Section 474.22 Criminal Code Act 1995
Use Carriage Service for Child Abuse Material

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Using a carriage service for child abuse material is an offence under section 474.22 of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 15 years in prison.

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

  1. You accessed material, caused material to be transmitted to you, or transmitted, made available, published, distributed, advertised, promoted or solicited material
  2. You did so by use of a carriage service, and
  3. The material was child abuse material.

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.

‘Child abuse material’ is that which depicts a person, or a representation of a person, who is, or appears to be, in a way that reasonable persons would regard as offensive:

  1. Under 18 years of age, and
  2. A victim of torture, cruelty or physical abuse.

Or:

Material that describes a person who is, or is implied to be, in a way that reasonable persons would regard as offensive:

  1. Under 18 years of age, and
  2. A victim of torture, cruelty or physical abuse.

Or:

Material that depicts a person, or a representation of a person who is, or appears to be, in a way that reasonable persons would regard as offensive:

  1. Under 18 years of age, and
  2. Engaged in, or appearing to be engaged in, a sexual pose or sexual activity whether or not in the presence of other persons, or in the presence of a person engaged in, or appearing to be engaged in, a sexual pose or sexual activity.

Or:

Material whose dominant characteristic is the depiction, for a sexual purpose, in a way that reasonable persons would regard as offensive:

  1. A sexual organ or anal region of a person who is, or appears to be, under 18 years of age, or a representation of such a sexual organ anal region, or
  2. The breasts, or a representation of the breasts, of a female person who is, or appears to be, under 18 years of age.

Or:

Material that describes in a way that reasonable persons would regard as offensive.

A person who is, or is implied to be, under 18 years of age and who is:

  1. Engaged in, or implied to be engaged in, a sexual pose or sexual activity, whether or not in the presence of other persons, or
  2. In the presence of a person engaged in, or implied to be engaged in, a sexual pose or sexual activity.

Or:

Material that describes in a way that reasonable persons would regard as offensive.

  1. A sexual organ or anal region of a person who is, or is implied to be, under 18 years of age, or
  2. The breasts of a female person who is, or is implied to be, under 18 years of age.

Or:

Material that is a doll or other object intended to be used to simulate sexual intercourse that resembles:

  1. A person who is, or appears to be, under 18 years of age, or
  2. Part of the body of such a person.

You are not guilty of the offence if you are able to establish ‘on the balance of probabilities’ that your conduct:

  1. Was of public interest, and
  2. Did not extend beyond that interest.

Your conduct was of public interest if, and only if, it was necessary for or of assistance in:

  1. Enforcing a law of the Commonwealth, a State or a Territory
  2. Monitoring compliance with, or investigating a contravention of, such a law
  3. The administration of justice, or
  4. Conducting scientific, medical or educational research approved in writing by the AFP Minister.

Your motives are irrelevant for determining whether your conduct was of public interest.

You are not criminally responsible for your conduct if:

  1. You were, at the time, a law enforcement officer, or an intelligence or security officer acting in the course of your duties, and it was reasonable in the circumstances for the purpose of performing your duties
  2. You were assisting the eSafety Commissioner to perform his or her functions under the Online Safety Act 2021, or
  3. You were manufacturing, developing or updating content filtering technology in accordance with an industry code or standard.

Duress and necessity are defences to the charge.


Possessing or controlling child abuse material obtained or accessed using a carriage service is an offence under section 474.22A of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 15 years in prison.

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

  1. You possessed or controlled material
  2. The material was in the form of data
  3. You used a carriage service to obtain or access the material, and
  4. The material was child abuse material.

‘Data’ is information in any form, including any program or part of a program.

To ‘possess or control’ data means to:

  1. Possess a computer or data storage device that holds or contains the data
  2. Possess a document in which the data is recorded, or
  3. Control data held in a computer in the possession of another person whether inside or outside Australia..

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.

