Using a carriage service to menace, harass or cause offence.

What is Section 474.17 of the Criminal Code Act?

Section 474.17 of the Criminal Code (Cth) says a person commits an offence if the person uses a carriage service, and does so in a way that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive. The full text sits in Part 10.6 and is on the Federal Register of Legislation. The Act is also on JADE.

The maximum penalty is 5 years imprisonment. It was 3 years until 24 January 2022, when the increase made by the Online Safety (Transitional Provisions and Consequential Amendments) Act 2021 (Cth) commenced. Anyone reading an older article, or an older law firm page, will still see the 3 year figure. The date of the alleged conduct decides which maximum applies.

Two features of the section do most of the work in practice. First, the test is objective. It asks what reasonable persons would regard the use as being. It does not ask whether the recipient was menaced, harassed or offended, and there is no need to call the recipient to say that they were. Second, the three limbs are alternatives. Conduct that is offensive but not menacing still falls within the section.

Section 474.17A creates aggravated offences where the offending use involves private sexual material. The maximum there is 6 years, raised from 5 by the Criminal Code Amendment (Deepfake Sexual Material) Act 2024 (Cth). Section 474.17AA lifts the maximum to 7 years where the person has already received three or more civil penalty orders, or created or altered the material.

What is the Criminal Code Act 1995 use carriage service offence?

There is no single offence of that name. Subdivision C of Division 474 is a graded scheme, and the charge that gets laid depends on what was said and how bad it was.

At the top sits section 474.14, using a telecommunications network with intention to commit a serious offence, which carries the maximum that applies to the serious offence itself. Below it, section 474.15 deals with threats. A threat to kill carries 10 years. A threat to cause serious harm carries 7 years. Section 474.16, using a carriage service for a hoax threat, carries 10 years. Section 474.17 carries 5. Section 474.18, improper use of the emergency call service, carries 3.

The spread from 3 years to 10 explains why the charge chosen matters more than the conduct described in a press release. An allegation that a person sent a message about a bomb could be put as a threat under section 474.15, as a hoax under section 474.16, or as an offensive use under section 474.17. Each has different elements. Each has a different maximum.

Is Facebook a carriage service?

Section 473.1 of the Criminal Code gives carriage service the meaning it has in the Telecommunications Act 1997 (Cth). Section 7 of that Act defines it as a service for carrying communications by means of guided or unguided electromagnetic energy, or both. That is a definition about wires and radio waves, not about companies.

So the answer people are looking for is yes, in the sense that matters. A Facebook post, a direct message, a comment, an email, an SMS, a phone call and a message sent through an encrypted application are all carried by a carriage service. The person who used the service is the person charged. The platform is not.

This is why the offence is a Commonwealth one. The telecommunications power in section 51(v) of the Constitution supports it. A punch in a pub is a State matter. The same words typed into a phone are a federal matter, prosecuted by the Commonwealth Director of Public Prosecutions. The conduct did not become worse. The medium changed the jurisdiction.

Where the messages are sent to a former partner or a family member, the same conduct often attracts a State charge as well. In New South Wales that is usually stalking or intimidation under section 13 of the Crimes (Domestic and Personal Violence) Act 2007, or breach of an apprehended violence order. The two can run together.

What is the vagaries of construction problem with section 474.17?

The complaint about this section is that the word offensive does not have a fixed meaning, and that the section therefore criminalises speech by reference to a standard nobody can state in advance. It is a real problem and the High Court has grappled with it.

In Monis v The Queen (2013) 249 CLR 92 the Court considered the postal analogue, section 471.12. Monis had sent letters to the families of Australian soldiers killed on active service. He argued that the section impermissibly burdened the implied freedom of political communication. The Court divided three against three. French CJ, Hayne and Heydon JJ would have held the section invalid. Crennan, Kiefel and Bell JJ held it valid. Because the Court was evenly divided, the decision appealed from was affirmed and the prosecutions continued.

