Bills Digest No. 13 2004-05
Amendment (Telecommunications Offences and Other Measures) Bill
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Contact Officer & Copyright Details
Amendment (Telecommunications Offences and Other Measures) Bill
Date Introduced: 24 June 2004
Portfolio: Justice and Customs
Commencement: Various (see Main Provisions section)
The major part of the Bill introduces new offences under the
Criminal Code Act 1995 (the
'Criminal Code') involving use of a telecommunications network or
'carriage service' (the internet, emails, mobile and fixed
telephones, faxes, radio and TV). Proposed new offences include the
use of such a network or service:
for a 'serious offence'
to make a threat
to menace, harass or 'cause offence'
for child pornography or child abuse material
to procure or 'groom' a person under 16 years of age for a
sexual purpose, and
for suicide related material.
The Bill also proposes
new offences relating to contamination of goods, dishonest
financial dealing and child prostitution on board
The Bill also makes important changes to the Criminal Code in
relation to the criminal trial process. It proposes that:
where a jury is satisfied that an accused was responsible for a
crime, but is unsure whether they carried out the crime themselves
or were complicit in the offence, the jury should be able to find
the accused guilty of the crime, and
a person should remain criminally responsible if they are
ignorant of or mistaken about a law or regulation creating an
offence, unless the law or regulation expressly provides
In addition, the Bill amends the Customs Act 1901 to
ensure that in prosecuting a charge of illegally importing
narcotics it will not be necessary to prove that the accused
intentionally brought a prohibited item into Australia.
Finally, the Bill amends the Mutual Assistance in Criminal
Matters Act 1987 to make it easier for a foreign country to
obtain evidence from Australia in criminal investigations.
A person can only be validly subject to the proposed offences if
the new provisions are within Commonwealth constitutional power. By
linking many of the proposed offences in Schedule
1 of the Bill to use of telecommunications networks or
'carriage services', the Government will make the new provisions
applicable in a wide variety but not all situations.
The Commonwealth appears to have full constitutional power to
make laws in relation to electronic telecommunications, including
the internet. Under section 51(5) of the Constitution it has power
to legislate with respect to 'postal, telegraphic, telephonic and
other like services'. Even though radio and television
were not contemplated at the time the Constitution was drafted,
both those mediums have been held by the High Court to be 'other
like services' within the scope of section 51(5).(1) In
1935 the High Court stated that the common characteristic of
postal, telegraphic and telephonic services was that:
They are communication services If a new form of
communication should be discovered, it too might be made the
subject of legislation as a 'like service'.(2)
The court also rejected the notion that section 51(5) was
restricted to services for communication between
individuals.(3) So creating offences relating to use of
telephones, the internet and other 'carriage services' is plainly
within Commonwealth power.
However, if a telecommunications network or 'carriage service'
is not used for a particular activity, and provided the person
carrying out the activity is not otherwise within a head of power
in the Constitution (e.g. a corporation, trading interstate, or
within the scope of a relevant international agreement), the
Commonwealth will have no constitutional power to regulate the
activity, let alone specify it as a criminal offence. For example,
a person using a library to obtain 'suicide related material' in
physical form could not validly be subject to a Commonwealth law.
Any offence in such circumstances would be a matter for State
According to the Minister for Justice and Customs, Senator
Ellison, 'the taking of a photo using a camera phone would be
covered by this legislation if it were used to transmit child
pornography or images which were used to menace, harass or for
other offensive purposes'.(4) Someone taking an
offensive picture of a person without permission would be caught by
existing State legislation. The federal law proposed in this Bill
would come in once the pictures were transmitted from phone to
phone or over the internet.
Apart from a specific offence of using carriage services for
child pornography and child abuse material, the Bill also
introduces a general crime of using a carriage service to 'cause
offence'. This offence appears to cover both general 'offensive'
material as regulated by the Commonwealth Office of Film and
Literature Classification (OFLC) and more specific offensive
conduct such as racial vilification already covered by various
Commonwealth and State/Territory laws.
A cooperative federal scheme provides a uniform censorship and
classification system throughout all Australian jurisdictions.
scheme consists of central Commonwealth legislation and
complementary State and Territory provisions.
Classification of films, computer games and publications is
administered by the OFLC under the
Classification (Publications, Films and Computer Games) Act
1995. The Act covers the structure and functions of the
OFLC as well as classification criteria
and procedures. State and Territory legislation deals with the
enforcement of classification decisions. The classification scheme
for television, radio and internet is overseen by the Australian
Broadcasting Authority (ABA) under the Broadcasting
Services Act 1992.(6)
All States and Territories have retained or enacted their own
classification legislation. Generally the object of the State and
Territory legislation is to give effect to the national
classification scheme as set out in the Classification
(Publications, Films and Computer Games) Act.
Publications, films and computer games are classified in
accordance with the National Classification Code and the
classification guidelines. The Commonwealth Minister determines the
classification guidelines in agreement with each participating
State/Territory Minister. The Code contains the general principle
that 'adults should be able to read, hear and see what they want'.
However this is qualified by the following concerns:
minors should be protected from material likely to harm or
everyone should be protected from exposure to unsolicited
material that they find offensive, and
the need to take account of community concerns about:
depictions that condone or incite violence, particularly sexual
the portrayal of persons in a demeaning manner.