‘Child abuse material’ is that which depicts a person, or a representation of a person, who is, or appears to be, in a way that reasonable persons would regard as offensive:

  1. Under 18 years of age, and
  2. A victim of torture, cruelty or physical abuse.

Or:

Material that describes a person who is, or is implied to be, in a way that reasonable persons would regard as offensive:

  1. Under 18 years of age, and
  2. A victim of torture, cruelty or physical abuse.

Or:

Material that depicts a person, or a representation of a person who is, or appears to be, in a way that reasonable persons would regard as offensive:

  1. Under 18 years of age, and
  2. Engaged in, or appearing to be engaged in, a sexual pose or sexual activity, whether or not in the presence of other persons, or in the presence of a person engaged in, or appearing to be engaged in, a sexual pose or sexual activity.

Or:

Material whose dominant characteristic is the depiction, for a sexual purpose, in a way that reasonable persons would regard as offensive:

  1. A sexual organ or anal region of a person who is, or appears to be, under 18 years of age, or a representation of such a sexual organ anal region, or
  2. The breasts, or a representation of the breasts, of a female person who is, or appears to be, under 18 years of age.

Or:

Material that describes in a way that reasonable persons would regard as offensive.

A person who is, or is implied to be, under 18 years of age and who is:

  1. Engaged in, or implied to be engaged in, a sexual pose or sexual activity, whether or not in the presence of other persons, or
  2. In the presence of a person engaged in, or implied to be engaged in, a sexual pose or sexual activity.

Or:

Material that describes in a way that reasonable persons would regard as offensive.

  1. A sexual organ or anal region of a person who is, or is implied to be, under 18 years of age, or
  2. The breasts of a female person who is, or is implied to be, under 18 years of age.

Or:

Material that is a doll or other object intended to be used to simulate sexual intercourse that resembles:

  1. A person who is, or appears to be, under 18 years of age, or
  2. Part of the body of such a person.

You are not guilty of the offence if you are able to establish ‘on the balance of probabilities’ that your conduct:

  1. Was of public interest, and
  2. Did not extend beyond that interest.

Your conduct was of public interest if, and only if, it was necessary for or of assistance in:

  1. Enforcing a law of the Commonwealth, a State or a Territory
  2. Monitoring compliance with, or investigating a contravention of, such a law
  3. The administration of justice, or
  4. Conducting scientific, medical or educational research approved in writing by the AFP Minister.

Your motives are irrelevant for determining whether your conduct was of public interest.

You are not criminally responsible for your conduct if:

  1. You were, at the time, a law enforcement officer, or an intelligence or security officer acting in the course of your duties, and it was reasonable in the circumstances for the purpose of performing your duties.
  2. You were assisting the eSafety Commissioner to perform his or her functions under the Online Safety Act 2021, or
  3. You were manufacturing, developing or updating content filtering technology in accordance with an industry code or standard.

Duress and necessity are defences to the charge.

If you require Expert Legal Advice from an Experienced Criminal Defence Lawyer for your Use Carriage Service for Child Abuse Material matter, call Sydney Criminal Lawyers® today on (02) 9261 8881.

The Legislation

474.22 Using a carriage service for child abuse material

(1) A person is guilty of an offence if:
(a) the person:
(i) accesses material; or
(ii) causes material to be transmitted to himself or herself; or
(iii) transmits, makes available, publishes, distributes, advertises or promotes material; or
(iv) solicits material; and
(aa) the person does so using a carriage service; and
(b) the material is child abuse material.

Penalty: Imprisonment for 15 years.

(2) To avoid doubt, the following are the fault elements for the physical elements of an offence against subsection (1):
(a) intention is the fault element for the conduct referred to in paragraph (1)(a);
(b) recklessness is the fault element for the circumstances referred to in paragraph (1)(b).

Note:     For the meaning of intention and recklessness see sections 5.2 and 5.4.

(2A) Absolute liability applies to paragraph (1)(aa).

Note:     For absolute liability, see section 6.2.

(3) As well as the general defences provided for in Part 2.3, defences are provided for under section 474.24 in relation to this section.

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    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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