2016-2017-2018-2019
The Parliament of the
Commonwealth of Australia
THE SENATE

Presented and read a first time

Criminal Code Amendment (Sharing of
Abhorrent Violent Material) Bill 2019
No.

, 2019

(Attorney-General)

A Bill for an Act to amend the Criminal Code Act
1995, and for related purposes

 Contents
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Short title ........................................................................................... 1
Commencement ................................................................................. 1
Schedules........................................................................................... 2

Schedule 1—Sharing of abhorrent violent material
Criminal Code Act 1995

Schedule 2—Obligations of internet service providers and
internet content hosts
Criminal Code Act 1995

No.

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Criminal Code Amendment (Sharing of Abhorrent Violent Material)
Bill 2019

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3

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i

 2

A Bill for an Act to amend the Criminal Code Act
1995, and for related purposes

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The Parliament of Australia enacts:

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1 Short title

1

This Act is the Criminal Code Amendment (Sharing of Abhorrent
Violent Material) Act 2019.

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6

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2 Commencement
(1) Each provision of this Act specified in column 1 of the table
commences, or is taken to have commenced, in accordance with
column 2 of the table. Any other statement in column 2 has effect
according to its terms.

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1

 Commencement information
Column 2

Column 3

Provisions

Commencement

Date/Details

1. The whole of
this Act

The day after this Act receives the Royal
Assent.

Note:

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3

This table relates only to the provisions of this Act as originally
enacted. It will not be amended to deal with any later amendments of
this Act.

(2) Any information in column 3 of the table is not part of this Act.
Information may be inserted in this column, or information in it
may be edited, in any published version of this Act.

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Column 1

3 Schedules
Legislation that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule
concerned, and any other item in a Schedule to this Act has effect
according to its terms.

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Schedule 1—Sharing of abhorrent violent
material

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Criminal Code Act 1995

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1 At the end of Division 474 of the Criminal Code
Add:

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Subdivision H—Offences relating to use of carriage service for
sharing of abhorrent violent material

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474.30 Definitions

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10

In this Subdivision:

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abhorrent violent conduct has the meaning given by
section 474.32.

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abhorrent violent material has the meaning given by
section 474.31.

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consent means free and voluntary agreement.

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content service means:
(a) a social media service (within the meaning of the Enhancing
Online Safety Act 2015); or
(b) a designated internet service (within the meaning of the
Enhancing Online Safety Act 2015).

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hosting service has the same meaning as in the Enhancing Online
Safety Act 2015. For this purpose, disregard
subparagraphs 9C(a)(ii) and (b)(ii) of that Act.

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474.31 Abhorrent violent material
(1) For the purposes of this Subdivision, abhorrent violent material
means material that:
(a) is:
(i) audio material; or

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(ii) visual material; or
(iii) audio-visual material;
that records or streams abhorrent violent conduct engaged in
by one or more persons; and
(b) is material that reasonable persons would regard as being, in
all the circumstances, offensive; and
(c) is produced by a person who is, or by 2 or more persons each
of whom is:
(i) a person who engaged in the abhorrent violent conduct;
or
(ii) a person who conspired to engage in the abhorrent
violent conduct; or
(iii) a person who aided, abetted, counselled or procured, or
was in any way knowingly concerned in, the abhorrent
violent conduct; or
(iv) a person who attempted to engage in the abhorrent
violent conduct.

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(2) For the purposes of this section, it is immaterial whether the
material has been altered.

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(3) For the purposes of this section, it is immaterial whether the
abhorrent violent conduct was engaged in within or outside
Australia.

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474.32 Abhorrent violent conduct
(1) For the purposes of this Subdivision, a person engages in
abhorrent violent conduct if the person:
(a) engages in a terrorist act; or
(b) murders another person; or
(c) attempts to murder another person; or
(d) tortures another person; or
(e) rapes another person; or
(f) kidnaps another person.

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Murder

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(2) For the purposes of this section, a person (the first person) murders
another person if:
(a) the first person’s conduct causes the death of the other
person; and
(b) the conduct constitutes an offence.

