The Offence of Using a Phone or Internet Service to Make a Threat in Australia

A controversial plan to build a restaurant and bar on the sand at Sydney’s iconic Bondi Beach has attracted it’s fair share of criticism since the plan was first revealed last year.

New South Wales Planning Minister Rob Stokes has been publicly opposed to the development from the moment it was first announced. He remains so, saying that he will ‘step in to stop a proposal to carve off part of the beach for private use’.

Because Bondi beach is Crown land, ministerial consent is required before a Development Application (DA) is approved.

But the idea of a restaurant and bar on the sand has attracted a backlash from Bondi locals and beach go-ers, and, even though development application plans have not yet been submitted to Waverley Council, the man behind the proposal, Janek Gazecki, says he has received death threats via social media.

One comment on Instagram said: ‘You should be banned for life from Bondi. You’re un-Australian… Sleep with one eye open!

Another social media user commented: ‘Make sure you have plenty of life insurance’.

Mr Gazecki says the emotional toll from the backlash has been extremely difficult, and has since reported the social media threats to New South Wales Police, who are currently investigating the matter.

The offence of using a phone or internet service to make a threat

The Criminal Code Act 1995 (Cth) contains offences relating to making threats by a ‘carriage service’, such as over the phone or internet.

The Act applies throughout Australia.

Using a phone or internet service to threaten serious harm

Using a carriage service to threaten serious harm is an offence under section 474.15(2) of the Act which carries a maximum penalty of 7 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You used a carriage service,
2. Your use included a threat to cause serious harm to another person, and
3. You intended the other person to fear that the threat would be carried out against them or another person.

The prosecution does not need to prove the other person actually feared the threat would be carried out.

‘Fear’ includes apprehension.

‘Threat to cause serious harm’ includes to substantially contribute to such harm.

Using a phone or internet service to make a death threat

Using a carriage service to make a death threat is an offence under section 474.15(1) of the Act which carries a maximum penalty of 10 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You used a carriage service,
2. That use included a threat of death to another person, and
3. You intended the other person to fear that the threat would be carried out against them or another person.

Again, the prosecution does not need to prove that the other person actually feared the threat would be carried out, and ‘fear’ includes apprehension.

What is the definition of ‘carriage service’?

A ‘carriage service’ is defined as:

‘a service for carrying communications by means of guided and/or unguided electromagnetic energy’ which includes telephone calls, text messages and internet transmissions, such as emails and the use of social media sites.

What are the defences?

In addition to having to prove each of the listed ingredients of the charge, the prosecution must also disprove beyond reasonable doubt any valid legal defence that is raised on the evidence.

These defences include:

1. Duress
2. Necessity, and
3. Self-defence

Social media threats

All social media sites have an avenue where you can report online abuse, bullying, intimidation or threats. It is also possible to block any other user who may be threatening you or making inappropriate comments.

Unfortunately, this kind of behaviour on social media platforms is becoming more common – people feel more empowered to say things they might not otherwise say in person when they can hide behind a screen.

Of course, the ‘immediate’ nature of social media platforms also contributes because it often means that people don’t take a moment to ‘cool off’ and think before they post something they might later regret.

For this reason, there are provisions in the law which protect users from being harassed and bullied, intimidated or threatened by someone else, and the penalties are severe.

If you are a victim, you should contact the police immediately, so they can advise you what steps you need to take to protect yourself online, and what records you need to keep so they can investigate further.

New federal legislation against cyber bullying

Last year the Federal Government announced it would introduce legislation to define and deter cyber bullying.

The laws are still being drafted however, they include penalties of a possible prison sentence and fine of up to $111,000 for anyone found guilty of bullying children or abusing adults by posting ‘seriously harmful content’ online.