to menace, harass or cause offence to employees of the NRS provider, emergency call persons, employees of emergency service organisations and National Security Hotline call takers (see the explanations of the definitions of ‘NRS provider’, ‘emergency call person’ and ‘emergency service organisation’) is caught by the offence in proposed subsection 474.17(1). Abuse and harassment in these circumstances is particularly serious, because of the effect it may have on the people who provide these important services and the delays it creates in handling legitimate calls (see also the offence under proposed section 474.18).

Proposed section 474.18 Improper use of emergency call service

Proposed subsection 474.18(1) will cover hoax calls to emergency service numbers in that it will make it an offence to call an emergency service number with the intention of inducing a false belief that an emergency exists. Proposed subsection 474.18(2) will cover other calls to emergency service numbers that are made otherwise than for the purpose of reporting an emergency and are considered ‘vexatious’. ‘Emergency service number’ is defined in proposed section 473.1 and currently includes ‘000’, ‘112’ (for mobile phones) and ‘106’ (a text emergency call service for people who are deaf or have a hearing or speech impairment).

The maximum penalty for the proposed offences will be three years imprisonment to appropriately reflect the seriousness of such conduct. The maximum fine will be $19,800 for a natural person and $99,000 for a body corporate under the existing $110 value for a penalty unit in section 4AA of the Crimes Act, and the provisions for calculating maximum fines in section 4B of that Act.

Proposed subsection 474.18(3) will outline the factors to consider in determining whether a call is a vexatious one. These factors are the content of the call; the number, frequency and content of previous calls the person has made to emergency service numbers otherwise than for the purpose of reporting emergencies; and any other relevant matter. Under this provision, abusive phone calls and phone calls that are made to an emergency service number on a repetitive basis for reasons other than reporting an emergency will be considered vexatious.

It is estimated that less than 10 per cent of calls to the emergency service numbers of ‘000’, ‘112’ and ‘106’ relate to anything approaching an emergency. This means a substantial proportion of calls are intentional nuisance calls. Every call made that does not concern an emergency delays call centre staff from handling legitimate calls made to the emergency call service, which in turn potentially delays the response to an emergency. These proposed offences are intended to act as a deterrent for this type of conduct and appropriately punish those who do abuse this vital service.

Proposed section 474.19 Using a carriage service for child pornography material

Proposed subsection 474.19(1) will make it an offence for a person to use a carriage service to access, transmit to themself, transmit generally, make available, or publish or otherwise distribute child pornography material. ‘Access’ and ‘child pornography material’ are defined in proposed section 473.1 (see also the explanation of these definitions).

The maximum penalty for the proposed offence is 10 years imprisonment, reflecting the seriousness of this type of conduct. This penalty is the same as the maximum penalty for the importation or exportation of child pornography in hard copy under section 233BAB of the Customs Act 1901.

The proposed offence is particularly aimed at use of the Internet, email and other online applications to trade or traffic in child pornography. It is intended to cover the range of activities that a person can engage in when using these applications, including, amongst others, viewing; copying; downloading; making available for viewing, copying or downloading; sending and exchanging.

Although technically unnecessary, subsections 474.19(2) and (3) have been included so that the offence in subsection 474.19(1) does not act as a deterrent for people wanting to report Internet child pornography to the appropriate authorities (the Australian Federal Police, State or Territory police or the Australian Broadcasting Authority under Schedule 5 of the Broadcasting Services Act). These provisions are aimed in particular at persons who accidentally come across child pornography on the Internet or receive spam email containing such material, and who may be concerned that in reporting such material they will be admitting their own liability to the offence.

Subsection 474.19(2) provides that intention applies as the fault element for the conduct listed in paragraph 474.19(1)(a) and recklessness is the fault element for the circumstance that the material is child pornography, provided in paragraph 474.19(1)(b). These are the default fault elements that would have applied if this subsection was not included, by application of section 5.6 of the Criminal Code. ‘Intention’ and ‘recklessness’ are defined in sections 5.2 and 5.4 of the Criminal Code, respectively. By operation of these fault elements, a person who accidentally comes across child pornography on the Internet would not be caught by the proposed offence, because they would not have had any awareness that the material they were accessing was in fact child pornography.

Subsection 474.19(3) provides that defences to the proposed offence are provided in proposed section 474.21.

Proposed section 474.20 Possessing, producing, supplying or obtaining child pornography material for use through a carriage service

Proposed subsection 474.20(1) will make it an offence for a person to possess, control, produce, supply or obtain child pornography material with the intention that it be used, by that person or another person, in committing an offence against proposed section 474.19 (the primary offence). A specific preparatory offence is necessary, because this conduct would not always be caught by the extension of criminal liability in Division 11 of Part 2.4 of the Criminal Code. The proposed offence will carry a maximum penalty of 10 years imprisonment, the same as the primary offence.

The proposed offence covers a broad range of preparatory conduct undertaken with the intention to commit the primary offence. The offence would apply to the possession of a pornographic photograph of a child, provided the person with possession intended that the photograph be made available on the Internet. The offence would also apply to the actual production of child pornography, if persons involved in the production intended to place the material on the Internet. Proposed sections 473.2 and 473.3 outline situations that are considered ‘possession or control of material in the form of data’ or ‘producing, supplying or obtaining material in the form of data’ for the purposes of this proposed offence (see also the explanation of proposed sections 473.2 and 473.3).

Subsection 474.20(2) provides that a person can be found guilty of an offence against subsection 474.20(1), even if it is impossible to commit the primary offence. This provision reflects the emergent common law consensus that a person can be convicted of attempt – here, essentially a preparatory offence – even though completion of the offence was impossible in the circumstances. In other words, the law of attempt holds that it is irrelevant if a particular result does not occur. Subsection 474.20(3) provides that it is not an offence to attempt to commit an offence against subsection 474.20(1). Subsections 474.20(2) and (3) of the proposed offence are drawn from the offence of attempt under section 11.1 of the Criminal Code. Given that the conduct in proposed section 474.20 is preparatory to the primary offence, it is appropriate that it contain such provisions.

Proposed section 474.21 Defences in respect of child pornography material

Most of the defences in proposed section 474.21 are similar in application to the general defence of lawful authority in section 10.5 of the Criminal Code. However, that defence is not specific to the circumstances covered by these defences and does not sufficiently cover all the types of people that would be legitimately entitled to a defence for the proposed child pornography material offences.

The defendant bears the burden of pointing to evidence which supports the defences outlined below. It will generally be much easier for a defendant, rather than the prosecution, to produce evidence showing that the circumstances to which the defences apply do in fact exist.

Proposed subsection 474.21(1) and (2)

Proposed subsection 474.21(1) provides a defence to the offences in proposed sections 474.19 and 474.20 for persons who engage in particular conduct that is of public benefit and does not extend beyond what is of public benefit. The test is an objective one, meaning the motives or intentions of the person who engaged in the conduct are not relevant and would not be considered in determining whether the conduct is in fact of public benefit.

Proposed subsection 474.21(2) provides an exhaustive list of conduct that is of public benefit. If a person engages in conduct that meets one of the four criteria in proposed subsection 474.21(2) it will be considered to be ‘of public benefit’ for the purposes of proposed subsection 474.21(1). It will be a question of fact, to be determined by the arbiter of fact, as to whether the conduct meets one of the four criteria and therefore is of public benefit. It will also be a question of fact as to whether the conduct extends beyond what is of public benefit.

Proposed paragraph 474.21(2)(a) covers conduct that is necessary or of assistance in enforcing a law of the Commonwealth, a State or a Territory. This defence would have very limited application and is targeted at persons who may be required to engage in the offending conduct as part of their duties in connection with law enforcement, but who are not covered by the defence for law enforcement officers in subsection 474.21(3). An example of the type of situation the defence is intended to cover is where a criminologist may assist law enforcement agencies in the identification of victims of child abuse.

Proposed paragraph 474.21(2)(b) covers conduct that is necessary or of assistance in monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or a Territory. This defence is targeted at officers of government agencies involved in the monitoring and investigation of online material in accordance with regulatory schemes that they administer.

In the Commonwealth jurisdiction, the Australian Broadcasting Authority (ABA), the Australian Communications Authority (ACA) and the Office of Film and Literature Classification (OFLC) are bodies that would be covered by this defence.

Under the Online Content Co-Regulatory Scheme (the Scheme), created by Schedule 5 of the Broadcasting Services Act, the ABA handles and investigates complaints from the public about prohibited Internet content or potential prohibited Internet content and can order Australian Internet content hosts not to host such content. The Scheme also requires scheduled filter software manufacturers to update their filters in accordance with ABA notifications so that prohibited content or potential prohibited Internet cannot be accessed when using such software. ‘Prohibited content’ is material that has been refused classification or classified ‘X’. Content hosted in Australia that is classified ‘R’ is also prohibited if the offending material is not subject to adult verification restrictions. ‘Potential prohibited content’ is Internet content that has not been classified by the OFLC but, if it were to be classified, there is a substantial likelihood that the content would be prohibited content.

‘Child pornography material’, as defined in proposed section 473.1, would be considered prohibited content under the Scheme. The OFLC is involved in the classification of material for the purposes of determining whether it is prohibited content under the Scheme. The ACA will be involved in the investigation of spam emails under the Spam Act 2003. In this role the ACA may also have to deal with online content that is child pornography material.

Proposed paragraph 474.21(2)(c) covers conduct that is necessary or of assistance in the administration of justice. This defence is targeted at persons involved in, or persons who through their work are required to assist another person involved in, court proceedings brought to enforce criminal offences related to child pornography or other activities involving paedophilia. The types of people covered by the defence would include judicial officers, or other officers, of a court hearing the proceedings, legal representatives of a party to the proceedings, and witnesses in the proceedings. This defence is likely to have greater application as the electronic transmission of documents and files for the purposes of court proceedings becomes more prevalent.

Proposed paragraph 474.21(2)(d) covers conduct that is necessary or of assistance in conducting scientific, medical or educational research that has been approved by the Minister in writing for the purposes of this section. This defence will ensure that legitimate research dealing with child pornography on the Internet can be undertaken provided the authorisation of the Minister for Justice and Customs is received. Persons who are caught with Internet child pornography and who argue that they were involved in ‘personal research’ will not have a defence available to them unless they have received approval for their research from the Minister. Likewise, if a person who has received approval for particular research engages in conduct that falls outside what is ‘necessary for or of assistance in’ conducting that research, the defence will not be available to them.

Proposed subsection 474.21(3)

Proposed subsection 474.21(3) provides a defence against the offences in proposed sections 474.19 and 474.20 for law enforcement officers, and intelligence or security officers, acting in the course of their duties where their conduct is reasonable in the circumstances for the purpose of performing that duty. ‘Law enforcement officer’ and ‘intelligence or security officer’ are defined in proposed section 473.1.

The defence in subsection 474.21(3) is consistent with the defence for law enforcement officers in the 1998 Model Criminal Code Officers Committee Report on Non-Fatal Offences Against the Person (section 5.1.42 of the Model Criminal Code). Although the non-fatal offences in the Model Criminal Code deal with different issues to those in proposed sections 474.19 and 474.20, it is appropriate that this defence for the proposed offences carry the same two limbs, because of the particularly sensitive nature of the material involved.

Some law enforcement officers, and intelligence or security officers, will be required to access, transmit, etc child pornography material using the Internet as part of their duties. In performing their work, it is important that these officers consider, in every situation where they are dealing with child pornography, whether their conduct concerning that material is reasonable for the purpose of fulfilling their duties. For example, a law enforcement officer who sends an email containing child pornography to colleagues as part of an investigation would ordinarily be covered by the defence. However, if that same officer intentionally included amongst the email recipients a friend who had no involvement in the investigation, the officer may not be covered by this defence.

Proposed subsection 474.21(4)

Proposed subsection 474.21(4) provides a defence against the offences in proposed sections 474.19 and 474.20 for two groups of persons who engage in the offending conduct in good faith for purposes related to the operation of the Online Content Co-Regulatory Scheme (the Scheme) under Schedule 5 of the Broadcasting Services Act (see an explanation of the Scheme above, in discussion of paragraph 474.21(2)(b)). Paragraph 474.21(4)(a) concerns persons who engage in the offending conduct for the sole purpose of assisting the Australian Broadcasting Authority (ABA) to detect prohibited content or potential prohibited content in the performance of its functions under the Scheme. An example of a situation in which this defence would apply is where a person makes a complaint to the ABA under the Scheme by emailing an attachment containing child pornography material. A person whose only reason for transmitting such material is to assist the ABA in its functions under the Scheme should not be liable for that conduct.

Paragraph 474.21(4)(b) provides a defence for persons involved in the manufacturing, developing or updating of content filtering technology (including software) in accordance with a ‘recognised alternative access-prevention arrangement’ or ‘designated alternative access-prevention arrangement’. These terms are defined in clauses 40 and 60 of Schedule 5 of the Broadcasting Services Act, respectively. Under the Scheme, these access prevention arrangements involve the development of filtering software and filtered carriage services designed to block prohibited content. These are to be updated in accordance with notices issued by the ABA providing details of Internet sites that contain prohibited content. In updating their filters, software manufacturers and Internet service providers that offer filtered carriage services may need to access sites that contain prohibited content.

Proposed section 474.22 Using a carriage service for child abuse material

Proposed subsection 474.22(1) will make it an offence for a person to use a carriage service to access, transmit to themself, transmit generally, make available, or publish or otherwise distribute child abuse material. ‘Access’ and ‘child abuse material’ are defined in proposed section 473.1 (see also the explanation of these definitions).

The maximum penalty for the proposed offence is 10 years imprisonment, reflecting the seriousness of this type of conduct. This penalty is the same as the maximum penalty for the importation or exportation of child abuse material in hard copy under section 233BAB of the Customs Act 1901.

The proposed offence is particularly aimed at use of the Internet, email and other online applications to trade or traffic in child abuse material. It is intended to cover the range of activities that a person can engage in when using these applications, including, amongst others, viewing; copying; downloading; making available for viewing, copying or downloading; sending and exchanging.

Although technically unnecessary, subsections 474.22(2) and (3) have been included so that the offence in subsection 474.22(1) does not act as a deterrent for people wanting to report Internet child abuse material to the appropriate authorities (the Australian Federal Police, State or Territory police or the Australian Broadcasting Authority under Schedule 5 of the Broadcasting Services Act). These provisions are aimed in particular at persons who accidentally come across child abuse material on the Internet or receive spam email containing such material, and who may be concerned that in reporting such material they will be admitting their own liability to the offence.