The judgments repay reading because of how the majority who upheld the section read the word. Offensive was construed as requiring something more than hurt feelings or wounded sensibilities. The use had to be seriously offensive, judged against contemporary standards. That reading is what keeps the section within constitutional bounds, and it is the reading a defence submission starts from.

Section 473.4 gives the court a statutory list of matters to take into account in deciding whether reasonable persons would regard a use as offensive. They are the standards of morality, decency and propriety generally accepted by reasonable adults, the literary, artistic or educational merit of the material, and the general character of the material, including whether it is of a medical, legal or scientific character. That section is underused. It is a direct invitation to argue that a crude political post is not seriously offensive in the required sense.

Menacing and harassing have been given less judicial attention. In Agostino v Cleaves [2010] ACTSC 19 the ACT Supreme Court considered messages sent through a social media account and dealt with what makes a use menacing. A menacing use conveys a threat of detrimental or unpleasant conduct. Harassment ordinarily imports repetition. A single message is capable of being menacing. It is much harder to say that a single message harasses.

Is using a postal or similar service to make a threat, menace, harass or cause offence?

It is a separate offence, in a separate Division, with a separate maximum. Division 471 deals with the post. Section 471.11 makes it an offence to use a postal or similar service to make a threat to kill, with a maximum of 10 years, or a threat to cause serious harm, with a maximum of 7 years. Those maximums match the carriage service equivalents in section 474.15.

Section 471.12, the postal menace, harass or offend offence, carries 2 years. Its online counterpart carries 5. The gap opened in 2022 and it has never been closed. A letter and an email containing identical words attract maximum penalties that differ by three years. Our note on Division 471 and the postal offences sets out that scheme.

A third framework applies where the target is a Commonwealth public official. Sections 147.1 and 147.2 create offences of causing harm, and threatening to cause harm, to such an official. A threat to cause serious harm to a Commonwealth public official carries 7 years, and 9 years where the target is a judicial officer or a law enforcement officer. We deal with those sections in our note on online threats to MPs and Commonwealth officials. Which of the three frameworks the AFP reaches for is a decision made early, and it is worth understanding why one was chosen over another.

Threats and hoaxes: sections 474.15 and 474.16.

Section 474.15 has a fault element that is often misread. The prosecution must prove the person made the threat with the intention that the person threatened would fear that the threat would be carried out. Intention is directed at the creation of fear, not at carrying out the threat.

Two things follow. The prosecution does not have to prove that the accused meant to do the thing threatened, and it does not have to prove that the person threatened was in fact afraid. The section says so. A person who intends to frighten and fails still commits the offence. A person who says something appalling with no intention that anyone fear it does not commit this offence, though the words may still fall within section 474.17.

Section 474.16 is the hoax provision. It applies where a person uses a carriage service to send a communication with the intention of inducing a false belief that an explosive, or a dangerous or harmful substance or thing, has been or will be left somewhere. The maximum is 10 years, twice the section 474.17 maximum. A bomb hoax that induces the intended false belief is a more serious offence than a threat to cause serious harm.

Do first time offenders go to jail in Australia?

Not usually on a first section 474.17 charge, but the maximum is not the point and neither is a first offence. A federal offender is sentenced under Part IB of the Crimes Act 1914 (Cth), and section 16A requires a sentence of a severity appropriate in all the circumstances. Section 16A(2) lists what the court weighs: the nature and circumstances of the offence, any injury or loss, contrition, a plea of guilty, cooperation, the offender's character, antecedents, age and mental condition, deterrence, and the prospect of rehabilitation.

There is no standard non-parole period, because that is a New South Wales device under the Crimes (Sentencing Procedure) Act 1999 and it has no work to do on a Commonwealth charge. There is no mandatory minimum. Section 19B allows a court to dismiss the charge, or discharge the person on conditions, without recording a conviction. Section 20(1)(a) allows release on a recognizance without passing sentence. Those are the Commonwealth analogues of a section 10.