In relation to regulation of internet content, the explanatory
memorandum to the Bill notes that:
Under the Online Content Co-Regulatory Scheme (the
Scheme), created by Schedule 5 of the Broadcasting
Services Act, the ABA handles and investigates complaints from
the public about prohibited Internet content or potential
prohibited Internet content and can order Australian Internet
content hosts not to host such content. The Scheme also
requires scheduled filter software manufacturers to update their
filters in accordance with ABA notifications so that prohibited
content or potential prohibited Internet cannot be accessed when
using such software.(7)
For further background, see the parliamentary library e-brief by
Kim Jackson, Censorship and Classification in Australia
One of the situations that the Government envisages will be
covered by the offence of using a carriage service to 'cause
offence' introduced by the Bill is 'use that vilifies persons on
the basis of their race or religion'.(9)
The Commonwealth Racial Discrimination Act 1975
prohibits actions that are:
reasonably likely to offend, insult, humiliate or
intimidate another person or a group of people because of the race,
colour or national or ethnic origin of the other person or some or
all of the people in the group.(10)
However the Racial Discrimination Act does not make such actions
a specific criminal offence.(11)
Most other Australian jurisdictions have similar legislation
which both prohibits such conduct and makes it a criminal offence.
The prohibition generally applies to 'public acts', i.e. 'any form
of communication to the public', which would include racial
vilification via the internet but does not cover private
communications such telephone conversations.(12)
Under Schedule 5 of the Broadcasting Services Act 1992
the Online Content Co-Regulatory Scheme administered by the ABA
regulates internet service providers and internet content hosts.
However it does not regulate either producers of content, or
persons who upload or access content. These categories of online
content creators and end users are regulated instead by a
combination of State and Territory online enforcement laws and the
In general, State classification and criminal laws do not make
it an offence for adults to view or possess pornography.
Classification guidelines relate mainly to the ability of children
to access such material.
Possession of child pornography and/or child abuse material,
however, is an offence in all States and Territories. In Western
Australia, for example, it is an offence punishable by imprisonment
for up to 7 years to possess or copy with intent to sell or supply,
or to display, exhibit, publish or actually sell or supply 'child
pornography'. Possession of 10 or more copies of an item of child
pornography is evidence of an intention to sell or
supply.(13) 'Child pornography' is defined as:
an article that describes or depicts, in a manner
that is likely to cause offence to a reasonable adult, a person who
is, or who looks like, a child under 16 years of age, whether the
person is engaged in sexual activity or not.(14)
In Queensland, a person must not knowingly have possession of a
'child abuse' publication or 'child abuse' photography, or
advertise, sell, distribute, exhibit or display a 'prohibited'
publication or 'child abuse' photograph.(15) The maximum
penalty is imprisonment for 3 years. A child abuse publication is
a Refused Classification publication that depicts
or describes in pictorial or other form a person who is, or who
looks like, a child under 16 years (whether the person is engaged
in sexual activity or not) in a way that is likely to cause offence
to a reasonable adult.(16)
These offences would appear to encompass use of any public
'carriage service' (internet, radio, tv, sending pictures by mobile
While suicide or attempted suicide is no longer an offence in
Australia, assisting or encouraging another person to commit
suicide is an offence in all States and Territories. In addition, to assist or
encourage another person to attempt to commit suicide is
an offence in the Australian Capital Territory, the Northern
Territory, New South Wales, South Australia and Victoria. Further, except in Victoria,
a person can be
prosecuted for 'attempt' if they have unsuccessfully assisted or
encouraged suicide. Murder or manslaughter may also be relevant, on
the basis that the assistance or encouragement caused the death of
a person who committed suicide. However the deliberate taking of one's own life
would normally be an 'intervening cause' which relieves the other
person of responsibility.(17)
The offence of 'assisting suicide' under the New South Wales
Crimes Act 1900 is expressed in the following terms:
31C Aiding etc suicide
person who aids or abets the suicide or attempted suicide of
person shall be liable to imprisonment for 10 years.
person incites or
person to commit suicide, and
other person commits, or attempts to commit, suicide as a
consequence of that incitement or
the first mentioned
person shall be liable to imprisonment for 5 years.
The Attorney-General's Department published an
exposure draft of the Bill in March 2004, providing one month
for interested persons and organisations to comment.(18)
Some of the publicly available comments received on the exposure
draft are included below.
On 15 July 2004 the Minister for Communications, Information
Technology and the Arts invited public comment as part of a review
into the regulation of illegal or offensive content on mobile
telephones and other mobile devices. The Minister announced
Pending the results of this new review, I have
already directed the Australian Communications Authority (ACA) to
regulate access to content provided on new premium services
delivered over mobiles.
This included putting in place access controls for
adult content delivered on the new premium rate services and on
proprietary networks operated by carriers. These controls will
restrict access by children to content that is unsuitable for
The Department of Communications, Information Technology and the
Arts issued a discussion
paper(20) as part of this review, calling for
submissions by 3 September 2004.
Commencement: Six months and one day after Royal
Schedule 1 Part 1 amends the Criminal Code and
other Commonwealth Acts to provide for a range of
telecommunications offences, aimed particularly at misuse of
Item 18 of Schedule 1 provides that the phrase
'carriage service' is to have the same meaning as
in the Telecommunications Act 1997, i.e. 'a service for
carrying communications by means of guided and/or unguided
electromagnetic energy',(21) Parliament might note that
on this basis 'carriage service' not only covers the internet,
emails, telephone (mobile and fixed), faxes etc, but would also
include radio and TV.
Item 1 of Schedule 1 replaces Part 10.6 of the
Criminal Code with a new Part 10.6 covering
various telecommunications offences. The new provisions will also
replace the telecommunications offences in existing Part VIIB of
the Crimes Act 1914 (item 5).
Some parts of Schedule 1 reproduce existing
offences under the Criminal Code and/or the Crimes Act, or
reproduce such offences with minor changes only. This digest does
not provided detailed comments on these provisions.
Proposed section 474.4 Interception devices
This provision makes it an offence to manufacture, advertise,
sell or possess an 'interception device'. The proposed section
specifies exceptions where it is not an offence to sell or
possess a device for intercepting telecommunications (for example,
where interception is conducted lawfully by law enforcement or
national security agencies under the Telecommunications
(Interception) Act 1979).