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Torture

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(3) For the purposes of this section, a person (the first person) tortures
another person if:
(a) the first person inflicts severe physical or mental pain or
suffering upon the other person; and
(b) the other person is in the custody, or under the control, of the
first person; and
(c) the pain or suffering does not arise only from, and is not
inherent in or incidental to, lawful sanctions that are not
inconsistent with the Articles of the International Covenant
on Civil and Political Rights (a copy of the English text of
which is set out in Schedule 2 to the Australian Human
Rights Commission Act 1986).

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Rape

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(4) For the purposes of this section, a person (the first person) rapes
another person if:
(a) the first person sexually penetrates the other person without
the consent of the other person; or
(b) the first person causes the other person to sexually penetrate
the first person without the consent of the other person.

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Kidnapping

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(5) For the purposes of this section, a person (the first person) kidnaps
another person if:
(a) the first person takes or detains the other person without the
other person’s consent; and
(b) the first person takes or detains the other person in order to:
(i) hold the other person to ransom or as a hostage; or

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(ii) murder, torture or rape the other person or a third
person; or
(iii) cause serious harm to the other person or a third person;
and
(c) the taking or detention of the other person involves violence
or a threat of violence.

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Interpretation

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(6) In this section:

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sexually penetrate means:
(a) penetrate (to any extent) the genitalia or anus of a person by
any part of the body of another person or by any object
manipulated by that other person; or
(b) penetrate (to any extent) the mouth of a person by the penis
of another person; or
(c) continue to sexually penetrate as defined in paragraph (a) or
(b).

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terrorist act has the same meaning as in section 100.1. For this
purpose, disregard paragraphs 100.1(2)(b), (d), (e) and (f).

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(7) For the purposes of this section, the genitalia or other parts of the
body of a person include surgically constructed genitalia or other
parts of the body of the person.

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474.33 Notification obligations of internet service providers, content
service providers and hosting service providers
(1) A person commits an offence if:
(a) the person:
(i) is an internet service provider; or
(ii) provides a content service; or
(iii) provides a hosting service; and
(b) the person is aware that the service provided by the person
can be used to access particular material that the person has
reasonable grounds to believe is abhorrent violent material
that records or streams abhorrent violent conduct that has
occurred, or is occurring, in Australia; and

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(c) the person does not refer details of the material to the
Australian Federal Police within a reasonable time after
becoming aware of the existence of the material.

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Penalty: 800 penalty units.

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(2) For the purposes of this section:
(a) it is immaterial whether the content service is provided
within or outside Australia; and
(b) it is immaterial whether the hosting service is provided
within or outside Australia.

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(3) Subsection (1) does not apply if the person reasonably believes that
details of the material are already known to the Australian Federal
Police.

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Note:

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A defendant bears an evidential burden in relation to the matters in
this subsection: see subsection 13.3(3).

474.34 Removing, or ceasing to host, abhorrent violent material
Content service

16

(1) A person commits an offence if:
(a) the person provides a content service; and
(b) the content service can be used to access material; and
(c) the material is abhorrent violent material; and
(d) the person does not ensure the expeditious removal of the
material from the content service.

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(2) For the purposes of subsection (1), it is immaterial whether the
content service is provided within or outside Australia.

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(3) Subsection (1) does not apply to material unless the material is
reasonably capable of being accessed within Australia.

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(4) The fault element for paragraphs (1)(b) and (c) is recklessness.

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Hosting service

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(5) A person commits an offence if:
(a) the person provides a hosting service; and

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(b) material is hosted on the hosting service; and
(c) the material is abhorrent violent material; and
(d) the person does not expeditiously cease hosting the material.

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(6) For the purposes of subsection (5), it is immaterial whether the
hosting service is provided within or outside Australia.

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5

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(7) Subsection (5) does not apply to material unless the material is
reasonably capable of being accessed within Australia.

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(8) The fault element for paragraphs (5)(b) and (c) is recklessness.

