Contents
1............ Short title [see Note 1]....................................................................... 1
2............ Commencement [see Note 1].............................................................. 1
3............ The Criminal Code.............................................................................. 1
3A......... External Territories............................................................................. 1
3B......... Offshore installations......................................................................... 1
4............ Definitions.......................................................................................... 1
5............ Regulations......................................................................................... 2
Schedule—The Criminal Code 3
Chapter 1—Codification 3
Division 1 3
1.1......... Codification........................................................................................ 3
Chapter 2—General principles of criminal responsibility 4
Part 2.1—Purpose and application 4
Division 2 4
2.1......... Purpose............................................................................................... 4
2.2......... Application......................................................................................... 4
2.3......... Application of provisions relating to
intoxication.............................. 4
Part 2.2—The elements of an offence 5
Division 3—General 5
3.1......... Elements............................................................................................. 5
3.2......... Establishing guilt in respect of offences............................................. 5
Division 4—Physical elements 6
4.1......... Physical elements............................................................................... 6
4.2......... Voluntariness...................................................................................... 6
4.3......... Omissions........................................................................................... 7
Division 5—Fault elements 8
5.1......... Fault elements..................................................................................... 8
5.2......... Intention............................................................................................. 8
5.3......... Knowledge.......................................................................................... 8
5.4......... Recklessness....................................................................................... 8
5.5......... Negligence........................................................................................... 9
5.6......... Offences that do not specify fault elements....................................... 9
Division 6—Cases where fault elements are not required 10
6.1......... Strict liability.................................................................................... 10
6.2......... Absolute liability.............................................................................. 10
Part 2.3—Circumstances in which there is no criminal
responsibility 11
Division 7—Circumstances involving lack of capacity 11
7.1......... Children under 10............................................................................. 11
7.2......... Children over 10 but under 14.......................................................... 11
7.3......... Mental impairment........................................................................... 11
Division 8—Intoxication 13
8.1......... Definition—self‑induced intoxication............................................... 13
8.2......... Intoxication (offences involving basic intent)................................... 13
8.3......... Intoxication (negligence as fault element)......................................... 14
8.4......... Intoxication (relevance to defences).................................................. 14
8.5......... Involuntary intoxication................................................................... 15
Division 9—Circumstances involving mistake or ignorance 16
9.1......... Mistake or ignorance of fact (fault elements
other than negligence). 16
9.2......... Mistake of fact (strict liability)........................................................ 16
9.3......... Mistake or ignorance of statute law................................................. 17
9.4......... Mistake or ignorance of subordinate legislation............................... 17
9.5......... Claim of right.................................................................................... 18
Division 10—Circumstances involving external factors 19
10.1....... Intervening conduct or event............................................................ 19
10.2....... Duress............................................................................................... 19
10.3....... Sudden or extraordinary emergency.................................................. 19
10.4....... Self‑defence....................................................................................... 20
10.5....... Lawful authority............................................................................... 21
Part 2.4—Extensions of criminal responsibility 22
Division 11 22
11.1....... Attempt............................................................................................ 22
11.2....... Complicity and common purpose.................................................... 23
11.3....... Innocent agency................................................................................ 24
11.4....... Incitement......................................................................................... 24
11.5....... Conspiracy....................................................................................... 25
11.6....... References in Acts to offences......................................................... 27
Part 2.5—Corporate criminal responsibility 28
Division 12 28
12.1....... General principles............................................................................. 28
12.2....... Physical elements............................................................................. 28
12.3....... Fault elements other than negligence................................................ 28
12.4....... Negligence......................................................................................... 30
12.5....... Mistake of fact (strict liability)........................................................ 30
12.6....... Intervening conduct or event............................................................ 31
Part 2.6—Proof of criminal responsibility 32
Division 13 32
13.1....... Legal burden of proof—prosecution................................................ 32
13.2....... Standard of proof—prosecution....................................................... 32
13.3....... Evidential burden of proof—defence................................................ 32
13.4....... Legal burden of proof—defence....................................................... 33
13.5....... Standard of proof—defence.............................................................. 33
13.6....... Use of averments.............................................................................. 33
Part 2.7—Geographical jurisdiction 34
Division 14—Standard geographical jurisdiction 34
14.1....... Standard geographical jurisdiction.................................................... 34
Division 15—Extended geographical jurisdiction 37
15.1....... Extended geographical jurisdiction—category A.............................. 37
15.2....... Extended geographical jurisdiction—category B.............................. 39
15.3....... Extended geographical jurisdiction—category C.............................. 42
15.4....... Extended geographical jurisdiction—category D.............................. 43
Division 16—Miscellaneous 45
16.1....... Attorney‑General’s consent required for
prosecution if alleged conduct occurs wholly in a foreign country in certain
circumstances.................................................................................... 45
16.2....... When conduct taken to occur partly in Australia............................. 45
16.3....... Meaning of Australia........................................................................ 46
16.4....... Result of conduct.............................................................................. 46
Chapter 4—The
integrity and security of the international community and foreign governments 47
Division 70—Bribery of foreign public officials 47
70.1....... Definitions........................................................................................ 47
70.2....... Bribing a foreign public official......................................................... 50
70.3....... Defence—conduct lawful in foreign public
official’s country.......... 51
70.4....... Defence—facilitation payments....................................................... 54
70.5....... Territorial and nationality requirements........................................... 56
70.6....... Saving of other laws.......................................................................... 57
Division 71—Offences against United Nations and
associated personnel 58
71.1....... Purpose............................................................................................. 58
71.2....... Murder of a UN or associated person.............................................. 58
71.3....... Manslaughter of a UN or associated person.................................... 58
71.4....... Intentionally causing serious harm to a UN or associated
person.... 59
71.5....... Recklessly causing serious harm to a UN or
associated person....... 59
71.6....... Intentionally causing harm to a UN or associated
person................ 60
71.7....... Recklessly causing harm to a UN or associated
person................... 60
71.8....... Unlawful sexual penetration............................................................. 61
71.9....... Kidnapping a UN or associated person............................................ 62
71.10..... Unlawful detention of UN or associated person.............................. 62
71.11..... Intentionally causing damage to UN or associated
person’s property etc. 63
71.12..... Threatening to commit other offences.............................................. 64
71.13..... Aggravated offences.......................................................................... 64
71.14..... Defence—activities involving serious harm...................................... 65
71.15..... Defence—medical or hygienic procedures........................................ 65
71.16..... Jurisdictional requirement................................................................. 65
71.17..... Exclusion of this Division if State/Territory laws
provide for corresponding offences 67
71.18..... Double jeopardy............................................................................... 67
71.19..... Saving of other laws.......................................................................... 67
71.20..... Bringing proceedings under this Division......................................... 67
71.21..... Ministerial certificates relating to proceedings................................. 68
71.22..... Jurisdiction of State courts preserved.............................................. 68
71.23..... Definitions........................................................................................ 69
Division 72—International terrorist activities using
explosive or lethal devices 71
72.1....... Purpose............................................................................................. 71
72.2....... ADF members not liable for prosecution......................................... 71
72.3....... Offences............................................................................................ 71
72.4....... Jurisdictional requirement................................................................. 72
