<p>9.4.1.1 - Bench Notes: Use of carriage service for child pornography material1 </p><p>Note: The Criminal Code provides for changes to the fault elements when a person is charged with committing the offence on the basis of extensions to criminal responsibility in Part 2.4, which includes attempts, joint enterprises conspiracy and incitement. Those matters will be addressed in separate Bench Notes on extended criminal responsibility under the Code (Topics Not Yet Complete).</p><p>1. Section 474.19 of the Criminal Code creates the statutory offence of using a carriage service for child pornography material. Commencement Information</p><p>2. Section 474.19 of the Code came into operation on 1 March 2005 and was inserted into the Act by Schedule 1(1) of the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No. 2) 2004. 3. Previously, there was no offence specifically related to the use of a carriage service to access child pornography, though there is a Commonwealth offence of importing or exporting child pornography (Customs Act 1901 s233BAB). Overview of Elements</p><p>4. A person is guilty of the offence if:</p><p> a. the person intentionally:</p><p> i. Accesses material; or</p><p> ii. Causes material to be transmitted to himself or herself; or</p><p> iii. Transmits, makes available, publishes, distributes, advertises or promotes material; or</p><p> iv. Solicits material; and</p><p> b. the material is child pornography material; and</p><p> c. the person is reckless as to the material being child pornography material; and</p><p> d. the person uses a carriage service to access the material.</p><p>Intentionally engaged in conduct</p><p>1 Last updated 18 May 2016</p><p>1 5. The first element the prosecution must prove is that the accused intentionally engaged in one of the forms of conduct listed in s474.19(1)(a) (Criminal Code s474.19(2)(a)) 6. The Code proscribes four distinct forms of conduct. These are:</p><p> a. Accessing material;</p><p> b. Causing material to be transmitted to him or herself;</p><p> c. Transmitting, making available, publishing, distributing, advertising or promoting material; or</p><p> d. Soliciting material (Criminal Code s474.19(1)(a)).</p><p>7. Given the structure of s474.19, it is likely that the section creates a single offence with multiple available conduct elements. As each form of conduct involves different factual issues, the jury must unanimously agree that the prosecution has proved a single form of conduct (see R v Walsh (2002) 131 A Crim R 299). 8. As this physical element involves conduct, proof of intention requires proof that the accused meant to engage in that conduct (Criminal Code s5.2).</p><p>Child pornography material</p><p>9. The second element is that the material in question is “child pornography material”. 10. “Child pornography material” is defined as: a. material that depicts a person, or a representation of a person, who is, or appears to be, under 18 years of age and who:</p><p> i. is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or</p><p> ii. is in the presence of a person who is engaged in, or appears to be engaged in, a sexual pose or sexual activity;</p><p> and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or</p><p> b. material the dominant characteristic of which is the depiction, for a sexual purpose, of:</p><p> i. a sexual organ or the anal region of a person who is, or appears to be, under 18 years of age; or</p><p> ii. a representation of such a sexual organ or anal region; or</p><p>2 iii. the breasts, or a representation of the breasts, of a female person who is, or appears to be, under 18 years of age;</p><p> in a way that reasonable persons would regard as being, in all the circumstances, offensive; or</p><p> c. material that describes a person who is, or is implied to be, under 18 years of age and who:</p><p> i. is engaged in, or is implied to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or</p><p> ii. is in the presence of a person who is engaged in, or is implied to be engaged in, a sexual pose or sexual activity;</p><p> and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or</p><p> d. material that describes:</p><p> i. a sexual organ or the anal region of a person who is, or is implied to be, under 18 years of age; or</p><p> ii. the breasts of a female person who is, or is implied to be, under 18 years of age;</p><p> and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive (Criminal Code s473.1).</p><p>11. The definitions in (a) and (b) refers to the depiction of a person. In the context of each of these definitions, “depict” requires that the maker of the image intended to depict a sexual pose, sexual activity, sexual organ or other proscribed body part. Many pictures of children innocently depict them in a vulnerable or otherwise suggestive position without constituting child pornography material, such as a family photo album containing a picture of a child in the bath (R v Silva [2009] ACTSC 108 at [24]). 12. Images that are otherwise unobjectionable do not become child pornography when they are made available to people with an interest in child pornography. 