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Penalty for individual

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(9) An offence against subsection (1) or (5) committed by an
individual is punishable on conviction by imprisonment for a
period of not more than 3 years or a fine of not more than 10,000
penalty units, or both.

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Penalty for body corporate

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(10) An offence against subsection (1) or (5) committed by a body
corporate is punishable on conviction by a fine of not more than
the greater of the following:
(a) 50,000 penalty units;
(b) 10% of the annual turnover of the body corporate during the
period (the turnover period) of 12 months ending at the end
of the month in which the conduct constituting the offence
occurred.

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(11) For the purposes of this section, the annual turnover of a body
corporate, during the turnover period, is the sum of the values of all
the supplies that the body corporate, and any body corporate
related to the body corporate, have made, or are likely to make,
during that period, other than the following supplies:
(a) supplies made from any of those bodies corporate to any
other of those bodies corporate;
(b) supplies that are input taxed;
(c) supplies that are not for consideration (and are not taxable
supplies under section 72-5 of the A New Tax System (Goods
and Services Tax) Act 1999);

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(d) supplies that are not made in connection with an enterprise
that the body corporate carries on.

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(12) For the purposes of subsection (11), it is immaterial whether the
supplies were made, or are likely to be made, within or outside
Australia.

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(13) Expressions used in subsections (11) and (12) that are also used in
the A New Tax System (Goods and Services Tax) Act 1999 have the
same meaning in those subsections as they have in that Act.

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(14) The question whether 2 bodies corporate are related to each other
is to be determined for the purposes of this section in the same way
as for the purposes of the Corporations Act 2001.

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When material is removed from a content service

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(15) For the purposes of this section, material is removed from a content
service if the material is not accessible to any of the end-users
using the service.

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474.35 Notice issued by eSafety Commissioner in relation to a
content service—presumptions
(1) The eSafety Commissioner may issue a written notice stating that,
at the time the notice was issued:
(a) a specified content service could be used to access specified
material; and
(b) the specified material was abhorrent violent material.

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(2) The eSafety Commissioner must not issue a notice under
subsection (1) unless the eSafety Commissioner is satisfied on
reasonable grounds that, at the time the notice was issued:
(a) the specified content service could be used to access the
specified material; and
(b) the specified material was abhorrent violent material.

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(3) As soon as practicable after issuing a notice under subsection (1),
the eSafety Commissioner must give a copy of the notice to the
person who provides the content service concerned.

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(4) The eSafety Commissioner is not required to observe any
requirements of procedural fairness in relation to the issue of a
notice under subsection (1).

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Presumptions

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(5) If:
(a) a notice under subsection (1) is issued in relation to a content
service provided by a person; and
(b) in a prosecution of the person for an offence against
subsection 474.34(1), it is proven that the content service
could be used to access the material specified in the notice at
the time the notice was issued;
then, in that prosecution, it must be presumed that the person was
reckless as to whether the content service could be used to access
the specified material at the time the notice was issued, unless the
person adduces or points to evidence that suggests a reasonable
possibility that the person was not reckless as to whether the
content service could be used to access the specified material at the
time the notice was issued.

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(6) If a notice under subsection (1) is issued in relation to a content
service provided by a person, then, in a prosecution of the person
for an offence against subsection 474.34(1), it must be presumed
that, at the time the notice was issued, the person was reckless as to
whether the material specified in the notice was abhorrent violent
material, unless the person adduces or points to evidence that
suggests a reasonable possibility that, at the time the notice was
issued, the person was not reckless as to whether the specified
material was abhorrent violent material.

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Other evidentiary matters

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(7) A document purporting to be a notice issued under subsection (1)
must, unless the contrary is established, be taken to be such a
notice and to have been properly issued.

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(8) The eSafety Commissioner may certify that a document is a copy
of a notice issued under subsection (1).

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(9) Subsections (5), (6) and (7) apply to the certified copy as if it were
the original.

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Application

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(10) This section extends to matters and things outside Australia.