72.5....... Saving of other laws.......................................................................... 73
72.6....... Double jeopardy and foreign offences.............................................. 73
72.7....... Bringing proceedings under this Division......................................... 74
72.8....... Ministerial certificates relating to proceedings................................. 74
72.9....... Jurisdiction of State courts preserved.............................................. 75
72.10..... Definitions........................................................................................ 75
Division 73—People smuggling and related offences 76
Subdivision A—People smuggling offences 76
73.1....... Offence of people smuggling............................................................ 76
73.2....... Aggravated offence of people smuggling
(exploitation etc.)............. 76
73.3....... Aggravated offence of people smuggling (at least 5
people)............ 77
73.4....... Jurisdictional requirement................................................................. 78
73.5....... Attorney‑General’s consent required............................................... 79
Subdivision B—Document offences related to people smuggling
and unlawful entry into foreign countries 79
73.6....... Meaning of travel or identity document............................................ 79
73.7....... Meaning of false travel or identity document.................................... 79
73.8....... Making, providing or possessing a false travel or
identity document 80
73.9....... Providing or possessing a travel or identity
document issued or altered dishonestly or as a result of threats 81
73.10..... Providing or possessing a travel or identity
document to be used by a person who is not the rightful user 82
73.11..... Taking possession of or destroying another person’s
travel or identity document 82
73.12..... Jurisdictional requirement................................................................. 83
Chapter 5—The security of the Commonwealth 84
Part 5.1—Treason and sedition 84
Division 80—Treason and sedition 84
80.1A.... Definition of organisation................................................................ 84
80.1....... Treason............................................................................................. 84
80.2....... Sedition............................................................................................. 86
80.3....... Defence for acts done in good faith.................................................. 88
80.4....... Extended geographical jurisdiction for offences................................ 90
80.5....... Attorney‑General’s consent required............................................... 90
80.6....... Division not intended to exclude State or
Territory law.................. 90
Part 5.2—Offences relating to espionage and similar
activities 91
Division 90—Preliminary 91
90.1....... Definitions........................................................................................ 91
Division 91—Offences relating to espionage and similar
activities 93
91.1....... Espionage and similar activities........................................................ 93
91.2....... Defence—information lawfully available......................................... 95
Division 93—Prosecutions and hearings 96
93.1....... Institution of prosecution................................................................. 96
93.2....... Hearing in camera etc........................................................................ 96
Division 94—Forfeiture 98
94.1....... Forfeiture of articles etc.................................................................... 98
Part 5.3—Terrorism 99
Division 100—Preliminary 99
100.1..... Definitions........................................................................................ 99
100.2..... Referring States............................................................................... 103
100.3..... Constitutional basis for the operation of this Part......................... 104
100.4..... Application of
provisions.............................................................. 105
100.5..... Application of Acts Interpretation Act 1901................................... 108
100.6..... Concurrent operation intended....................................................... 108
100.7..... Regulations may modify operation of this Part to
deal with interaction between this Part and State and Territory laws........................................................................................................ 109
100.8..... Approval for changes to or affecting this Part............................... 109
Division 101—Terrorism 110
101.1..... Terrorist acts.................................................................................. 110
101.2..... Providing or
receiving training connected with terrorist acts.......... 110
101.4..... Possessing things connected with terrorist acts............................. 111
101.5..... Collecting or making documents likely to facilitate
terrorist acts... 112
101.6..... Other acts done in preparation for, or planning,
terrorist acts....... 113
Division 102—Terrorist organisations 114
Subdivision A—Definitions 114
102.1..... Definitions...................................................................................... 114
102.1A.. Reviews by Parliamentary Joint Committee on ASIO,
ASIS and DSD 117
Subdivision B—Offences 119
102.2..... Directing the
activities of a terrorist organisation........................... 119
102.3..... Membership of a terrorist organisation.......................................... 119
102.4..... Recruiting for a terrorist organisation............................................. 120
102.5..... Training a terrorist organisation or receiving
training from a terrorist organisation 120
102.6..... Getting funds to, from or for a terrorist
organisation..................... 121
102.7..... Providing support to a terrorist organisation................................. 122
102.8..... Associating with terrorist organisations......................................... 122
Subdivision C—General provisions relating to offences 125
102.9..... Extended geographical jurisdiction for offences.............................. 125
102.10... Alternative verdicts........................................................................ 125
Division 103—Financing terrorism 126
103.1..... Financing terrorism......................................................................... 126
103.2..... Financing a terrorist........................................................................ 126
103.3..... Extended geographical jurisdiction for offences.............................. 127
Division 104—Control orders 128
Subdivision A—Object of this Division 128
104.1..... Object of this Division................................................................... 128
Subdivision B—Making an interim control order 128
104.2..... Attorney‑General’s consent to request an
interim control order... 128
104.3..... Requesting the court to make an interim control
order................... 130
104.4..... Making an interim control order..................................................... 130
104.5..... Terms of an interim control order................................................... 131
Subdivision C—Making an urgent interim control order 133
104.6..... Requesting an urgent interim control order by
electronic means.... 133
104.7..... Making an urgent interim control order by
electronic means......... 134
104.8..... Requesting an urgent interim control order in
person..................... 135
104.9..... Making an urgent interim control order in person.......................... 136
104.10... Obtaining the Attorney‑General’s consent
within 4 hours............ 136
104.11... Court to assume that exercise of power not
authorised by urgent interim control order 137
Subdivision D—Confirming an interim control order 137
104.12... Service, explanation and notification of an interim
control order... 137
104.12A Election to confirm control order.................................................... 138
104.13... Lawyer may request a copy of an interim control
order................ 140
104.14... Confirming an interim control order............................................... 140
104.15... When a declaration, or a revocation, variation or
confirmation of a control order, is in force 142
104.16... Terms of a confirmed control order................................................ 142
104.17... Service of a declaration, or a revocation, variation
or confirmation of a control order 143
Subdivision E—Rights in respect of a control order 143
104.18... Application by the person for a revocation or
variation of a control order 143
104.19... Application by the AFP Commissioner for a revocation
or variation of a control order 144
104.20... Revocation or variation of a control order...................................... 145
104.21... Lawyer may request a copy of a control order.............................. 145
104.22... Treatment of photographs and impressions of
fingerprints........... 146
Subdivision F—Adding obligations, prohibitions or restrictions
to a control order 146
104.23... Application by the AFP Commissioner for addition of
obligations, prohibitions or restrictions 146
104.24... Varying a control order................................................................... 148
104.25... Terms of a varied control order...................................................... 149
104.26... Service and explanation of a varied control order........................... 149
Subdivision G—Contravening a control order 150
104.27... Offence for contravening a control order........................................ 150
Subdivision H—Miscellaneous 150
104.28... Special rules for young people....................................................... 150
104.28A Interlocutory proceedings............................................................... 150
104.29... Reporting requirements.................................................................. 151
104.30... Requirement to notify Attorney‑General of
declarations, revocations or variations 152
104.31... Queensland public interest monitor functions and
powers not affected 152
104.32... Sunset provision............................................................................. 152
Division 105—Preventative detention orders 153
Subdivision A—Preliminary 153
105.1..... Object............................................................................................. 153
105.2..... Issuing authorities for continued preventative
detention orders.... 153
105.3..... Police officer detaining person under a
preventative detention order 154
Subdivision B—Preventative detention orders 154
105.4..... Basis for applying for, and making, preventative
detention orders 154
105.5..... No preventative detention order in relation to
person under 16 years of age 155
105.5A.. Special assistance for person with inadequate
knowledge of English language or disability 156
105.6..... Restrictions on multiple preventative detention
orders................. 157
105.7..... Application for initial preventative detention
order....................... 158
105.8..... Senior AFP member may make initial preventative
detention order 160
105.9..... Duration of initial preventative detention order............................. 162
105.10... Extension of initial preventative detention order............................ 163
105.10A Notice of application for continued preventative
detention order. 164
105.11... Application for continued preventative detention
order................ 164
105.12... Judge, Federal Magistrate, AAT member or retired
judge may make continued preventative detention order 166
105.13... Duration of continued preventative detention order...................... 167
105.14... Extension of continued preventative detention order..................... 168
