474.19 Using a carriage service for child pornography material
(1) A person is guilty of an offence if:
(a) the person:
(i) uses a carriage service to access material; or
(ii) uses a carriage service to cause material to be transmitted to the person; or
(iii) uses a carriage service to transmit material; or
(iv) uses a carriage service to make material available; or
(v) uses a carriage service to publish or otherwise distribute material; and
(b) the material is child pornography material.
Penalty: Imprisonment for 10 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.
(3) As well as the general defences provided for in Part 2.3, defences are provided for under section 474.21 in relation to this section.
474.20 Possessing, controlling, producing, supplying or obtaining child pornography material for use through a carriage service
(1) A person is guilty of an offence if:
(a) the person:
(i) has possession or control of material; or
(ii) produces, supplies or obtains material; and
(b) the material is child pornography material; and
(c) the person has that possession or control, or engages in that production, supply or obtaining, with the intention that the material be used:
(i) by that person; or
(ii) by another person;
in committing an offence against section 474.19 (using a carriage service for child pornography material).
Penalty: Imprisonment for 10 years.
(2) A person may be found guilty of an offence against subsection (1) even if committing the offence against section 474.19 (using a carriage service for child pornography material) is impossible.
(3) It is not an offence to attempt to commit an offence against subsection (1).
474.21 Defences in respect of child pornography material
(1) A person is not criminally responsible for an offence against section 474.19 (using a carriage service for child pornography material) or 474.20 (possessing etc. child pornography material for use through a carriage service) because of engaging in particular conduct if the conduct:
(a) is of public benefit; and
(b) does not extend beyond what is of public benefit.
In determining whether the person is, under this subsection, not criminally responsible for the offence, the question whether the conduct is of public benefit is a question of fact and the person's motives in engaging in the conduct are irrelevant.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
(2) For the purposes of subsection (1), conduct is of public benefit if, and only if, the conduct is necessary for or of assistance in:
(a) enforcing a law of the Commonwealth, a State or a Territory; or
(b) monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or a Territory; or
(c) the administration of justice; or
(d) conducting scientific, medical or educational research that has been approved by the Minister in writing for the purposes of this section.
(3) A person is not criminally responsible for an offence against section 474.19 (using a carriage service for child pornography material) or 474.20 (possessing etc. child pornography material for use through a carriage service) if:
(a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in the course of his or her duties; and
(b) the conduct of the person is reasonable in the circumstances for the purpose of performing that duty.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
(4) A person is not criminally responsible for an offence against section 474.19 (using a carriage service for child pornography material) or 474.20 (possessing etc. child pornography material for use through a carriage service) if the person engages in the conduct in good faith for the sole purpose of:
(a) assisting the Australian Communications and Media Authority to detect:
(i) prohibited content (within the meaning of Schedule 7 to the
Broadcasting Services Act 1992 ); or
(ii) potential prohibited content (within the meaning of that Schedule);
in the performance of the Authority's functions under Schedule 5 or Schedule 7 to that Act; or
(b) manufacturing or developing, or updating, content filtering technology (including software) in accordance with:
(i) a recognised alternative access‑prevention arrangement (within the meaning of clause 40 of Schedule 5 to the
Broadcasting Services Act 1992 ); or
(ii) a designated alternative access‑prevention arrangement (within the meaning of clause 60 of that Schedule).
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