Proposed subsection 474.22(2) provides that intention applies as the fault element for the conduct listed in paragraph 474.22(1)(a) and recklessness is the fault element for the circumstance that the material is child abuse material, provided in paragraph 474.22(1)(b). These are the default fault elements that would have applied if this subsection was not included, by application of section 5.6 of the Criminal Code. ‘Intention’ and ‘recklessness’ are defined in sections 5.2 and 5.4 of the Criminal Code, respectively. By operation of these fault elements, a person who accidentally comes across child abuse material on the Internet would not be caught by the proposed offence, because they would not have had any awareness that the material they were accessing was in fact child abuse material.

Proposed subsection 474.22(3) provides that defences to the proposed offence are provided in proposed section 474.24.

Proposed section 474.23 Possessing, producing, supplying or obtaining child abuse material for use through a carriage service

Proposed subsection 474.23(1) will make it an offence for a person to possess, control, produce, supply or obtain child abuse material with the intention that it be used, by that person or another person, in committing an offence against proposed section 474.22 (the primary offence). A specific preparatory offence is necessary, because this conduct would not always be caught by the extension of criminal liability in Division 11 of Part 2.4 of the Criminal Code. The proposed offence will carry a maximum penalty of 10 years imprisonment, the same as the primary offence.

The proposed offence covers a broad range of preparatory conduct undertaken with the intention to commit the primary offence. The offence would apply to the possession of a photograph that meets the definition of ‘child abuse material’ under proposed section 473.1, provided the person with possession intended that the photograph be made available on the Internet. The offence would also apply to the actual production of child abuse material, if persons involved in the production intended to place the material on the Internet. Proposed sections 473.2 and 473.3 outline situations that are considered ‘possession or control of material in the form of data’ or ‘producing, supplying or obtaining material in the form of data’ for the purposes of this proposed offence (see also the explanation of proposed sections 473.2 and 473.3).

Proposed subsection 474.23(2) provides that a person can be found guilty of an offence against subsection 474.23(1), even if it is impossible to commit the primary offence. This provision reflects the emergent common law consensus that a person can be convicted of attempt – here, essentially a preparatory offence – even though completion of the offence was impossible in the circumstances. In other words, the law of attempt holds that it is irrelevant if a particular result does not occur. Subsection 474.23(3) provides that it is not an offence to attempt to commit an offence against subsection 474.23(1). Subsections 474.23(2) and (3) of the proposed offence are drawn from the offence of attempt under section 11.1 of the Criminal Code. Given proposed section 474.23’s preparatory nature in relation to the primary offence, it is appropriate that it contain such provisions.

Proposed section 474.24 Defences in respect of child abuse material

Most of the defences in proposed section 474.24 are similar in application to the general defence of lawful authority in section 10.5 of the Criminal Code. However, that defence is not specific to the circumstances covered by these defences and does not sufficiently cover all the types of people that would be legitimately entitled to a defence for the proposed child abuse material offences.

The defendant bears the burden of pointing to evidence which supports the defences outlined below. It will generally be much easier for a defendant, rather than the prosecution, to produce evidence showing that the circumstances to which the defences apply do in fact exist.

Proposed subsection 474.24(1) and (2)

Proposed subsection 474.24(1) provides a defence against the offences in proposed sections 474.22 and 474.23 for persons who engage in particular conduct that is of public benefit and does not extend beyond what is of public benefit. The test is an objective one, meaning the motives or intentions of the person who engaged in the conduct are not relevant and will not be considered in determining whether the conduct is in fact of public benefit.

Proposed subsection 474.24(2) provides an exhaustive list of conduct that is of public benefit. If a person engages in conduct that meets one of the four criteria in proposed subsection 474.24(2) it will be considered to be ‘of public benefit’ for the purposes of proposed subsection 474.24(1). It will be a question of fact, to be determined by the arbiter of fact, as to whether the conduct meets one of the four criteria and therefore is of public benefit. It will also be a question of fact as to whether the conduct extends beyond what is of public benefit.

Proposed paragraph 474.24(2)(a) covers conduct that is necessary or of assistance in enforcing a law of the Commonwealth, a State or a Territory. This defence would have very limited application and is targeted at persons who may be required to engage in the offending conduct as part of their duties in connection with law enforcement, but who are not covered by the defence for law enforcement officers in subsection 474.24(3). An example of the type of situation the defence is intended to cover is where a criminologist may assist law enforcement agencies in the identification of victims of child abuse.

Proposed paragraph 474.24(2)(b) covers conduct that is necessary or of assistance in monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or a Territory. This defence is targeted at officers of government agencies involved in the monitoring and investigation of online material in accordance with regulatory schemes that they administer.

In the Commonwealth jurisdiction, the Australian Broadcasting Authority (ABA), the Australian Communications Authority (ACA) and the Office of Film and Literature Classification (OFLC) are bodies that would be covered by this defence.

Under the Online Content Co-Regulatory Scheme (the Scheme), created by Schedule 5 of the Broadcasting Services Act, the ABA handles and investigates complaints from the public about prohibited Internet content or potential prohibited Internet content and can order Australian Internet content hosts not to host such content. The Scheme also requires scheduled filter software manufacturers to update their filters in accordance with ABA notifications so that prohibited content or potential prohibited Internet cannot be accessed when using such software. ‘Prohibited content’ is material that has been refused classification or classified ‘X’. Content hosted in Australia that is classified ‘R’ is also prohibited if the offending material is not subject to adult verification restrictions. ‘Potential prohibited content’ is Internet content that has not been classified by the OFLC but, if it were to be classified, there is a substantial likelihood that the content would be prohibited content.

‘Child abuse material’, as defined in proposed section 473.1, would be considered prohibited content under the Scheme. The OFLC is involved in the classification of material for the purposes of determining whether it is prohibited content under the Scheme. The ACA will be involved in the investigation of spam emails under the Spam Act 2003. In this role the ACA may also have to deal with online content that is child abuse material.

Proposed paragraph 474.24(2)(c) covers conduct that is necessary or of assistance in the administration of justice. This defence is targeted at persons involved in, or persons who through their work are required to assist another person involved in, court proceedings brought to enforce criminal offences related to child abuse material or other activities involving child abuse. The types of people covered by the defence would include judicial officers, or other officers, of a court hearing the proceedings, legal representatives of a party to the proceedings, and witnesses in the proceedings. This defence is likely to have greater application as the electronic transmission of documents and files for the purposes of court proceedings becomes more prevalent.

Proposed paragraph 474.24(2)(d) covers conduct that is necessary or of assistance in conducting scientific, medical or educational research that has been approved by the Minister in writing for the purposes of this section. This defence will ensure that legitimate research dealing with child abuse material on the Internet can be undertaken provided the authorisation of the Minister for Justice and Customs is received. Persons who are caught with Internet child abuse material and who argue that they were involved in ‘personal research’ will not have a defence available to them unless they have received approval for their research from the Minister. Likewise, if a person who has received approval for particular research, engages in conduct that falls outside what is ‘necessary for or of assistance in’ conducting that research the defence will not be available to them.

Proposed subsection 474.24(3)

Proposed subsection 474.24(3) provides a defence against the offences in proposed sections 474.22 and 474.23 for law enforcement officers, and intelligence or security officers, acting in the course of their duties where their conduct is reasonable in the circumstances for the purpose of performing that duty. ‘Law enforcement officer’ and ‘intelligence or security officer’ are defined in proposed section 473.1.

The defence in subsection 474.24(3) is consistent with the defence for law enforcement officers in the 1998 Model Criminal Code Officers Committee Report on Non-Fatal Offences Against the Person (section 5.1.42 of the Model Criminal Code). Although the non-fatal offences in the Model Criminal Code deal with different issues to those in proposed sections 474.22 and 474.23, it is appropriate that this defence for the proposed offences carry the same two limbs, because of the particularly sensitive nature of the material involved.

Some law enforcement officers, and intelligence or security officers, will be required to access, transmit, etc child abuse material using the Internet as part of their duties. In performing their work, it is important that these officers consider, in every situation where they are dealing with child abuse material, whether their conduct concerning that material is reasonable for the purpose of fulfilling their duties. For example, a law enforcement officer who sends an email containing child abuse material to colleagues as part of an investigation would ordinarily be covered by the defence. However, if that same officer intentionally included amongst the email recipients a friend who had no involvement in the investigation, the officer may not be covered by this defence.

Proposed subsection 474.24(4)

Proposed subsection 474.24(4) provides a defence against the offences in proposed sections 474.22 and 474.23 for two groups of persons who engage in the offending conduct in good faith for purposes related to the operation of the Online Content Co-Regulatory Scheme (the Scheme) under Schedule 5 of the Broadcasting Services Act (see an explanation of the Scheme above, in discussion of paragraph 474.24(2)(b)).

Proposed paragraph 474.24(4)(a) concerns persons who engage in the offending conduct for the sole purpose of assisting the Australian Broadcasting Authority (ABA) to detect prohibited content or potential prohibited content in the performance of its functions under the Scheme. An example of a situation in which this defence would apply is where a person makes a complaint to the ABA under the Scheme by emailing an attachment containing child abuse material. A person whose only reason for transmitting such material is to assist the ABA in its functions under the Scheme should not be liable for that conduct.

Paragraph 474.24(4)(b) provides a defence for persons involved in the manufacturing, developing or updating of content filtering technology (including software) in accordance with a ‘recognised alternative access-prevention arrangement’ or ‘designated alternative access-prevention arrangement’. These terms are defined in clauses 40 and 60 of Schedule 5 of the Broadcasting Services Act, respectively. Under the Scheme, these access prevention arrangements involve the development of filtering software and filtered carriage services designed to block prohibited content. These are to be updated in accordance with notices issued by the ABA providing details of Internet sites that contain prohibited content. In updating their filters, software manufacturers and Internet service providers that offer filtered carriage services may need to access sites that contain prohibited content.

Proposed section 474.25 Obligations of internet service providers

Proposed section 474.25 obliges Internet service providers (ISPs) and Internet content hosts (ICHs) who become aware that the service they provide can be used to access particular material that they have reasonable grounds to believe is child pornography material or child abuse material to refer the details of that material to the Australian Federal Police within a reasonable time.

Non-compliance with this obligation will be an offence punishable by a maximum penalty of 100 penalty units, which is $11,000 under the existing $110 value for a penalty unit in section 4AA of the Crimes Act. The maximum fine will be $55,000 for a body corporate under the provisions for calculating maximum fines in section 4B of that Act.

This provision is intended to ensure that where complaints are made to ISPs and ICHs about particular material accessed using their services, that material, or the details of how to access that material (for example, the website address), is forwarded to the appropriate law enforcement authority. An ISP or ICH will only be under this obligation where they have reasonable grounds to believe the material is child pornography material or child abuse material. For example, if a person makes a complaint to an ISP or ICH about material that is obviously not child pornography or child abuse material, they will be under no obligation to refer the material. ‘Child pornography material’ and ‘child abuse material’ are defined in proposed section 473.1.

Proposed sections 474.26 – 474.29 “grooming” and “procuring” offences

Proposed sections 474.26 – 474.29 contain an offence regime targeting adult offenders who exploit the anonymity of telecommunications services (for example, the Internet) to win the trust of a child as a first step towards the future sexual abuse of that child. The practice is known as ‘online grooming’.

There are two steps routinely taken by adult offenders leading up to a real life meeting between adult and child victim that results in child sexual abuse:

(i) The adult wins the trust of a child over a period of time. Adults often use ‘chat rooms’ on the Internet to do this. They may pose as another child, or as a sympathetic ‘parent’ figure. Paedophiles reportedly expose children to pornographic images as part of this ‘grooming’ process. It is proposed to specifically criminalize this practice. Specific offences would remove any doubt about whether online ‘grooming’ of a child before actual contact is ‘mere preparation’ (i.e. not a criminal offence) or an unlawful attempt to commit child sexual abuse.

(ii) With the child’s trust won, adults often use telecommunications services to set up a meeting with the child. Although this step is more likely to be characterised as an attempt to commit child sexual abuse than step (i), it is desirable to provide a firm justification for police action by enacting specific ‘procurement’ or ‘solicitation’ offences. This is consistent with the underlying rationale for the new offences: to allow law enforcement to intervene before a child is actually abused.



The proposed offences would operate nationwide, subject to the same category A jurisdiction as the other telecommunications offences.



The same proposed definition of ‘communication’ (see proposed item 19 Schedule 1, Part 2 of the Bill) that applies to the other proposed telecommunications offences in the Bill would apply to these ‘grooming’ and ‘procuring’ offences.



Throughout this Explanatory Memorandum, ‘recipient’ refers to a person who is, or is believed to be, under 16 years of age.

Proposed section 474.26 Using a carriage service to procure person under 16 years of age

Proposed section 474.26 contains three separate ‘procuring’ offences. The proposed maximum penalty is imprisonment for 15 years for each offence. The maximum penalty level proposed is less than the federal child sex tourism offences in Part IIIA of the Crimes Act 1914 (imprisonment for 17 years) where actual sexual penetration of a child may occur but is greater than the proposed child pornography offences (imprisonment for 10 years), also included in this Bill, given the intent to commit actual abuse.



The proposed offence in subsection 474.26(1) would apply to acts of procurement where the sender intends to procure the recipient to engage in sexual activity with the sender. Proposed paragraph 474.26(1)(b) contains this fundamental component of the offences: the sender must actually intend to procure sexual activity. It is not enough for the prosecution to show that the communications between sender and recipient were of a nature that would suggest the sender wanted to engage in sexual activity with the recipient. The prosecution must prove that the sender had this specific intention.

The term ‘or submit to’ in proposed subparagraph 474.26(1)(b)(i) underscores the often non-consensual nature of the sexual activity the sender seeks to procure from the recipient.



Proposed paragraph 474.26(1)(c) makes it clear that the recipient must be a child (that is, under 16 years of age) or someone whom the sender believes to be under 16 years of age. This second formulation is necessary to cater for a standard investigatory technique. A typical investigation would involve an AFP officer, or investigator at the Australian High Tech Crime Centre, assuming the identity of a fictitious child, interacting with potential predatory adults over the internet, and arresting a predatory adult before they have an opportunity to sexually abuse a real child that they are also ‘grooming’. Absolute liability attaches to this physical element of circumstance of the offence (see commentary for section 474.28).