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474.36 Notice issued by eSafety Commissioner in relation to a
hosting service—presumptions
(1) The eSafety Commissioner may issue a written notice stating that,
at the time the notice was issued:
(a) specified material was hosted on a specified hosting service;
and
(b) the specified material was abhorrent violent material.

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(2) The eSafety Commissioner must not issue a notice under
subsection (1) unless the eSafety Commissioner is satisfied on
reasonable grounds that, at the time the notice was issued:
(a) the specified material was hosted on the specified hosting
service; and
(b) the specified material was abhorrent violent material.

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(3) As soon as practicable after issuing a notice under subsection (1),
the eSafety Commissioner must give a copy of the notice to the
person who provides the hosting service concerned.

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(4) The eSafety Commissioner is not required to observe any
requirements of procedural fairness in relation to the issue of a
notice under subsection (1).

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Presumptions

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(5) If:
(a) a notice under subsection (1) is issued in relation to a hosting
service provided by a person; and
(b) in a prosecution of the person for an offence against
subsection 474.34(5), it is proven that the material specified
in the notice was hosted on the hosting service at the time the
notice was issued;
then, in that prosecution, it must be presumed that the person was
reckless as to whether the specified material was hosted on the
hosting service at the time the notice was issued, unless the person
adduces or points to evidence that suggests a reasonable possibility

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that the person was not reckless as to whether specified material
was hosted on the hosting service at the time the notice was issued.

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(6) If a notice under subsection (1) is issued in relation to a hosting
service provided by a person, then, in a prosecution of the person
for an offence against subsection 474.34(5), it must be presumed
that, at the time the notice was issued, the person was reckless as to
whether the material specified in the notice was abhorrent violent
material, unless the person adduces or points to evidence that
suggests a reasonable possibility that, at the time the notice was
issued, the person was not reckless as to whether the specified
material was abhorrent violent material.

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Other evidentiary matters

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(7) A document purporting to be a notice issued under subsection (1)
must, unless the contrary is established, be taken to be such a
notice and to have been properly issued.

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(8) The eSafety Commissioner may certify that a document is a copy
of a notice issued under subsection (1).

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(9) Subsections (5), (6) and (7) apply to the certified copy as if it were
the original.

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Application

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(10) This section extends to matters and things outside Australia.

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474.37 Defences in respect of abhorrent violent material
Content service

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(1) Subsection 474.34(1) does not apply to material that can be
accessed using a service if:
(a) the accessibility of the material is necessary for enforcing a
law of:
(i) the Commonwealth; or
(ii) a State; or
(iii) a Territory; or
(iv) a foreign country; or

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(b)

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(c)

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(d)

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(e)

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(f)

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(g)

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(v) a part of a foreign country; or
the accessibility of the material is necessary for monitoring
compliance with, or investigating a contravention of, a law
of:
(i) the Commonwealth; or
(ii) a State; or
(iii) a Territory; or
(iv) a foreign country; or
(v) a part of a foreign country; or
the accessibility of the material is for the purposes of
proceedings in a court or tribunal; or
both:
(i) the accessibility of the material is necessary for, or of
assistance in, conducting scientific, medical, academic
or historical research; and
(ii) the accessibility of the material is reasonable in the
circumstances for the purpose of conducting that
scientific, medical, academic or historical research; or
the material relates to a news report, or a current affairs
report, that:
(i) is in the public interest; and
(ii) is made by a person working in a professional capacity
as a journalist; or
both:
(i) the accessibility of the material is in connection with the
performance by a public official of the official’s duties
or functions; and
(ii) the accessibility of the material is reasonable in the
circumstances for the purpose of performing that duty or
function; or
both:
(i) the accessibility of the material is in connection with an
individual assisting a public official in relation to the
performance of the public official’s duties or functions;
and
(ii) the accessibility of the material is reasonable in the
circumstances for the purpose of the individual assisting

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the public official in relation to the performance of the
public official’s duties or functions; or
(h) the accessibility of the material is for the purpose of
advocating the lawful procurement of a change to any matter
established by law, policy or practice in:
(i) the Commonwealth; or
(ii) a State; or
(iii) a Territory; or
(iv) a foreign country; or
(v) a part of a foreign country;
and the accessibility of the material is reasonable in the
circumstances for that purpose; or
(i) the accessibility of the material relates to the development,
performance, exhibition or distribution, in good faith, of an
artistic work.

