S 474.17 Criminal Code Act 1995 (Cth)

Criminal law has developed over hundreds of years to regulate the actions that people take, and to protect people from those who would do them harm. However, new challenges relating to this timeless principle have arisen with the advent of modern communication technologies. Contentious interactions between people have been argued over in court for longer than Australia has existed as a country, and now online communications have the same privilege. One key legal provision which governs these communications is Section 474.17 of the Criminal Code Act 1995. This is a federal law, meaning this is a crime nationwide.

The Offence in the legislation has two main elements.  A person commits an offence if:

  • the person uses a carriage service; and
  • the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.

What is a Carriage Service:

To understand whether the offence is committed using a carriage service, we must first know what a ‘carriage service’ is. The dictionary at the end of the Criminal Code Act 1995 points to the definition used in the Telecommunications Act 1997 (Cth), where is it defined as:

‘a service for carrying communications by means of guided and/or unguided electromagnetic energy.’

This is a very broad definition which could include the newest messaging app, or the oldest shortwave radio. Due to how broad this definition is, it’s a safe assumption that almost every form of electronic communication involves using a carriage service.

What is a ‘Reasonable Person?’

The second element of the offence, that being communication of a content or manner which would be regarded as menacing, harassing or offensive, all hinges upon the perception of a reasonable person. In this context it is how a reasonable person in the position of the person making the complaint would perceive the events. This also means it is not viewed from the perspective of someone with an extreme temperament or vulnerabilities one way or the other.

Aggravating Factors

The act provides that the offence is aggravated if the use of a carriage service involves private sexual material.

There is a separate offence if the sexual material relates to a person under the age of 18.

What could form an Offence?

One overarching rule that applies to all potential offences is the High Court of Australia’s interpretation in R v Monis [2013] HCA 4. This case highlights that for any action to count as an offence, it cannot merely hurt feelings. There must be a more serious level of offensiveness to constitute a crime.

Now that key elements are understood, we can look into examples of what actions have come before the court and been shown to be an offence:

  • Calling a person and yelling insults and threats at the person who picks up.
  • Continuously calling and/or messaging someone who has told you not to contact them.
  • Using telecommunications to threaten posting nude images of another person against their will.

Messages and phone calls which threatened people as part of a fraud scam scheme have also met the elements of this offence.

There are many more actions which have been shown by the court to be an offence under this legislation, however these examples should highlight just how broad this law is.

If you are charged for committing such an offence, please contact our office on (02) 9525 8688.

Reference List:

Criminal Code Act 1995 (Cth)

Telecommunications Act 1997 (Cth)

R v Monis [2013] HCA 4

R v Telfer [2016] NSWDC 421