105.14A Basis for applying for, and making, prohibited contact
order........ 169
105.15... Prohibited contact order (person in relation to whom
preventative detention order is being sought) 170
105.16... Prohibited contact order (person in relation to whom
preventative detention order is already in force) 171
105.17... Revocation of preventative detention order or
prohibited contact order 171
105.18... Status of person
making continued preventative detention order.. 173
Subdivision C—Carrying out preventative detention orders 174
105.19... Power to detain person under preventative detention
order.......... 174
105.20... Endorsement of order with date and time person taken
into custody 176
105.21... Requirement to provide name etc................................................... 176
105.22... Power to enter premises................................................................. 177
105.23... Power to conduct a frisk search...................................................... 178
105.24... Power to conduct an ordinary search............................................. 178
105.25... Warrant under Division 3 of Part III of
the Australian Security Intelligence Organisation Act 1979 178
105.26... Release of person from preventative detention.............................. 179
105.27... Arrangement for detainee to be held in State or
Territory prison or remand centre 181
Subdivision D—Informing person detained about preventative
detention order 181
105.28... Effect of initial preventative detention order to be
explained to person detained 181
105.29... Effect of continued preventative detention order to
be explained to person detained 183
105.30... Person being detained to be informed of extension of
preventative detention order 185
105.31... Compliance with obligations to inform.......................................... 185
105.32... Copy of preventative detention order............................................ 186
Subdivision E—Treatment of person detained 188
105.33... Humane treatment of person being detained.................................. 188
105.33A Detention of persons under 18....................................................... 188
105.34... Restriction on contact with other people....................................... 188
105.35... Contacting family members etc...................................................... 189
105.36... Contacting Ombudsman etc............................................................ 190
105.37... Contacting lawyer........................................................................... 190
105.38... Monitoring contact under section 105.35 or
105.37...................... 192
105.39... Special contact rules for person under 18 or
incapable of managing own affairs 193
105.40... Entitlement to contact subject to prohibited contact
order............ 195
105.41... Disclosure offences......................................................................... 195
105.42... Questioning of person prohibited while person is
detained........... 201
105.43... Taking fingerprints, recordings, samples of
handwriting or photographs 202
105.44... Use of identification material.......................................................... 204
105.45... Offences of
contravening safeguards.............................................. 205
Subdivision F—Miscellaneous 205
105.46... Nature of functions of Federal Magistrate..................................... 205
105.47... Annual report................................................................................. 206
105.48... Certain functions and powers not affected..................................... 207
105.49... Queensland public interest monitor functions and
powers not affected 207
105.50... Law relating to legal professional privilege not
affected................. 207
105.51... Legal proceedings in relation to preventative
detention orders...... 207
105.52... Review by State and Territory courts............................................ 209
105.53... Sunset provision............................................................................. 210
Division 106—Transitional provisions 211
106.1..... Saving—regulations originally made for the purposes
of paragraph (c) of the definition of terrorist organisation........................................................................................................ 211
106.2..... Saving—regulations made for the purposes of paragraph (a)
of the definition of terrorist organisation 211
106.3..... Application provision.................................................................... 212
Part 5.4—Harming Australians 213
Division 115—Harming Australians 213
115.1..... Murder of an Australian citizen or a resident of
Australia............. 213
115.2..... Manslaughter of an Australian citizen or a resident
of Australia... 213
115.3..... Intentionally causing serious harm to an Australian
citizen or a resident of Australia 214
115.4..... Recklessly causing serious harm to an Australian
citizen or a resident of Australia 214
115.5..... Saving of other laws........................................................................ 214
115.6..... Bringing proceedings under this Division....................................... 214
115.7..... Ministerial certificates relating to proceedings............................... 215
115.8..... Geographical jurisdiction................................................................ 215
115.9..... Meaning of causes death or harm................................................... 215
Chapter 7—The proper administration of Government 216
Part 7.1—Preliminary 216
Division 130—Preliminary 216
130.1..... Definitions...................................................................................... 216
130.2..... When property belongs to a person............................................... 217
130.3..... Dishonesty..................................................................................... 218
130.4..... Determination of dishonesty to be a matter for the
trier of fact.... 218
Part 7.2—Theft and other property offences 219
Division 131—Theft 219
131.1..... Theft............................................................................................... 219
131.2..... Special rules about the meaning of dishonesty............................... 219
131.3..... Appropriation of property............................................................ 220
131.4..... Theft of land or things forming part of land................................... 220
131.5..... Trust property............................................................................... 220
131.6..... Obligation to deal with property in a particular
way..................... 221
131.7..... Property obtained because of fundamental mistake....................... 221
131.8..... Property of a corporation sole....................................................... 222
131.9..... Property belonging to 2 or more persons....................................... 222
131.10... Intention of permanently depriving a person of
property............. 222
131.11... General deficiency.......................................................................... 223
Division 132—Other property offences 224
132.1..... Receiving......................................................................................... 224
132.2..... Robbery.......................................................................................... 227
132.3..... Aggravated robbery........................................................................ 228
132.4..... Burglary.......................................................................................... 229
132.5..... Aggravated burglary........................................................................ 231
132.6..... Making off without payment......................................................... 232
132.7..... Going equipped for theft or a property offence............................. 232
132.8..... Dishonest taking or retention of property..................................... 234
132.9..... Geographical jurisdiction................................................................ 235
Part 7.3—Fraudulent conduct 236
Division 133—Preliminary 236
133.1..... Definitions...................................................................................... 236
Division 134—Obtaining property or a financial advantage
by deception 237
134.1..... Obtaining property by deception................................................... 237
134.2..... Obtaining a financial advantage by deception................................. 240
134.3..... Geographical jurisdiction................................................................ 240
Division 135—Other offences involving fraudulent conduct 241
135.1..... General dishonesty......................................................................... 241
135.2..... Obtaining financial advantage......................................................... 242
135.4..... Conspiracy to defraud.................................................................... 243
135.5..... Geographical jurisdiction................................................................ 245
Part 7.4—False or misleading statements 246
Division 136—False or misleading statements in
applications 246
136.1..... False or misleading statements in applications............................... 246
Division 137—False or misleading information or documents 249
137.1..... False or misleading information...................................................... 249
137.2..... False or misleading documents....................................................... 250
137.3..... Geographical jurisdiction................................................................ 251
Part 7.5—Unwarranted demands 252
Division 138—Preliminary 252
138.1..... Unwarranted demand with menaces............................................... 252
138.2..... Menaces.......................................................................................... 252
Division 139—Unwarranted demands 254
139.1..... Unwarranted demands of a Commonwealth public
official............ 254
139.2..... Unwarranted demands made by a Commonwealth public
official. 254
139.3..... Geographical jurisdiction................................................................ 255
Part 7.6—Bribery and related offences 256
Division 140—Preliminary 256
140.1..... Definition........................................................................................ 256
140.2..... Obtaining........................................................................................ 256
Division 141—Bribery 257
141.1..... Bribery of a Commonwealth public official................................... 257
Division 142—Offences relating to bribery 259
142.1..... Corrupting benefits given to, or received by, a
Commonwealth public official 259
142.2..... Abuse of public office.................................................................... 260
142.3..... Geographical jurisdiction................................................................ 261
Part 7.7—Forgery and related offences 262
Division 143—Preliminary 262
143.1..... Definitions...................................................................................... 262
143.2..... False documents............................................................................. 262
143.3..... False Commonwealth documents................................................... 263
143.4..... Inducing acceptance of false documents......................................... 265
Division 144—Forgery 266
144.1..... Forgery........................................................................................... 266
Division 145—Offences relating to forgery 268
145.1..... Using forged document................................................................... 268
145.2..... Possession of forged document...................................................... 269
145.3..... Possession, making or adaptation of devices etc.
