Under Section 474.17 of the Criminal Code Act 1995 (Cth), it is a criminal offence to use a carriage service to communicate in a way that a reasonable person would consider menacing, harassing, or offensive. This law is designed to address harmful behaviour conducted through telecommunications, including threats, serious abuse, or persistently disruptive messages.
What Is a Carriage Service?
A carriage service refers to any service for carrying communications by means of electromagnetic energy. Common examples include:
- Telephone calls and text messages
- Emails and internet messaging platforms
- Social media applications (such as Facebook or Instagram)
- Online forums and chat rooms
This definition is drawn from Schedule 1 of the Telecommunications Act 1997 (Cth) and is referenced in Section 474.1 of the Criminal Code Act 1995 (Cth).
What Is Considered Menacing, Harassing or Offensive?
In order for the conduct to be considered unlawful, the content or method of communication must be such that a reasonable person would find it seriously menacing, harassing, or offensive. This includes messages that cause fear, significant distress, or gross offence.
- Menacing behaviour includes messages that cause the receiver to feel genuine fear, apprehension, or concern for their safety.
- Harassing conduct typically involves repeated or sustained communication that becomes oppressive, intimidating, or distressing to the recipient.
- Offensive content refers to material that would cause significant anger, disgust, outrage, or hatred in the mind of a reasonable person, taking into account the full context in which it occurs.
For example: sending repeated threatening messages via SMS, or posting abusive comments targeting an individual on social media, may meet the threshold under Section 474.17.
What Must Be Proven for the Offence to Occur
To prove an offence under Section 474.17, the prosecution must show that the accused used a carriage service and that the communication was menacing, harassing, or offensive.
The law does not require the accused to intend harm. It is enough that they deliberately used the service and that a reasonable person would consider the content or behaviour to be seriously improper in context.
Offences and Penalties for Using a Carriage Service to Harass, Menace or Offend
If the offence is prosecuted on indictment, the maximum penalty is 5 years’ imprisonment (Criminal Code Act 1995 (Cth) s 474.17(1)).
However, if the offence is heard summarily under s 4J of the Crimes Act 1914 (Cth), the court may impose up to 12 months’ imprisonment or a fine of up to 60 penalty units. This typically applies in less serious cases where both parties consent to the matter being finalised in the Magistrates Court.
There are also aggravated forms of the offence. If the conduct involves private sexual material or altered intimate images, the law imposes the same 5-year maximum but treats the offence with increased seriousness (ss 474.17A and 474.24D).
Using a carriage service to menace, harass or cause offence (Indictable)
This offence is indictable by default, meaning it can be dealt with in a higher court, such as the District Court. It applies in more serious cases where the conduct involves significant or repeated harassment, threats, or offensive material.
Provision: Criminal Code Act 1995 (Cth) s 474.17(1)
Penalty: Maximum 5 years imprisonment
Using a carriage service to menace, harass or cause offence (Heard summarily)
For less serious cases, this offence may be heard in the Magistrates Court if both parties agree. The penalty is lower and the process quicker, typically used when the conduct is not severe or prolonged.
Provision: Criminal Code Act 1995 (Cth) s 474.17(1) read with Crimes Act 1914 (Cth) s 4J
Penalty: Maximum 12 months imprisonment and/or 60 penalty units
Using a carriage service in a way that involves private sexual material (Aggravated offence involving private sexual material)
This applies where the carriage service is used in a way that menaces, harasses or offends and the conduct involves private sexual material. The threshold for prosecution may be higher due to the sensitive nature of the material.
Provision: Criminal Code Act 1995 (Cth) s 474.17A
Penalty: Maximum 5 years imprisonment
Using a carriage service to share an altered intimate image without consent
This offence covers the distribution of altered (e.g. digitally manipulated) intimate images without the consent of the person depicted. It is treated seriously and can overlap with other image-based abuse offences.
Provision: Criminal Code Act 1995 (Cth) s 474.24D
Penalty: Maximum 5 years imprisonment
Defences and Legal Considerations
False Allegation
If you believe the accusation is baseless, it may be a case of mistaken identity or deliberate fabrication. The prosecution must prove beyond reasonable doubt that you intentionally used a carriage service to send the communication. If there is no reliable evidence linking you to the alleged message or account, the charge may not be made out.
You Didn’t Use a Carriage Service
Section 474.17 specifically requires the use of a “carriage service” as defined under Schedule 1 of the Telecommunications Act 1997 (Cth). If the alleged conduct did not involve communication via a phone network, the internet, email, or similar digital platforms, this element of the offence is not satisfied. Disputing the method of communication may form a complete defence.
A Reasonable Person Would Not Find It Menacing, Harassing or Offensive
Section 474.17(1)(b) requires the conduct to be objectively offensive, harassing, or menacing. That means the court applies a “reasonable person” test, not a subjective view of the accused or complainant. If your conduct was misinterpreted or contextually justified, and would not have caused serious fear, distress, or offence to an ordinary person, this element of the offence may not be proven.
