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Appendix E – Online Offences

Table Online Offences (I): Sexual offences committed online against minors

OFFENCE

JURISDICTIONS

Type

Elements

Cth[1]

ACT[2]

NSW[3]

NT[4]

Qld[5]

SA[6]

Tas[7]

Vic[8]

WA[9]

Grooming

Citation

s474.27

See ‘depravity’

s66EB(3)

 

 

s63B(3)

s125D

 

 

Age limits

Victim must be under 16

Perpetrator must over 18; victim under 16

Victim must be under 16

Victim must be (or believed to be) under 17

Definition

Uses a carriage service to transmit a communication with the intention of making it easier to procure the recipient to engage in sexual activity with the sender or another person

Any conduct (including communicating by telephone or internet) that exposes a child to indecent material with the intention of making it easier to procure the child for unlawful sexual activity

Makes a communication with a prurient purpose and with the intention of making a child amenable to a sexual activity

Makes a communication by any means with the intention of procuring a person to engage in an unlawful sexual act

Penalty[10]

12 years

12 years (victim under 14); or 10 years

10 years (basic); 12 years (aggravated)[11]

21 years and/or fine

Procuring

Citation

s474.26

See ‘depravity’

s66EB(2)

s131

s218A

s63B(1)

s125C

s58

s204B

Age limits

Victim must be (or believed to be) under 16, perpetrator over 18

Victim must be under 16, perpetrator over 18

Victim must be under 16

Victim must be (or believed to be) under 16, perpetrator over 18

Victim must be under 16

Victim must be under 17

Victim must be under 16, perpetrator over 18

Victim must be (or believed to be) under 16; perpetrator over 18

Definition

Uses a carriage service to transmit a communication to another person; with the intention of procuring the recipient to engage in sexual activity with the sender or another person

Intentionally procures for unlawful sexual activity with that or any other person

Attempts to procure to have sexual intercourse or commit, perform or engage in any act of gross indecency

Knowingly entice or recruit for the purposes of sexual exploitation

Incites or procures the commission of an indecent act; or, acting for a prurient purpose, causes or induces to expose any part of the body

Procures to have unlawful  sexual intercourse or to commit an indecent act

Solicits or procures

to take part in an act of sexual penetration, or an

indecent act

Uses electronic communication with intent to procure a person to engage in sexual activity

Penalty

15 years

15 years (child under 14) or 12 years

3 years; if perpetrator is an adult 5 years

10 years (victim under 12) or 5 years

10 years (basic); 12 years (aggravated)

21 years and/or fine

10 years

10 years (child under 13) or 5 years

Child abuse material[12]

Citation

ss474.19 – 474.23

s64; s64A

s91H

s125B

s228C

s63; s63C

s130B

s57A

s60[13]

Age limits

Person depicted is or appears to be under 18[14]

Person depicted under 18

Person depicted under 16

Person depicted is or appears to be under 18

Person depicted is or appears to be under 16

Person depicted is or appears to be under 16

Person depicted is or appears to be under 18

Person depicted is or appears to be under 18

Person depicted is or appears to be under 16

Definition

Transmits or supplies child pornography or child abuse material.

Must intend to commit act, but need only be reckless as to whether material constitutes abuse material or pornography

Publishes, offers or sells child pornography

Disseminates child abuse material; includes sending, exhibiting, transmitting or communicating to another person

Distributes, sells or offers or advertises for distribution or sale child abuse material

Distributes child exploitation material; includes communicating, exhibiting, sending, supplying or transmiting to someone, whether to a particular person or not

Disseminates, or takes any steps in disseminating, child pornography knowing of its pornographic nature

Distributes, or does anything to facilitate the distribution of, child exploitation material; and knows, or ought to have known, that the material is child exploitation material

Knowingly uses an on-line information service to publish or transmit, or make available for transmission, objectionable material

Sells or supplies, or offers to sell or supply, or displays, exhibits or demonstrates, child pornography

Penalty

15 years, 25 years if conduct repeated on 3 occasions and commission involves multiple offenders[15]

1200 penalty units and/or 12 years

10 years

10 years

10 years

10 years basic, 12 years aggravated

21 years and/or fine

10 years

5 years for displaying/ exhibiting; 7 years for selling/ supplying; and/or fine of any amount

Indecency

Citation

474.27A

S66

 