As noted by Electronic Frontiers Australia (EFA),(22)
the proposed wording does not provide an exception for the use of
modems, mobile phones, telephone handsets etc 'by persons accessing
their own email and stored voice mail messages'.(23)
Proposed section 474.5 Wrongful delivery of
This provision is based on existing section
85ZD of the Crimes Act, making it an offence to cause a
telecommunication to be received by someone other than the person
or service it is directed to. An issue is whether this is properly
worded for modern use of internet services. There would appear to
be an offence under the proposed section where, for example, a
business instructs an internet service provider to re-direct emails
addressed to a former employee.
Proposed sections 474.7 to 474.12 Modification and
copying of telecommunications device identifier or account
These provisions propose new offences for unauthorised
modification or copying of telecommunications equipment or account
'identifiers'. The offences are aimed particularly at unauthorised
use of lost or stolen mobile phones, and at attempts to hamper
interception and tracking of mobile phone calls (for example, by
copying several mobile phone numbers onto a single 'subscriber
identity module' (SIM) card).
This Bill proposes a new section
474.14 of the Criminal Code to replace existing
section 85ZK of the Crimes Act. The new provision will
make it an offence to use a telecommunications network for a
'serious offence'. Instead of a maximum penalty of 5 years
imprisonment in the current provision, the maximum penalty will be
the same as that for the particular offence.
A 'serious offence' is an offence against a law of the
Commonwealth, a State or a Territory punishable by imprisonment for
life or 5 or more years. It also includes any offence against
foreign law that would be a 'serious offence' under the Bill if
committed in Australia.(24)
Proposed subsection 474.14(5) provides that a
person can be found guilty of intending to commit a serious offence
through use of a telecommunications network 'even if committing the
serious offence is impossible'. The explanatory memorandum notes
reflects the emergent common law consensus that a
person can be convicted of attempt here, essentially a preparatory
offence even though completion of the offence was impossible in the
circumstances. In other words, the law of attempt holds that
it is irrelevant if a particular result does not
Proposed section 474.15 makes it an offence to
'use a carriage service' to threaten to kill or cause serious harm
with the intention of instilling fear in another person.
The explanatory memorandum does not explain why a specific
offence is needed covering use of a telecommunications/carriage
service to make a threat given the existence in all Australian
jurisdictions of general statutory and/or common law crimes of
'assault' (which includes threatening assault) with no restriction
on the medium used to communicate a threat.(26) Adding
the proposed new offence for 'use of a carriage service' is,
however, consistent with existing section 471.11
which makes it a crime to 'use a postal or similar service to make
Under proposed section 474.17 there will be a
maximum punishment of 3 years imprisonment for using a
telecommunications/carriage service in a way 'that reasonable
persons would regard as being, in all the circumstances, menacing,
harassing or offensive'. The proposed provision will replace
existing section 85ZE of the Crimes Act.
Menacing or harassing
The explanatory memorandum notes that in relation to 'menacing
or harassing' use of a carriage service the proposed offence is
broader than existing subsection 85ZE(1) of the Crimes Act.
This is because the proposed provision:
removes the requirement that the recipient be
in fact menaced or harassed and replaces it with an
objective standard. The proposed offence provides that
reasonable persons must regard the use of the carriage service,
given all the circumstances, as menacing, harassing or
offensive. This allows community standards and common sense
to be imported into a decision on whether the conduct is in fact
menacing, harassing or offensive.(27) (emphasis
In addition, as the explanatory memorandum says, whether
'reasonable persons' would regard particular use of a carriage
service as menacing or harassing is 'a
circumstance in which the offending conduct must
occur'.(28) Under section 5.6 of the Criminal Code, this
means that to be guilty of the proposed offence, a person need not
intend to cause 'reasonable persons' to feel menaced or
harassed but need only be reckless as to whether that
reaction occurs, i.e. 'aware of a substantial risk' which it is not
justifiable to take that this might occur.(29) This is
similar to existing section 471.12 of the Criminal
Code regarding use of a postal or similar service 'to menace,
harass or cause offence'.
EFA 'is strongly opposed to the removal of the requirement that
another person be in fact menaced or harassed.' It believes that
the change is aimed at use of the internet to organise political
protests: 'the aim of the proposed offence is to facilitate
criminal prosecution of Internet users, and especially political
activists'.(30) As the Government said in August
People using the Internet to advocate or
facilitate violent protests, for example by spreading information
on methods of violently disrupting international meetings and
attacking police officers protecting such gatherings, including
those using the Internet to harass or menace others are amongst
those who could be prosecuted under the new
EFA believes that the existing parts of section 85ZE of the
Crimes Act relating to menacing or harassing use of
telecommunications/carriage services do not need to be changed. If
use of the internet actually menaces or harasses a person, such
conduct can be prosecuted. In addition, EFA notes that material on
the internet which 'promotes, instructs or incites in matters of
violence or crime' can be classified 'Refused Classification' by
the Classification Board, and that under Schedule 5 of the
Broadcasting Services Act 1992 such material has been
prohibited internet content since 1 January
Under existing section 85ZE of the Crimes Act,
the offence consisting of 'offensive' use of a telecommunications
service does not apply to 'use of a carriage service to carry
Internet content'.(33) In contrast, the offence in
proposed section 474.17 will apply to any use of a
'carriage service', including the internet.
Proposed section 473.4 states that in deciding
whether reasonable persons would regard a particular use of a
telecommunications/carriage service as 'offensive', a court is to
(a) the standards of morality,
decency and propriety generally accepted by reasonable adults;
(b) the literary, artistic or
educational merit (if any) of the material; and
(c) the general character of the
material (including whether it is of a medical, legal or scientific
The explanatory memorandum notes:
The factors listed are the same as the first three
matters that are to be considered by the Classification Board in
making decisions on the classification of publications, films and
computer games under section 11 of the Classification
(Publications, Films and Computer Games) Act 1995
While a court will need to consider such factors when deciding
what amounts to an 'offensive' use of a carriage service
for the purpose of proposed section 474.17 and
other parts of new Part 10.6, there is no such
requirement for existing section 471.12 concerning
'offensive' use of a postal or similar service.