Other Defences
- Mistake of Fact (s 9.1) – Applies where the accused had an honest and reasonable but mistaken belief about a key fact, such as believing there was consent.
- Fault Element: Intention (s 5.6) – The prosecution must prove intentional use of the carriage service; accidental or unauthorised use may negate this element.
- Mental Impairment (s 7.3) – A person may be found not guilty if, at the time of the offence, they lacked the capacity to understand their actions or that their actions were wrong.
- Duress (s 10.2) – Applies where the conduct occurred under immediate threat of serious harm, leaving no reasonable alternative.
- Lawful Authority (s 10.5) – May apply if the conduct was carried out under a legal duty or authority, such as during official law enforcement activity.
- Disputing Aggravated Offences (s 474.17A and s 473.1) – The accused can challenge whether the material was private sexual content or whether it was distributed without consent.
Seek Legal Advice if You Have Been Charged
If you have been charged with carriage service offences, it is important to seek legal advice as soon as possible. These offences carry serious legal consequences, and understanding your rights and options early can make a difference in how your case is handled.
At WN Legal, we take a practical and thorough approach to your matter. We will carefully review the allegations, assess the evidence, and provide you with clear guidance on your legal position.
Our legal team can assist you with:
- Reviewing the strength of the case against you.
- Advising on possible outcomes and what to expect.
- Exploring defences that may be available to you.
- Guiding you through the court process and next steps.
Understanding your legal options can help you move forward with confidence. Contact WN Legal today for confidential legal advice.
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FAQs
What does it mean to use a carriage service to menace, harass or offend?
Under section 474.17 of the Criminal Code Act 1995 (Cth), it’s an offence to use a carriage service in a way that a reasonable person would consider menacing, harassing or offensive. This includes serious threats, abuse, or persistent unwanted contact via phone, email, social media or other online platforms.
What is considered a 'carriage service'?
A carriage service includes any service that carries communications electronically. Examples include:
- Mobile and landline calls
- Text messages
- Emails
- Social media messages (e.g. Facebook, Instagram)
- Online chat rooms and forums
This definition is set out in the Telecommunications Act 1997 (Cth) and applies to offences under section 474.17.
What types of behaviour are considered 'menacing, harassing or offensive'?
It depends on how a reasonable person would view the message or conduct. Common examples include:
- Repeated threats via SMS or calls
- Abusive or degrading posts on social media
- Messages that cause serious fear, distress, or offence
The behaviour must be serious in nature—not just rude or annoying.
Do I need to intend harm to be found guilty of this offence?
No. The prosecution only needs to show that you intentionally used the carriage service and that the content was objectively menacing, harassing, or offensive. Your motive or personal belief about the message is generally not relevant.
What penalties apply if I’m found guilty?
Penalties vary depending on how the case is heard:
Indictable offence (serious cases):
- Heard in District Court
- Maximum penalty: 5 years’ imprisonment
Summary offence (less serious cases):
- Heard in Magistrates Court (if both parties agree)
- Maximum penalty: 12 months’ imprisonment or 60 penalty units
Are there more serious or aggravated versions of this offence?
Yes. There are aggravated forms under federal law:
Using a carriage service to share private sexual material (s 474.17A)
- Applies to offensive conduct involving intimate or sexual content
- Maximum penalty: 5 years’ imprisonment
Distributing altered intimate images without consent (s 474.24D)
- Covers manipulated sexual images shared without permission
- Maximum penalty: 5 years’ imprisonment
What if I was mistaken about the facts—can that be a defence?
Possibly. Section 9.1 allows a defence where your mistaken belief was both honest and reasonable—for example, if you believed the recipient had consented to the communication. However, thinking the message was harmless or justified is not enough on its own.
Can I be guilty if I didn’t personally send the message?
To be guilty under section 474.17, you must have intentionally used a carriage service. If the message was sent accidentally, by an automated system, or by someone else using your account without your permission, the required fault element may not be proven.
Is mental impairment a valid defence?
Yes. Under section 7.3, if you were suffering from a mental impairment that meant you didn’t understand your actions or know they were wrong, you may have a complete defence. This must be supported by expert evidence.
What other legal defences could apply?
Other available defences include:
- Duress (s 10.2): You were threatened with serious harm and had no reasonable alternative.
- Lawful authority (s 10.5): You were acting under a legal duty or authority.
- Challenging aggravated offences: You can dispute whether the material was private sexual content or whether it was distributed without consent (s 474.17A, s 474.24D).
What should I do if charged under Section 204B?
Being charged under Section 204B is a serious matter with severe consequences. If you are facing allegations, seeking immediate legal advice is essential to understand your rights and available defences.
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