Using a Carriage Service to Harass, Menace, or Cause Offence— Section 474.17, Criminal Code Act 1995 (Cth)

In recent years, the rise of telecommunication technologies, social media, and internet-based messaging platforms has caused an increase in the means by which threats, harassment, or offending communication can be made electronically.Section 474.17 of the Commonwealth Criminal Code Act 1995 (Cth) reflects the legislature’s recognition of the growing impact of harmful electronic communications on individuals and communities.

Its aim is to protect victims from communication which is menacing, harassing or offensive, made through any means of electronic communication.

Legislative Framework

Section 474.17 provides that a person commits an offence if they use a carriage service in a way that a reasonable person would regard as menacing, harassing, or offensive. The maximum penalty for this offence is five years’ imprisonment and/or a maximum fine of 300 penalty units ($33,000) , demonstrating the seriousness with which the legislature treats misuse of telecommunications services for harmful purposes.

The provision also extends to communications targeting emergency service employees, national security hotline operators, emergency call employees, and employees of an operator of the National Relay Service, highlighting the law’s emphasis on safeguarding individuals who perform critical public functions.

By enumerating these groups, the legislature acknowledges the heightened risk posed to people whose professional duties expose them to public communications, and ensures that menacing or harassing  behaviour directed at them attracts legal scrutiny.

Key Elements of the Offence

To establish guilt under section 474.17, the prosecution must prove beyond a reasonable doubt that:

1. A person used a carriage service (‘the conduct element’), and
2. That the person did so in a way that would be regarded by reasonable persons, in all the circumstances, as menacing, harassing or offensive (‘the circumstance element’).

Carriage Service

A carriage service is defined insection 7 of the Telecommunications Act 1997 (Cth). It includes any service used to carry communications by guided or unguided electromagnetic energy, encompassing traditional telephone calls, SMS messages, email, social media messaging, and other internet-based communications. By framing the law in broad terms, the legislature ensures that the offence applies to contemporary forms of communication, including new technologies that may emerge in the future.

Courts have interpreted this element to cover any communication that passes through telecommunications infrastructure, even where the content may be transmitted via emerging technologies such as instant messaging apps or online forums.

Menacing, Harassing, or Offensive Conduct

The circumstance element of the offence is assessed objectively, meaning the court considers whether a reasonable person would view the communication as menacing, harassing, or offensive in the circumstances.

In Monis v The Queen (2013) 249 CLR 92, the High Court of Australia interpreted that the terms “menacing”, “harassing”, and “offensive” are to be construed narrowly and do not bear their ordinary meanings.

“Offensive” conduct must be more than merely hurtful, annoying or vexing. It must be “calculated or likely to arouse significant anger, significant resentment, outrage, disgust, or hatred in the mind of a reasonable person in all the circumstances.” Moreover, it must “be likely to have a serious effect upon the emotional well-being of an addressee.”

On the other hand, “menacing” and “harassing” conduct, imply a “serious potential effect upon an addressee, one which causes apprehension, if not a fear, for that person’s safety.” Accordingly, the terms are clearly confined to conduct which has “a serious quality of objectionability in civil society.”

Factors such as the frequency of messages or calls, the content of communications, the relationship between the parties, and the recipient’s circumstances may influence whether the conduct meets the threshold for criminal liability.

Both single serious communications and repeated communications (such as sending a large number of text messages or emails, or calling someone repeatedly) may attract liability, depending on the context.

Fault

In relation to the conduct element of this offence, the prosecution must prove beyond reasonable doubt that the accused person used a carriage service intentionally.

In relation to the circumstance element, the prosecution must prove that the accused either intended the communication they transmitted to be menacing, harassing or offensive, or the accused was reckless as to whether it was so.Recklessness requires that the accused is aware of a substantial risk that reasonable persons would regard their use of a carriage service as menacing, harassing or offensive and that, having regard to the circumstances known to the accused, it was unjustifiable to have taken that risk. This aspect of the law aligns with the legislative goal of protecting victims from harm, even in situations where the offender did not consciously intend to cause distress.

Penalties

Section 474.17 prescribes a maximum penalty of five years’ imprisonment for this offence. The maximum fine for this offence is 300 penalty units, or $33,000.

The maximum term of imprisonment for this offence was increased in 2021 from three years to five years. In the Explanatory Memorandum for the Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021 (Cth), the reason for the increase was said to be “necessary to ensure that the seriousness of the offence is matched by a proportionate punishment.”  Higher penalties are prescribed under these provisions to reflect the serious nature of the conduct and the increased harm caused to victims.

Among the things the court must take into account when determining the seriousness of the offence are: the nature and circumstances of the offence, any course of conduct involving the same or similar acts, the personal circumstances of the victim, and any injury, loss or damage resulting from the offence.

Defences

Defences for the offence of use carriage service to menace, harass or cause offence include:

1. Duress: carrying out an offence under duress means that at the time of the alleged offending, a person reasonably believed that a threat which has been made will be carried out unless the offence is committed and there is no reasonable alternate way to render the threat ineffective. The conduct in response to the threat, i.e., the offending conduct, must be a reasonable response to the threat.
2. Sudden or extraordinary emergency (necessity): if a person commits an offence in response to circumstances of sudden or extraordinary emergency, they are not criminally responsible for that offence. The person must believe that circumstances of a sudden or extraordinary emergency exist and committing the offence is the only reasonable way to deal with the emergency. The conduct in response to the emergency must be a reasonable response.
4. Self-defence: self-defence provides a lawful excuse to conduct which would otherwise constitute an offence, if that conduct was carried out by a person to defend themselves, others or property. The conduct committed in self-defence must be reasonable and proportionate in the circumstances as the person perceives them.

It is also a defence to this offence to assert that the prosecution have not proven either of the elements of the offence beyond a reasonable doubt. For example, that can include a defence that the accused person was not the person who sent the communication. It is also a defence that the communication itself does not meet the reasonable person test and cannot be interpreted as menacing, harassing or offensive.

Conclusion

Section 474.17 of the Criminal Code Act 1995 (Cth) provides a critical legal framework to protect individuals from harassment, threats, and offensive communications conducted via electronic services. The offence captures a broad range of harmful conduct while allowing for nuanced judicial consideration of context and severity.

“When determining matters, the protection of the community is the court’s paramount consideration and offences which threaten the safety of its members are taken very seriously. The seriousness of the offence of use carriage service to menace, harass or offend is also evident in its maximum prescribed penalties. If you have been charged with this offence, it is important that you contact an experienced criminal lawyer as soon as possible for guidance tailored to your specific circumstances.”