According to EFA, the inclusion of internet content in the
proposed offence is a direct reversal of the Federal Government's
1999 decision to exclude such content from coverage by the Crimes
Act on commencement of the Broadcasting Services Amendment
(Online Services) Act 1999 which established a Commonwealth
scheme of internet regulation. This scheme regulates internet
service providers and internet content hosts. EFA notes that:
It seems beyond doubt that the proposed offence is
intended, among other things, to enable the ABA to refer Internet
content that has been classified R18+ or X18+ or 'Refused
Classification' to Federal police for prosecution of the content
provider. To date, it has been considered a decision for State and
Territory Governments as to whether or not their censorship laws
enable criminal prosecution of Internet users.
Furthermore, the proposed offence is so broad it
would cover not only distribution of 'offensive' material but also
access to such material. As such the offence could
in effect criminalise access to material that is not illegal to
possess offline under the States' and Territories' censorship
Proposed sections 474.19 and 474.20, and proposed
sections 474.22 and 474.23 will make it an offence under
Commonwealth law to use a telecommunications/carriage service to
access, transmit, make available, publish or distribute 'child
pornography' or 'child abuse material'. It will also be an offence
for a person to receive such material through a carriage service as
a result of their own actions, or to carry out related activies
(possessing, controlling, producing, supplying, obtaining etc). The
maximum penalty will be imprisonment for 10 years.
'Child abuse material'(36) and 'child pornography'
are defined in proposed section 473.1 to include
'material that depicts a person, or a representation of a
person' who 'is, or appears to be' under 18 years of age,
and who is or appears to be a victim of torture, cruelty or
physical abuse, or who is engaged in, or appears to be engaged in,
a sexual pose or sexual activity. The definition also includes
'material that describes a person who is, or 'is
implied to be' under 18 years of age and who is or is
implied to be a victim of torture, cruelty or physical abuse, or
who is engaged in, or is implied to be engaged in, a sexual pose or
The definition of 'child pornography' material also includes the
depiction, representation or description
of a sexual organ or the anal region of a person, or the breasts of
a female person who is, appears to be, or is
implied to be under 18 years of age.
The definitions apply if the depiction or
description is done in such a way that 'reasonable persons
would, in all the circumstances, regard as being offensive'. As
noted above in relation to 'using a carriage service to cause
offence', in deciding what reasonable persons would regard as
'offensive', a court is to take into account the factors in
proposed section 473.4 (including eg. the
standards of morality, decency and propriety generally accepted by
reasonable adults etc).
Proposed sections 474.21 and 474.24 provide
defences in relation to use of a carriage service for child
pornography and child abuse. These include use of a carriage
service for such purposes where this 'does not extend beyond what
is of public benefit'. However conduct that is of 'public benefit'
is limited to conduct which 'is necessary or of assistance in'
specified situations, including 'scientific, medical or educational
research that has been approved by the Minister in
writing'. As the explanatory memorandum notes:
This defence will ensure that legitimate research
dealing with child pornography [or child abuse material] on the
Internet can be undertaken provided the authorisation of the
Minister for Justice and Customs is received. Persons who are
caught with Internet child pornography and who argue that they were
involved in personal research will not have a defence available to
them unless they have received approval for their research from the
Minister. Likewise, if a person who has received approval for
particular research engages in conduct that falls outside what is
necessary for or of assistance in conducting that research, the
defence will not be available to them.(37)
In addition, proposed section 474.13 provides a
defence in relation to the proposed offences for 'carriers',
'carriage service providers', internet service providers and
internet content providers when they are acting solely in those
capacities. However, under proposed section
474.25, internet service providers and internet content
providers can be fined up to $11 000 (for an individual) or $55 000
(for a body corporate) if they are aware that their services could
be used to access child pornography or child abuse material and do
not refer details of the material to the Australian Federal Police
within a reasonable time.
The explanatory memorandum
notes that proposed sections 474.26 to 474.29:
contain an offence regime targeting adult
offenders who exploit the anonymity of telecommunications services
(for example, the Internet) to win the trust of a child as a first
step towards the future sexual abuse of that child. The
practice is known as 'online grooming'.(38)
Under proposed section 474.26, for a
'procuring' offence to be committed, the sender must actually
intend to procure sexual activity through use of a carriage
service. In addition, the sender must be at least 18 years of age.
The recipient must be under 16 years of age, or believed by the
sender to under 16. This will allow law enforcement officers to
assume the identity of a fictitious child to interact with
potential predatory adults over the internet.(39) The
maximum penalty for such an offence will be 15 years
Under proposed section 474.27, a 'grooming'
offence is committed where material that is 'indecent according to
the standards of ordinary people' is sent to a person who is, or
the sender believes to be, under 16. The sender must intend to make
it 'easier to procure the recipient to engage in or submit to
sexual activity'. The maximum penalty for the 'grooming' offences
in proposed subsections 474.27(1) and (2) will be
12 years imprisonment. The maximum penalty for the offence in
proposed subsection 474.27(3) where the sender
intends to groom the recipient to engage in sexual activity in the
presence of an adult with another person aged under 18 will be 15
Under proposed subsection 474.27(4), whether
material is 'indecent' will be a matter for a court and/or
Proposed section 474.28 contains a number of
provisions designed to make prosecution of these offences easier.
