Being charged with using a carriage service for child abuse material is a serious Commonwealth offence that can carry significant penalties. If you or someone you know is facing this charge, it is important to understand what the prosecution needs to prove and what defences may be available.

The offence is created by section 474.22 of the Criminal Code Act 1995 (Cth). It is a federal charge, which means it applies across Australia and is prosecuted in state courts exercising federal criminal jurisdiction.

What is the offence?

The charge covers a broad range of conduct involving child abuse material where a carriage service (such as the internet, email, or mobile phone network) is used. It is not limited to people who distribute or share material. It can also apply to people who access, download, or request material.

The law applies to material involving people who are, or appear to be, under 18 years of age.

What does the prosecution need to prove?

To establish this charge, the prosecution must prove four things:

1. That you intentionally engaged in one of the following forms of conduct:

  • accessed the material;
  • caused the material to be transmitted to yourself;
  • transmitted, made available, published, distributed, advertised or promoted the material; or
  • solicited the material.

2. That you did so using a carriage service.

A carriage service means any service that carries communications by means of electromagnetic energy. This includes the internet, email, SMS, and other online platforms. Everyday use of the internet or a mobile phone will satisfy this element.

3. That the material is child abuse material.

Child abuse material is broadly defined. Amongst other things, it includes material that depicts or describes a person who is, or appears to be, under 18 years of age and who is shown engaged in sexual activity or a sexual pose, or who is depicted as a victim of torture, cruelty or physical abuse, in a way that reasonable people would find offensive. It also covers material whose dominant characteristic is the depiction, for a sexual purpose, of the genitalia, anal region or breasts of a person under 18.

In assessing whether material is offensive, the court considers community standards around morality, decency and propriety, as well as whether the material has any genuine literary, artistic, educational or scientific merit.

4. That you were (at least) reckless as to the material being child abuse material.

You do not need to have known with certainty that the material was child abuse material. The prosecution only needs to show that you were aware of a substantial risk that it was, and that it was unjustifiable to take that risk. If you actually knew or intended the material to be child abuse material, that also satisfies this element.

What are the defences?

Being charged does not mean you will be convicted. There are specific defences available under the law, and the prosecution must prove each element of the offence beyond reasonable doubt.

The specific defences include:

Public benefit

You are not guilty of this offence if your conduct was of public benefit and did not go beyond what was necessary for that public benefit. This covers things like assisting law enforcement, working for a government regulatory body, participating in legal proceedings, or conducting scientific or medical research that has been approved by the relevant federal minister.

Law enforcement officers

Police officers, intelligence officers and security officers who engage in this conduct in the course of their duties, where their conduct is reasonable in the circumstances, are not guilty of the offence.

Assisting the Children’s eSafety Commissioner

A person who engages in the conduct in good faith solely to assist the Children’s eSafety Commissioner in performing its functions is not guilty of the offence.

Developing content filtering technology

A person who engages in the conduct in good faith solely for the purpose of manufacturing or developing content filtering technology in accordance with an applicable industry code or standard is not guilty of the offence.

How serious is this charge?

This is a serious Commonwealth offence. The maximum penalty for a charge under section 474.22 is 15 years imprisonment. As with all serious charges, the actual sentence imposed will depend heavily on the circumstances — including the nature and volume of the material, your personal circumstances, and whether you plead guilty.

Given the seriousness of this charge and the complexity of the law in this area, it is essential to get experienced legal advice as early as possible.

Angus Cameron and Partners has extensive experience in defending serious criminal charges, including child abuse material offences. We can advise you on the strength of the case against you, the defences available, and the best way to approach your matter.

Frequently asked questions

Does this charge apply if I only viewed material online and did not download or save it?

Yes. The definition of access includes having material displayed on a computer screen. Viewing material online without saving it can still satisfy the conduct element of the offence.

What if I did not know the material involved someone under 18?

The prosecution must prove that you were reckless as to the material being child abuse material. If you genuinely had no awareness of a risk that the material involved a person under 18, that may be relevant to your defence. This is something to discuss with your lawyer based on the specific facts of your case.

Does it matter that the material was computer-generated or did not involve a real child?

The definition of child abuse material includes representations of people who appear to be under 18 — it does not require that a real child was involved. Computer-generated or animated material can fall within the definition.

Can I be charged for material that was sent to me without my knowledge?

This depends on the circumstances. The prosecution must prove that you intentionally engaged in one of the relevant forms of conduct. If you did not intentionally access, download or receive the material, you may have a defence. These situations can be technically and legally complex, and you should seek legal advice urgently.

Is this charge dealt with in state or federal court?

Although this is a Commonwealth offence, it is typically dealt with in the state court system — in Victoria, that usually means the County Court.

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