Proposed paragraph 474.26(1)(d) makes it clear that the offence only targets adult offenders (that is, persons who are at least 18 years of age). It is not proposed to capture senders who are less than 18 years of age. Sexual activity between children should continue to be a responsibility for State and Territory governments. Absolute liability applies to this physical element of circumstance of the offence - that is, the age of the recipient. Applying absolute liability is consistent with section 50BA of the Crimes Act, which targets child sex tourism.



The proposed offence in subsection 474.26(2) operates in the same way as the proposed offence in subsection 474.26(1) outlined above, subject to one key difference: the sender transmits a communication with the intention of facilitating a meeting between the recipient and another adult person (rather than the sender).



The mechanics of the proposed offence are the same as the proposed offence in subsection 474.26(1). This offence mirrors the proposed offence in subsection 474.26(1) so that the other person mentioned in proposed paragraph 474.26(2)(b) must be someone who is, or who the sender believes to be, at least 18 years of age.



The proposed offence in subsection 474.26(3) targets another ‘procuring’ scenario: where an offender procures two children to engage in sexual activity in the presence of that offender or another adult. This proposed offence reflects a similar child sex tourism offence in the Crimes Act 1914, which also has a presence requirement.



The presence requirement is important. If an adult sender facilitates a meeting between two children for the purposes of sexual activity, and that activity occurs in private between those two children, then these proposed federal offences should not apply. Sexual activity between children in these circumstances should remain a matter to be regulated by the States and Territories. If the sexual activity is recorded by the adult sender or another person, then the act of recording would satisfy the presence requirement, or would otherwise be captured by relevant State and Territory child pornography offences.



Subject to this additional element, the mechanics of the proposed offence are the same as the proposed offence in subsection 474.26(2).



Proposed section 474.27 Using a carriage service to “groom” persons under 16 years of age

There are three new offences proposed to specifically target actual ‘grooming’ Each of them closely tracks the three ‘procuring’ offences in proposed section 474.26.

Paedophiles expose children to pornographic images as part of the ‘grooming’ process. But the new offences would apply even if no pictorial pornographic material is shown to a child. Exposure to pornographic and sexual concepts, even if only written, would constitute ‘grooming’. This broader coverage is evident in proposed paragraphs 474.27(1)(b), 474.27(2)(b) and 474.27(3)(b), which refer to communications that include ‘material that is indecent’. The term ‘material’ would be defined consistently with the definition of material in the proposed Internet child pornography offences (proposed section 473.1 defines material to include material in any form, or combination of forms, capable of constituting a communication). The phrase ‘material that is indecent’ is also defined via proposed subsection 474.27(5) in a manner that allows the courts to interpret it in line with community standards. The courts have a long history of successfully working with this terminology. This is discussed in greater detail below.

The proposed maximum penalty for the ‘grooming’ offences is imprisonment for 12 years. The ‘grooming’ offences would often involve using a carriage service to send pornographic images, including child pornography material. Therefore, a maximum penalty of at least imprisonment for 10 years is necessary to maintain consistency with the proposed offences targeting the distribution of child pornography material, also included in the Bill. The penalty for ‘grooming’ should be lower than the proposed penalty of imprisonment for 15 years for ‘procuring’: the act of ‘procurement’ is arguably more serious, being closer to the commission of actual child sexual abuse.

Proposed subsection 474.27(1) targets the typical ‘grooming’ scenario where an adult communicates with a recipient with the intention that those communications will make it easier for the sender to engage in sexual activity with the recipient.

The mechanics of this proposed offence also operate in the same way as the ‘procuring’ offences in proposed section 474.26. The recipient must be under 16 years of age or the sender must believe the recipient is under 16 years of age. The same techniques would be used to investigate the proposed ‘grooming’ offences so it is important to cover instances when the sender believed the recipient was under 16 years of age when this was not true in fact.

Proposed subsection 474.27(2) operates in the same way as proposed subsection 474.27(1) with the only difference being that the sender is ‘grooming’ the recipient for sexual activity with another adult person rather than the sender.

The mechanics of this offence otherwise mirror the operation of the proposed offence at subsection 474.27(1).

The proposed offence in subsection 474.27(3) targets the third ‘grooming’ scenario: where an offender ‘grooms’ two children to engage in sexual activity in the presence of that offender or another adult. As with the similar ‘procuring’ offence at proposed subsection 474.26(3), this proposed offence reflects a similar child sex tourism offence in the Crimes Act 1914, which also has a presence requirement.

The mechanics of this offence otherwise mirror the operation of the proposed offence at subsection 474.27(1).

Proposed subsections 474.27(4) and (5) impact upon one of the physical elements of the ‘grooming’ offences: that the communication includes material that is indecent.

Proposed subsection 474.27(5) defines indecent to mean indecent according to the standards of ordinary people. Courts are well practiced at applying the standards of ordinary people in the criminal law context. An example illustrates how this physical element of the ‘grooming’ offences would operate. A sender may send child pornography material to the recipient in an effort to suggest the types of activities the sender would like to engage with the recipient. It seems clear that the child pornography material would be regarded as indecent according to the standards of ordinary people.

Alternatively, the sender may send adult pornographic material through to the recipient. There may be members of the Australian community that would not regard this material as indecent. However, the context in which the communication is sent is also important to this element of the ‘grooming’ offences. The sending of pornographic material to a child, or a person the sender believes is under 16 years of age, would presumably be viewed differently to the sending of pornographic material to another adult. The fact that a child recipient is involved would usually be sufficient to mean that the communication involved ‘material that is indecent’. Another example could be a chain of communications between sender and recipient where the sender inquires about the recipients clothing, including undergarments, and makes other sexually suggestive comments. In circumstances where the recipient is a child, or a person the sender believes to be under 16 years of age, it is likely that this would be considered indecent according to the standards of ordinary people.

Proposed subsection 474.27(4) makes it clear that the determination as to whether material is indecent according to the standards of ordinary people is a matter for the trier of fact. It is not a legal question. The court and/or jury are charged with the responsibility of determining this factual question based on the evidence presented during a prosecution.

Proposed section 474.28 Provisions relating to offences against sections 474.26 and 474.27

This proposed section contains a number of machinery provisions that are crucial to the proposed offence provisions in sections 474.26 and 474.27.

Proposed subsection 474.2 8(1) states that for the proposed ‘procuring’ and ‘grooming’ offences at sections 474.26 and 474.27, absolute liability applies to the physical element of circumstance in each offence that the recipient is under 16 years of age. Absolute liability is defined in section 6.2 of the Criminal Code. This means that the prosecution is not required to prove intention, knowledge, recklessness or negligence with respect that that element. The dramatic effect of imposing absolute liability is ameliorated through the provision of a specific defence based on belief about age in proposed subsection 474.29(1). Applying absolute liability to this element of each offence, together with a belief of age defence, is consistent with the child sex tourism offences in Part IIIA of the Crimes Act 1914.

Proposed subsection 474.28(2) states that for the proposed ‘procuring’ and ‘grooming’ offences at subsections 474.26(2) or (3) or 474.27(2) or (3), absolute liability applies to the physical element of circumstance in each offence that the other person who is to engage in sexual activity with the recipient is at least 18 years of age. Absolute liability is defined in section 6.2 of the Criminal Code. This means that the prosecution is not required to prove intention, knowledge, recklessness or negligence with respect to that element. The dramatic effect of imposing absolute liability is ameliorated through the provision of a specific defence based on belief about age in proposed subsection 474.29(2).

Proposed subsections 474.28(3) and 474.28(4) impact upon the evidentiary requirement to prove the sender’s belief about the age of the recipient or, if relevant, the age of the other person who is to engage in sexual activity with the recipient or is to be present during the sexual activity. This is a significant burden of proof for the prosecution to overcome. These provisions ensure that the prosecution can rely on representations made to a defendant (e.g. in an online internet exchange from the recipient) relating to the age of the recipient or other person in discharging that burden. A defendant is permitted to introduce evidence that contradicts these types of representations.

Proposed subsections 474.28(5), (6) and (7) would implement provisions that mirror those contained in the child sex tourism offences in Part IIIA of the Crimes Act 1914 (see section 50FA).

Proposed subsection 474.28(5) permits the finder of fact (a jury or court) to consider certain matters as admissible evidence in determining how old a person is or was at a particular time. The matters are: the person’s appearance, medical or other scientific opinions and documents being or purporting to be official or medical records of a foreign country or copies of such records.

In order to avoid any doubt, proposed subsection 474.28(6) provides that proposed subsection 474.28(5) does not: (i) relieve the prosecution authorities from the duty of making every effort to obtain the best evidence of age of the person; or (ii) limit the evidence which may be received in proceedings for the purposes of the proposed offences at sections 474.26 and 474.27.

Proposed subsection 474.28(7) provides that were proposed subsection 474.28(5) is relied upon, the court must warn the jury that it must be satisfied beyond reasonable doubt that the person in question: (i) is, or was at a particular time, under 16 years of age; or (ii) is, or was a particular time, at least 18 years of age.

Proposed subsection 474.28(8) reflects the emergent common law consensus that a person can be committed of attempt – here, a preparatory offence – even though completion of the offence was impossible in the circumstances. Subsection 11.1(4) of the Criminal Code reflects this general principle. Because the proposed offences at sections 474.26 and 474.27 are analogous to an offence of attempting to commit child sex abuse, it is appropriate that this impossibility clarification be made.

Proposed subsection 474.28(9) is an important provision as it paves the way for a standard investigatory technique that will be crucial in enforcing these proposed offences. An AFP officer, or investigator at the Australian High Tech Crime Centre, may assume the identity of a fictitious child, interacting with potential predatory adults over the internet, and arresting a predatory adult before they have an opportunity to sexually abuse a real child that they are also ‘grooming’. This type of investigatory technique was recently upheld in a Queensland court.

Proposed subsection 474.28(10) clarifies that it is not an offence to attempt to commit a ‘procuring’ or ‘grooming’ offence. Section 11.1 of the Criminal Code regulates the law of attempt, and operates to extend criminal liability for all offences. However, proposed subsection 474.28(10) bars the operation of section 11.1 because liability for attempt is incompatible with the proposed ‘procuring’ and ‘grooming’ offences. The incompatibility arises from the fact that the proposed offences are themselves a preparatory crime - they are committed in the preparation of actual sexual abuse. An equivalent provision is contained in subsection 477.1(8) of the Criminal Code, which also targets preparatory conduct.

Proposed subsection 474.28(11) contains a number of important definitions.

Procure is defined to cover a range of activity reflecting the fact that a sender may encourage a recipient to engage in ‘consensual’ sexual activity, but may also coerce a person into engaging in ‘non-consensual’ activity. The second limb of the definition is consistent with the definition of ‘induce’ in section 50AA of the Crimes Act 1914 (induce means induce by threats, promises or otherwise), which regulates the federal child sex tourism offences.

Sexual activity is defined to include a range of sexual activity in a manner consistent with the federal child sex tourism offences. The existing definitions of ‘sexual intercourse’ and ‘act of indecency’ in sections 50AC and 50AB of the Crimes Act 1914, respectively, are utilised. Limb (c) of the definition is a general reference that would cover sexual activity that is not covered by limbs (a) and (b). Importantly, this definition would extend to acts that do not necessarily involve physical contact.

Proposed section 474.29 Defences to offences against section 474.26 or 474.27

Proposed section 474.29 contain two defences relating to a defendant’s belief about the age of a recipient, or, if relevant, the other person who was to engage in sexual activity with the recipient or was to be present during the sexual activity. If a defendant can make out these defences they cannot be convicted of the offence.

These defences are similar in application to the general defence of lawful authority in section 10.5 of the Criminal Code. However, that defence is not specific to the circumstances covered by these defences.

The defendant bears the burden of pointing to evidence that supports the defences outlined below. It will generally be much easier for a defendant, rather than the prosecuting authorities, to produce evidence showing that the factual existence of the circumstances to which the defences apply (in this case, the defendant’s belief of age).

The first defence proposed at subsection 474.29(1) relates to the defendant’s belief about the age of the recipient. If the defendant satisfies the jury or court that at the time he or she transmitted a communication the recipient was not under 16 years of age the defence will succeed. This defence is relevant to all six of the proposed ‘procuring’ and ‘grooming’ offences.

The second defence proposed at subsection 474.29(2) relates to the defendant’s belief about the age of the other person who is to engage in sexual activity with the recipient or be present during the relevant sexual activity. If the defendant satisfies the jury or court that at the time he or she transmitted a communication the other person who was to engage in sexual activity with the recipient was under the age of 18 years the defence will succeed. This defence is relevant to proposed offences at subsection 474.26(2) and 474.27(2), where the sender engages in ‘procuring’ or ‘grooming’ activity on behalf of another person. For the offence to be made out, that other person must be at least 18 years of age. If that other person is under 18 years of age – in other words, a child – then sections 474.26(3) and 474.27(3) criminalise the sender’s conduct if the sexual activity between the recipient and other child is to be carried out in the presence of the sender or another person who is, or who the sender believes to be, at least 18 years of age. If the defendant satisfies the jury or court that at the time he or she transmitted a communication the other person to be present during the sexual activity between recipient and another child was under the age of 18 years the defence will succeed.

Proposed section 474.30 Using a carriage service for suicide related material

Proposed subsection 474.30(1) will make it an offence for a person to use a carriage service to access, transmit to themself, transmit generally, make available, or publish or otherwise distribute material that directly or indirectly counsels or incites suicide, with the intention that they, or another person, will use the material to counsel or incite suicide. ‘Access’ is defined in proposed section 473.1 (see also the explanation of this definition).

Proposed subsection 474.30(2) will make it an offence for a person to use a carriage service to access, transmit to themself, transmit generally, make available, or publish or otherwise distribute material that directly or indirectly promotes, or provides instruction on, a particular method of committing suicide, with the intention that they, or another person, will use the material to promote or provide instruction on that method of committing suicide. Proposed subsection 474.30(2) will also make it an offence to engage in the conduct, listed above, with the intention that the material be used by another person to commit suicide. ‘Access’ is defined in proposed section 473.1 (see also the explanation of this definition).