It specifically provides that for the purpose of these offences, it
does not matter that the recipient is fictitious person, or that it
was impossible for sexual activity to take place. In addition,
'absolute liability' applies to whether the recipient is under 16
and to whether a third person for whom the recipient is being
procured or groomed is over 18. This means the prosecution does not
have to prove intention, knowledge, recklessness or negligence on
the part of the defendant in relation to these elements of an
offence. However, under proposed section 474.29 it
will be a defence if the defendant believed the recipient was not
under 16 or that a third person was not at least 18, although a
jury can take into account whether the alleged belief was
Proposed sections 474.30 and 474.31 will make
it an offence to use a telecommunications/carriage service to
access, cause to be transmitted, make available, publish or
distribute 'suicide related material' with the intention to
'counsel or incite suicide'. If the material directly or
indirectly counsels or incites suicide an offence will be
committed. It will also be an offence to use a
telecommunications/carriage service to directly or
indirectly 'promote or provide instruction on' a particular
method of committing suicide, with the intention that the material
is used to promote or provide instruction on that method of
An offence will also be committed if a person 'possesses,
controls, produces or supplies' suicide related material with the
intention that the material be used to promote, counsel or incite
suicide through use of a carriage service.
The maximum penalty for such offences will be $110 000 for
individuals or $550 000 for a body corporate. Specific defences are
not included in the Bill, because, as the explanatory memorandum
says, 'no-one should have a defence available to them if they
intend, in engaging in particular conduct, to, for example, incite
a person to commit suicide.'(40)
Under the definition in proposed section 473.1,
'suicide related material' includes 'material in any form
capable of constituting a communication'. Under
Schedule 1 Part 2 Item 19 of the Bill, a
'communication' can be in any form, including 'speech, music or
other sounds etc'. Under the terms of the Bill, therefore, a person
who uses a telephone to 'indirectly' counsel suicide or provide
advice on a method of suicide may be guilty of an offence.
In addition, as the explanatory memorandum points out:
the offence would apply to the possession or
production of paper leaflets providing instruction on a particular
method of suicide, provided the person engaging in this conduct
intended that the information on the leaflets also be made
available on the Internet.(41)
According to Democrats Senator Brian Greig:
If this Bill passes, it will become very difficult
or even illegal in Australia for voluntary euthanasia groups to
share information over the phone, host websites, debate issues
online or even to provide help and advice to people who request it
by phone or the internet.(42)
President of the South Australian Voluntary Euthanasia Society,
Frances Coombe, said in response to the exposure draft that:
We do not advocate suicide or self-deliverance.
Nevertheless the proposed amendments could be used to inhibit or
put an end to our legitimate activities. Competent adults have a
right to end their own lives. It is most important that those who
see this as a possibility should have access to advice to ensure
that they do not act irrationally or by inappropriate
In contrast, however, the explanatory memorandum states
These offences are not intended to capture
Internet material that advocates or debates law reform on
euthanasia and/or suicide related issues, as this type of material
will generally not counsel or incite suicide, nor promote or
provide instruction on particular methods of committing
suicide. For similar reasons, Internet material dealing with
suicide-related research and suicide prevention or support material
will generally not be caught by the offences.(44)
Schedule 1 items 25-29 amend the
Telecommunications (Interception) Act 1979 to ensure that
law enforcement officers can intercept and record communications
relevant to offences under the proposed new Part
10.6 of the Criminal Code.
Commencement: 28 days after Royal Assent.
Schedule 2 of the Bill proposes a new
Part 9.6 in Chapter 9 of the Criminal Code ('Dangers to
New Part 9.6 will contain three new offences
'designed to overlap and complement the State and Territory
contamination of goods offences'.(45) The new offences
contaminating goods (proposed section
threatening to contaminate goods (proposed section
making false statements about goods being contaminated
(proposed section 380.4).
Each offence will carry a maximum penalty of 10 years
These new offences under Commonwealth law will have extended
geographic reach, allowing prosecution where eg. a threat to
contaminate Australian goods is made from overseas. To enable
maximum Commonwealth coverage, new Part 9.6 is
expressly based on the 'implied nationhood power'(46) in
the Constitution, as well as the Commonwealth's constitutional
powers over overseas and interstate trade,(47) and
corporations.(48) The external affairs
power(49) would also provide jurisdiction where an
offence has an overseas element.
The new offences are derived from the
1998 Model Criminal Code Officers Committee (MCCOC) Report on
Contamination of Goods.(50)
Commencement: 28 days after Royal Assent.
Schedule 3 of the Bill proposes to insert
new Part 10.8 'Financial information offences' in
Chapter 10 of the Criminal Code ('National
These amendments will implement the model offence in the March
2004 MCCOC discussion paper on
Credit Card Skimming Offences.(51) The model offence
criminalises dishonestly obtaining or dealing in personal financial
information without the consent of the person to whom the
The explanatory memorandum notes that:
While existing federal, State and Territory fraud
and forgery laws cover many of the activities related to credit and
debit card skimming, they do not comprehensively cover the act of
skimming the data, possession of the skimmed data, or
possession or importation of a skimming
Apart from credit card skimming, the proposed offences cover
other dishonest dealings with personal financial information, such
as internet banking fraud and obtaining credit card details or
other financial information from discarded bank statements or
The maximum penalty for the proposed offences is imprisonment
for 3 5 years.
Commencement: 28 days after Royal Assent
Schedule 4 Item 1 amends section 11.2 of the
Criminal Code to assist a jury when it is unsure whether an accused
has themselves committed an offence or has
instead been complicit in the offence. As the explanatory
memorandum notes, 'such cases are most likely to occur where two
persons are each charged with the primary offence and with
complicity and common purpose in the alternative'.(53)
Item 1 inserts new subsection
11.2(7) providing that in where a jury is satisfied in
such a situation that the accused is responsible for the crime it
can find the person guilty.
Schedule 4 Items 5 to 7 will amend sections 9.3
and 9.4 of the Criminal Code which provide that a person can be
criminally responsible even if they are ignorant of or mistaken
about the statute or subordinate legislation creating the offence.
Under the current provisions, a person is however not criminally
the statute or subordinate legislation 'is expressly or
impliedly to the contrary effect', or
if 'the ignorance or mistake negates a fault element that
applies to a physical element of the offence.'
