[LINK] using a carriage service to menace, harass or cause offence?

rene rene.ln at libertus.net
Sat May 7 14:13:33 EST 2011


On Sat, 7 May 2011 08:24:25 +1000, Roger Clarke wrote:
[...]
> Leaving aside the questionable grammar, a large proportion of human
> communication can be argued to 'be causing offence'.
>
> And some of us may be at particular risk ...
>
> I've searched the Crimes Act and the Telecommunications Act, for the 
> string... without success.
>
> It would be handy to know the Act and Section, and the Amendment Act
> that created it, and then find and check the Second Reading Speech. I
> have no memory of such a nitwit clause ever being publicly discussed.

I posted to Link about that on 26 Mar 2011:
"[LINK] menace, harass, offence crime (was Re: sick person on the net)"
http://mailman.anu.edu.au/pipermail/link/2011-March/092653.html

The recent newspaper article's claim that it was enacted just 2 years ago 
is wrong. It was enacted nearly 7 years ago (Assent: August 2004) and the 
offence is s.474.17 of Cth Criminal Code. 
http://www.comlaw.gov.au/Details/C2011C00261

Note in relation to interpretation of s474.17, the following clauses are 
relevant:
473.4  Determining whether material is offensive
473.5  Use of a carriage service

The s.474.17 offence was added by the "Crimes Legislation Amendment 
(Telecommunications Offences and Other Measures) Act (No. 2) 2004".
http://www.comlaw.gov.au/Details/C2004A01362

There was ample opportunity for public debate, but few people, 
organisations, or media were interested, probably because they didn't know 
about it. The offence was "buried" in an omnibus Bill that also contained 
offences for using a carriage service for child sexual abuse material, so 
of course that got quite a lot of publicity and most people just thought, 
oh, good, ok and didn't realise what else was in the Bill.

One exception was EFA. EFA submitted a response to the A-G Dept's public 
consultation in March 2004 on an Exposure Draft of the Bill, opposing the 
proposed offence of 'causing....offence' etc.
http://www.efa.org.au/Publish/efasubm-agd-teleco.html#47416
That contains an outline (written following a telephone discussion between 
me and reps of the AG's Dept) of the differences between the 'new' offence, 
and the one it replaced, which was s85ZE of the Crimes Act, and the 
associated issues/concerns about the massively increased breadth and 
vagueness.

By the time the Bill was tabled in Parliament in August 2004, the AG's Dept 
had made some changes since the Exposure draft which more or less resolved 
some issues EFA was concerned about. However, EFA remained opposed to the 
proposed new offence, for reasons set out in EFA's submission to the Senate 
Committee Inquiry on the Bill:
http://www.efa.org.au/Publish/efasubm-slclc-telecoffences.html#2744_5

I remain of the view that the 'cause...offence' offence should never have 
been enacted. A more carefully targeted and crafted offence should have 
been enacted.

I also think it's a disgrace that evidently the A.C.T. does not have any 
criminal offence legislation applicable to the alleged conduct in the ADFA 
matter. If such conduct had occurred in e.g. Qld or NSW (and I think 
probably Vic and/or WA) charges could be laid under criminal law 
specifically directed to the taking of photos of private activity in a 
private place without consent whether or not a carriage service was somehow 
used. Qld and NSW laws enacted in about 2005-07 which, at the least, 
pertain to photographing private activity involving sexual activity and/or 
nakedness. IIRC Vic and WA have surveillance device legislation which 
criminalises the uses of cameras etc in private places without consent or 
maybe knowledge of persons in the premises (and IIRC was originally enacted 
to address the problem of things like landlords installing hidden cameras 
in tenant's showers, etc).

Irene




More information about the Link mailing list