Section 474.17 of the Commonwealth Criminal Code (“Criminal Code”) makes it an offence for a person to use a carriage service in a way a reasonable person would regard as menacing, harassing or offensive. This section is targeted at what is commonly referred to as cyberbullying. Cyberbullying can include the use of the Internet (in the form of websites, blogs and email), message boards, social networking sites, mobile phones and online computer games.
WHAT THE LAW SAYS
474.17 Using a carriage service to menace, harass or cause offence
(1) A person commits an offence if:
(a) the person uses a carriage service;
(b) 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.
Penalty: Imprisonment for 5 years.
(2) Without limiting subsection (1), that subsection applies to menacing, harassing or causing offence to:
(a) an employee of an NRS provider; or
(b) an emergency call person; or
(c) an employee of an emergency service organisation; or
(d) an APS employee in the Department administered by the AFP Minister acting as a National Security Hotline call taker.
WHAT THE PROSECUTION MUST PROVE
To prove the offence of using a carriage service to menace, harass or cause offence, the prosecution must prove the following beyond reasonable doubt:
- The defendant used a carriage service.
The defendant must have intentionally used the carriage service.
What is a carriage service?
Carriage service is defined in the Criminal Code as:
carriage service has the same meaning as in the Telecommunications Act 1997.
The Telecommunications Act 1997 (Cth) defines carriage service as:
carriage service means a service for carrying communications by means of guided and/or unguided electromagnetic energy.
Examples of using a carriage service are as follows:
- Text messages.
- SMS messages.
- Messages passed by Facebook, Instagram or like social media sites.
- Reasonable persons would regard the way the defendant used the carriage service to be menacing, harassing or offensive.
Would the reasonable person standing in the shoes of the alleged victim regard the defendant’s conduct to be menacing, harassing or offensive? This test is not what the victim believed the defendant’s conduct to be, but it is what an objective reasonable person would believe.
WHAT IS THE SENTENCE FOR USING A CARRIAGE SERVICE TO MENACE, HARASS OR CAUSE OFFENCE?
If you are convicted of the offence, the maximum penalty is 5 years imprisonment.
WHERE WILL MY CHARGE BE HEARD
A charge of using a carriage service to menace, harass or cause offence may be heard in the Magistrates Court with the consent of the defence and prosecution. Otherwise, the charge can be heard in the District Court.
WHAT DEFENCES ARE THERE FOR USING A CARRIAGE SERVICE TO MENACE, HARASS OR CAUSE OFFENCE
- The use of the carriage service was not intentional (i.e. it was accidental).
- Duress- the person used the carriage service under duress from another person.
- The defendant was not the person who used the carriage service.
- A reasonable person would not consider the defendant’s conduct to be menacing, harassing or cause offence.
WHAT YOU SHOULD DO IF CHARGED WITH USING A CARRIAGE SERVICE TO MENACE, HARASS OR CAUSE OFFENCE
If you have charged with using a carriage service to menace, harass or cause offence, get legal advice now. Every criminal offence is serious and can have serious consequences for you. You need the experience of the Criminal Lawyers Brisbane Group in your corner fighting for you. Pick up the phone and dial (07) 3153 6215 or fill out the form below for a free no-obligation chat. Contacting us may be the best thing you do.
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