Under the proposed amendments, the first exception would only
apply where the statute or subordinate legislation 'is
expressly to the contrary effect'. The second exception is
The explanatory memorandum notes that it is proposed to remove
the word 'impliedly' from the first exception because of the
frequent use of cross-referencing legislation. There is a concern
a simple cross-reference in an offence to another
provision would 'impliedly' require the person to have knowledge of
that particular provision to be criminally liable for the
The explanatory memorandum also explains that the second
exception will be removed because this situation will be covered by
the amended first exception:
'Expressly' will be evidenced where a fault
element as provided in sections 5.1 of the Criminal Code
is specifically included in the relevant physical element of the
Accordingly, where a criminal offence provision
does contain an express fault element which together with the
relevant physical element requires the defendant to know or have an
awareness of the law, the general principle [that 'ignorance of the
law is no excuse'] will not apply.(55)
Commencement: The main items of significance in
Schedule 5 commence 28 days after Royal
Schedule 5 Item 2 inserts a reference to the
Prostitution Act 1992 (ACT) in subparagraph
15(1)(b)(ii) of the Crimes (Aviation) Act 1991.
The proposed provision will make it an offence to engage in child
prostitution on board an Australian-registered aircraft outside
Australia. The explanatory memorandum notes that this will
ensure that the application of Australia s criminal laws on board
aircraft complies with Australia s international obligations under
the Optional Protocol to the Convention of the Rights of the Child
on the sale of children, child prostitution and child
Schedule 5 Items 3 to 8 amend section
233B of the Customs Act 1901 which makes it an
offence to illegally import narcotics in response to the decision
of the NSW District Court in R v Ismail (26 May
2003). In that case the court held that the prosecution not
only had to prove that the act of importing was intentional but
that the accused intentionally brought a prohibited item into
Australia. The explanatory memorandum notes that until R v
Ismail the prosecution only had to show that the accused was
'reckless' as to whether the imported item was
These amendments will ensure that the proof requirements in
relation to prosecutions for such offences under the Customs Act
are returned to the situation before the R v Ismail
Schedule 5 Items 10 and 11 amend
section 15 of the Mutual Assistance in
Criminal Matters Act 1987 to remove the need for a foreign
country, when seeking mutual assistance in a criminal matter, to
specifically request that a search warrant be obtained if this is
required under Australian law. The explanatory memorandum notes
that under the proposed amendments a foreign country need only ask
the Attorney-General to arrange for evidential material to be
obtained. The Attorney-General can then exercise his or her
own discretion to determine whether a search warrant is the
appropriate means by which the material should be
The Bill pre-empts the outcome of the review into the regulation
of illegal or offensive content on mobile telephones and other
mobile devices announced by the then Minister for Communications,
Information Technology and the Arts in July 2004. The Bill
introduces extensive additional regulation of 'carriage services'
including mobile communication devices. Parliament may wish to
defer final consideration of the Bill until the review is
completed. Having access to the outcome of the review would enable
Parliament to be better informed about the suitability of key
aspects of the Bill.
Parliament should consider whether an exception for use of a
person's own computer, telephone or mobile phone should be included
in relation to proposed section 474.4 prohibiting
use of 'interception devices'. While 'interception' as commonly
understood (and as defined in the Telecommunications
(Interception) Act 1979)(59) would not seem to
include access by the intended recipient, Parliament might note the
view of EFA that:
the provisions appear to place people who sell,
possess, etc. a modem or mobile phone etc. in breach of the
Criminal Code Act. Even if that would not currently be the result,
it appears it will if amendments to the TI [Telecommunications
Interception] Act concerning delayed access messages, substantially
similar to those in the TI Bill 2004, are enacted. Obviously such
an outcome would be ludicrous and would not be
Parliament should consider the concerns raised above in relation
to the 'menacing or harassing' element of the new offence in
proposed section 474.17, in particular whether it
is appropriate to make use of a telecommunications/carriage service
an offence even where there is no intention to menace or harass and
no actual menacing or harassment occurs.
There are a number of issues with the 'causing offence' element
of proposed section 474.17 i.e. using a 'carriage
service' in a way that reasonable person would regard as
'offensive' that Parliament should consider:
- The proposed offence covers both content that may be 'morally'
offensive to the public in general without a particular target, as
well as comments, publications or other material that may offend
and may be intentionally targeted at people from a particular race
or religion or with some other special background. Parliament might
consider whether vilification for racial/religious reasons should
be covered in the same provision as a general 'morality' offence.
In EFA's view, it is:
highly inappropriate to attempt to deal with such
matters by way of laws criminalising 'offensive' use of a carriage
service. Matters of vilification should be dealt with under laws of
general application and we note that HREOC has previously ordered
removal of Internet content found to be in breach of the C'th
Racial Hatred Act.(61)
The proposed offence is not limited to 'any form of
communication to the public', i.e. there is no distinction
between private and public comment as in the Commonwealth Racial
Discrimination Act and equivalent State/Territory legislation.
While the Government states that the offence is aimed, amongst
other things, at 'racial or religious vilification', there has been
no explanation of why the new provision is needed on top of
existing legislation which already covers racial/religious slurs
made in public (including under State and Territory laws making
such conduct a criminal offence).
- Are the standards listed in proposed section
473.4 for deciding whether reasonable people would regard
material as 'offensive' appropriate for the new criminal offence in
proposed section 474.17? As the
explanatory memorandum said, these standards are copied from the
standards used by the Classification Board under the Classification
(Publications, Films and Computer Games) Act in deciding what
rating to give publications, films and computer games.