Because the maximum for section 474.17 does not exceed 10 years, the charge may be heard summarily under section 4J of the Crimes Act 1914 where the prosecutor and the defendant both consent. Consent has to be given before the hearing of evidence begins. On summary conviction of an offence with a maximum of more than five years, the ceiling is 2 years imprisonment or 120 penalty units. The Judicial Commission's Local Court Bench Book sets out the scheme.

Where the target was a public official, general deterrence is given real weight and a good record counts for less than it otherwise would. Where the conduct sat within an abusive relationship, the sentence is shaped by that context. Volume matters. One post is not a campaign.

How these charges are defended.

The first question is identification. An account is not a person. The AFP links a post to an account, then links the account to a device, then links the device to a house, then executes a search warrant. Every link in that chain can be tested. Shared devices, shared passwords, open networks and spoofed accounts are not fanciful. Where the case rests on a phone seized under warrant, the lawfulness of the warrant and of the search come first, and section 138 of the Evidence Act 1995 may be engaged. Our note on what happens after a search warrant covers that ground.

The second question is the objective character of the use. On a section 474.17 charge, the whole context comes in. Who was speaking, to whom, about what, and in what forum. A reply in a heated political thread is read differently from an unsolicited message to a private inbox at three in the morning. Section 473.4 gives the court the list of matters it must weigh, and Monis supplies the standard: the use must be seriously offensive, not merely rude, hurtful or in poor taste.

The third question is the fault element, and on a section 474.15 charge it is the whole case. The prosecution must prove an intention that the person threatened fear that the threat would be carried out. Words shouted into a void, or written to an institution rather than to a person, may not carry that intention. The implied freedom of political communication is not a defence in the way people expect, but it does inform the construction of these sections, and it is not irrelevant to a post about a member of parliament.

Anyone contacted by the AFP about an online post or message should say nothing and get advice before any interview. The messages are already in police hands. What is not yet in their hands is an explanation, and an explanation given without advice is usually the evidence that convicts. Our guide to the recorded police interview explains how that works.

Common questions

Is using a carriage service to menace, harass or cause offence Criminal Code?

Yes. It is a Commonwealth offence under section 474.17 of the Criminal Code (Cth), in Subdivision C of Division 474. The AFP investigates it and the Commonwealth Director of Public Prosecutions prosecutes it. The maximum is 5 years imprisonment, and because that does not exceed 10 years the charge may be dealt with summarily under section 4J of the Crimes Act 1914 (Cth) where both sides consent.

What does carriage mean in law?

Here it means the carrying of a communication, not the carrying of goods. Section 473.1 of the Criminal Code adopts the definition in the Telecommunications Act 1997 (Cth). Section 7 of that Act defines a carriage service as a service for carrying communications by means of guided or unguided electromagnetic energy, or both.

Is using a carriage service to cause offence?

Causing offence is one of three alternatives. The prosecution must prove the use was one that reasonable persons would regard as menacing, harassing or offensive, in all the circumstances. Only one limb is needed. The test is objective, so it does not turn on whether the recipient was in fact offended, and it does not turn on whether the sender intended to offend.

What is the penalty for section 471.12 of the Criminal Code?

Two years imprisonment. Section 471.12 is the postal equivalent of section 474.17 and carries a lower maximum. It is the provision the High Court considered in Monis v The Queen (2013) 249 CLR 92, where an evenly divided Court left the section standing.

Can you be charged for a post you deleted?

Yes. The offence is complete when the carriage service is used. Deleting the post afterwards does not undo it, and the material is usually recoverable from the platform, from the device, or from a screenshot taken by the person who reported it. Deletion after contact from police can be put against a person as evidence of consciousness of guilt.

Does the person have to read the message?

No. Section 474.17 asks how reasonable persons would regard the use of the service. It does not require proof that anyone received the communication, read it, or reacted to it. Section 474.15 likewise says it is not necessary to prove that the person threatened actually feared that the threat would be carried out.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 10 July 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

← Back to all news