The proposed offences are intended to complement amendments to the Customs (Prohibited Imports) Regulations 1956 (subregulation 3AA(2)) and the Customs (Prohibited Exports) Regulations 1958 (subregulation 13GA(2)) prohibiting the physical importation and exportation of documents that promote the use of a device designed or customised to be used by a person to commit suicide (suicide kit), counsel or incite a person to commit suicide using a suicide kit, or instruct a person how to commit suicide using a suicide kit.

The maximum penalties for the proposed offences are 1000 penalty units, which is $110,000 under the existing $110 value for a penalty unit in section 4AA of the Crimes Act. The maximum fine will be $550,000 for a body corporate under the provisions for calculating maximum fines in section 4B of that Act. These penalties are the same as the maximum penalty that applies to the illegal importation or exportation of documents related to suicide kits (see sections 233 and 233AB of the Customs Act 1901).

The proposed offences are particularly aimed at use of the Internet, email and other online applications and are intended to cover the range of activities that a person can engage in when using these. The types of activities covered by the conduct listed in paragraphs 474.30(1)(a) and (2)(a) include, amongst others, viewing; copying; downloading; making available for viewing, copying or downloading; sending and exchanging.

The conduct listed in paragraphs 474.30(1)(a) and (2)(a) must be accompanied by an intention that, respectively:

• the relevant material be used, by the person who engages in the offending conduct or another person, to counsel or incite suicide (in the case of subsection 474.30(1)), or

• the relevant material be used by the person engaging in the offending conduct or another person, to promote a method of committing suicide or provide instruction on a method of committing suicide, or that another person use the material to actually commit suicide (in the case of subsection 474.30(2)).

As the offences in proposed subsections 474.30(1) and (2) require the intention that the relevant material be used in a particular way for the offence to be proven, no special defences for the proposed offences are necessary. (Of course, the general defences in Chapter 2 of the Criminal Code will apply.) This is because no-one should have a defence available to them if they intend, in engaging in particular conduct, to, for example, incite a person to commit suicide.

Under paragraphs 474.30(1)(b) and (2)(b), the relevant material must in fact be, respectively:

• material that directly or indirectly counsels or incites suicide (in the case of subsection 474.30(1)), or

• material that directly or indirectly promotes, or provides instruction on, a particular method of committing suicide (in the case of subsection 474.30(2)).

These constitute physical elements of the respective offences that are circumstances. By application of the default fault elements in section 5.6 of the Criminal Code, the fault element of recklessness will apply to them. ‘Recklessness’ as it applies to a circumstance is defined in section 5.4 of the Criminal Code.

These offences are not intended to capture Internet material that advocates or debates law reform on euthanasia and/or suicide related issues, as this type of material will generally not counsel or incite suicide, nor promote or provide instruction on particular methods of committing suicide. For similar reasons, Internet material dealing with suicide-related research and suicide prevention or support material will generally not be caught by the offences.

Proposed section 474.31 Possessing, producing, supplying or obtaining suicide related material for use through a carriage service

Proposed subsection 474.31(1) will make it an offence for a person to possess or control suicide related material (as covered by proposed section 474.30), or produce, supply or obtain suicide related material with the intention that it be used, by that person or another person, in committing an offence against proposed section 474.30 (a primary offence). A specific preparatory offence is necessary, because this conduct would not always be caught by the extension of criminal liability in Division 11 of Part 2.4 of the Criminal Code. The proposed offence will carry the same maximum penalty as the primary offences of 1000 penalty units, which is $110,000 under the existing $110 value for a penalty unit in section 4AA of the Crimes Act. The maximum fine will be $550,000 for a body corporate under the provisions for calculating maximum fines in section 4B of that Act.

The proposed offence covers a broad range of preparatory conduct undertaken with the intention to commit a primary offence. As an example, the offence would apply to the possession or production of paper leaflets providing instruction on a particular method of suicide, provided the person engaging in this conduct intended that the information on the leaflets also be made available on the Internet for the purpose that it be used by another person to commit suicide. Proposed sections 473.2 and 473.3 outline situations that are considered ‘possession or control of material in the form of data’ or ‘producing, supplying or obtaining material in the form of data’ for the purposes of this proposed offence (see also the explanation of proposed sections 473.2 and 473.3).

Subsection 474.31(2) provides that a person can be found guilty of an offence against subsection 474.31(1), even if it is impossible to commit a primary offence. This provision reflects the emergent common law consensus that a person can be convicted of attempt – here, essentially a preparatory offence – even though completion of the offence was impossible in the circumstances. In other words, the law of attempt holds that it is irrelevant if a particular result does not occur. Subsection 474.31(3) provides that it is not an offence to attempt to commit an offence against subsection 474.31(1). Subsections 474.31(2) and (3) of the proposed offence are drawn from the offence of attempt under section 11.1 of the Criminal Code. Given proposed section 474.31’s preparatory nature in relation to the primary offence, it is appropriate that it contain such provisions.

Proposed section 474.32 Defences for NRS employees and emergency call persons

Proposed section 474.32 provides defences to all the offences in proposed Subdivision C of Division 474 of the Criminal Code for employees of the NRS provider and emergency call persons who are acting in good faith in the course of their duties. ‘NRS provider’ and ‘emergency call person’ are defined in proposed section 473.1.

The National Relay Service (NRS) provides a service for persons who are deaf, or have a hearing and/or speech impairment. It facilitates calls with a voice and/or text component between the A-Party and B-Party of the call. The NRS provides voice-to-text and text-to-voice relay. Either the A-Party or the B-Party (or both) could be deaf or have a hearing or speech impairment and be using particular technologies that assist them in communicating. A relay officer at the NRS provider’s call centre answers the call made by the A-Party to the NRS access number and then makes another telephone call to the B-Party and proceeds to relay the conversation between the A-Party and the B-Party. Thus all three parties are on the telephone at the same time.

The emergency call person is responsible for receiving calls to emergency service numbers and relaying the calls to the requested emergency service organisation, such as the police, fire brigade or ambulance service.

It is unlikely that the offences in Subdivision C would apply to the NRS provider or an emergency call person acting in good faith in the course of their duties, because the requisite intention would not accompany any conduct that may come within the coverage of an offence, for example, connecting a menacing caller to the police. However, these defences are intended to explicitly rule out criminal responsibility and make it absolutely clear that those providing these important services are not committing an offence in simply performing their job.

Division 475 – Miscellaneous

Proposed section 475.1 Saving of other laws

Proposed subsection 475.1(1) reproduces section 475.1 in the existing Part 10.6 of the Criminal Code. It provides for the concurrent operation of Commonwealth, State and Territory laws in relation to the conduct to which the offences in the proposed Part 10.6 would apply. This provision ensures that there are no gaps in jurisdiction and allows crimes to be prosecuted in whichever forum is most appropriate.

Proposed subsection 475.1(1) ensures that any State or Territory law which would otherwise apply still has application. This is important particularly for the proposed offences dealing with threats, menacing or harassing behaviour, and child pornography and child abuse material. Offences dealing with these issues that do not concern use of telecommunications are generally the responsibility of the States and Territories.

Proposed subsection 475.1(2) provides that any defences to offences under Part 10.6 of the Criminal Code do not make any conduct lawful if the conduct would otherwise be unlawful under the Radiocommunications Act 1992. This means that conduct for which a defence to any of the proposed offences would apply does not make that same conduct lawful if it happens to be prohibited under the Radiocommunications Act.

Proposed section 475.2 Geographical jurisdiction

Part 2.7 of the Criminal Code provides general jurisdictional provisions, including provision for extraterritorial application of offences in the Criminal Code. Part 2.7 also provides for specific categories of extended geographical jurisdiction (see sections 15.1 to 15.4).

Proposed section 475.2 applies Category A geographical jurisdiction, as set out in section 15.1 of the Criminal Code, to the proposed telecommunications offences. As a result of the application of Category A jurisdiction, the offences would extend to situations where (i) the conduct constituting the offence occurs partly in Australia or on board an Australian ship or aircraft, (ii) the result of the conduct constituting the offence occurs partly in Australia or on board an Australian ship or aircraft, or (iii) the person committing the offence is an Australian citizen or an Australian company.

As the proposed offences deal with use of telecommunications, much of the conduct that would constitute an offence under the proposed amendments could be perpetrated remotely from where it has effect. The application of Category A jurisdiction would mean that, regardless of where conduct constituting an offence occurs, if the results of that conduct affect Australia the person responsible would generally be able to be prosecuted in Australia. The proposed jurisdiction would also cover an Australian citizen in another country who engages in conduct that is an offence under the proposed amendments, even if their conduct does not constitute an offence in that country and the results of that conduct do not affect Australia. The extension of jurisdiction in this way is of particular importance to the proposed child pornography and child abuse material offences.

Category A geographical jurisdiction also applies to the computer offences in Part 10.7 of the Criminal Code and those postal offences dealing with similar conduct as a number of the proposed offences (sections 471.10, 471.11 and 471.12 of the Criminal Code).

PART 2 – CONSEQUENTIAL AMENDMENTS

Broadcasting Services Act 1992

Item 2 Paragraph 1(3)(b) of Schedule 5

This item will amend paragraph 1(3)(b) of Schedule 5 of the Broadcasting Service Act by replacing the reference to section 85ZE of the Crimes Act with a reference to proposed Subdivision C of Division 474 of Part 10.6 of the Criminal Code. Section 85ZE is mentioned in this provision as part of the second component of an Australian scheme for dealing with Internet content (the Online Content Co-Regulatory Scheme). The first component of this Scheme is created by Schedule 5 of the Broadcasting Services Act. As proposed Subdivision C of Division 474 will contain a range of offences related to Internet content, it is appropriate to replace the reference to section 85ZE with a reference to the entire Subdivision and not just the proposed offence that will replace section 85ZE.

Crimes Act 1914

Item 3 At the end of section 15HB

Proposed item 3 would bring certain telecommunications proposed in Part 1 of Schedule 1 of the Bill within the federal controlled operations framework in Part 1AB of the Crimes Act 1914.

Although section 15HB of the Crimes Act ensures that ‘dealings in child pornography or material depicting child abuse’ are ‘serious Commonwealth offences’ for the purposes of the federal controlled operations framework, it is not clear that the proposed child pornography, child abuse and ‘procuring’ and ‘grooming’ offences would be covered by this language. For example, in many instances where these offences are committed, there will be no ‘dealing’ in child pornography or child abuse material.

Item 3 expands the definition of ‘serious Commonwealth offence’ by inserting a new subsection 15HB(2) so that it explicitly includes:

• the child pornography offences in sections 474.19 and 474.20

• the child abuse material offences in sections 474.22 and 474.23

• the grooming and procuring offences in sections 474.26 and 474.27

The protection of a controlled operations certificate may be necessary in investigating these offences. For example, a covert investigation may involve an investigating official assuming the identity of a paedophile. In this capacity, they may need to trade in pornography to garner credibility as a paedophile, and to progress their investigations. Should an investigation demand such drastic action, it would be necessary to remove the possibility of any illegality attaching to police trading pornography by issuing a controlled operations certificate.

Item 4 After paragraph 15Y(1)(c)

Proposed item 4 would amend section 15Y of the Crimes Act 1914 to list the offences in section 474.26 and 474.27 as relevant offences for Part 1AD. This is important because in prosecuting the proposed ‘procuring’ and ‘grooming’ offences at sections 474.26 and 474.27, it may be necessary to use child witnesses. Part 1AD of the Crimes Act 1914 contains a protective regime for children in proceedings for sexual offences. This protective regime should apply to ‘procuring’ and ‘grooming’ prosecutions.

Item 5 Part VIIB

This Item will repeal Part VIIB of the Crimes Act, which contains the existing Commonwealth telecommunications offences. These offences will be replaced by the offences in the proposed amendments to Part 10.6 of the Criminal Code.

Criminal Code Act 1995

Item 6 Subsections 471.11(3), (4) and (5) of the Criminal Code

Item 6 will amend the threat offences provision of the postal offences to align it with the threat offences provision in the proposed telecommunications offences. The proposed new subsection 471.11(3) provides that in a prosecution for an offence against section 471.11 it is not necessary to prove that the person receiving the threat actually feared the threat would be carried out. This will clarify how the offences in subsections 471.11(1) and (2), dealing with threats using a postal or similar service, are intended to operate. The same provision is included in the proposed equivalent telecommunications offence (proposed section 474.15) and existing section 147.2 of the Criminal Code, which deals with threats to cause harm to a Commonwealth public official.

The existing subsection 471.11(3), which it is proposed to repeal, provides that a threat may be express or implied, or conditional or unconditional. A similar definition of ‘threat’ is already provided in the Dictionary of the Criminal Code, so it is unnecessary that it be repeated here.

Item 6 will also co-locate the definitions of ‘fear’ and ‘threat to cause serious harm to a person’ in subsection 471.11(4). These terms are used in the offences in subsections 471.11(1) and (2), which deal with threats using a postal or similar service. This amendment will align the provision with proposed section 474.15, which deals with threats using a carriage service.

Item 7 Paragraph 471.12(b) of the Criminal Code

This Item will repeal existing paragraph 471.12(b) and replace it with a new paragraph that includes ‘whether by the method of use or the content of a communication, or both’. This inclusion is intended to clarify the type of use of a postal or similar service that the offence in section 471.12 covers (using a postal or similar service to menace, harass or cause offence). ‘The method of use’ refers to the actual way the postal or similar service is used, rather than what is communicated during that use. ‘The content of a communication’ refers to what is communicated in that use of the postal or similar service. Amending section 471.12 in this way will ensure the offence is worded consistently with the proposed parallel telecommunications offence (proposed section 474.17).

Item 8 Subsection 476.1(1) of the Criminal Code (definition of data)

This Item will repeal the definition of ‘data’ in subsection 476.1(1). It is proposed that this same definition would be placed in the Dictionary of the Criminal Code (see Item 20). This amendment is appropriate, because the term ‘data’ is used in the proposed telecommunications offences, as well as in the existing computer offence provisions, to which the definitions in subsection 476.1(1) apply.

Item 9 Subsection 476.1(1) of the Criminal Code (definition of data held in a computer)

This Item will repeal the definition of ‘data held in a computer’ in subsection 476.1(1). It is proposed that this same definition would be placed in the Dictionary of the Criminal Code (see Item 21). This amendment is appropriate, because the phrase ‘data held in a computer’ is used in the proposed telecommunications offences, as well as in the existing computer offence provisions, to which the definitions in subsection 476.1(1) apply.