13. The definition of "a sexual pose” used in (a) and (c)(i) is of uncertain scope, because Australian society permits certain activity which involves the sexualisation of young children, particularly in a commercial context. In addition, modern society treats certain child- like activity by adults as sexually suggestive. This does not mean that the same activity by children takes on a sexual quality, unless the child has been encouraged to adopt that activity for the purpose of providing sexual gratification to observers (see R v Silva [2009] ACTSC 108 at [26]-[28]). </p><p>3 14. A sexual pose is a deliberately-struck attitude that draws attention to the sexual aspects of the subject’s identity or personality. It is not necessary that the child subjectively understand the sexual connotations of the pose being adopted. Nor does it require that the child be nude (R v Silva [2009] ACTSC 108 at [29]). 15. Each of the definitions of child pornography material under s473.1 of the Criminal Code contains a requirement that the material “does this in a way that reasonable persons would regard as being, in all the circumstances, offensive”. The Code provides that the matters to be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive include: </p><p> a. The standards of morality, decency and propriety generally accepted by reasonable adults; and</p><p> b. The literary, artistic or educational merit (if any) of the material; and</p><p> c. The general character of the material (including whether it is of a medical, legal or scientific character (Criminal Code s473.4).</p><p>16. In cases where it is disputed that the material is child pornography, the judge must direct the jury that it must take these matters into account. 17. These matters require attention to the standards of the community at large, including in art, literature, advertising and mass media, rather than the personal sexual morality of individual members of the jury (R v Silva [2009] ACTSC 108 at [33]). </p><p>Recklessness</p><p>18. The third element is that the accused is reckless as to the material being child pornography material. 19. For the purpose of this offence, a person is reckless if: </p><p> a. He or she is aware of a substantial risk that the material will be child pornography material; and</p><p> b. Having regard to the circumstances known to him or her, it is unjustifiable to take the risk (see Criminal Code s5.4).</p><p>20. Proof that the accused knew or intended that the material be child pornography material will also prove this element (Criminal Code s5.4(4)). 21. A person will intend that material be child pornography material if he or she believes that it is or will be child pornography material (Criminal Code s5.2(2)). 22. A person will know that material is child pornography material if he or she is aware that it is child pornography material or will be child </p><p>4 pornography material in the ordinary course of events (Criminal Code s5.3).</p><p>Use of a carriage service</p><p>23. The fourth element is that the accused engaged in the conduct constituting the first element using a carriage service (Criminal Code s474.19(1)(aa)). 24. Under the Dictionary to the Code, “carriage service” has the same meaning as in the Telecommunications Act 1997 (Cth) 25. Under section 7 of the Telecommunications Act 1997 (Cth), “carriage service” means a service for carrying communications by means of guided and / or unguided electromagnetic energy. 26. This draws attention to the means by which a communication is delivered, rather than the content of the communication itself. 27. The explanatory memorandum to the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No. 2) 2004, which introduced this provision, states that use of a carriage service includes “making a telephone call, sending a message by facsimile, sending an SMS message, or sending a message by email or some other means using the Internet” (see also R v McDonald and Deblaquiere [2013] ACTSC 122. But c.f. Hale v R [2011] NSWDC 97). 28. Under 473.5 of the Criminal Code, a person is taken not to use a carriage service by engaging in particular conduct if:</p><p> a. The person is a carrier and, in engaging in that conduct, is acting solely in that person’s capacity as a carrier; or</p><p> b. The person is a carriage service provider and, in engaging in that conduct, is acting solely in the person’s capacity as a carriage service provider; or</p><p> c. The person is an internet service provider and, in engaging in that conduct, is acting solely in the person’s capacity as an internet service provider; or</p><p> d. The person is an internet content host and, in engaging in that conduct, is acting solely in the person’s capacity as an internet content host. </p><p>29. Absolute liability applies to this element and so there is no associated fault element (Criminal Code s474.19(2A)). Defences</p><p>30. As well as the general defences provided for in Part 2.3 of the Criminal Code, four specific defences to s474.19 are provided for in s474.21.