On one hand, there is the argument that 'offensive' material
should be defined consistently across all Commonwealth
On the other hand, are the 'moral' standards that the
Classification Board must use in determining what is currently
acceptable for showing to Australian society appropriate for use in
a court of law in deciding whether to convict a person of the
proposed new offence punishable by up to 3 years in prison? It is
one thing to select individuals representing Australian society to
be on the Classification Board, and for the Board then to judge a
film against its members' standards of 'morality, decency and
propriety' and their assessment of 'literary, artistic or
educational merit'. It is quite another to require a judge or a
non-expert selection of jurors to decide what is meant in a strict
legal sense by eg 'standards of propriety generally accepted by
reasonable adults', let alone to determine whether particular
material has 'literary or artistic merit'.
Allowing a court to convict and imprison people based on these
types of legal 'standards' appears to be a throw-back to the type
of situation in eg the 1971 Oz obscenity trial in the United
- It may be that parts of proposed section 473.4
are too vague to be regarded as a 'law' in accordance with section
51 of the Constitution. Section 51 gives Parliament the 'power to
make laws for the peace, order and good government of the
Commonwealth'. However, merely including something in legislation
is not enough to make it a 'law'. It must provide or allow for the
identification of a sufficiently certain standard against which to
measure conduct. As one commentator has said in relation to
Canadian constitutional law:
It is a principle of fundamental justice in Canada
that a statute is 'void for vagueness' if its prohibitions are not
clearly defined. A vague law offends the values of
constitutionalism. It does not provide sufficiently clear standards
to avoid arbitrary and discriminatory applications by those charged
with enforcement. It does not provide reasonable notice of what is
prohibited so that citizens can govern themselves
As the Australian High Court said in Plaintiff S157
(2003) (in relation to a suggestion that the Migration Act
1958 could authorise a 'totally open-ended discretion' by the
Minister about which 'aliens' could enter Australia):
The provisions canvassed by the Commonwealth would
appear to lack that hallmark of the exercise of legislative power
identified by Latham CJ in The Commonwealth v
Grunseit,(64) namely, the determination of 'the
content of a law as a rule of conduct or a declaration as to power,
right or duty'.(65)
Parliament might consider whether the standards specified in
proposed section 473.4 have a sufficiently certain
legal (as opposed to social) meaning to qualify
as a 'law' in the sense used in section 51 of the Constitution.
- Directing courts to consider 'social' criteria in deciding
whether use of a carriage service is 'offensive' may breach the
separation of powers doctrine in the Constitution, which prevents
Australian courts when exercising federal jurisdiction from
discharging 'non-judicial functions'. So while consideration of
such factors by a non-judicial body such as the Classification
Board would not raise a constitutional issue, the same does not
apply when such factors are taken into account by a 'chapter III'
- There is no requirement to take such factors into account in
relation to the 'offensive' use of a 'postal or similar service' in
existing section 471.12 of the Criminal Code.
- The offence in proposed section 474.17 appears
to cover not only distribution of 'offensive' material but
also access to such material on the internet. As such the
offence could in effect criminalise access to material which it is
not illegal to possess offline under State and Territory censorship
In light of the above issues, Parliament might consider whether
the 'causing offence' element of proposed section
474.17 adds any useful regulation of the internet and
other 'carriage services' beyond that which already exists under
State and Territory law.
Parliament should also consider carefully the wording of the
proposed definitions, which include 'depictions' or
'representations' of those who 'appear to be' engaged in a
'sexual pose', 'descriptions' of persons who are 'implied to
be' engaged in a sexual pose, as well as, 'descriptions' of,
for example, 'the breasts of a female person' who 'is implied
to be' under 18. This appears to extend the range material
that could be held to be 'child pornography' or 'child abuse'
material if it is 'offensive' well beyond that caught by State and
In addition, the Classification Board's standards as
incorporated in proposed section 473.4 are applied
to determine what is 'offensive' for the purpose of a 'child
pornography' or 'child abuse material' offence in proposed
sections 474.19-20 and 474.22-23. See the discussion in
the section immediately above on the suitability of these standards
for use in criminal proceedings.
Parliament may wish to consider whether it is appropriate to
have definitions of 'child pornography' and 'child abuse' material
covering a potentially very wide range of material coupled with
uncertain standards for determining whether such material is
'offensive' for offences that are punishable by up to ten years
In addition, the Bill will make legitimate educational and other
research into these areas through use of the internet or other
'carriage service' subject to written approval from the Minister.
As Young Media Australia has asked, what about 'community
organisations with a bona fide, demonstrated interest in protection
of children?'(67) Such organisations would have no
defence under proposed sections 474.21 or 474.24
if they conduct research into child pornography if they had not
obtained written Ministerial approval. These provisions establish a
cumbersome process for legitimate research. An alternative would be
to specify a defence for using of a carriage service for 'child
pornography' or 'child abuse material' if an organisation can
demonstrate that educational/scientific research was for a
A more general issue raised by the introduction by the Bill of
new offences applying to use of the internet is the added
difficulty for publishers and producers who want to distribute
through the internet of keeping track of the applicable laws. There
is already a variety of State and Territory as well as Commonwealth
legislation that must be consulted. Given that the classification
scheme for the internet comes under the Broadcasting
Services Act, it may have made the compliance task of internet
publishers and producers easier if the Bill had amended that Act to
include the new offences rather than inserting them in the Criminal
Parliament may wish to consider whether it is appropriate under
proposed sections 474.30 to 474.32 of the Bill
A person can commit an offence even if there is no suicide or
even attempt at suicide, and that
Material that 'directly or indirectly' counsels or
incites suicide or promotes a particular method of suicide is
sufficient for an offence to be committed. It might be questioned
whether material that 'indirectly' or 'in passing' counsels,
incites or promotes suicide should make a person liable for
criminal prosecution. In addition, it might be questioned whether
the use of 'indirectly' in this context provides a sufficiently
certain legal standard for courts to measure conduct against.
The claim in the explanatory memorandum that 'Internet material
that advocates or debates law reform on euthanasia' and 'Internet
material dealing with suicide-related research'(68) will
not 'generally' be caught by the proposed offences seems
problematic. The Bill specifically does not provide any defence for
such activities. If the intention behind publishing such research
is to counsel suicide or promote a particular method of suicide,
there will be an offence under the Bill.