Item 10 Subsection 476.1(1) of the Criminal Code (definition of data storage device)

This Item will repeal the definition of ‘data storage device’ in subsection 476.1(1). It is proposed that this same definition would be placed in the Dictionary of the Criminal Code (see Item 22). This amendment is appropriate, because the term ‘data storage device’ is used in the proposed telecommunications offences, as well as in the existing computer offence provisions, to which the definitions in subsection 476.1(1) apply.

Item 11 Subsection 476.1(1) of the Criminal Code (definition of telecommunications service)

This Item will repeal the definition of ‘telecommunications service’ in subsection 476.1(1). It is proposed that wherever this term is used in the Criminal Code, it be replaced by the term ‘carriage service’ (see Items 12 to 17). ‘Telecommunications service’ only appears in the computer offences in Part 10.7 of the Criminal Code, to which the definitions in subsection 476.1(1) apply.

The proposed definition of ‘carriage service’ is the same as the existing one for ‘telecommunications service’ and would be placed in the Dictionary (see Item 18). The reason for the change in terminology is for consistency with the terminology used in the Telecommunications Act. The proposed definition of ‘carriage service’ is consistent with the definition of that term in the Telecommunications Act.

Items 12 to 17

These Items will substitute the term ‘telecommunications service(s)’ with ‘carriage service(s)’ where it appears in Part 10.7 of the Criminal Code, which deals with computer offences. The proposed definition of ‘carriage service’ is the same as the existing one for ‘telecommunications service’ (see Items 11 and 18). This proposed amendment would not substantively change the operation of the provision, but would ensure the terminology used in the Criminal Code is consistent with that used in the Telecommunications Act.

Item 18 Dictionary in the Criminal Code

This Item will insert a definition for carriage service in the Dictionary of the Criminal Code. That definition provides that ‘carriage service has the same meaning as in the Telecommunications Act. Under that definition, ‘carriage service’ means a service for carrying communications by means of guided and/or unguided electromagnetic energy.

It is proposed that where the term ‘telecommunications service’ is used in the computer offences in Part 10.7 of the Criminal Code, ‘carriage service’ be used instead to ensure the terminology used in the Criminal Code is consistent with that used in the Telecommunications Act (see Items 11 to 17). The definition of ‘carriage service’ in the Telecommunications Act is the same as the existing one for ‘telecommunications service’.

‘Guided electromagnetic energy’ travels using some form of physical medium such as a wire, cable, optical fibre or tube. The definition of ‘line’ in section 7 of the Telecommunications Act lists the types of physical media used for guided electromagnetic energy. ‘Unguided electromagnetic energy’ refers to radiowaves, which require no artificial guide to travel from one point to another. It is proposed to define ‘communication’ broadly to cover any form of communication including in the form of text, speech, music, visual images (still or moving), signals and data (see Item 19).

Item 19 Dictionary in the Criminal Code

This Item will insert a definition for communication in the Dictionary of the Criminal Code. The term is broadly defined to include any communication whether between persons and persons, things and things or persons and things, and whether the communication is in the form of text, speech, music or other sounds, visual images (still or moving), signals, data, or any other form or combination of forms. The definition is drawn from the definition of ‘communications’ provided in section 7 of the Telecommunications Act.

Item 20 Dictionary in the Criminal Code

This Item will insert a definition for data in the Dictionary of the Criminal Code, which provides that the term includes information in any form, or any program or part of a program. This definition follows that used in the Model Criminal Code Officers Committee Report of 1999 on Damage and Computer Offences (section 4.2.1 of the Model Criminal Code).

This same definition is currently in existing subsection 476.1, which contains definitions for the computer offences in Part 10.7 of the Criminal Code. Under the proposed amendments, the definition of ‘data’ in subsection 476.1(1) is to be repealed (see Item 8) and placed in the Dictionary, because the term is also used in the proposed telecommunications offences in Part 10.6 of the Criminal Code.

Item 21 Dictionary in the Criminal Code

This Item will insert a definition for data held in a computer in the Dictionary of the Criminal Code. It provides that this phrase includes data held in any removable data storage device, such as a computer disk, for the time being held in a computer or any data held in a data storage device on a computer network of which the computer forms a part.

This same definition is currently in existing subsection 476.1, which contains definitions for the computer offences in Part 10.7 of the Criminal Code. Under the proposed amendments, the definition of ‘data held in a computer’ in subsection 476.1(1) is to be repealed (see Item 9) and placed in the Dictionary, because the phrase is also used in the proposed telecommunications offences in Part 10.6 of the Criminal Code.

Item 22 Dictionary in the Criminal Code

This Item will insert a definition for data storage device in the Dictionary of the Criminal Code, which provides that the term means a thing, for example a disk or file server, containing, or designed to contain, data for use by a computer. This definition follows that used in the Model Criminal Code Officers Committee Report of 1999 on Damage and Computer Offences (section 4.2.1 of the Model Criminal Code).

This same definition is currently in existing subsection 476.1, which contains definitions for the computer offences in Part 10.7 of the Criminal Code. Under the proposed amendments, the definition of ‘data storage device’ in subsection 476.1(1) is to be repealed (see Item 10) and placed in the Dictionary, because the term is also used in the proposed telecommunications offences in Part 10.6 of the Criminal Code.

Item 23 Dictionary in the Criminal Code (definition of electronic communication)

This Item will repeal the existing definition of electronic communication in the Dictionary of the Criminal Code and replace it with a simplified version, which provides that it means a communication by means of guided or unguided electromagnetic energy or both. Under the proposed amendments, ‘communication’ will also be defined in the Dictionary (see Item 19), making it unnecessary to list the different forms of a communication covered by ‘electronic communication’, as is currently the case. The substantive operation of the definition will not change.

‘Guided electromagnetic energy’ travels using some form of physical medium such as a wire, cable, optical fibre or tube. The definition of ‘line’ in section 7 of the Telecommunications Act lists the types of physical media used for guided electromagnetic energy. ‘Unguided electromagnetic energy’ refers to radiowaves, which require no artificial guide to travel from one point to another.

Customs Act 1901

Item 24 Subsections 233BAB(3) and (4)

This Item will repeal the existing definitions of child pornography and child abuse material in subsections 233BAB(3) and (4) of the Customs Act 1901 and replace them with new definitions. The new definitions mirror those in Item 1 (proposed section 473.1) that will apply to the offences in proposed sections 474.19, 474.20, 474.22 and 474.23. Section 233BAB of the Customs Act contains offences for the importation and exportation of, amongst other things, child pornography and child abuse material in hard copy.

Proposed new subsection 233BAB(3) of the Customs Act will provide that an item is taken to be child pornography if it is a document or other goods that depicts or describes persons under 18 engaged in a sexual pose or sexual activity, or in the presence of a person who is engaged in a sexual pose or sexual activity. The definition also covers documents or other goods the dominant characteristic of which depicts for a sexual purpose the sexual organs, the anal region or the breasts (in the case of a female) of a person who is under 18. Paragraphs (a) and (b) of the definition deal with ‘depictions’ and are intended to cover all visual images, both still and motion, including representations of children, such as cartoons or animation. Paragraphs (c) and (d) deal with ‘descriptions’ and are intended to cover all word-based material, such as written text, spoken words and songs.

Material that does not necessarily contain actual images of children is covered by the definition, because although it may not directly involve an abused child in the production, its availability can fuel further demand for similar material. This can lead to greater abuse of children in the production of material to meet this demand.

Paragraph (b) of the definition covers documents or other goods ‘the dominant characteristic of which is the depiction, for a sexual purpose’ of sexual organs, the anal region or the breasts (in the case of a female) of a person who is under 18. The use of the phrases ‘dominant characteristic’ and ‘for a sexual purpose’ is to clarify the types of images at which the paragraph is targeted. Innocent family photographs of children are not intended to come within the definition.

Proposed new subsection 233BAB(4) of the Customs Act will provide that an item is taken to be child abuse material if it is a document or other goods that depicts or describes a person who is under 18, or who appears or is implied to be under 18, as a victim of torture, cruelty or physical abuse, and does so in a way that reasonable persons would regard as being, in all the circumstances, offensive. Paragraph (a) of the definition deals with ‘depictions’ and is intended to cover all visual images, both still and motion, including representations of children, such as cartoons or animation. Paragraph (b) deals with ‘descriptions’ and is intended to cover all word-based material, such as written text, spoken words and songs.

Material that does not necessarily contain actual images of children is covered by the definition, because although it may not directly involve an abused child in the production, its availability can fuel further demand for similar material. This can lead to greater abuse of children in the production of material to meet this demand.

Both definitions in proposed subsections 233BAB(3) and(4) contain the qualification requiring that reasonable persons must regard the documents or other goods as being, in all the circumstances, offensive. This allows community standards and common sense to be imported into a decision on whether material is offensive. Proposed subsection 233BAB(4A) lists the matters that should be taken into account in deciding whether reasonable persons would regard particular documents or other goods as being, in all the circumstances, offensive as follows:

• the standards of morality, decency and propriety generally accepted by reasonable adults

• the literary, artistic or educational merit (if any) of the material, and

• the general character of the material (including whether it is of a medical, legal or scientific character).

This provision is intended to act as a guide in determining whether particular items are in fact child pornography or child abuse material, as defined. The factors listed are the same as the first three matters that are to be considered by the Classification Board in making decisions on the classification of publications, films and computer games under section 11 of the Classification (Publications, Films and Computer Games) Act 1995.

Telecommunications (Interception) Act 1979

Items 25 and 27-29

These proposed items make consequential amendments to the Telecommunications (Interception) Act 1979. Part VIIB of the Crimes Act 1914 is being repealed as all the telecommunications offences contained in that Part are to be updated and included in Part 10.6 of the Criminal Code via item 5 of the Bill. These items reflect that change in the Telecommunications (Interception) Act 1979.

Item 26

Proposed item 28 would amend the Telecommunications (Interception) Act 1979 to ensure that law enforcement agencies can obtain a telecommunications interception warrant to assist in investigating the proposed child pornography, child abuse and ‘procuring’ and ‘grooming’ offences.

These offences may be covered by the existing provisions in section 5D of the Telecommunications (Interception) Act 1979 to the extent that substantial planning or organisation is involved in the commission of the offences. Greater coverage is required. Many of these offences may be committed by offenders operating alone. The greater coverage is achieved by amending the definition of ‘class 2 offences’ to explicitly include:

• the child pornography offences in sections 474.19 and 474.20

• the child abuse material offences in sections 474.22 and 474.23

• the grooming and procuring offences in sections 474.26 and 474.27

A typical scenario demonstrates the necessity for telecommunications interception warrants in investigating these offences. While engaging in online conversations, or while monitoring chat room conversations between other individuals, investigating officials may need to record or intercept these interactions. This historical log of interactions would then be submitted to a court as proof of the ‘grooming’ offence, or of trading in child pornographic material. Indeed, a defendant will often demand access to such a historical log, objecting to any attempt by the prosecution to present incriminating extracts from such a log to a court.

PART 3 – SAVINGS PROVISIONS

Item 30 Saving – existing Regulations respecting interception devices

Sub-item 30(1) provides that regulations made for the purposes of paragraph 85ZKB(2)(c) of the Crimes Act will continue in force after the commencement of the proposed amendments as if they had been made for the purposes of proposed subsection 474.4(3).

Proposed subsection 474.4(3) provides a defence, to the offence in subsection 474.4(1) of manufacturing, advertising, displaying or offering for sale, selling or possessing interception devices, where the offending conduct occurs in circumstances specified in regulations. This defence reproduces an exception to the existing offence in section 85ZKB of the Crimes Act, which proposed section 474.4 would replace (see the explanation of proposed section 474.4). The operation of sub-item 30(1) ensures regulations made for paragraph 85ZKB(2)(c) of the Crimes Act will continue to operate in the same way for the replacement provision in the Criminal Code of subsection 474.4(3).

Sub-item 30(2) makes it clear that sub-item 30(1) does not affect the capacity to amend or repeal regulations made for paragraph 85ZKB(2)(c) of the Crimes Act. It is envisaged that regulations will be developed specifically for proposed subsection 474.4(3) after the commencement of this Bill.

Item 31 Saving – offence against Part VIIB of the Crimes Act 1914

Sub-item 31(1) ensures that there are no gaps about what is considered a ‘prescribed offence’ under the Telecommunications (Interception) Act 1979 (the Interception Act) after the repeal of Part VIIB of the Crimes Act. It provides that any conduct that would constitute an offence against a provision of Part VIIB that occurs before the repeal of that Part will still be considered a ‘prescribed offence’ under the Interception Act. This will be the case even if any particular action taken with respect to that conduct occurs after the repeal of Part VIIB.

Under the proposed amendments, ‘an offence against a provision of Part 10.6 of the Criminal Code’ will replace ‘an offence against a provision of Part VIIB of the Crimes Act 1914’ in paragraph (c) of the definition of ‘prescribed offence’ in subsection 5(1) of the Interception Act (see Item 25).

Sub-item 31(2) ensures that there are no gaps in the operation of subparagraph 7(2)(a)(iii) of the Interception Act after the repeal of Part VIIB of the Crimes Act. Subparagraph 7(2)(a)(iii) provides that subsection 7(1) of the Interception Act does not apply to, or in relation to, an act or thing done by an employee of a carrier in the course of their duties for, or in connection with, the identifying or tracing of any person who has contravened, or is suspected of having contravened or being likely to contravene, a provision of Part VIIB of the Crimes Act, where it is reasonably necessary for the employee to do that act or thing to perform those duties effectively. Under sub-item 31(2), subsection 7(1) of the Interception Act will continue not to apply to an employee of a carrier acting in the course of their duties for, or in connection with, the identifying or tracing of a person who has contravened, or is suspected of having contravened, a provision of Part VIIB of the Crimes Act where that contravention, or suspected contravention, occurs before the repeal of Part VIIB. This will be the case even if the actions of the employee of the carrier, in relation to the contravention, or suspected contravention, occur after the repeal of Part VIIB.

Under the proposed amendments, ‘Part 10.6 of the Criminal Code’ will replace ‘Part VIIB of the Crimes Act 1914’ in subparagraph 7(2)(a)(iii) of the Interception Act (see Item 27).