for making forgeries 271
145.4..... Falsification of documents etc........................................................ 272
145.5..... Giving information derived from false or misleading
documents.... 273
145.6..... Geographical jurisdiction................................................................ 274
Part 7.8—Causing harm to, and impersonation and
obstruction of, Commonwealth public officials 275
Division 146—Preliminary 275
146.1..... Definitions...................................................................................... 275
146.2..... Causing harm.................................................................................. 276
Division 147—Causing harm to Commonwealth public
officials 277
147.1..... Causing harm to a Commonwealth public official etc.................... 277
147.2..... Threatening to cause harm to a Commonwealth public official
etc. 278
147.3..... Geographical jurisdiction................................................................ 281
Division 148—Impersonation of Commonwealth public
officials 282
148.1..... Impersonation of an official by a non‑official................................ 282
148.2..... Impersonation of an official by another official............................. 283
148.3..... Geographical jurisdiction................................................................ 284
Division 149—Obstruction of Commonwealth public officials 285
149.1..... Obstruction of Commonwealth public officials............................. 285
Part 7.20—Miscellaneous 287
Division 261—Miscellaneous 287
261.1..... Saving of other laws........................................................................ 287
261.2..... Contempt of court.......................................................................... 287
261.3..... Ancillary offences........................................................................... 287
Chapter 8—Offences
against humanity and related offences 288
Division 268—Genocide, crimes against humanity, war
crimes and crimes against the administration of the justice of the
International Criminal Court 288
Subdivision A—Introductory 288
268.1..... Purpose of Division........................................................................ 288
268.2..... Outline of offences......................................................................... 288
Subdivision B—Genocide 289
268.3..... Genocide by killing......................................................................... 289
268.4..... Genocide by causing serious bodily or mental harm...................... 289
268.5..... Genocide by deliberately inflicting conditions of
life calculated to bring about physical destruction 289
268.6..... Genocide by imposing measures intended to prevent
births.......... 290
268.7..... Genocide by forcibly transferring children..................................... 290
Subdivision C—Crimes against humanity 291
268.8..... Crime against humanity—murder................................................... 291
268.9..... Crime against humanity—extermination........................................ 291
268.10... Crime against humanity—enslavement.......................................... 292
268.11... Crime against humanity—deportation or forcible
transfer of population 292
268.12... Crime against humanity—imprisonment or other severe
deprivation of physical liberty 293
268.13... Crime against humanity—torture................................................... 293
268.14... Crime against humanity—rape....................................................... 294
268.15... Crime against humanity—sexual slavery........................................ 295
268.16... Crime against humanity—enforced prostitution............................ 296
268.17... Crime against humanity—forced pregnancy.................................. 297
268.18... Crime against humanity—enforced sterilisation............................. 298
268.19... Crime against humanity—sexual violence...................................... 298
268.20... Crime against humanity—persecution........................................... 300
268.21... Crime against humanity—enforced disappearance of
persons....... 301
268.22... Crime against humanity—apartheid............................................... 302
268.23... Crime against humanity—other inhumane act................................ 302
Subdivision D—War crimes that are grave breaches of the Geneva
Conventions and of Protocol I to the Geneva Conventions 303
268.24... War crime—wilful killing................................................................ 303
268.25... War crime—torture......................................................................... 303
268.26... War crime—inhumane treatment.................................................... 304
268.27... War crime—biological experiments................................................ 304
268.28... War crime—wilfully causing great suffering................................... 305
268.29... War crime—destruction and appropriation of property................ 305
268.30... War crime—compelling service in hostile forces............................ 306
268.31... War crime—denying a fair trial....................................................... 306
268.32... War crime—unlawful deportation or transfer................................ 307
268.33... War crime—unlawful confinement................................................. 307
268.34... War crime—taking hostages........................................................... 308
Subdivision E—Other serious war crimes that are committed in
the course of an international armed conflict 309
268.35... War crime—attacking civilians....................................................... 309
268.36... War crime—attacking civilian objects............................................. 309
268.37... War crime—attacking personnel or objects involved in
a humanitarian assistance or peacekeeping mission 309
268.38... War crime—excessive incidental death, injury or
damage.............. 310
268.39... War crime—attacking undefended places....................................... 311
268.40... War crime—killing or injuring a person who is hors
de combat..... 311
268.41... War crime—improper use of a flag of truce................................... 312
268.42... War crime—improper use of a flag, insignia or
uniform of the adverse party 312
268.43... War crime—improper use of a flag, insignia or
uniform of the United Nations 313
268.44... War crime—improper use of the distinctive emblems of
the Geneva Conventions 313
268.45... War crime—transfer of population................................................ 314
268.46... War crime—attacking protected objects......................................... 314
268.47... War crime—mutilation................................................................... 315
268.48... War crime—medical or scientific experiments................................ 315
268.49... War crime—treacherously killing or injuring.................................. 316
268.50... War crime—denying quarter........................................................... 317
268.51... War crime—destroying or seizing the enemy’s property.............. 318
268.52... War crime—depriving nationals of the adverse power
of rights or actions 318
268.53... War crime—compelling participation in military
operations......... 318
268.54... War crime—pillaging...................................................................... 319
268.55... War crime—employing poison or poisoned weapons................... 319
268.56... War crime—employing prohibited gases, liquids,
materials or devices 320
268.57... War crime—employing prohibited bullets..................................... 320
268.58... War crime—outrages upon personal dignity.................................. 320
268.59... War crime—rape............................................................................. 321
268.60... War crime—sexual slavery............................................................. 322
268.61... War crime—enforced prostitution.................................................. 323
268.62... War crime—forced pregnancy........................................................ 324
268.63... War crime—enforced sterilisation.................................................. 325
268.64... War crime—sexual violence............................................................ 325
268.65... War crime—using protected persons as shields............................. 327
268.66... War crime—attacking persons or objects using the
distinctive emblems of the Geneva Conventions 327
268.67... War crime—starvation as a method of warfare.............................. 328
268.68... War crime—using, conscripting or enlisting children..................... 328
Subdivision F—War crimes that are serious violations of
article 3 common to the Geneva Conventions and are committed in the course of
an armed conflict that is not an international armed conflict 330
268.69... Definition of religious personnel.................................................... 330
268.70... War crime—murder........................................................................ 330
268.71... War crime—mutilation................................................................... 331
268.72... War crime—cruel treatment............................................................ 332
268.73... War crime—torture......................................................................... 333
268.74... War crime—outrages upon personal dignity.................................. 333
268.75... War crime—taking hostages........................................................... 335
268.76... War crime—sentencing or execution without due
process............. 335
Subdivision G—War crimes that are other serious violations of
the laws and customs applicable in an armed conflict that is not an
international armed conflict 337
268.77... War crime—attacking civilians....................................................... 337
268.78... War crime—attacking persons or objects using the
distinctive emblems of the Geneva Conventions 337
268.79... War crime—attacking personnel or objects involved in
a humanitarian assistance or peacekeeping mission 338
268.80... War crime—attacking protected objects......................................... 339
268.81... War crime—pillaging...................................................................... 340
268.82... War crime—rape............................................................................. 340
268.83... War crime—sexual slavery............................................................. 341
268.84... War crime—enforced prostitution.................................................. 342