S132

S218A

 

S125D(3)

S58[16]

S204B

Age limits

Recipient must be (or believed to be) under 16; perpetrator must be over 18

Recipient must be under 16

Recipient must be under 16

Recipient must be (or believed to be) under 16

Recipient must be (or believed to be) under 17

Recipient must be under 18

Recipient must be (or believed to be) under 16, perpetrator over 18

Definition

Uses a carriage service to transmit a communication that includes material that is indecent according to the standards of ordinary people

Using electronic means, sends or makes available pornographic material; or suggests that the young person commit or take part in an act of a sexual nature

Without legitimate reason, intentionally exposes a child to an indecent object, film, video tape, audio tape, photograph or book

Without legitimate reason, intentionally exposes a child to any indecent matter.

Without legitimate reason, makes a communication by any means with the intention of exposing a child to any indecent material

Uses an on-line information service to publish or transmit, or make available for transmission, to a minor material unsuitable for minors of any age

Uses electronic communication with intent to expose person to indecent material

Penalty

7 years

5 years/ 100 penalty units

14 years (child under 10) or10 years.

2 years; 5 years (child under 16); 10 years (under 12)

21 years and/or fine

2 years/ 240 penalty units if material objectionable; or 6 months/ 60 units

5 years, if child under 13 10 years

Engaging or causing a child to engage in sexual activity with another

Citation

474.25A

 

 

 

 

 

 

 

 

Age limits

Recipient must be (or believed to be) under 16; perpetrator must be over 18

 

 

 

 

 

 

 

 

Definition

Engages a child or causes a child to be engaged in sexual activity with the perpetrator or another person using a carriage service

 

 

 

 

 

 

 

 

Penalty

15 years

 

 

 

 

 

 

 

 

 

 


Table Online Offences (II): Offences against the person committed online where age is not an element of the offence

 NB These offences may be committed by an adult or a minor against any person, including another minor)

OFFENCE

JURISDICTIONS

Type

Elements

Cth[17]

ACT[18]

NSW[19]

NT[20]

Qld[21]

SA[22]

Tas[23]

Vic[24]

WA[25]

Stalking

Citation

 

s35

s13[26]

s189

Ch33A

s19AA

 

s21A

s338E(1)

Definition

Specified conduct repeated on at least two occasions, which can include sending electronic messages to or about the stalked person. Must be intent to cause apprehension; or to harm/ harass

Stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm

Specified conduct repeated on at least two occasions which can include telephoning, sending electronic messages to or otherwise contacting the stalked person. Must intend to cause physical or mental harm; or arouse fear or apprehension

One ‘protracted’ incident or multiple instances of specified conduct intentionally directed at a person; which can include any form of contact that would cause apprehension or fear, or detriment (reasonably arising in all the circumstances)

Specified conduct repeated on at least two occasions, which can include publishing or transmitting offensive material to the person by electronic means; or communicating with or about the other person by way of the internet in a manner that could reasonably be expected to arouse apprehension or fear. Must intend to cause serious physical or mental harm; or serious apprehension or fear

A course of conduct made up of one or more specified actions, which can include contacting the person by any means; publishing or transmitting offensive material by electronic means; or using the internet or any other form of electronic communication in a way that could reasonably be expected to cause apprehension or fear. Must intend to cause physical or mental harm; or arouse apprehension or fear

A course of conduct which can include contacting the victim by post, telephone, fax, text message, e-mail or other electronic communication; publishing on the Internet material relating to or purporting to originate from the victim; and tracing the victim's use of the Internet. Must intend to cause physical or mental harm; or arouse apprehension or fear

Pursues another person with intent to intimidate.[27] Repeated communication can constitute pursuit

Penalty

2 years (5 years if contravene injunction)

5 years and/ or fifty penalty units

2 years (5 years if involves weapon or contravening injunction)

5 years (7 years if contravene injunction)

3 years (basic), 5 years (aggravated)

21 years and/or fine

10 years

3 years (basic), 8 years (aggravated)

Bullying

Citation

 

 

S60E

 

 

 

 

 

 

Definition

Assaults, stalks, harasses or intimidates a school student or member of staff while victim is attending a school

Penalty

5 years

Assault/ threats

Citation

s474.15

s26

s61

s188

s335

s20

Words alone cannot constitute an assault (s182)

s31

s338A

Definition

Uses a carriage service to make a threat to kill or cause serious harm to the second person or a third person, intending the second person to fear that the threat will be carried out