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Note:

A defendant bears an evidential burden in relation to the matters in
this subsection (see subsection 13.3(3)).

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Hosting service
(2) Subsection 474.34(5) does not apply to material that is hosted on a
hosting service if:
(a) the hosting of the material is necessary for enforcing a law
of:
(i) the Commonwealth; or
(ii) a State; or
(iii) a Territory; or
(iv) a foreign country; or
(v) a part of a foreign country; or
(b) the hosting of the material is necessary for monitoring
compliance with, or investigating a contravention of, a law
of:
(i) the Commonwealth; or
(ii) a State; or
(iii) a Territory; or
(iv) a foreign country; or
(v) a part of a foreign country; or

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(c) the hosting of the material is for the purposes of proceedings
in a court or tribunal; or
(d) both:
(i) the hosting of the material is necessary for, or of
assistance in, conducting scientific, medical, academic
or historical research; and
(ii) the hosting of the material is reasonable in the
circumstances for the purpose of conducting that
scientific, medical, academic or historical research; or
(e) the material relates to a news report, or a current affairs
report, that:
(i) is in the public interest; and
(ii) is made by a person working in a professional capacity
as a journalist; or
(f) both:
(i) the hosting of the material is in connection with the
performance by a public official of the official’s duties
or functions; and
(ii) the hosting of the material is reasonable in the
circumstances for the purpose of performing that duty or
function; or
(g) both:
(i) the hosting of the material is in connection with an
individual assisting a public official in relation to the
performance of the public official’s duties or functions;
and
(ii) the hosting of the material is reasonable in the
circumstances for the purpose of the individual assisting
the public official in relation to the performance of the
public official’s duties or functions; or
(h) the hosting of the material is for the purpose of advocating
the lawful procurement of a change to any matter established
by law, policy or practice in:
(i) the Commonwealth; or
(ii) a State; or
(iii) a Territory; or
(iv) a foreign country; or
(v) a part of a foreign country;

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and the hosting of the material is reasonable in the
circumstances for that purpose; or
(i) the hosting of the material relates to the development,
performance, exhibition or distribution, in good faith, of an
artistic work.

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Note:

8

Functions
(3) The references in this section to function or functions do not, by
implication, affect the meaning of the expressions duty or duties
when used in any other provision of this Code.

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Application

12

(4) This section extends to matters and things outside Australia.

13

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474.38 Implied freedom of political communication
(1) This Subdivision does not apply to the extent (if any) that it would
infringe any constitutional doctrine of implied freedom of political
communication.

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(2) Subsection (1) does not limit the application of section 15A of the
Acts Interpretation Act 1901 to this Act.

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19

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474.39 Provider of content service
(1) For the purposes of this Subdivision, a person does not provide a
content service merely because the person supplies a carriage
service that enables material to be accessed.

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(2) For the purposes of this Subdivision, a person does not provide a
content service merely because the person provides a billing
service, or a fee collection service, in relation to a content service.

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25
26

27

A defendant bears an evidential burden in relation to the matters in
this subsection (see subsection 13.3(3)).

474.40 Service of copies of notices by electronic means
Paragraphs 9(1)(d) and (2)(d) of the Electronic Transactions Act
1999 do not apply to a copy of a notice under subsection 474.35(1)
or 474.36(1) of this Act.

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Note:

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3
4

Paragraphs 9(1)(d) and (2)(d) of the Electronic Transactions Act 1999
deal with the consent of the recipient of information to the information
being given by way of electronic communication.