Passage of the Bill in its current form will produce
inconsistencies between State and Federal law on suicide-related
material. For example, under section 31C of the NSW Crimes Act, a
person must actually 'aid or abet' or 'incite or counsel' another
person to commit or attempt suicide. So, for example, obtaining
information in physical form from a library, perhaps with the
intention of passing it to a terminally ill relative, would not be
an offence under NSW law until actual assistance or incitement
occurs (and suicide or an attempt results). Such an activity is
also beyond the reach of Commonwealth law.
Under proposed provision 474.30, however,
obtaining exactly the same material from the internet with the
intention of passing it to the terminally ill relative for their
use will be an offence punishable by a fine of up to $110 000.
It is unclear why the Government chose to introduce such a
variety of new offences in the one Bill. As the South Australian
Voluntary Euthanasia Society noted:
It is particularly unfortunate that the proposed
amendments link the controversial and ill-defined issue of the
promotion of suicide to the distribution of child pornography,
which is universally abhorrent. The presentation of these disparate
issues as a package deal has the potential to distort debate and to
bias the outcome.(69)
Former Northern Territory Chief Minister Marshall Perron said
the Federal Parliament should consider assisting suicide as a
The argument is that lumping it in with other
matters such as child pornography makes it almost unchallengeable
and that is what the minister hopes What parliamentarian is going
to get up and speak against this in parliament. It is too hot to
See Main Provisions section for comments on
proposed sections 474.5 (wrongful delivery of
communications), 474.15 (use of a carriage service
to make a threat).
R v Brislan; Ex parte Williams (1935) 54 CLR
262 (radio); Jones v Commonwealth (1965) 112 CLR 206
54 CLR 262 at 280.
Ibid at 282 3.
The Age, 28 July 2004, p. 4.
Based on Arts Law Centre of Australia, 'Classification and
and Halsbury's Laws of Australia, 80-1985, 'Censorship' 175 6.
Specific internet censorship regulation was introduced by the
Services Amendment (Online Services) Act 1999.
Explanatory memorandum p. 37. For further background on
regulation of internet content, see Department of Communications,
Information Technology and the Arts, 'Broadcasting and Online
Available on-line only.
Explanatory memorandum, p. 33.
E.g. Anti-Discrimination Act 1977 (NSW) sections 20C
Censorship Act 1996 (WA) section 60.
Ibid, section 3.
Classification of Publications Act 1991 (Qld), Part
Ibid, section 3.
This paragraph based on Lawbook Company, Laws of
Australia, Chapter 8, Related Offences Part B, Suicide,
'Assisting Suicide Attempt' .
Hon. Daryl Williams, Minister for Communications, Information
Technology and the Arts, News Release 109/04, 15 July
Telecommunications Act section 7, emphasis added.
EFA describes itself as 'a non-profit national organisation
representing Internet users concerned with on-line freedoms and
rights', see http://www.efa.org.au/AboutEFA/#who.
EFA submission in response to the
Exposure Draft of the Crimes Legislation Amendment
(Telecommunications Offences and Other Measures) Bill 2004 and
associated Explanatory Notes, see
See definitions in proposed section 473.1.
Explanatory memorandum, p. 31.
For example, section 21 of the Crimes Act 1958
(Victoria) provides that:
A person who, without lawful excuse, makes to another person a
serious injury on that other person or any other person-
intending that that other person would fear the threat would be
carried out; or
being reckless as to whether or not that other person would fear
threat would be carried out-
is guilty of an indictable offence.
Penalty: Level 6 imprisonment (5 years maximum).
Explanatory memorandum, p. 33.
Criminal Code section 5.4.
EFA, op. cit.
Senator Alston, Minister for Communications, Information
Technology and the Arts, and Senator Ellison, Minister for Justice
and Customs, Joint Media Release, 153/03, 20 August
EFA, op. cit.
Explanatory memorandum, Crimes Legislation Amendment
(Telecommunications Offences and Other Measures) Bill 2004, p.
EFA, op. cit.
Proposed section 473.1 states that 'material' includes material
in any form, or combination of forms, capable of constituting a
communication. 'Communication' in turn is defined in
Schedule 1 item 19 of the Bill.
Explanatory memorandum, pp. 38, 42
Ibid, p. 44.
Ibid, p. 45.
Ibid, p. 51.
Ibid, p. 52.
Democrats media release 04/302 19 April 2004.
Letter to Minister for Justice and Customs, Senator Ellison, 12
April 2004, published at http://www.saves.asn.au/resources/newsletter/jul2004/item3.htm.
Explanatory memorandum, p. 52.
Ibid, p. 63.
The High Court has held that there is a 'nationhood power'
implied in the Constitution allowing the Commonwealth to legislate
for matters which are 'inherently national'. (Davis v
Commonwealth (1988) 166 CLR 79).
Section 51(1) Constitution.
Section 51(20) Constitution.
Section 51(29) Constitution.
Explanatory memorandum, p. 71.
Ibid, p. 75.
Ibid, p. 76.
Ibid, p. 78.
Ibid, p. 80.
EFA, op. cit.
See e.g. 'Oz trial lifted lid on porn squad bribery', at
from Guardian Unlimited Website, 13 November 1999
Peter Hogg, Constitutional Law of Canada
(1992), p. 864.
(1943) 67 CLR 58 at 82.
(2003) 211 CLR 476 at 513.
EFA, op. cit.
Young Media Australia, Submission on the Exposure Draft of
the Crimes Legislation Amendment (Telecommunications Offences and
Other Measures) Bill 2004, April 2004.
Explanatory memorandum, p. 52.
Sunday Territorian, 2 May 2004, p. 4.
Peter Prince and Roy Jordan
2 August 2004
Bills Digest Service
Information and Research Services
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