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

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TonySun

Active Member
20 January 2020
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1
34
Experts,

Can you please help answer the following question which is related to using a carriage service to menace, harass or cause offence -

The key elements of the offence as per my understanding which needs to be proven are:
1. that you used a ‘carriage service’, and
2. that the manner of use would be regarded by reasonable persons as ‘menacing’, ‘harassing’ or ‘offensive’.

My understanding of a ‘carriage service’ is anything that is transmitted through a carriage service provider such as Vodafone, Telstra, Optus etc. It includes all telephone communications such as calls, voice messages and sms transmissions, all internet transmissions including emails and internet posts and any other communications that occur through a carriage service provider.

Person 'A' and Person 'B' are Australian citizens living in Victoria. Person 'A' is currently overseas for work/holiday and posts on social media against Person 'B' which might be offensive. So Person 'A' was not in Australia when they actually posted it on social media against Person 'B' who was living in Victoria at that time when the offence occurred.

So my question is that in such a situation can Person 'A' be still charged for the offence of using a carriage service even though carriage service provider and the offence occurred while in overseas?

Thanks in advance for taking out your valuable time to reply.
 

Tim W

Lawyer
LawTap Verified
28 April 2014
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It is certainly possible for a citizen to commit an "Australian" offence while overseas.
But there are many ifs and buts involved.

First things first - Are you Person A or Person B?
 

TonySun

Active Member
20 January 2020
6
1
34
Thanks Tim W

Person A and B are my common friends.

Can please you share your experience/suggestions from both Person A and Person B perspective? Just looking for some guidance on how this law works from your experience.

Definition of Carriage Service Provider as per Telecommunications Act 1997 applies to Australian telecommunication industry so for this offence of using a carriage service provider to apply does it require the carriage service provider to be a telecommunication company in Australia and not overseas carriage service provider?
 

Tim W

Lawyer
LawTap Verified
28 April 2014
3,576
693
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Sydney
If the content is delivered to, or accessed in, Australia,
then it has prima facie passed through an Australian system,
and therefore falls within the scope of the Australian legislation.

My experience, since you ask, is
that the offence is prosecuted less frequently than it is committed.
The facts however can, and do, quite often, found an AVO.

It is also my experience that such cases are less to do with the technology,
and more about the relationship.

Which brings me to my suggestion - that on the above basis, it's none of your business,
and you'd be well advised to keep out of it.
 

GlassHalfFull

Well-Known Member
28 August 2018
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654
By that logic, I suppose the criminal actions of Cardinal George Pell were none of anyone else's business but the victims and there was no reason for anyone else to have any interest in the outcome of his trial...

The OP mentioned that they were common friends. Doesn't he have a vested interest in understanding the law as it relates to his friends? Either to give his friends advice or so he can understand what is happening to his friends? More than we can say for stickybeaking about Pell, probably.