474.41 Giving a copy of a notice to a contact person etc.
Contact person

5

(1) If:
(a) a copy of a notice under subsection 474.35(1) is required to
be given to the provider of a content service that is a social
media service (within the meaning of the Enhancing Online
Safety Act 2015); and
(b) there is an individual who is:
(i) an employee or agent of the provider; and
(ii) designated as the service’s contact person for the
purposes of that Act; and
(c) the contact details of the contact person have been notified to
the eSafety Commissioner;
the copy of the notice is taken to have been given to the provider if
it is given to the contact person.

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7
8
9
10
11
12
13
14
15
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17
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Agent

19

(2) If:
(a) a copy of a notice under subsection 474.35(1) or 474.36(1) is
required to be given to a body corporate incorporated outside
Australia; and
(b) the body corporate does not have a registered office or a
principal office in Australia; and
(c) the body corporate has an agent in Australia;
the copy of the notice is taken to have been given to the body
corporate if it is given to the agent.

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23
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25
26
27
28

Other matters

29

(3) Subsections (1) and (2) have effect in addition to section 28A of
the Acts Interpretation Act 1901.

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31

Note:

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Section 28A of the Acts Interpretation Act 1901 deals with the service
of documents.

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 Schedule 1 Sharing of abhorrent violent material

1

474.42 Attorney-General’s consent required for prosecution
Offence against section 474.33

2

(1) Proceedings for an offence against section 474.33 must not be
commenced without the Attorney-General’s written consent if:
(a) the conduct constituting the alleged offence occurs wholly in
a foreign country; and
(b) at the time of the alleged offence, the person alleged to have
committed the offence is neither:
(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the
Commonwealth or of a State or Territory.

3
4
5
6
7
8
9
10
11

(2) However, a person may be arrested for, charged with, or remanded
in custody or released on bail in connection with, an offence
against section 474.33 before the necessary consent has been
given.

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13
14
15

Offence against section 474.34

16

(3) Proceedings for an offence against section 474.34 must not be
commenced without the Attorney-General’s written consent.

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18

(4) However, a person may be arrested for, charged with, or remanded
in custody or released on bail in connection with, an offence
against section 474.34 before the necessary consent has been
given.

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20
21
22

23

474.43 Compensation for acquisition of property
(1) If the operation of this Subdivision would result in an acquisition
of property (within the meaning of paragraph 51(xxxi) of the
Constitution) from a person otherwise than on just terms (within
the meaning of that paragraph), the Commonwealth is liable to pay
a reasonable amount of compensation to the person.

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(2) If the Commonwealth and the person do not agree on the amount
of the compensation, the person may institute proceedings in:
(a) the Federal Court of Australia; or
(b) the Supreme Court of a State or Territory;

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for the recovery from the Commonwealth of such reasonable
amount of compensation as the court determines.

1
2

3
4

474.44 This Subdivision does not limit Schedule 5 or 7 to the
Broadcasting Services Act 1992
This Subdivision does not limit the operation of Schedule 5 or 7 to
the Broadcasting Services Act 1992.

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6

7

474.45 Review of this Subdivision
(1) After the end of the 2-year period beginning at the commencement
of this section, the Minister must cause to be conducted a review of
the operation of this Subdivision.

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9
10

Report

11

(2) A report of the review must be given to the Minister within 12
months after the end of the 2-year period mentioned in
subsection (1).

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14

(3) The Minister must cause copies of a report under subsection (2) to
be tabled in each House of the Parliament within 15 sitting days of
that House after the Minister receives the report.

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18

2 Section 475.2 of the Criminal Code
Before “Section 15.1”, insert “(1)”.

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3 Section 475.2 of the Criminal Code
After “Part”, insert “(other than Subdivision H of Division 474)”.

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4 At the end of section 475.2 of the Criminal Code
Add:

23

(2) Section 14.1 (standard geographical jurisdiction) does not apply to
an offence against Subdivision H of Division 474.

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 Schedule 2 Obligations of internet service providers and internet content hosts

1
2
3

Schedule 2—Obligations of internet service
providers and internet content hosts

4

Criminal Code Act 1995

5

1 Section 474.25 of the Criminal Code (penalty)
Omit “100 penalty units”, substitute “800 penalty units”.

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