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FOR OFFICIAL USE ONLY
Legislative Reform
Operational Summary
April 2019
Crimes Legislation Amendment (Sharing
Abhorrent Violent Material) Act 2019
- Amends Criminal Code Act 1995
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Caveat: This document is the property of the Australian Federal Police. Its contents may
not be copied or disseminated further without prior approval by the originating area.
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CRM 2020/120 Folio 1FOR OFFICIAL USE ONLY
Overview
The Crimes Legislation Amendment (Sharing Abhorrent Violent Material) Act 2019
amends the Criminal Code to ensure internet service providers (ISPs), content
services and hosting services take timely action in relation to abhorrent violent
material that can be accessed using their services.
The Act received Royal Assent on 5 April 2019 and commenced on 6 April 2019.
The Explanatory Memorandum describes the amendments in more detail and can be
found here.
Summary of Amendments
The Bill introduces two new offences:
Failure to remove offence (new section 474.34)
o Offence for content services and hosting services that fail to expeditiously
remove ‘abhorrent violent material’
This offence does not apply to ISPs.
Punishable by 3 years and/or fine of 10,000 penalty units (for an
individual), or the larger of 50,000 penalty units or 10% annual
turnover (for a body corporate).
Failure to report offence (new section 474.33)
o Offence for ISPs, content services and hosting services that fail to notify the
AFP within a reasonable time after becoming aware of the existence of
‘abhorrent violent material’ on their services.
This offence only applies where the entity has reasonable grounds to
believe the underlying conduct being recorded is in Australia.
Punishable by 800 penalty units.
Definition of abhorrent violent material:
• Audio, visual, or audio-visual material of ‘abhorrent violent conduct’
• That reasonable persons would regard as being offensive,
• That is streamed or recorded by the perpetrator of the violent conduct or their
associate.
THIS DOCUMENT HAS BEEN
Content will be ‘abhorrent violent material’
DECLASSIFIED AND regardless
RELEASED of where
IN the recording took
place (inside or outside of Australia) and regardless
ACCORDANCE WITH of whether it is altered/edited or
not. THE FREEDOM OF INFORMATION ACT 1982 (CTH)
BY THE AUSTRALIAN FEDERAL POLICE
FOR OFFICIAL USE ONLY
Caveat: This document is the property of the Australian Federal Police. Its contents may
not be copied or disseminated further without prior approval by the originating area.
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CRM 2020/120 Folio 2FOR OFFICIAL USE ONLY
Definition of abhorrent violent conduct:
• Terrorist acts (within the meaning of section 100.1 Criminal Code – except conduct
described in 100.1 (2)(b), (d), (e) and (f).
• Murder and attempted murder,
• Torture,
• Rape, and
• Kidnapping.
Defences
Specific defences (set out at section 474.37) include enforcement of a law, being a
public official acting in the course of their duties, and genuine journalism purposes.
eSafety Commissioner’s role
The eSafety Commissioner is empowered under the new legislation to issue a notice to
a service provider or hosting service notifying them their service can be used to access
or host abhorrent violent material (‘a Notice’). A notice has the effect of:
• Putting the provider on notice that their service can be used to access abhorrent
violent material
• Creating a presumption for the purpose of future prosecution that the provider was
reckless that the material was abhorrent violent material and reckless as to the
fact it could be accessed on the provider’s service.
Impact on AFP
Receiving reports from ISPs, content services and content hosts
The requirement under the Act for ISPs, content services and content hosts to report
to the AFP any details of abhorrent violent material (depicting conduct which occurs in
Australia) available on their services within a reasonable timeframe, will result in new
work for the AFP. This will involve assessing reports (and possibly material) and
referring the underlying offences (such as terrorist acts, murder, etc.) that are
depicted to the relevant investigation body. The initial triage of these reports will sit
with AOCC.
It is not yet known what volume of abhorrent violent
THIS DOCUMENT HAS BEENmaterial will be reported to the
AFP. DECLASSIFIED AND RELEASED IN
ACCORDANCE WITH
THE FREEDOM OF INFORMATION ACT 1982 (CTH)
BY THE AUSTRALIAN FEDERAL POLICE
FOR OFFICIAL USE ONLY
Caveat: This document is the property of the Australian Federal Police. Its contents may
not be copied or disseminated further without prior approval by the originating area.
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CRM 2020/120 Folio 3FOR OFFICIAL USE ONLY
Investigating the failure to report and remove offences
The AFP (CO) will be responsible for investigating the two new Commonwealth
offences.
The AFP may receive referrals about failure to remove and report from a range of
sources including the eSafety Commissioner and members of the public. In most
instances it will be appropriate for members of the public to report the material to the
service provider in the first instance (as no offence has been committed if the service
provider is unaware of the material).
The AFP may also liaise with the eSafety Commissioner to determine whether it is
appropriate for the eSafety Commissioner to issue a Notice to remove prior to the AFP
commencing an investigation or prosecution (noting that a prosecution can be
commenced without issuing a Notice).
s 47E(d)
Investigating or referring the underlying conduct
Where the underlying conduct is a Commonwealth offence AOCC will refer the material
to the relevant AFP area for investigation (for example, Counter Terrorism where the
underlying conduct is a terrorist act).
The underlying conduct may not be a Commonwealth offence. Where the underlying
conduct is a State or Territory offence, AOCC will refer the material to one or more
relevant State/Territory Police. Where there are international elements to the
underlying conduct, the AOCC may refer to the relevant country via INTERPOL.
Where the underlying conduct appears to be offensive but not criminal in nature,
AOCC may refer the material to the eSafety Commissioner.
Psychological impacts on AFP Staff
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AFP appointees involved in triaging reports and investigating the new failure to
DECLASSIFIED AND RELEASED IN
remove and failure to report offences may be required to view abhorrent violent
ACCORDANCE WITH
material. AFP Appointees that review such material on a regular basis must undergo
THE FREEDOM OF INFORMATION ACT 1982 (CTH)
the graduated exposure process as a requirement of their role.
BY THE AUSTRALIAN FEDERAL POLICE
FOR OFFICIAL USE ONLY
Caveat: This document is the property of the Australian Federal Police. Its contents may
not be copied or disseminated further without prior approval by the originating area.
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CRM 2020/120 Folio 4FOR OFFICIAL USE ONLY
Any affected appointees with concerns should contact Organisational Health/Wellbeing
Services.
Future review of the legislation
The new laws are subject to review by the Minister administering the Criminal Code
two years after commencement.
FURTHER INFORMATION
s 22(1)(a)(ii)
Who should I contact if I have further questions?
• For questions regarding the legislative process and future reviews of the new
provisions, contact Legislative Reform.
• For questions regarding legal interpretation of the new provisions, contact
AFP Legal.
• For operational matters, please contact AOCC.
THIS DOCUMENT HAS BEEN
DECLASSIFIED AND RELEASED IN
ACCORDANCE WITH
THE FREEDOM OF INFORMATION ACT 1982 (CTH)
BY THE AUSTRALIAN FEDERAL POLICE
FOR OFFICIAL USE ONLY
Caveat: This document is the property of the Australian Federal Police. Its contents may
not be copied or disseminated further without prior approval by the originating area.
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CRM 2020/120 Folio 5You can also read
