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Aggravated Use of Carriage Service to Menace, Harass or Offend

Aggravated Use of Carriage Service to Menace, Harass or Offend is a crime under Section 474.17A of the Criminal Code Act 1995 which carries a maximum penalty of 5 years in prison.

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

  1. You used a carriage service
  2. You did so in a way that a reasonable person would regard as menacing, harassing or offensive
  3. The use involved transmitting, making available, publishing, distributing, advertising or promoting material, and
  4. The material was private sexual material

A ‘carriage service’ is defined as:

‘a service for carrying communications by means of guided and/or unguided electromagnetic energy’ which includes telephone calls, text messages and internet transmissions, such as emails and the use of social media sites.

The use is ‘menacing’ if it includes:

An express or implied threat of detrimental or unpleasant conduct which is likely to cause the other person to act unwillingly.

The use is ‘offensive’ if a reasonable person would regard it as being so the matters to be considered when deciding whether the use is offensive include:

  1. the standards of morality, decency and propriety generally accepted by reasonable adults
  2. Any literary, artistic or educational merit of the material, and
  3. The general character of the material, including whether it is of a medical, legal or scientific character

The legislation does not define ‘harass’ however, it has been defined as:

‘to disturb, bother or pester repeatedly’.

‘Private sexual material’ is that which depicts:

  1.  An adult engaged in a sexual pose or sexual activity, or
  2. An adult’s sexual organ or anal region, or the breasts of a female, where a reasonable person would expect the material to be private

Defences to the charge include:

  1. Duress
  2. Necessity, and
  3. Self-defence

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