268.85... War crime—forced pregnancy........................................................ 343
268.86... War crime—enforced sterilisation.................................................. 344
268.87... War crime—sexual violence............................................................ 345
268.88... War crime—using, conscripting or enlisting children..................... 346
268.89... War crime—displacing civilians...................................................... 348
268.90... War crime—treacherously killing or injuring.................................. 348
268.91... War crime—denying quarter........................................................... 349
268.92... War crime—mutilation................................................................... 349
268.93... War crime—medical or scientific experiments................................ 350
268.94... War crime—destroying or seizing an adversary’s
property.......... 351
Subdivision H—War crimes that are grave breaches of Protocol I
to the Geneva Conventions 352
268.95... War crime—medical procedure....................................................... 352
268.96... War crime—removal of blood, tissue or organs for
transplantation 352
268.97... War crime—attack against works or installations
containing dangerous forces resulting in excessive loss of life or injury to
civilians....................................................................................... 353
268.98... War crime—attacking undefended places or
demilitarized zones... 354
268.99... War crime—unjustifiable delay in the repatriation of
prisoners of war or civilians 354
268.100. War crime—apartheid..................................................................... 354
268.101. War crime—attacking protected objects......................................... 355
Subdivision J—Crimes against the administration of the justice
of the International Criminal Court 355
268.102. Perjury............................................................................................ 355
268.103. Falsifying evidence......................................................................... 356
268.104. Destroying or concealing evidence.................................................. 356
268.105. Deceiving witnesses........................................................................ 357
268.106. Corrupting witnesses or interpreters.............................................. 357
268.107. Threatening witnesses or interpreters............................................ 358
268.108. Preventing witnesses or interpreters.............................................. 358
268.109. Preventing production of things in evidence................................... 359
268.110. Reprisals against witnesses............................................................ 359
268.111. Reprisals against officials of the International
Criminal Court....... 360
268.112. Perverting the course of justice....................................................... 360
268.113. Receipt of a corrupting benefit by an official of the
International Criminal Court 361
268.114. Subdivision not to apply to certain conduct.................................. 361
Subdivision K—Miscellaneous 361
268.115. Responsibility of commanders and other superiors....................... 361
268.116. Defence of superior orders............................................................. 362
268.117. Geographical jurisdiction................................................................ 363
268.118. Double jeopardy............................................................................. 363
268.119. Offences related to exercise of jurisdiction of
International Criminal Court 363
268.120. Saving of other laws........................................................................ 364
268.121. Bringing proceedings under this Division....................................... 364
268.122. Attorney‑General’s decisions in relation to
consents to be final... 364
268.123. Legal representation........................................................................ 365
268.124. Proof of application of Geneva Conventions or
Protocol I to the Geneva Conventions 365
Division 270—Slavery, sexual servitude and deceptive
recruiting 366
270.1..... Definition of slavery....................................................................... 366
270.2..... Slavery is unlawful......................................................................... 366
270.3..... Slavery offences.............................................................................. 366
270.4..... Definition of sexual servitude......................................................... 367
270.5..... Jurisdictional requirement............................................................... 367
270.6..... Sexual servitude offences................................................................ 368
270.7..... Deceptive recruiting for sexual services.......................................... 368
270.8..... Aggravated offences........................................................................ 370
270.9..... Alternative verdict if aggravated offence not
proven...................... 370
270.12... Other laws not excluded................................................................. 370
270.13... Double jeopardy............................................................................. 371
270.14... External Territories......................................................................... 371
Division 271—Trafficking in persons and debt bondage 372
Subdivision A—Definitions 372
271.1..... Definitions...................................................................................... 372
Subdivision B—Offences relating to trafficking in persons 372
271.2..... Offence of trafficking in persons.................................................... 372
271.3..... Aggravated offence of trafficking in persons.................................. 375
271.4..... Offence of trafficking in children.................................................... 376
271.5..... Offence of domestic trafficking in persons..................................... 377
271.6..... Aggravated offence of domestic trafficking in
persons................... 379
271.7..... Offence of domestic trafficking in children..................................... 379
Subdivision C—Offences relating to debt bondage 380
271.8..... Offence of debt bondage................................................................. 380
271.9..... Offence of aggravated debt bondage............................................... 381
Subdivision D—General provisions relating to offences under
this Division 381
271.10... Jurisdictional requirement for offences other than
offences related to domestic trafficking in persons 381
271.11... Jurisdictional requirement for offences related to
domestic trafficking in persons 381
271.12... Other laws not excluded................................................................. 382
271.13... Double jeopardy............................................................................. 382
Chapter 9—Dangers to the community 383
Part 9.1—Serious drug offences 383
Division 300—Preliminary 383
300.1..... Purpose........................................................................................... 383
300.2..... Definitions...................................................................................... 383
300.3..... Geographical jurisdiction................................................................ 386
300.4..... Concurrent operation intended....................................................... 386
300.5..... Particular identity of drugs, plants and precursors........................ 387
Division 301—Listing additional drugs, plants and
precursors 388
Subdivision A—Interim regulations 388
301.1..... Interim regulations—controlled drugs and controlled
plants.......... 388
301.2..... Interim regulations—controlled precursors.................................... 388
301.3..... Interim regulations—border controlled drugs and
border controlled plants 389
301.4..... Interim regulations—border controlled precursors......................... 389
301.5..... Interim regulations—commercial, marketable and
trafficable quantities 390
Subdivision B—Emergency determinations 391
301.6..... Emergency determinations—controlled drugs and
controlled plants 391
301.7..... Emergency determinations—controlled precursors........................ 392
301.8..... Emergency determinations—border controlled drugs
and border controlled plants 392
301.9..... Emergency determinations—border controlled
precursors............ 393
301.10... Emergency determinations—commercial, marketable and
trafficable quantities 393
301.11... General rules—period of effect, publication etc............................. 394
301.12... General rule—inconsistency with regulations................................ 395
Division 302—Trafficking controlled drugs 396
302.1..... Meaning of traffics.......................................................................... 396
302.2..... Trafficking commercial quantities of controlled
drugs.................... 396
302.3..... Trafficking marketable quantities of controlled
drugs.................... 396
302.4..... Trafficking controlled drugs............................................................ 397
302.5..... Presumption where trafficable quantities are
involved................... 397
302.6..... Purchase of controlled drugs is not an ancillary
offence................. 398
Division 303—Commercial cultivation of controlled plants 399
303.1..... Meanings of cultivate and cultivates a
plant................................... 399
303.2..... Meaning of product of a plant........................................................ 399
303.3..... Meaning of cultivates a plant for a commercial
purpose............... 399
303.4..... Cultivating commercial quantities of controlled
plants.................. 400
303.5..... Cultivating marketable quantities of controlled
plants................... 400
303.6..... Cultivating controlled plants.......................................................... 400
303.7..... Presumption where trafficable quantities are
involved................... 401
Division 304—Selling controlled plants 402
304.1..... Selling commercial quantities of controlled plants.......................... 402
304.2..... Selling marketable quantities of controlled plants.......................... 402
304.3..... Selling controlled plants.................................................................. 402
Division 305—Commercial manufacture of controlled drugs 404