(Common law)

(Common law)

(Common law)

(Common law)

Threatens to apply force to the victim; and there are reasonable grounds for the victim to believe that  the person is in a position to carry out the threat and intends to do so; or there is a real possibility that the person will carry out the threat

Threatens direct or indirect application of force to the victim with intent to commit assault

Makes a threat to cause detriment of any kind to any person, with intent to cause a detriment[28]

Penalty

10 years for threat to kill, 7 years for threat to cause serious harm

2 years

2 years

1 year, 5 years if male to female or adult to person under 16

3 years

2 years

5 years

7 years (10 years if threaten to kill)

Harass-ment[29]

Citation

s474.17

Harassment in certain circumstances is unlawful, but not a criminal offence, under the Discrimination Act 1991 (ACT) (see s71)

Sexual harassment in certain circumstances is unlawful, but not an offence, under the Anti-Discrimination Act 1977 (NSW) (s22B)

Harassment in certain circumstances is prohibited, but not a criminal offence, under the Anti-Discrimination Act (NT) s22

Sexual harassment in certain circumstances contravenes but does not give rise to criminal sanctions under the Anti-Discrimination Act 1991 (Qld)

Sexual harassment in certain circumstances contravenes but does not give rise to criminal sanctions under the Equal Opportunity Act 1984 (SA) (see s99)

Harassment in certain circumstances is prohibited, but not a criminal offence, under the Anti-Discrimination Act 1998 (Tas)

Sexual harassment in certain circumstances contravenes but does not give rise to criminal sanctions under the Equal Opportunity Act 1995 (Vic) (see s209)

Sexual and racial harassment in certain circumstances contravenes but does not give rise to criminal sanctions under the Equal Opportunity Act 1984 (WA) (see s154)

Definition

Uses a carriage service in a way (whether by the method of use or the content of a communication) that reasonable persons would regard as being menacing, harassing or offensive

Penalty

3 years

Vilifi-cation

Citation

The Racial Discrimination Act (Cth) makes certain conduct unlawful; but excludes criminal liability for unlawful conduct under the statute (with limited exceptions unrelated to online conduct) (see s26)

s67[30]

s20D; s38T; s49ZTA; s49ZXC[31]

 

s131A[32]

s4[33]

Inciting hatred by a public act against specific groups is prohibited, but does not attract criminal sanctions, under the Anti-Discrimination Act 1998 (Tas) (s 19)

s24; s25[34]

s77; s78[35]

Definition

By a public act incite hatred, serious contempt or severe ridicule on the ground of race, sexuality, gender identity, or HIV/AIDS status

By a public act incite hatred, serious contempt or severe ridicule on the ground of race, transgender identity, HIV/AIDs status, or homosexuality

By a public act, knowingly or recklessly incite hatred, serious contempt or severe ridicule on the ground of the race, religion, sexuality or gender identity in a way that includes threatening or inciting physical harm

By a public act incite hatred, serious contempt or severe ridicule on the ground of race

Intentionally engage in conduct on the grounds of race (including use of the internet or email) that the offender knows is likely to incite hatred, serious contempt or revulsion; or

threaten, or incite others to threaten, physical harm

Engages in any conduct, otherwise than in private, by which the person intends to create, promote or increase animosity towards, or harassment of, a racial group; or that is likely to have such an effect

Penalty

50 penalty units

6 months and/ or 50 penalty units

70 penalty units or 6 months

$5000 and/ or 3 years

6 months/ 60 penalty units

14 years if intention established, 5 years for lesser offence

Misuse of carriage service

Citation

s474.14

 

 

 

 

 

 

 

 

Definition

Connecting to or using a telecommunications network with intention to commit or facilitate the commission of a serious offence (carrying penalty of five years or more)

Penalty

As for the serious offence

Suicide-related material

Citation

474.29A

 

 

 

 

 

 

 

 

Definition

Using a carriage service to transmit, make available, publish or otherwise distribute material that directly or indirectly counsels or incites suicide, intending the material to incite suicide or be used by another to incite suicide; or material that promotes or provides instruction on a particular method of committing suicide

 

 

 

 

 

 

 

 

Penalty

1000 penalty units

 

 

 

 

 

 

 

 


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