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Section 471.26 Criminal Code Act 1995
Use Postal Service to Send Indecent Material to Child Under 16

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Using a postal or similar service to send indecent material to a person under the age of 16 years is an offence under section 471.26 of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 10 years in prison.

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

  1. You were at least 18 years of age
  2. You caused an article to be carried by a postal or similar service
  3. The article was, or contained material that was, indecent, and
  4. The recipient was, or you believed him or her to be, under the age of 16 years.

‘Indecent’ is assessed according to the standards of ordinary people and is determined by the trier of fact, whether that be the jury, judge or magistrate.

Duress is a defence to the charge.

If you require Expert Legal Advice from an Experienced Criminal Defence Lawyer for your Use Postal Service to Send Indecent Material to Child Under 16 matter, call Sydney Criminal Lawyers® today on (02) 9261 8881.

The Legislation

471.26 Using a postal or similar service to send indecent material to person under 16

(1) A person (the sender) commits an offence if:
(a) the sender causes an article to be carried by a postal or similar service to another person (the recipient); and
(b) the article is, or contains, material that is indecent; and
(c) the recipient is someone who is, or who the sender believes to be, under 16; and
(d) the sender is at least 18.

Penalty: Imprisonment for 7 years.

(2) In a prosecution for an offence against subsection (1), whether material is indecent is a matter for the trier of fact.

(3) In this section:

indecent means indecent according to the standards of ordinary people.

Relevant Definitions are as follows:

access in relation to material includes:

(a) the display of the material by a computer or any other output of the material from a computer; or
(b) the copying or moving of the material to any place in a computer or to a data storage device; or
(c) in the case of material that is a program—the execution of the program.

account identifier means:

(a) something that:
(i) contains subscription-specific secure data; and
(ii) is installed, or capable of being installed, in a mobile telecommunications device; or
(b) anything else that:
(i) allows a particular mobile telecommunications account to be identified; and
(ii) is prescribed by the regulations as an account identifier for the purposes of this Part.

Note:     Paragraph (a)—This would include a SIM card.

carriage service provider has the same meaning as in the Telecommunications Act 1997.

Note:     See also section 474.3 respecting persons who are taken to be carriage service providers in relation to certain matters.

carrier has the same meaning as in the Telecommunications Act 1997.

Note:     See also section 474.3 respecting persons who are taken to be carriers in relation to certain matters.

carry includes transmit, switch and receive.

child abuse material means:

(a) material that depicts a person, or a representation of a person, who:
(i) is, or appears to be, under 18 years of age; and
(ii) is, or appears to be, a victim of torture, cruelty or physical abuse;

and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

(b) material that describes a person who:
(i) is, or is implied to be, under 18 years of age; and
(ii) is, or is implied to be, a victim of torture, cruelty or physical abuse;

and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive.

child pornography material means:

(a) material that depicts a person, or a representation of a person, who is, or appears to be, under 18 years of age and who:
(i) is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or
(ii) is in the presence of a person who is engaged in, or appears to be engaged in, a sexual pose or sexual activity;

and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

(b) material the dominant characteristic of which is the depiction, for a sexual purpose, of:
(i) a sexual organ or the anal region of a person who is, or appears to be, under 18 years of age; or
(ii) a representation of such a sexual organ or anal region; or
(iii) the breasts, or a representation of the breasts, of a female person who is, or appears to be, under 18 years of age;

in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

(c) material that describes a person who is, or is implied to be, under 18 years of age and who:
(i) is engaged in, or is implied to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or
(ii) is in the presence of a person who is engaged in, or is implied to be engaged in, a sexual pose or sexual activity;

and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

(d) material that describes:
(i) a sexual organ or the anal region of a person who is, or is implied to be, under 18 years of age; or
(ii) the breasts of a female person who is, or is implied to be, under 18 years of age;

and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive.

communication in the course of telecommunications carriage means a communication that is being carried by a carrier or carriage service provider, and includes a communication that has been collected or received by a carrier or carriage service provider for carriage, but has not yet been delivered by the carrier or carriage service provider.

connected, in relation to a telecommunications network, includes connection otherwise than by means of physical contact (for example, a connection by means of radiocommunication).

control of data, or material that is in the form of data, has the meaning given by section 473.2.

Defence Department means the Department of State that deals with defence and that is administered by the Minister administering section 1 of the Defence Act 1903.

depict includes contain data from which a visual image (whether still or moving) can be generated.

describe includes contain data from which text or sounds can be generated.

emergency call person has the same meaning as in the Telecommunications Act 1997.

emergency service number has the same meaning as in the Telecommunications Act 1997.

emergency service organisation has the same meaning as in section 147 of the Telecommunications (Consumer Protection and Service Standards) Act 1999.

facility has the same meaning as in the Telecommunications Act 1997.

intelligence or security officer means an officer or employee of:

(a) the Australian Security Intelligence Organisation; or
(b) the Australian Secret Intelligence Service; or
(c) the Office of National Assessments; or
(d) that part of the Defence Department known as the Defence Signals Directorate; or
(e) that part of the Defence Department known as the Defence Intelligence Organisation;

and includes a staff member (within the meaning of the Intelligence Services Act 2001) of the Australian Security Intelligence Organisation, the Australian Secret Intelligence Service or the Defence Signals Directorate.

interception device means an apparatus or device that:

(a) is of a kind that is capable of being used to enable a person to intercept a communication passing over a telecommunications system; and
(b) could reasonably be regarded as having been designed:
(i) for the purpose of; or
(ii) for purposes including the purpose of;

using it in connection with the interception of communications passing over a telecommunications system; and

(c) is not designed principally for the reception of communications transmitted by radiocommunications.