The definition of ‘carrier’ that applies in sub-item 31(1) is that used in the Interception Act, which provides that a ‘carrier’ means a carrier, within the meaning of the Telecommunications Act, and a carriage service provider, within the meaning of the Telecommunications Act.



SCHEDULE 2 – CONTAMINATION OFFENCES



Criminal Code Act 1995



Item 1 After Part 9.4 of the Criminal Code



The offences in the Criminal Code Act 1995 are contained in a Schedule (the Criminal Code). This Item amends that Schedule by inserting Part 9.6, titled ‘Contamination of goods’. Chapter 9 of the Criminal Code is titled ‘Dangers to the community’, and also contains cross-border trafficking of firearms offences. In the longer term Chapter 9 is likely to include serious drug and other community harm offences.



The contamination of goods offences are derived from the 1998 Model Criminal Code Officers’ Committee (MCCOC) Report on Contamination of Goods. The offences follow the basic structure of those model offences, but have been modified due to the Commonwealth’s Constitutional limitations. The offences have been designed to overlap and complement the State and Territory contamination of goods offences. The offences will also enable the Australian Government to use it jurisdictional advantages on this issue. This is particularly relevant where the conduct originates from overseas.



Three types of contamination of goods offences are established in Part 9.6 – contaminating goods (proposed section 380.2), threatening to contaminate goods (proposed section 380.3) and making false statements about goods being contaminated (proposed section 380.4). Two separate offences are provided for in each section. This reflects the Constitutional limitations on the Australian Government in this area. As indicated by the headings to each offence, the offences in subsections 380.2(1), 380.3(1) and 380.4(1) are based on the implied nationhood power, and the offences in subsections 380.2(2), 380.3(2) and 380.4(2) are based on other heads of power.



Proposed section 380.1 Definitions



Proposed section 380.1 contains a number of definitions which specifically apply to the contamination of goods offences.



Proposed subsection 380.1(1) contains the following definitions:



constitutional trade and commerce: this terms encompasses different types of trade and commence which the Commonwealth has power with under the Constitution. This term is used in some of the offences to make clear one of the constitutional bases.



contaminate: this term is not defined exhaustively, reflecting the variety of ways in which goods might be contaminated and the desirability of having offences flexible enough to deal with novel situations. This definition follows the definition of contaminate in the MCCOC Report model offences.



goods: this definition is not exhaustive, but indicates the breadth of goods that may be covered by these offences. Goods are deliberately defined not to be restricted to substances consumed by humans, and may cover a diverse range of things from cosmetics and beauty products to animal feed and fuel. Contamination – whether real, fabricated or threatened – of any of these things has the potential to cause economic loss, alarm or anxiety. This definition is derived from the definition of goods contained in the model offences.



Proposed subsection 380.1(2) sets out what is included by the phrase economic loss. As with the definitions of contaminate and goods, this is not an exhaustive definition. The provision make it clear that economic loss can be incurred both directly and indirectly. A direct economic loss may be incurred through the public not purchasing the contaminated goods; a more indirect economic loss may be the costs associated with issuing warnings or a product recall, or perhaps employees losing their jobs because of a significant reduction in sales.



Proposed section 380.2 Contaminating goods



Proposed section 380.2 contains two offences targeting persons who contaminate goods intending to cause public alarm or anxiety or economic loss. The offence in subsection 380.2(1) also captures persons who intend to cause harm or create a risk of harm to public health in Australia.



Subsection 380.2(1) Offence based on implied nationhood power



A person would be guilty of the offence in subsection 380.2(1) if he or she contaminated goods intending to cause public alarm or anxiety, widespread or nationally significant economic loss through public awareness of the contamination, or harm (or a risk of harm) to public health. The contamination of goods by a person involves physical elements of both conduct and result – the conduct is the act of causing the contamination, the actual contamination is the result.



This provision is intended to capture contamination which causes, or could cause, alarm, economic loss or harm to public health on a significant scale. For example, it might capture contamination of a commonly used good which then causes loss in several States and Territories. Alternatively, the loss might be geographically contained but be of such a scale that it is nationally significant, or affects a key export industry.



To commit the offence, the person must intend that the alarm, economic loss or harm will occur in Australia. This reflects the implied nationhood power underpinning these offences. (However, the fact that actual loss, alarm or harm occurs outside of Australia will not prevent the conduct being an offence under this provision – it is only the person’s intent which is relevant.)



Subsection 380.2(2) Offences based on other constitutional powers



The offence in proposed subsection 380.2(2) will capture a person who contaminates goods with intent to cause public alarm or anxiety, or economic loss through public awareness of the contamination (or possible contamination) of the goods. (This offence does not extend to intent to cause harm or create a risk of harm to public health.)



Further, one of the factual situations set out in the alternate provisions in paragraph 380.2(2)(c) must also exist. This limb of the offence does not contain substantive elements which should be present for the offender to be culpable for contaminating the goods. This limb is present to provide the constitutional bases for the offence, which operate in a separate and severable manner. Neither the MCCOC model offences or comparable State and Territory offences contain this type of provision, as the application of a particular offence provision in that instance is determined according to the jurisdiction in which the offence occurred



Because of the nature of the element in proposed paragraph 380.2(2)(c), proposed subsection 380.2(3) applies absolute liability to each of sub-paragraphs 380.2(2)(c)(i)-(vii). This means that it will not be necessary for the prosecution to prove a fault element for that particular physical element, and that the defence of mistake of fact will not be available to the defence. It will still be necessary to show that one of the factual situations set out in paragraph 380.2(2)(c) existed at the time of the offence.



Unlike the offence in proposed subsection 380.2(1), this offence is not limited to loss or harm on a national scale, but covers loss or harm regardless of the degree.



General



It is not necessary for the public to be alarmed or anxious, for economic loss or harm to public health to occur for the contamination to be an offence under subsection 380.2(1) or subsection 380.2(2). It is only necessary that at the time of the conduct causing the contamination the person intended one or more of those things to occur. This ensures that law enforcement agencies are able to charge a person once the contamination occurs, and do not need to wait for public alarm, economic loss or harm to public health to occur before being able to lay charges. It also recognises that the person’s culpability for the offence occurs at the time of the contamination, when he or she had the relevant intention, whether or not the intended loss, harm or public alarm subsequently occurs.



The maximum penalty for each offence in proposed subsection 380.2 is 10 years imprisonment or a fine of 600 penalty units ($66,000), or both.



Proposed section 380.3 Threatening to contaminate goods



Separate offences of threatening to contaminate goods with the intent to cause public alarm or anxiety or economic loss are provided for in proposed section 380.3. (The offence in subsection 380.3(1) also captures persons who intend their threat to cause harm or create a risk of harm to public health in Australia.) These offences recognises that actual contamination of goods does not have to occur for significant loss to occur or the public to be alarmed or anxious. In many instances, the threat of contamination will cause the same level of fear and loss as actual contamination. It is therefore appropriate that such threats be expressly covered, and be subject to the same penalty.



Subsection 380.3(1) Offence based on implied nationhood power



A person would be guilty of the offence in proposed subsection 380.3(1) if he or she makes a threat to contaminate goods with the intent to cause public alarm or anxiety, widespread or nationally significant economic loss through public awareness of the contamination, or harm (or a risk of harm) to public health.



This offence is designed to capture threats which intend to cause economic loss, harm to public health or public alarm or anxiety on a significant scale. For example, it could capture a threat made in respect of goods available in all States and Territories, which was intended to cause public alarm across the country. Or it could cover a threat to contaminate blood supplies, made with the intention of causing harm to public health in Australia.



‘Threat’ is defined in the Dictionary of the Criminal Code, and includes a threat made by conduct, whether express or implied or conditional or unconditional. This definition enables a broad range of threats to be covered by the proposed offences. This definition was developed by the Commonwealth, State and Territory officers to be part of the Model Criminal Code.



As with the offences in proposed subsection 380.2(1), this offence is limited to threats made with the intent of causing public alarm, widespread or nationally significant economic loss or harm (or risk of harm) to public health in Australia. Further, the occurrence of any loss, alarm or harm outside of Australia will not prevent the conduct being an offence under this provision – it is only the person’s intent which is relevant.



Subsection 380.3(2) Offences based on other constitutional powers



A person would be guilty of the offence in proposed subsection 380.3(2) if he or she makes a threat to contaminate goods with the intent to cause public alarm or anxiety or economic loss through public awareness of the contamination or possible contamination. As with the offence in proposed subsection 380.3(1), the threat may be conditional or unconditional, express or implied and made by any conduct.



Further, one of the factual situations set out in the alternate provisions in paragraph 380.3(2)(c) must also exist. This limb of the offence does not contain substantive elements which should be present for the offender to be culpable for threatening to contaminate goods. This limb is present to provide the constitutional bases for the offence, which operate in a separate and severable manner. Neither the MCCOC model offences or comparable State and Territory offences contain this type of provision, as the application of a particular offence provision in that instance is determined according to the jurisdiction in which the offence occurred



Because of the nature of the element in proposed paragraph 380.3(2)(c), proposed subsection 380.3(3) applies absolute liability to each of sub-paragraphs 380.3(2)(c)(i)-(ix). This means that it will not be necessary for the prosecution to prove a fault element for that particular physical element, and that the defence of mistake of fact will not be available to the defence. It will still be necessary to show that one of the factual situations set out in paragraph 380.3(2)(c) existed at the time of the offence.



General



It is not necessary for the public to be alarmed or anxious, for economic loss or harm to public health to occur for the threat of contamination to be an offence under either provision in proposed section 380.3. It is only necessary that at the time of the threat the person intended one or more of those things to occur. This ensures that law enforcement agencies are able to charge a person once the contamination occurs, and do not need to wait for economic loss or harm to occur before being able to lay charges. It also recognises that the person’s culpability for the offence occurs at the time of the threat, when he or she had the relevant intention, whether or not the intended loss or public alarm occurs.



The maximum penalty for each offence in proposed subsection 380.3 is 10 years imprisonment or a fine of 600 penalty units ($66,000), or both.



Proposed section 380.4 Making false statements about contamination of goods



The offences in proposed section 380.4 cover statements that are false, but which are intended to make either the recipient of the statement or other people believe that goods have been contaminated, and therefore cause public alarm or anxiety or economic loss. (The offence in proposed subsection 380.4(1) also captures persons who intend their false statement to cause harm or create a risk of harm to public health in Australia.)



Making a false statement is different to making a threat to contaminate goods, as the statement is intended to make people believe that the goods have already been contaminated; implicit in a threat is that the goods may be contaminated in the future. Where a person is found to have actually contaminated goods, he or she would be charged under proposed section 380.2. However, where the statement is false, the offences in this proposed section will apply.



Making a false statement that goods have been contaminated is likely to cause as much economic loss, alarm or anxiety as actual or threatened contamination, and this is reflected in the same penalty applying to these offence provisions as those in proposed subsections 380.2 and 380.3.



Subsection 380.4(1) Offence based on implied nationhood power



A person would be guilty of the offence in proposed subsection 380.4(1) if he or she makes a statement that the person believes to be false with the intention of causing either one person or a number of people to believe that goods have been contaminated, and thereby cause public alarm or anxiety, widespread or nationally significant economic loss through public awareness of the contamination, or harm (or a risk of harm) to public health.



Proposed subsection 380.4(4) provides that making a statement includes conveying information by any means. This definition is consistent with the general false statement offences in the Criminal Code, which provide that a statement can be made orally, in a document or in any other way (section 136.1).



As with the offences in proposed subsections 380.2(1) and 380.3(1), these offences are limited to false statements made with the intent of causing public alarm, economic loss or harm to public health in Australia. Further, the fact that actual loss, alarm or harm occurs outside of Australia will not prevent the conduct being an offence under this provision – it is only the person’s intent which is relevant.



Subsection 380.4(2) Offence based on other constitutional power



A person would be guilty of the offence in proposed subsection 380.4(2) if he or she makes a statement that the person believes to be false with the intention of causing either one person or a number of people to believe that goods have been contaminated, and thereby cause public alarm or anxiety or economic loss through public awareness of the contamination or possible contamination. As with the offence in proposed subsection 380.4(1), the statement may be made using any means.



For the offence to be captured by this provision, one of the factual situations set out in the alternate provisions in paragraph 380.4(2)(d) must also exist. This limb of the offence does not contain substantive elements which should be present for the offender to be culpable for contaminating the goods. This limb is present to provide the constitutional bases for the offence, which operate in a separate and severable manner. Neither the MCCOC model offences or comparable State and Territory offences contain this type of provision, as the application of a particular offence provision in that instance is determined according to the jurisdiction in which the offence occurred



Because of the nature of the element in proposed paragraph 380.4(2)(d), proposed subsection 380.4(3) applies absolute liability to each of sub-paragraphs 380.4(2)(d)(i)-(ix). This means that it will not be necessary for the prosecution to prove a fault element in relation to that particular physical element, and that the defence of mistake of fact will not be available to the defence. It will still be necessary to show that one of the factual situations set out in paragraph 380.4(2)(d) existed at the time of the offence.



General



It is not necessary for the public to be alarmed or anxious, for economic loss or harm to public health to occur for the false statement about contamination of goods to be an offence under either provision in proposed section 380.4. It is only necessary that at the time of making the statement the person intended one or more of those things to occur. This ensures that law enforcement agencies are able to charge a person once the contamination occurs, and do not need to wait for economic loss or harm to occur before being able to lay charges. It also recognises that the person’s culpability for the offence occurs at the time of the statement, when he or she had the relevant intention, whether or not the intended loss or public alarm occurs.



The maximum penalty for each offence in subsection 380.3 is 10 years imprisonment or a fine of 600 penalty units ($66,000), or both.



Proposed section 380.5 Extended geographical jurisdiction – category D



Part 2.7 of the Criminal Code provides general jurisdictional provisions, including provision for extraterritorial application of offences in the Criminal Code. Part 2.7 also provides for specific categories of extended geographical jurisdiction (see sections 15.1 to 15.4).



Proposed section 380.5 states that the extended jurisdiction provided for in section 15.4 (‘Category D’ jurisdiction) applies to all of the contamination of goods offences. Category D jurisdiction enables an offence to operate whether or not the conduct occurs in Australia or overseas, and whether or not the result of that conduct occurs in Australia or overseas.