305.1..... Meanings of manufacture and manufactures
a substance.............. 404
305.2..... Meaning of manufactures a substance for a
commercial purpose. 404
305.3..... Manufacturing commercial quantities of controlled
drugs.............. 404
305.4..... Manufacturing marketable quantities of controlled
drugs.............. 405
305.5..... Manufacturing controlled drugs...................................................... 405
305.6..... Presumption where trafficable quantities are
involved................... 406
Division 306—Pre‑trafficking controlled precursors 407
306.1..... Meaning of pre‑traffics................................................................... 407
306.2..... Pre‑trafficking commercial quantities of
controlled precursors...... 407
306.3..... Pre‑trafficking marketable quantities of
controlled precursors....... 408
306.4..... Pre‑trafficking controlled precursors.............................................. 408
306.5..... Presumption for pre‑trafficking controlled
precursors—sale......... 409
306.6..... Presumptions for pre‑trafficking controlled
precursors—manufacture for drug manufacture 409
306.7..... Presumptions for pre‑trafficking controlled
precursors—manufacture for sale 410
306.8..... Presumptions for pre‑trafficking controlled
precursors—possession 411
Division 307—Import‑export offences 412
Subdivision A—Importing and exporting border controlled drugs
or border controlled plants 412
307.1..... Importing and exporting commercial quantities of
border controlled drugs or border controlled plants 412
307.2..... Importing and exporting marketable quantities of
border controlled drugs or border controlled plants 412
307.3..... Importing and exporting border controlled drugs or
border controlled plants 413
307.4..... Importing and exporting border controlled drugs or
border controlled plants—no defence relating to lack of commercial intent............................................................................................... 413
Subdivision B—Possessing unlawfully imported border controlled
drugs or border controlled plants 414
307.5..... Possessing commercial quantities of unlawfully
imported border controlled drugs or border controlled plants 414
307.6..... Possessing marketable quantities of unlawfully
imported border controlled drugs or border controlled plants 414
307.7..... Possessing unlawfully imported border controlled drugs
or border controlled plants 415
Subdivision C—Possessing border controlled drugs or border
controlled plants reasonably suspected of having been unlawfully imported 415
307.8..... Possessing commercial quantities of border
controlled drugs or border controlled plants reasonably suspected of having
been unlawfully imported............................................................... 415
307.9..... Possessing marketable quantities of border
controlled drugs or border controlled plants reasonably suspected of having
been unlawfully imported............................................................... 416
307.10... Possessing border controlled drugs or border
controlled plants reasonably suspected of having been unlawfully imported......................................................................................... 417
Subdivision D—Importing and exporting border controlled
precursors 417
307.11... Importing and exporting commercial quantities of
border controlled precursors 417
307.12... Importing and exporting marketable quantities of
border controlled precursors 418
307.13... Importing and exporting border controlled precursors................... 419
307.14... Presumptions for importing and exporting border
controlled precursors 419
Division 308—Possession offences 421
308.1..... Possessing controlled drugs............................................................ 421
308.2..... Possessing controlled precursors.................................................... 422
308.3..... Possessing plant material, equipment or
instructions for commercial cultivation of controlled plants 422
308.4..... Possessing substance, equipment or instructions for
commercial manufacture of controlled drugs 423
Division 309—Drug offences involving children 424
309.1..... Children not criminally responsible for offences
against this Division 424
309.2..... Supplying controlled drugs to children........................................... 424
309.3..... Supplying marketable quantities of controlled drugs
to children for trafficking 424
309.4..... Supplying controlled drugs to children for
trafficking.................... 425
309.5..... Presumption where trafficable quantities are
involved................... 425
309.6..... Meaning of procures an individual to traffic.................................. 425
309.7..... Procuring children for trafficking marketable
quantities of controlled drugs 426
309.8..... Procuring children for trafficking controlled drugs......................... 426
309.9..... Meaning of procures an individual to pre‑traffic........................... 427
309.10... Procuring children for pre‑trafficking
marketable quantities of controlled precursors 427
309.11... Procuring children for pre‑trafficking
controlled precursors.......... 427
309.12... Procuring children for importing or exporting
marketable quantities of border controlled drugs or border controlled plants.............................................................................................. 428
309.13... Procuring children for importing or exporting border
controlled drugs or border controlled plants 428
309.14... Procuring children for importing or exporting
marketable quantities of border controlled precursors 429
309.15... Procuring children for importing or exporting border
controlled precursors 430
Division 310—Harm and danger to children under 14 from
serious drug offences 432
310.1..... Children not criminally responsible for offences
against this Division 432
310.2..... Danger from exposure to unlawful manufacturing.......................... 432
310.3..... Harm from exposure to unlawful manufacturing............................ 433
310.4..... Aggravated offences—manufacturing controlled drugs
and controlled precursors 434
Division 311—Combining quantities of drugs, plants or
precursors 436
Subdivision A—Combining different parcels on the same occasion 436
311.1..... Combining different parcels on the same occasion......................... 436
Subdivision B—Combining parcels from organised commercial
activities 437
311.2..... Business of trafficking controlled drugs......................................... 437
311.3..... Business of pre‑trafficking by selling
controlled precursors.......... 438
311.4..... Business of importing or exporting border
controlled drugs or border controlled plants 439
311.5..... Business of importing or exporting border
controlled precursors.. 439
311.6..... Business of supplying controlled drugs to children....................... 440
311.7..... General rules—combining parcels from organised
commercial activities 441
Subdivision C—Combining parcels from multiple offences 442
311.8..... Multiple offences—trafficking controlled drugs............................ 442
311.9..... Multiple offences—cultivating controlled plants........................... 442
311.10... Multiple offences—selling controlled plants................................. 442
311.11... Multiple offences—manufacturing controlled drugs...................... 443
311.12... Multiple offences—pre‑trafficking controlled
precursors............. 443
311.13... Multiple offences—importing or exporting border
controlled drugs or border controlled plants 444
311.14... Multiple offences—possessing unlawfully imported
border controlled drugs or border controlled plants 444
311.15... Multiple offences—possessing border controlled drugs
or border controlled plants reasonably suspected of having been unlawfully
imported............................................................... 445
311.16... Multiple offences—importing or exporting border
controlled precursors 445
311.17... Multiple offences—supplying controlled drugs to
children for trafficking 446
311.18... Multiple offences—procuring children for trafficking
controlled drugs 446
311.19... Multiple offences—procuring children for pre‑trafficking
controlled precursors 447
311.20... Multiple offences—procuring children for importing
or exporting border controlled drugs or border controlled plants........................................................................................................ 447
311.21... Multiple offences—procuring children for importing
or exporting border controlled precursors 448
311.22... General rules—combining parcels from multiple
offences............. 448
Division 312—Working out quantities of drugs, plants or
precursors 449
312.1..... Working out quantities of drugs and precursors in
mixtures.......... 449
312.2..... Working out quantities where different kinds of
drugs, plants or precursors are involved 449
Division 313—Defences and alternative verdicts 452
313.1..... Defence—conduct justified or excused by or under a
law of a State or Territory 452
313.2..... Defence—reasonable belief that conduct is justified
or excused by or under a law 452
313.3..... Alternative verdict—offence not proved........................................ 452
313.4..... Alternative verdict—mistake as to quantity of drug,
plant or precursor 453
313.5..... Alternative verdict—mistake as to identity of drug,
plant or precursor 454
Division 314—Drugs, plants, precursors and quantities 455
314.1..... Controlled drugs............................................................................. 455
314.2..... Controlled plants............................................................................ 457
314.3..... Controlled precursors..................................................................... 458
314.4..... Border controlled drugs.................................................................. 458
314.5..... Border controlled plants................................................................. 466
314.6..... Border controlled precursors.......................................................... 466
Part 9.4—Dangerous weapons 468
Division 360—Cross‑border firearms trafficking 468
360.1..... Disposal and acquisition of a firearm............................................. 468
360.2..... Cross‑border offence of disposal or
acquisition of a firearm.......... 468
360.3..... Taking or sending a firearm across borders..................................... 469
360.4..... Concurrent operation intended....................................................... 470
Part 9.6—Contamination of goods 471
380.1..... Definitions...................................................................................... 471