Terms used in this definition that are defined in the Telecommunications (Interception and Access) Act 1979 have the same meaning in this definition as they have in that Act.

internet content host has the same meaning as in Schedule 5 to the Broadcasting Services Act 1992.

internet service provider has the same meaning as in Schedule 5 to the Broadcasting Services Act 1992.

law enforcement officer means any of the following:

(a) the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee or a special member of the Australian Federal Police (all within the meaning of the Australian Federal Police Act 1979);
(b) a member, or employee, of the police force of a State or Territory;
(c) a member of the staff of the Australian Crime Commission (within the meaning of the Australian Crime Commission Act 2002);
(d) a member of a police force, or other law enforcement agency, of a foreign country;
(e) the Director of Public Prosecutions or a person performing a similar function under a law of a State or Territory;
(f) a member of the staff of the Office of the Director of Public Prosecutions (within the meaning of the Director of Public Prosecutions Act 1983) or of a similar body established under a law of a State or Territory;
(g) a member of the New South Wales Crime Commission or a member of the staff of that Commission;
(h) an officer of the Independent Commission Against Corruption of New South Wales, being a person who is an officer as defined by the Independent Commission Against Corruption Act 1988 of New South Wales;
(i) the Commissioner of the Police Integrity Commission of New South Wales, an Assistant Commissioner of that Commission or a member of the staff of that Commission;
(j) an officer of the Corruption and Crime Commission of Western Australia within the meaning of the Corruption and Crime Commission Act 2003 of Western Australia;
(k) an authorised commission officer of the Crime and Misconduct Commission of Queensland within the meaning of the Crime and Misconduct Act 2001 of Queensland.

loss means a loss in property, whether temporary or permanent, and includes not getting what one might get.

material includes material in any form, or combination of forms, capable of constituting a communication.

mobile telecommunications account means an account with a carriage service provider for the supply of a public mobile telecommunications service to an end-user.

mobile telecommunications device means an item of customer equipment (within the meaning of the Telecommunications Act 1997) that is used, or is capable of being used, in connection with a public mobile telecommunications service.

National Relay Service has the same meaning as in the Telecommunications Universal Service Management Agency Act 2012.

nominated carrier has the same meaning as in the Telecommunications Act 1997.

NRS provider means:

(a) a person who:
(i) is a contractor (within the meaning of the Telecommunications Universal Service Management Agency Act 2012); and
(ii) provides the whole or a part of the National Relay Service; or
(b) a person who:
(i) is a grant recipient (within the meaning of the Telecommunications Universal Service Management Agency Act 2012); and
(ii) provides the whole or a part of the National Relay Service.

obtaining includes:

(a) obtaining for another person; and
(b) inducing a third person to do something that results in another person obtaining.

obtaining data, or material that is in the form of data, has the meaning given by section 473.3.

possession of data, or material that is in the form of data, has the meaning given by section 473.2.

producing data, or material that is in the form of data, has the meaning given by section 473.3.

property has the same meaning as in Chapter 7.

public mobile telecommunications service has the same meaning as in the Telecommunications Act 1997.

radiocommunication has the same meaning as in the Radiocommunications Act 1992.

serious offence against a foreign law means 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.

serious offence against a law of the Commonwealth, a State or a Territory means an offence against a law of the Commonwealth, a State or a Territory that is punishable by imprisonment:

(a) for life; or
(b) for a period of 5 or more years.

subscription-specific secure data means data that is used, or is capable of being used, to:

(a) allow a carrier to identify a particular mobile telecommunications account (whether an existing account or an account that may be set up in the future); and
(b) allow a mobile telecommunications device in which an account identifier that contains the data is installed to access the public mobile telecommunication service to which that account relates.

supplying data, or material that is in the form of data, has the meaning given by section 473.3.

telecommunications device identifier means:

(a) an electronic identifier of a mobile telecommunications device that is:
(i) installed in the device by the manufacturer; and
(ii) is capable of being used to distinguish that particular device from other mobile telecommunications devices; or
(b) any other form of identifier that is prescribed by the regulations as a telecommunications device identifier for the purposes of this Part.

Note:    Paragraph (a)—For example, GSM mobile phones use an industry-recognised International Mobile Equipment Identity (IMEI) number. This number identifies the particular phone, as compared to the SIM card number which identifies a particular telecommunications account. Carriers are able to block service to lost and stolen mobile phones based on their IMEI numbers.

telecommunications network has the same meaning as in the Telecommunications Act 1997.

use, a carriage service, has a meaning affected by section 473.5.

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.

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    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.

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  3. Australia’s Most Awarded Criminal Law Firm

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  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.

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  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.

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  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.

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  12. Convenience

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

    We offer free parking at our Sydney CBD offices, 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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