Although this is very broad, the practical operation of this jurisdiction has been deliberately modified by the operation of the offence provisions. This has been achieved through each offence being somehow linked back to Australia – for example, through the person who commits the offence, the characteristics of the goods, the nature of the loss or the characteristics of affected persons or corporations.

It was necessary to apply (and then appropriately restrict) Category D jurisdiction because of the nature of the offences. Standard geographic jurisdiction (Division 14 of the Criminal Code) has some extraterritorial effect, but only covers conduct which occurs wholly outside of Australia when a result of that conduct occurs wholly or partly within Australia. This would be problematic for the threatening to contaminate and false statement offences as they have a physical element of conduct but no physical element of result. Application of standard geographic jurisdiction would result in those offences not covering threats or false statements made outside of Australia. It is important that such threats and false statements be covered.



Applying either Category A or Category B extended jurisdiction (sections 15.1 and 15.2 of the Criminal Code respectively) would not solve this problem, because they both contain the same restrictions on conduct which occurs wholly outside of Australia. Category C extended jurisdiction (section 15.3) does not have such a restriction, but provides a defence where the conduct (eg the threat) is not also an offence in the country in which the conduct occurred. It is likely that a number of countries would not have contamination of goods legislation.



In those circumstances, Category D jurisdiction, with application modified through the nature of the offences, was the appropriate option.









Item 2 Dictionary in the Criminal Code



This Item inserts the term constitutional corporation into the Dictionary of the Criminal Code. A constitutional corporation is one which fits within paragraph 51(xx) of the Constitution - a foreign corporation or a trading or financial corporation formed within the limits of the Commonwealth. This definition is inserted into the Dictionary because it will be used in multiple locations within the Criminal Code – relevantly, it is used in both the proposed contamination of goods offences and financial information offences within this Bill (Schedules 2 and 3 respectively).



SCHEDULE 3 – FINANCIAL INFORMATION OFFENCES



Criminal Code Act 1995

Item 1 At the end of Chapter 10 of the Criminal Code



Schedule 3 of the Bill will insert new Part 10.8 – ‘Financial information offences’ - into Chapter 10 of the Criminal Code (‘National Infrastructure’).

In March 2004, the Standing Committee of Attorneys-General (SCAG) released the Model Criminal Code Officers' Committee (MCCOC) discussion paper on Credit Card Skimming Offences. The discussion paper identified a gap in federal, State and Territory criminal laws in their coverage of credit card skimming and included a model offence to address this gap.  The model offence criminalises dishonestly obtaining or dealing in personal financial information without the consent of the person to whom the information relates.



These amendments will implement the model offence in the MCCOC discussion paper and will introduce other offences to target credit card skimming. Credit card skimming is the process by which legitimate credit card (and debit card) data is illicitly captured or copied, usually by electronic means. Credit card skimming frequently takes place through use of a skimming device – a device that will read and capture the data contained on the magnetic stripe of a credit or debit card, store that data and then allow it to be reproduced or access later. Skimming devices are closely related to, and in some cases adapted from, commercially available magnetic stripe readers which are used for a wide range of legitimate purposes.



While existing federal, State and Territory fraud and forgery laws cover many of the activities related to credit and debit card skimming, they do not comprehensively cover the act of skimming the data, possession of the skimmed data, or possession or importation of a skimming device.



These amendments are not limited to addressing credit card skimming activity. The proposed offences are directed at all dishonest dealings with personal financial information without the consent of the person to whom that information relates. For example, these amendments will also cover Internet banking fraud, addressing the situation where a person accesses a second person’s Internet banking details without the consent of the second person (or uses a deception to obtain the second person’s consent.)



The proposed offences are technologically neutral to ensure they remain relevant regardless of development in the devices and techniques used to capture (or ‘skim’) personal financial information. These offences are not limited to electronic skimming or skimming by some technological device, but cover other methods of illicitly obtaining credit or debit card details or other personal financial information (for example, from discarded bank statements or receipts).



Proposed section 480.1 Definitions



Proposed subsection 480.1(1) will define personal financial information to cover all information relating to a person that may be used (whether alone or in conjunction with other information) to access funds, credit or other financial benefits.



Adopting a definition of personal financial information which does not refer to technological devices or the physical credit or debit card will ensure that this offence will not be overtaken by developments in technology.



Personal financial information will extend beyond the physical credit and debit cards to include account numbers or credit card numbers which could be used, for example, to order goods over the telephone or to withdraw money over the counter at a bank from a savings account (in conjunction with falsifying a person’s signature).



Personal financial information will also include any data captured from a credit or debit card. In addition, it will include a person’s user identification name or number and password for access to Internet banking services.



Proposed subsection 480(1) will also clarify that dishonest has the meaning given by proposed section 480.2  The definition in proposed section 480.2 is identical to the definition of dishonest adopted in sections 130.3 and 130.4 of the Criminal Code for the purposes of the theft and fraud related offences in Chapter 7 of the Criminal Code.    This provision will cover, for example, the scenario where a person acquires another person’s password and user identification name for Internet banking (which would fall within the definition of personal financial information) by sending an email request for the details which purports to be an email from the other person’s bank.



Deception is defined broadly in proposed subsection 480.1(1) to mean an intentional or reckless deception, by words or other conduct, as to fact or as to law. Deception includes a deception as to the intentions of the person using the deception or any other person, and conduct by a person that causes a computer system or any machine to make a response that the person is not authorised to cause it to do. This definition is identical to the definition of deception adopted in section 133.1 of the Criminal Code for the purposes of the fraudulent conduct offences in Part 7.3 of the Criminal Code.   



Adopting this definition of deception will ensure that the offences in proposed Part 10.8 of the Criminal Code cover the situation where the victim consented to his or her personal financial information being stored on a secure computer system and that information was obtained by a person who was unauthorised to have access to that computer system.

Proposed subsection 480(1) will also clarify that dishonesty has the meaning given by proposed section 480.2  This subsection will also define ADI, dealing and obtaining for the purposes of the financial information offences.  The definitions of each of these terms are addressed below under proposed sections 480.3 and 480.4



Proposed subsection 480.1(3) will clarify that the financial information offences cover personal information relating to both an individual and a body corporate. It will also extend the coverage of the offences to the personal information of a dead person. For example, this offence would apply where a person, knowing of the death of a second person, intercepted the delivery of a debit card and password to the person, and subsequently used that card and password at an Automatic Teller Machine (ATM) to access funds in the deceased person’s savings account.



Proposed section 480.2 Dishonesty



Proposed section 480.2 will define dishonest for the purposes of the financial information offences. The definition in proposed section 480.2 is identical to the definition of dishonest adopted in sections 130.3 and 130.4 of the Criminal Code for the purposes of the theft and fraud related offences in Chapter 7 of the Criminal Code. Dishonest means dishonest according to the standards of ordinary people and known by the defendant to be dishonest by the standards of ordinary people.

Proposed section 480.3 Constitutional application of this Part



Proposed section 480.3 will specify the Constitutional basis for the financial information offences. These offences will be supported by paragraph 51(xiii) (the banking power) and paragraph 51(xx) (the corporations power).



Proposed paragraph 480.3(a) will provide that Part 10.8 of the Criminal Code applies only to personal financial information to the extent that the funds concerned are deposited with, lent to or are otherwise to be provided or made available by, an ADI (authorised deposit-taking institution) or a constitutional corporation.



An ADI is defined in proposed subsection 480.1(1) as a corporation that is an ADI for the purposes of the Banking Act 1959. Item 22 of Schedule 2 of the Bill will insert a definition of constitutional corporation into the Dictionary of the Criminal Code. Constitutional corporation will be defined as a corporation to which paragraph 51(xx) of the Constitution applies.



Similarly, proposed paragraph 480.3(b) will provide that Part 10.8 of the Criminal Code extends to personal financial information to the extend that the credit or other financial benefits concerned are provided, or made available, by an ADI or a constitutional corporation.

Proposed section 480.4 Dishonestly obtaining or dealing in personal financial information



Proposed section 480.4 will criminalise dishonestly obtaining, or dealing in, personal financial information without the consent of the person to whom the information relates.



Dealing in personal financial information is defined in proposed subsection 480.1(1) to include supplying or using personal financial information. Obtaining personal financial information is defined in proposed subsection 480.1(1) to include possessing or making personal financial information.



For the purposes of this offence, it does not matter whether the information is to be used to manufacture counterfeit credit cards, to obtain money from ATMs, to purchase goods over the phone or Internet or for any other fraudulent purpose. The details of the final use of the personal financial information do not change the nature of the act of dishonestly obtaining, or dealing in, that information without the consent of the person to whom it relates.



This offence will accommodate changes in technology as it focuses on criminalising the dishonest dealing in personal financial information and does not refer to the specific means by which that information is obtained.



In criminalising both obtaining and dealing in personal financial information without the consent of the person to whom it relates, this offence will address the situation where the victim consented to a first person obtaining his or her personal financial information but did not consent to the subsequent supply of that information by the first person to a second person.



A maximum penalty of 5 years imprisonment will apply to an offence against this section.



Proposed section 480.5 Possession or control of thing with intent to dishonestly obtain or deal in personal financial information



Proposed section 480.5 will make it an offence for a person to possess or control a thing with the intention that it be used either by the person or another person in committing an offence against proposed section 480.3, or to facilitate the commission of such an offence.



This offence will address a person’s possession of a skimming device where the person has the intention that the device be used to dishonestly obtain or deal in the personal financial information without the consent of the person to whom the information relates. This offence will apply both where the person possesses the device intending to use the device himself or herself in committing, or to facilitate the commission, of an offence against proposed section 480.3 and where he or she intends that the device be used by another person for that purpose.



The adoption of the term ‘thing’, rather than ‘skimming device’, will ensure that this offence remains relevant regardless of developments in the equipment used to skim credit and debit card data.



A maximum penalty of 3 years imprisonment, a fine of 180 penalty units ($19,800), or both, will apply to an offence against this section.





Proposed section 480.6 Importation of thing with intent to dishonestly obtain or deal in personal financial information



Similarly, proposed section 480.6 will make it an offence to import a thing into Australia with the intention that the thing be used in committing an offence against proposed section 480.3 or to facilitate the commission of such an offence.



This offence will address a person’s importation into Australia of a skimming device where the person has the intention that the device be used to dishonestly obtain or deal in the personal financial information without the consent of the person to whom the information relates.

This offence will apply both where the person imports the device intending to use the device himself or herself in committing, or to facilitate the commission, of an offence against proposed section 480.3 and where he or she intends that the device be used by another person for that purpose. For example, this offence would capture a person who organises the importation of skimming devices into Australia on behalf of, or in return for payment from, an organised criminal group but does not actively participate in, or direct, the use of those devices to skim data from credit and debit cards.



A maximum penalty of 3 years imprisonment, a fine of 180 penalty units ($19,800), or both, will apply to an offence against this section.



SCHEDULE 4 – OTHER AMENDMENTS OF THE CRIMINAL CODE



Schedule 4 makes a number of important clarifying amendments to the Criminal Code. Most of the amendments are to Chapter 2, which establishes the general principles of criminal responsibility. The principles in Chapter 2 now apply to all Commonwealth criminal offences.



Part 1 – Alternative verdicts

Item 1 At the end of section 11.2 of the Criminal Code

The purpose of this amendment is to clarify the operation of section 11.2 of the Criminal Code which extends criminal responsibility to persons who aid, abet, counsel or procure the commission of an offence by another person. The clarification is necessary because section 11.2 commences with the distinction that an accomplice is taken to have committed an offence and is punishable accordingly. Section 11.2 does not require a person to be charged as an accomplice, it just provides an additional means of attaching criminal responsibility to a person for an offence. However, that section does not assist the court in cases where the court is unable to determine whether the person committed the offence or whether the person aided, abetted, counselled or procured the commission of the offence.

Item 1 inserts an instructive provision into section 11.2 to assist the trier of fact (the jury) when it is unsure whether an accused has committed the offence or aided, abetted, counselled or procured the commission of the offence. Such cases are most likely to occur where two persons are each charged with the primary offence and with complicity and common purpose in the alternative.



It is important to note that proposed subsection 11.2(7) is not an alternative verdict provision. The effect of the subsection – that a person can be found to have committed an offence on different bases – is contemplated by subsection 11.2(1).



Item 2 Application of amendment



Item 2 provides that the amendment in Item 1 will only apply to prosecutions brought after the commencement of the provision (which is 28 days after the Bill receives Royal Assent). The amendment in Item 1 will not apply to prosecutions already commenced, but could apply to an offence committed before the provision commences (if the prosecution is not brought until after commencement).



Part 2 – Obtaining financial advantage



Item 3 Paragraph 135.2(1)(a) of the Criminal Code



Section 135.2 of the Criminal Code establishes two offences of obtaining a financial advantage. There is some concern that as currently drafted section 135.2 does not make it clear that “obtains a financial advantage” in paragraphs (1)(a) consists of a conduct element and a result element.



Item 3 amends subsection 135.2(1) by repealing paragraph (a) of that subsection and replacing it with three paragraphs which make it clear that there is a conduct and a result element in the offence. Although clarified, the substance and effect of the offence is not changed by this amendment.



Item 4 Paragraph 135.2(2)(a) of the Criminal Code



The amendments in Item 3 are for the same purpose and effect as those in Item 3. Item 4 amends subsection 135.2(2) by repealing paragraph (a) of that subsection and replacing it with three paragraphs which make it clear that there is a conduct and a result element in the offence. Again, the substance and effect of the offence is not changed by this amendment.



Part 3 – Knowledge of law



Item 5 Subsection 9.3(2) of the Criminal Code



Subsection 9.3(1) of the Criminal Code codifies the fundamental common law principle that ignorance of, or mistake about, the law is not an excuse for criminal conduct. This principle applies to all Commonwealth criminal offences.



Existing subsection 9.3(2) provides that the general principle in subsection 9.3(1) does not apply where the offence is either expressly or impliedly to the contrary effect, or the ignorance or mistake negates the fault element of the offence . In those circumstances, a person is not criminally responsible for the offence.



There is concern that existing subsection 9.3(2) could operate to mean that a simple cross-reference in an offence to another provision would ‘impliedly’ require the person to have knowledge of that particular provisions to be criminally liable for the offence. For example, it may be an offence for a person to contravene a direction given under a particular section of an Act. Generally, the prosecution is not required to establish that the person knew or was aware that the direction was given under a particular section of a particular Act – only that the person was given a direction. If the offence was read to imply that the person needed to have knowledge that the direction was made pursuant to the particular section of the particular Act the prosecution would be required to prove this element for the person to be criminally liable. This would in most cases be difficult or impossible.



