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Using a Carriage Service for Child Abuse Material

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.

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