380.2..... Contaminating goods...................................................................... 471
380.3..... Threatening to contaminate goods.................................................. 473
380.4..... Making false statements about contamination of
goods................. 475
380.5..... Extended geographical jurisdiction—category D............................ 477
Chapter 10—National infrastructure 478
Part 10.2—Money laundering 478
Division 400—Money laundering 478
400.1..... Definitions...................................................................................... 478
400.2..... Meaning of dealing with money or other property......................... 480
400.3..... Dealing in proceeds of crime etc.—money or property
worth $1,000,000 or more 481
400.4..... Dealing in proceeds of crime etc.—money or property
worth $100,000 or more 482
400.5..... Dealing in proceeds of crime etc.—money or property
worth $50,000 or more 483
400.6..... Dealing in proceeds of crime etc.—money or property
worth $10,000 or more 485
400.7..... Dealing in proceeds of crime etc.—money or property
worth $1,000 or more 486
400.8..... Dealing in proceeds of crime etc.—money or property
of any value 487
400.9..... Possession etc. of property reasonably suspected of
being proceeds of crime etc. 488
400.10... Mistake of fact as to the value of money or property................... 490
400.11... Proof of certain matters relating to kinds of
offences not required 491
400.12... Combining several contraventions in a single charge...................... 491
400.13... Proof of other offences is not required........................................... 492
400.14... Alternative verdicts........................................................................ 492
400.15... Geographical jurisdiction................................................................ 493
400.16... Saving of other laws........................................................................ 493
Part 10.5—Postal services 494
Division 470—Preliminary 494
470.1..... Definitions...................................................................................... 494
470.2..... Dishonesty..................................................................................... 496
470.3..... Determination of dishonesty to be a matter for the
trier of fact.... 496
Division 471—Postal offences 497
471.1..... Theft of mail‑receptacles, articles or postal
messages.................... 497
471.2..... Receiving stolen mail‑receptacles, articles
or postal messages....... 498
471.3..... Taking or concealing of mail‑receptacles,
articles or postal messages 500
471.4..... Dishonest removal of postage stamps or postmarks..................... 500
471.5..... Dishonest use of previously used, defaced or
obliterated stamps. 500
471.6..... Damaging or destroying mail‑receptacles,
articles or postal messages 501
471.7..... Tampering with mail‑receptacles.................................................... 501
471.8..... Dishonestly obtaining delivery of articles...................................... 502
471.9..... Geographical jurisdiction................................................................ 502
471.10... Hoaxes—explosives and dangerous substances.............................. 502
471.11... Using a postal or similar service to make a threat.......................... 503
471.12... Using a postal or similar service to menace, harass
or cause offence 504
471.13... Causing a dangerous article to be carried by a
postal or similar service.. 504
471.14... Geographical jurisdiction................................................................ 505
471.15... Causing an explosive, or a dangerous or harmful
substance, to be carried by post 505
Division 472—Miscellaneous 506
472.1..... Saving of other laws........................................................................ 506
472.2..... Interpretation of other laws............................................................ 506
Part 10.6—Telecommunications Services 507
Division 473—Preliminary 507
473.1..... Definitions...................................................................................... 507
473.2..... Possession or control of data or material in the
form of data......... 514
473.3..... Producing, supplying or obtaining data or material
in the form of data.. 514
473.4..... Determining whether material is offensive..................................... 514
Division 474—Telecommunications offences 515
Subdivision A—Dishonesty with respect to carriage services 515
474.1..... Dishonesty..................................................................................... 515
474.2..... General dishonesty with respect to a carriage
service provider..... 515
Subdivision B—Interference with telecommunications 516
474.3..... Person acting for a carrier or carriage service
provider................... 516
474.4..... Interception devices........................................................................ 516
474.5..... Wrongful delivery of communications............................................ 517
474.6..... Interference with facilities.............................................................. 518
474.7..... Modification etc. of a telecommunications device
identifier.......... 519
474.8..... Possession or control of data or a device with
intent to modify a telecommunications device identifier 520
474.9..... Producing, supplying or obtaining data or a device
with intent to modify a telecommunications device identifier........................................................................................................ 521
474.10... Copying subscription‑specific secure data..................................... 522
474.11... Possession or control of data or a device with
intent to copy an account identifier 524
474.12... Producing, supplying or obtaining data or a device
with intent to copy an account identifier 525
Subdivision C—Offences related to use of telecommunications 526
474.13... Use of a carriage service.................................................................. 526
474.14... Using a telecommunications network with intention to
commit a serious offence 527
474.15... Using a carriage service to make a threat........................................ 528
474.16... Using a carriage service for a hoax threat........................................ 529
474.17... Using a carriage service to menace, harass or cause
offence........... 529
474.18... Improper use of emergency call service.......................................... 529
474.19... Using a carriage service for child pornography
material................. 530
474.20... Possessing, controlling, producing, supplying or obtaining
child pornography material for use through a carriage service........................................................................................................ 531
474.21... Defences in respect of child pornography material........................ 531
474.22... Using a carriage service for child abuse material............................. 533
474.23... Possessing, controlling, producing, supplying or
obtaining child abuse material for use through a carriage service........................................................................................................ 533
474.24... Defences in respect of child abuse material.................................... 534
474.25... Obligations of Internet service providers and
Internet content hosts 536
474.26... Using a carriage service to procure persons under 16
years of age. 536
474.27... Using a carriage service to “groom” persons under 16
years of age 537
474.28... Provisions relating to offences against
sections 474.26 and 474.27 539
474.29... Defences to offences against section 474.26 or
474.27.................. 541
474.29A Using a carriage service for suicide related material........................ 541
474.29B Possessing, controlling, producing, supplying or
obtaining suicide related material for use through a carriage service........................................................................................................ 543
474.30... Defences for NRS employees and emergency call
persons............ 544
Division 475—Miscellaneous 545
475.1..... Saving of other laws........................................................................ 545
475.2..... Geographical jurisdiction................................................................ 545
Part 10.7—Computer offences 546
Division 476—Preliminary 546
476.1..... Definitions...................................................................................... 546
476.2..... Meaning of unauthorised access, modification or
impairment....... 547
476.3..... Geographical jurisdiction................................................................ 548
476.4..... Saving of other laws........................................................................ 548
476.5..... Liability for certain acts.................................................................. 548
Division 477—Serious computer offences 551
477.1..... Unauthorised access, modification or impairment
with intent to commit a serious offence 551
477.2..... Unauthorised modification of data to cause
impairment................ 552
477.3..... Unauthorised impairment of electronic communication................. 554
Division 478—Other computer offences 555
478.1..... Unauthorised access to, or modification of,
restricted data............ 555
478.2..... Unauthorised impairment of data held on a computer
disk etc...... 555
478.3..... Possession or control of data with intent to commit
a computer offence 556
478.4..... Producing, supplying or obtaining data with intent
to commit a computer offence 557
Part 10.8—Financial information offences 558
480.1..... Definitions...................................................................................... 558
480.2..... Dishonesty..................................................................................... 559
480.3..... Constitutional application of this Part........................................... 559
480.4..... Dishonestly obtaining or dealing in personal
financial information 559
480.5..... Possession or control of thing with intent to
dishonestly obtain or deal in personal financial information 559
480.6..... Importation of thing with intent to dishonestly
obtain or deal in personal financial information 560
Dictionary 561
Notes 575
Schedule—The Criminal Code
Section 3
Chapter 1—Codification
Division 1
1.1
Codification
The only offences against laws of the
Commonwealth are those offences created by, or under the authority of, this
Code or any other Act.