Cross-referencing in legislation is a common drafting device, and such an interpretation would cause the Commonwealth criminal law to operate in an unintended fashion. To date, this problem has been overcome by imposing absolute liability on the ‘cross-referencing’ element of the offence. However, this is not desirable because it involves over-use of a term which should be used sparingly and adds to drafting complexity. A longer term solution is required.



Item 5 will clarify the intended operation of subsection 9.3(2) by repealing it and replacing it with proposed subsection 9.3(2). Proposed subsection 9.3(2) requires that the general principle applies except if the Act creating the offence is expressly to the contrary. ‘Expressly’ will be evidenced where a fault element as provided in sections 5.1 of the Criminal Code is specifically included in the relevant physical element of the criminal offence.



Accordingly, where a criminal offence provision does contain an express fault element which together with the relevant physical element requires the defendant to know or have an awareness of the law, the general principle in subsection 9.3(1) will not apply. When creating these types of offences, a note should be inserted beneath the offence provisions indicating that subsection 9.3(1) does not apply. This note will ensure that readers of the offence are clear that subsection 9.3(1) is not intended to apply.



Item 6 Paragraph 9.4(2)(a) of the Criminal Code



Item 6 affects section 9.4 of the Criminal Code, which establishes general principles about ignorance of or mistake about subordinate legislation. The principles mirror those in section 9.3, which addresses statute law.



Item 6 omits the words ‘or impliedly’ from subparagraph 9.4(2)(a). Item 7 repeals all of subparagraph 9.4(2)(b). Taken together, these amendments have the same effect as the amendment to section 9.3 discussed above at Item 5.



The effect of the amendments mean that the general principle in subsection 9.4(1) will not apply to subordinate legislation where the subordinate legislation is expressly to the contrary effect. As with the statute offences, a note should be inserted into relevant subordinate to provide clarity that the principle in subsection 9.4(1) does not apply to the relevant physical element in that criminal offence provision.



Paragraph 9.4(2)(c) will remain. That paragraph provides that the general principle does not apply if at the time of the conduct constituting the offence copies of the subordinate legislation had not been made available to the public or to persons likely to be affected by it, and the person could not have been aware of its content even if he or she exercised due diligence.



Item 7 Paragraph 9.4(2)(b) of the Criminal Code



Item 7 repeals paragraph 9.4(2)(b). The effect of this Item is discussed above at Item 6.



Item 8 Transitional – pre-commencement offences



Item 8 provides that the amendments in Items 5,6 and 7 will apply to all existing and new Commonwealth criminal offences. However, the amendments will only apply to conduct that has occurred after the commencement date of the amendments, and will not apply to proceedings or connected matters where the offence is alleged to have been committed prior to these Items commencing.



SCHEDULE 5 – AMENDMENT OF OTHER ACTS



Schedule 5 of the Bill amends a number of law and justice Acts. Those amendments clarify the operation of part of the Customs Act 1901, make some minor amendments to the Crimes (Aviation) Act 1991, correct a misdescription in the Cybercrime Act 2001 and make procedural amendments to the Mutual Assistance in Criminal Matters Act 1987.



Crimes (Aviation) Act 1991



Item 1 Subsection 3(1) (subparagraph (a)(i) of the definition of Division 2 aircraft)



This item repeals and substitutes part of the definition of ‘Division 2 aircraft’ in subparagraph 3(1)(a)(i). This amendment has the effect of excluding intrastate flights from the definition, given that intrastate flights fall outside the Commonwealth’s legislative powers under the Constitution.



Item 2 subparagraph 15(1)(b)(ii)



This item inserts a reference to the Prostitution Act 1992 (ACT) in subparagraph 15(1)(b)(ii). This insertion means that it is an offence to engage in child prostitution whilst on board an Australian-registered aircraft outside of Australia. This offence ensures that the application of Australia’s criminal laws on board aircraft complies with Australia’s international obligations under the Optional Protocol to the Convention of the Rights of the Child on the sale of children, child prostitution and child pornography.



At present it is not an offence to engage in child prostitution whilst on board an Australian-registered aircraft outside of Australia. A crime is committed only where it would be an offence against a law of the Commonwealth or the Crimes Act 1900 (ACT) in their application to the Jervis Bay Territory. No provision is made for prostitution offences under these applicable laws. The proposed amendment seeks to rectify this shortfall by inserting that an offence against the Prostitution Act 1992 (ACT) would also constitute an offence on board an Australian registered aircraft outside of Australia.



Customs Act 1901



Item 3 Subsection 233B(1)



The proposed amendments in the Customs Act 1901 (Customs Act) are directed to clarify the operation of these serious drug offences when read in light of Chapter 2 of the Criminal Code. The clarification is necessary in response to the decision in R v Ismail (26 May 2003, District Court of New South Wales).



In R v Ismail the court decided that the section 233B(1)(b) offence consisted of a physical element of conduct but without an accompanying element of circumstance. The court held that the prosecution was required to prove that an accused intentionally imported into Australia a prohibited import, where the fault element of intention attached to both the conduct of importation and the circumstance element that the thing was in fact a prohibited import. This is in contrast to the long term understanding that the offences operated to require the prosecution to prove:



(a) that an accused intentionally imported into Australia a substance or thing,

(b) reckless as to whether that substance or thing was a prohibited import.



If the prosecution was required to prove the person had intention about the substance or thing being a prohibited import – the effect of the Ismail ruling – many prosecutions of drug traffickers would be significantly more difficult. An accused could assert that because he or she did not know that the package an associate gave them for importation into Australia contained heroin, they could not have intentionally (ie. deliberately) imported heroin.



The Ismail ruling also appears to be inconsistent with the status of the Customs Act offences under common law prior to the harmonisation of those offences with Chapter 2 of the Criminal Code. The common law concept of intention in the context of those offences was taken to be wider than the operative version in section 5.2 of the Code, being more analogous to the concept of recklessness in section 5.4 of the Code.



As well as the importation offence, there are consequences for the exporting, bringing into Australia and possession offences contained in section 233B.



Item 3 replaces existing subsection 233B(1) with a new provision (proposed subsection 233B(1)). The proposed subsection makes it clear that the various offences set out in that provision are comprised of two physical elements: the possession, bringing etc in paragraph 233B(1)(a), to which intention applies; and the circumstance that the goods are a prohibited import to which the section applies. Recklessness attaches to that circumstance by operation of subsection 5.6(2) of the Criminal Code, which provides that where an offence does not specify a fault element for the physical element of circumstance within that offence, the fault element of recklessness will apply. All of the offences except those about exporting goods are contained in proposed subsection 233B(1). The export offences have been separated out into proposed subsection 233B(1AAC) for the sake of clarity; again, they do not operate any differently to existing subsection 233B(1).



Many of the existing offences in subsection 233B(1) incorporate a defence of reasonable excuse. The provisions in proposed subsection 233B(1) do not contain such a provision, as it is more appropriate that defences be separated out from offence provisions. Proposed subsection 233B(1AAB) is a new provision, setting out a separate defence, which applies to the same provisions and on the same terms as that in existing subsection 233B(1).



Item 4 Subsection 233B(1AA)



Item 4 amends subsection 233B(1AA) by updating a cross-reference in that subsection. The cross-reference, to one of the subparagraphs in proposed subsection 233B(1), is consequential on the amendments made by Item 3.



Item 5 Subsection 233B(1AB)



Item 5 amends subsection 233B(1AB) by updating a cross-reference in that subsection. The cross-reference, to one of the subparagraphs in proposed subsection 233B(1), is consequential on the amendments made by Item 3.



Item 6 Section 233B(1AC)



Item 6 amends subsection 233B(1AC) by updating a cross-reference in that subsection. The cross-reference, to one of the subparagraphs in proposed subsection 233B(1), is consequential on the amendments made by Item 3.



Item 7 Subsection 233B(1A)



Item 7 amends subsection 233B(1A) by updating a cross-reference in that subsection. The cross-reference, to one of the subparagraphs in proposed subsection 233B(1), is consequential on the amendments made by Item 3.



Item 8 Subsection 233B(1B)



Item 8 amends subsection 233B(1B) by updating a cross-reference in that subsection. The cross-reference, to one of the subparagraphs in proposed subsection 233B(1), is consequential on the amendments made by Item 3.



Cybercrime Act 2001



Item 9 Schedule 1 (heading relating to the Telecommunications (Interception) Act 1997)



Item 9 amends the Cybercrime Act 2001 to correct a misdescription contained in Item 6 of Schedule 1 to that Act.



Item 6 of Schedule 1 refers to the Telecommunications (Interception) Act 1997. However, the correct title of that legislation is the Telecommunications (Interception) Act 1979.



Accordingly, Item 10 substitutes ‘1979’ for ‘1997’.



Mutual Assistance in Criminal Matters Act 1987



Item 10 Paragraph 15(1)(c)



In conjunction with Item 11, this item amends section 15 of the Mutual Assistance in Criminal Matters Act 1987 (MA Act) to simplify the process for obtaining evidential material for use in proceedings in a foreign country.



When seeking mutual assistance in a criminal matter, foreign countries usually do not know when a search warrant would be required to obtain evidential material under Australian law. Currently, a foreign country must explicitly request that material be obtained by search warrant before the Attorney-General can authorise the issue of a search warrant. These amendments remove the need for the foreign country to specifically request that a search warrant be obtained: the foreign country need now only ask for the Attorney-General to arrange for the evidential material to be obtained. The Attorney-General may then exercise his or her own discretion to determine whether a search warrant is the appropriate means by which the material should be obtained.



The amendment in Item 10 removes the requirement in paragraph 15(1)(c) for a foreign country to explicitly request that material be obtained by search warrant. This amendment will benefit those cases where a request from a foreign country to Australia for mutual assistance in a criminal matter seeks material that can only be obtained by exercising a coercive power, but the request does not specifically ask that a search warrant be issued to obtain the requested material. This material commonly includes bank records and company records held at company premises.



At present, when a foreign country requests material which can only be obtained by coercive means, the Attorney-General’s Department must obtain express confirmation of the foreign country that it requests Australian authorities to obtain the material by search warrant before the Attorney-General can authorise the issue of a search warrant.



The current  process can cause delays of  up to  several months in Australia providing mutual assistance to foreign countries in criminal matters, while confirmation is sought from the foreign country. Such a delay would be of concern in a case involving time sensitive or politically sensitive proceedings, particularly those involving terrorism or money laundering.

Foreign countries  usually are not aware of this requirement under Australian law. It is more appropriate and efficient for the foreign country to identify the documents or material it requires and for the Attorney-General to determine the most appropriate procedure to obtain the material requested, without the need for the foreign country to specifically ask for a search warrant to be issued.

The amendments to section 15 will remove these unnecessary delays and inefficiencies. At the same time, section 15 will retain the protections currently contained in section 15:

(a) the foreign country must have commenced a proceeding or investigation involving a serious offence

(b) there must be reasonable  grounds  to believe that evidential material relating to the investigation or proceeding is located in Australia, and

(c) the foreign country must request the Attorney-General to arrange for the evidential material to be obtained.

The current requirement that a foreign country must explicitly request that material be obtained by search warrant provides no additional protection. It is an unnecessary additional administrative step.



Item 11 Subsection 15(1)



This amendment removes the requirement in paragraph 15(1) for a foreign country to explicitly request that material be obtained by search warrant, before the Attorney-General can authorise the issue of a search warrant.



Item 12 Subsection 38ZA(1)



In conjunction with Items 13-16, Item 12 amends section 38ZA of the MA Act to simplify what a police officer does with material seized in response to a mutual assistance request from a foreign country. The amendments repeal the requirement for the police officer to deliver the seized material into the custody and control of the Commissioner of the Australian Federal Police (AFP). Instead, under proposed subsection 38ZA(1) a police officer who has seized material in response to a mutual assistance request from a foreign country will now need to:

(a)    inform the Attorney-General’s Department that the thing has been seized

(b)   retain the thing pending the Attorney-General's direction under subsection 38ZA(4) about how to deal with the thing, and

(c)    comply with any such direction that the Attorney-General gives.



Under existing provisions, the MA Act does not specify that the Commissioner is required to perform a decision-making function in the section 38ZA process. Section 38ZA merely requires that the Commissioner retain the material seized pending a direction from the Attorney-General about how to deal with the thing. The police officer who has seized the material is equally capable of performing this function and, in practice, it is he or she who will actually deal with the seized material as directed by the Attorney-General.



The act of delivering the material to the Commissioner adds nothing to the process and can be logistically difficult. Often, a substantial amount of material is gathered by the police officer in response to a mutual assistance request from a foreign country. The material can include both documentary and physical evidence.



The Commissioner has no powers of delegation under the MA Act, so is not able to delegate his or her functions under section 38ZA.



The proposed amendments would therefore remove an unnecessary obligation from the Commissioner and streamline the process for dealing with seized material.



Item 13 Subsection 38ZA(3)



This amendment repeals subsection 38ZA(3) to remove the need for the police officer who has seized material in response to a mutual assistance request from a foreign country to deliver the seized material into the custody and control of the Commissioner of the AFP.



Item 14 Subsection 38ZA(4)



This amendment provides that where material has been seized in response to a mutual assistance request from a foreign country, the Attorney-General may provide directions to the police officer about how to deal with the seized material. Previously, any such direction from the Attorney-General could only be made to the Commissioner of the AFP.



Item 15 Subsection 38ZA(5)



This amendment provides that where a police officer has seized material in response to a mutual assistance request from a foreign country, the Attorney-General may direct the police officer to send the seized material to a foreign country. Previously, any such direction from the Attorney-General could only be made to the Commissioner of the AFP.



This subsection does not limit the directions that the Attorney-General may give.



Item 16 Subsection 38ZA(6)



This amendment provides that where police officer has seized material in response to a mutual assistance request from a foreign country, the Attorney-General must direct the police officer to return the seized material if:

(a) the reason for seizing the material no longer exists, or

(b) it is decided that the seized material is not to be used in evidence in a foreign country or in a criminal proceeding in Australia.



The Attorney-General must not direct the police officer to return the seized material if it is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.



Previously, any such direction from the Attorney-General could only be made to the Commissioner of the AFP.