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Creating, Developing, Altering, Maintaining, Controlling or Moderating an Electronic Service for Child Abuse Material

Creating, developing, altering, maintaining, controlling or moderating an electronic service for child abuse material is an offence under section 474.23A of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 20 years in prison.

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

  1. You created, developed, altered, maintained, controlled, moderated, made available, advertised or promoted an electronic service or assisted in doing so, and
  1. You did so intending the service to be used by you or another person to commit an offence of:
  • Using a carriage service for child abuse material under section 474.22 of the Act
  • Possessing or controlling child abuse material obtained or accessed using a carriage service under section 474.22A of the Act, or
  • Possessing, controlling, producing, supplying or obtaining child abuse material through a carriage service under section 474.23 of the Act.

An ‘electronic service’ is one for which a purpose is to:

  1. Allow persons to access material using a carriage service, or
  2. Deliver material to persons having equipment appropriate for receiving that material, where the delivery is by means of a carriage service.

‘Material’ includes material of any form, or combination of forms, capable of constituting a communication.

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
  1. 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 may be found guilty of the offence even if:

  1. Committing an offence under section 474.22, 474.22A or 474.23 was impossible, or
  2. The electronic service was incapable of being used.

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.

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