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Section 474.33 Criminal Code Act 1995
Failing as a Service Provider to Report Abhorrent Violent Material to Police

Failing as a service provider to report abhorrent violent material to police is an offence under section 474.33 of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 800 penalty units.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You were an internet service provider, or provided a content or hosting service
  2. You were aware the service could be used to access particular material
  3. You had reasonable grounds to believe the particular material accessed was in the form of streamed or recorded abhorrent violent conduct that occurred, or was occurring, in Australia, and
  4. You did not refer the details of the material to the Australian Federal Police, within a reasonable time after becoming aware of its existence.

‘Abhorrent violent conduct’ includes terrorism, murder, attempted murder, torture, rape and kidnapping.

An ‘internet service provider’ is anyone who supplies, or proposes to supply an internet carriage service to the public.

A ‘carriage service’ is:

‘a service for carrying communications by means of guided and/or unguided electromagnetic energy’, which includes telephone calls, text messages and internet transmissions.

An ‘internet carriage service’ is a listed carriage service that enables end-users to access the internet.

A ‘listed carriage service’ is one that is between:

  1. A point in Australia and one or more other points in Australia
  2. A point and one or more other points, where one point is in Australia and at least one of the other points is or are outside Australia, or
  3. A point and one or more other points, where the first point is outside Australia, and at least one of the other points is in Australia.

A ‘point’ is a mobile or potentially mobile point, whether on land, underground, in the atmosphere, in outer space, underwater, at sea or anywhere else.

A ‘point in Australia’ means one that is:

  1. In the atmosphere
  2. In or below the stratosphere, and
  3. Above Australia.

A ‘point outside Australia’ includes one that is:

  1. On a satellite, and
  2. Above the stratosphere.

A ‘content service’ includes any on-line service, including but not limited to:

  1. A broadcasting service
  2. An on-line information service, such as a dial-up information service
  3. An on-line entertainment service, such as on-demand video or interactive gaming service, and
  4. An on-line education service.

A ‘hosting service’ is one that hosts stored material that has been provided on a social media service, relevant electronic service or designated internet service.

A ‘social media service’ is an electronic service:

  1. For which the sole or primary purpose is to enable online social interaction between 2 or more end-users
  2. That allows end-users to link to, or interact with, some or all of the other end-users, and
  3. That allows end-users to post material on the service.

It does not include a service for which none of the material on the service is accessible to, or delivered to, one or more end-users in Australia.

A ‘relevant electronic service’ includes:

  1. A service that enables end-users to communicate, by means of email, with other end-users
  2. An instant messaging service that enables end-users to communicate with other end-users,
  3. An SMS, MMS or chat service that enables end-users to communicate with other end-users, and
  4. A service that enables end-users to play online games with other end-users.

It does not include a service for which none of the material on the service is accessible to, or delivered to, one or more end-users in Australia.

A ‘designated internet service’ includes a service:

  1. That allows end-users to access material using an internet carriage service, or
  2. That delivers material to persons having equipment appropriate for receiving it for which the delivery is by means of an internet carriage service.

It does not include:

  1. A social media service
  2. A relevant electronic service
  3. An on-demand program service, or
  4. A service for which none of the material on the service is accessible to, or delivered to, one or more end-users in Australia.

An ‘on demand program service’ is a service:

  1. That is provided to end-users using an internet carriage service, and
  2. Is identical to a program that has been, or is being, transmitted on:
  • A licensed commercial television broadcasting service
  • A licensed subscription television broadcasting service
  • A subscription television narrowcasting service, or
  • A television broadcasting service provided by the ABC or SBS.

It is immaterial whether the content or service was provided within or outside Australia.

You are not guilty of the offence if you establish to the court, on the balance of probabilities, that you believed the details of the material were already known to the Australian Federal Police.

You are also not guilty if your conduct was protected by the constitutional doctrine of implied freedom of political communication.

Duress is a defence to the charge.

The Legislation

474.33 Failing as a Service Provider to Report Abhorrent Violent Material to Police

(1) A person commits an offence if:
(a) the person:
(i) is an internet service provider; or
(ii) provides a content service; or
(iii) provides a hosting service; and
(b) the person is aware that the service provided by the person can be used to access particular material that the person has reasonable grounds to believe is abhorrent violent material that records or streams abhorrent violent conduct that has occurred, or is occurring, in Australia; and
(c) the person does not refer details of the material to the Australian Federal Police within a reasonable time after becoming aware of the existence of the material.
Penalty: 800 penalty units.

(2) For the purposes of this section:
(a) it is immaterial whether the content service is provided within or outside Australia; and
(b) it is immaterial whether the hosting service is provided within or outside Australia.

(3) Subsection (1) does not apply if the person reasonably believes that details of the material are already known to the Australian Federal Police.

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

Why Choose Sydney Criminal Lawyers®?

Going to court can be nerve-racking, but having a strong and compassionate legal team behind you can make the experience significantly easier to deal with. Here are 12 reasons to choose our multi-award winning legal team:

  1. Proven Track Record of Exceptional Results

    Sydney Criminal Lawyers® consistently achieves outcomes which are in the highest percentile of the Judicial Commission’s sentencing statistics for criminal cases.

    Our legal team devises effective case-strategies and fights hard to have cases dropped entirely or charges downgraded – saving clients the time, expense and stress of a defended hearing or jury trial.

    Where cases nevertheless proceed, our lawyers have an outstanding track record of winning defended Local Court hearings, and complex jury trials in the District and Supreme Courts.

    We also consistently win appeals in the District and Supreme Courts (including the NSWCCA) after clients have received unsatisfactory results with other law firms in the lower courts.We are one of the few firms to achieve successful criminal law appeals in the High Court of Australia.