</p><p>5 31. For each defence under s474.21, the accused carries the evidential burden to raise the defence (see Criminal Code s13.3). 32. The explanatory memorandum to the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Bill (No. 2) 2004 (Cth) indicates that most of the defences in 474.21 are similar in application to the general defence of lawful authority in section 10.5 of the Criminal Code. However, that defence is not specific to the circumstances covered by these defences and does not sufficiently cover all the types of people that would be legitimately entitled to a defence for the child pornography material offences. Public benefit defence 33. A person is not criminally responsible for an offence against section 474.19 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 (Criminal Code s474.21(1)). 34. In determining whether this defence applies, 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 (Criminal Code s474.21(1)). 35. 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 for Justice and Customs in writing for the purposes of this section (Criminal Code s474.21(2)). 36. The conduct discussed in s474.21(2)(a) is targeted at persons who may be required to engage in the offending conduct as part of their duties in connection with law enforcement, but who are not covered by the defence for law enforcement officers in subsection 474.21(3). An example is where a criminologist assists law enforcement agencies in the identification of victims of child abuse (Explanatory memorandum, Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Bill (No. 2) 2004 (Cth)). 37. The defence in s474.21(2)(b) is targeted at officers of government agencies involved in the monitoring and investigation of online material in accordance with regulatory schemes that they administer. This includes organisations such as the Australian Broadcasting Authority (ABA), the Australian Communications Authority (ACA) and the Office of Film and Literature Classification (OFLC) (Explanatory memorandum, Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Bill (No. 2) 2004 (Cth)). </p><p>6 38. The types of people likely to be covered by s474.21(2)(c) include judicial officers and court staff hearing a proceeding involving child pornography, legal representatives of a party to the proceedings, and witnesses in the proceedings (Explanatory memorandum, Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Bill (No. 2) 2004 (Cth)). 39. Finally, s474.21(2)(d) protects legitimate research dealing with child pornography on the Internet, 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. (Explanatory memorandum, Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Bill (No. 2) 2004 (Cth)). Law enforcement defence 40. A person is not criminally responsible for an offence against section 474.19 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 (Criminal Code s474.21(3)). Defence for those assisting Children’s e-Safety Commissioner 41. A person is not criminally responsible for an offence against section 474.19 if the person engaged in the conduct in good faith for the sole purpose of assisting the Children's e-Safety Commissioner to detect: i. prohibited content (within the meaning of Schedule 7 to the Broadcasting Services Act 1992 (Cth)); or ii. potential prohibited content (within the meaning of that Schedule); in the performance of the Commissioner's functions under Schedule 5 or Schedule 7 to that Act (Criminal Code s474.21(4) (a)) 42. “Prohibited content” is defined in clause 20(1) of Schedule 7 of the Broadcasting Services Act 1992 (Cth). Content other than an eligible electronic publication is prohibited content if: a. The classification board has classified it as RC or X 18+; b. It has been classified as either R 18+ and access is not subject to a restricted access system; or</p><p>7 c. The content is MA 15+, and the additional requirements in clause 20(1) of Schedule 7 are met. 43. An eligible electronic publication is prohibited content if the Classification Board has classified the content RC, category 2 restricted or category 1 restricted (Broadcasting Services Act 1992 (Cth) Schedule 7, clause 20(2)). 44. ‘Potential prohibited content’ is content that has not been classified by the Classification Board and, if it were to be classified, there is a substantial likelihood that it would be prohibited content (Broadcasting Services Act 1992 (Cth), Schedule 7, clause 21) 45. The Commissioner’s functions are set out in clause 114 to Schedule 7 and clause 94 to Schedule 5 of the Broadcasting Services Act 1992 (Cth). Defence for those manufacturing or developing, or updating, Content Filtering Technology 46. A person is not criminally responsible for an offence against section 474.19 if the person engages in the conduct in good faith for the sole purpose of 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) (Criminal Code s474.21(4)(b)). Relationship with State Legislation 47. The Crimes Act 1958 also creates offences of producing child pornography, procuring a minor for child pornography and possessing child pornography. See 7.11.5 – Child Pornography.</p><p>8</p>