    Where our clients wish to plead guilty, we frequently achieve ‘dismissals’ and ‘non convictions’ in cases where other lawyers have advised there is no chance of doing so.

  2. Highest Level of Client Satisfaction

    We have the best and most comprehensive client review record of any law firm in Australia.

    Regular communication, accessibility and quality service are our team’s highest priorities.

    We are committed to thoroughly explaining all steps involved in the criminal law process, providing regular updates throughout the proceedings, and making ourselves accessible and responsive.

    We are passionate about providing an exceptional level of service to our clients, and we fight hard to achieve optimal results in the shortest period of time.

  3. Australia’s Most Awarded Criminal Law Firm

    We have received more awards and accolades than any other criminal law firm in Australia. Our team has been awarded “Criminal Defence Firm of the Year in Australia” in a number of prestigious and competitive awards programs for several years running.

    The awards recognise our exceptional track record of results, our outstanding client service, the high level of satisfaction we achieve, the affordability of our services and our overall excellence.

  4. Fixed Fees

    We want our clients to know exactly how much their cases will cost from the very start. That’s why we were the first criminal law firm in Australia to publish ‘fixed fees’, back in 2004.

    We offer fixed fees for most types of criminal cases and services.Our fixed fees apply to a range of Local Court cases such as drink driving, drug possession, fraud, common assault and AVOs, and also specific services such as prison visits, bail applications, appeals and defended hearings.

    Unlike many other law firms, our fixed fees are published on our website – which ensures transparency and certainty.

  5. Free First Appointment

    For those who are going to court, we offer a free first conference of up to an hour with one of our Senior Criminal Defence Lawyers.

    We also offer a free first conference to those who have received an unsatisfactory result after being represented in court by another law firm, or after representing themselves, and wish to appeal.

  6. Specialist Lawyer Guarantee

    We guarantee that only lawyers with substantial criminal defence experience will work on your case and appear for you in court.

    This ensures our clients receive the highest quality representation from an experienced, specialist criminal lawyer.

  7. All NSW Courts

    From Bombala to Broken Hill, our lawyers appear in courts throughout New South Wales – and across Australia for Commonwealth cases.

    And we offer fixed fees for most criminal and traffic law cases throughout the state.

  8. Accredited Specialists

    Our entire firm is exclusively dedicated to criminal law – which makes us true specialists.

    All of our lawyers have years of experience representing clients in criminal cases, and our principal has been certified by the Law Society of NSW as an Accredited Criminal Law Specialist since 2005.

    An ‘Accredited Specialist’ is a lawyer who has practised for at least 5 years in a particular field of law (such as criminal law), has passed a rigorous assessment process conducted by the Law Society of NSW, and has been selected by the Specialist Accreditation Committee of the Law Society as an expert in the field.

    Accredited Specialists are required to undertake more training each year than other lawyers and must be successful in having their accreditation renewed every year. Specialist Accreditation is the mark of a true specialist.

    Our firm’s specialist experience ensures you receive the best possible result, whatever your criminal law case may be.

  9. Results-Focused Law Firm

    Our team is passionate about achieving results, and unlike many other law firms, our lawyers do not have monthly financial ‘budgets’ to meet.

    The absence of budgets means our lawyers are entirely focused on achieving optimal results in the shortest space of time; whether by getting charges dropped or downgraded at an early stage or having cases ‘thrown out of court’.

    Not having budgets also means our lawyers are not under pressure to engage in unscrupulous practices such as unnecessarily adjourning cases or ‘overcharging’ clients – which, sadly, is a common complaint against many other lawyers and law firms.

    No budgets encourages regular consultation between lawyers within the firm – promoting an ‘open door’, team environment where lawyers bounce ideas off one another, formulate case strategy together and benefit from each other’s specialised experience, methods, techniques and insights.

    The result is a firm which delivers optimal outcomes in the shortest time periods, at the least expense and stress to our clients.

  10. Team of Lawyers Behind You

    Our clients benefit from the pool of knowledge that only an extensive team of experienced criminal defence lawyers can provide.

    Our lawyers regularly consult one another to stay ‘ahead of the pack’ in the ever-changing field of criminal law – constantly devising, refining and implementing specialised techniques which ensure our clients achieve the best possible outcomes.

    A team approach is particularly important when it comes to serious criminal cases such as murder, commercial drug cases, serious and sexual assaults, large-scale fraud, robbery and other ‘indictable’ cases.

    In such matters, clients reap the benefits of several lawyers devising and executing case strategies which maximise the chances of having cases dropped or downgraded at an early stage, or ‘thrown out of court’ – often saving clients a great deal of cost, time and anxiety.

  11. Familiar with Magistrates and Judges

    Each of our lawyers appears in court on a daily basis, and has done so for years. We have therefore been able to develop an understanding of, and rapport with, magistrates and judges in Sydney and indeed across the state.

    Our team’s extensive experience before the courts ensures your case is tailored to the specific nuances of individual judicial officers, maximising the likelihood of a favourable result.

  12. Convenience

    We have offices in locations across the Sydney Metropolitan Area and beyond, including:

    • the Sydney CBD, on Castlereagh Street, directly opposite Downing Centre Court,
    • Liverpool, directly opposite Liverpool Local Court, and
    • Parramatta, near the justice precinct.

    We offer free parking at our Sydney CBD and Liverpool locations, and all of our offices are close to train stations and bus terminals.

    For those who are unable to attend our offices, we offer conferences by telephone, Skye and FaceTime anywhere around the world.

    If you are going to court and wish to arrange a free first consultation, call our 24 hour hotline on (02) 9261 8881 or send us an email at info@sydneycriminallawyers.com.au.

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