Note: Under subsection 38(1) of the Acts
Interpretation Act 1901, Act means an Act passed by the
Parliament of the Commonwealth.
Chapter 2—General principles of criminal responsibility
Part 2.1—Purpose and application
Division 2
2.1
Purpose
The purpose of this Chapter is to
codify the general principles of criminal responsibility under laws of the
Commonwealth. It contains all the general principles of criminal
responsibility that apply to any offence, irrespective of how the offence is
created.
2.2
Application
(1) This Chapter applies to all offences
against this Code.
(2) Subject to section 2.3, this Chapter
applies on and after 15 December 2001 to all other offences.
(3) Section 11.6 applies to all
offences.
2.3
Application of provisions relating to intoxication
Subsections 4.2(6) and (7) and Division 8
apply to all offences. For the purpose of interpreting those provisions in
connection with an offence, the other provisions of this Chapter may be
considered, whether or not those other provisions apply to the offence
concerned.
Part 2.2—The elements of an offence
Division 3—General
3.1
Elements
(1) An offence consists of physical
elements and fault elements.
(2) However, the law that creates the offence
may provide that there is no fault element for one or more physical elements.
(3) The law that creates the offence may
provide different fault elements for different physical elements.
3.2
Establishing guilt in respect of offences
In order for a person to be found guilty
of committing an offence the following must be proved:
(a) the existence of such physical
elements as are, under the law creating the offence, relevant to establishing
guilt;
(b) in respect of each such physical
element for which a fault element is required, one of the fault elements for
the physical element.
Note 1: See Part 2.6 on proof of criminal
responsibility.
Note 2: See Part 2.7 on geographical jurisdiction.
Division 4—Physical elements
4.1
Physical elements
(1) A physical element of an offence may
be:
(a) conduct; or
(b) a result of conduct; or
(c) a circumstance in which conduct,
or a result of conduct, occurs.
(2) In this Code:
conduct means an act, an omission to perform
an act or a state of affairs.
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
4.2
Voluntariness
(1) Conduct can only be a physical element if
it is voluntary.
(2) Conduct is only voluntary if it is a
product of the will of the person whose conduct it is.
(3) The following are examples of conduct
that is not voluntary:
(a) a spasm, convulsion or other
unwilled bodily movement;
(b) an act performed during sleep or
unconsciousness;
(c) an act performed during impaired
consciousness depriving the person of the will to act.
(4) An omission to perform an act is only
voluntary if the act omitted is one which the person is capable of performing.
(5) If the conduct constituting an offence
consists only of a state of affairs, the state of affairs is only voluntary if
it is one over which the person is capable of exercising control.
(6) Evidence of self‑induced
intoxication cannot be considered in determining whether conduct is voluntary.
(7) Intoxication is self‑induced unless
it came about:
(a) involuntarily; or
(b) as a result of fraud, sudden or
extraordinary emergency, accident, reasonable mistake, duress or force.
4.3
Omissions
An omission to perform an act can only
be a physical element if:
(a) the law creating the offence makes
it so; or
(b) the law creating the offence
impliedly provides that the offence is committed by an omission to perform an
act that by law there is a duty to perform.
Division 5—Fault elements
5.1
Fault elements
(1) A fault element for a particular
physical element may be intention, knowledge, recklessness or negligence.
(2) Subsection (1) does not prevent a
law that creates a particular offence from specifying other fault elements for
a physical element of that offence.
5.2
Intention
(1) A person has intention with respect to
conduct if he or she means to engage in that conduct.
(2) A person has intention with respect to a
circumstance if he or she believes that it exists or will exist.
(3) A person has intention with respect to a
result if he or she means to bring it about or is aware that it will occur in
the ordinary course of events.
5.3
Knowledge
A person has knowledge of a circumstance
or a result if he or she is aware that it exists or will exist in the ordinary
course of events.
5.4
Recklessness
(1) A person is reckless with respect to a
circumstance if:
(a) he or she is aware of a
substantial risk that the circumstance exists or will exist; and
(b) having regard to the circumstances
known to him or her, it is unjustifiable to take the risk.
(2) A person
is reckless with respect to a result if:
(a) he or she is aware of a
substantial risk that the result will occur; and
(b) having regard to the circumstances
known to him or her, it is unjustifiable to take the risk.
(3) The question whether taking a risk is
unjustifiable is one of fact.
(4) If recklessness is a fault element for a
physical element of an offence, proof of intention, knowledge or recklessness
will satisfy that fault element.
5.5
Negligence
A person is negligent with respect to a
physical element of an offence if his or her conduct involves:
(a) such a great falling short of the
standard of care that a reasonable person would exercise in the circumstances;
and
(b) such a high risk that the physical
element exists or will exist;
that the conduct merits criminal punishment for the
offence.
5.6
Offences that do not specify fault elements
(1) If the law creating the offence does not
specify a fault element for a physical element that consists only of conduct,
intention is the fault element for that physical element.
(2) If the law creating the offence does not
specify a fault element for a physical element that consists of a circumstance
or a result, recklessness is the fault element for that physical element.
Note: Under subsection 5.4(4), recklessness can be
established by proving intention, knowledge or recklessness.
Division 6—Cases where fault elements are not required
6.1
Strict liability
(1) If a law that creates an offence
provides that the offence is an offence of strict liability:
(a) there are no fault elements for
any of the physical elements of the offence; and
(b) the defence of mistake of fact
under section 9.2 is available.
(2) If a law that creates an offence provides
that strict liability applies to a particular physical element of the offence:
(a) there are no fault elements for
that physical element; and
(b) the defence of mistake of fact
under section 9.2 is available in relation to that physical element.
(3) The existence of strict liability does
not make any other defence unavailable.
6.2
Absolute liability
(1) If a law that creates an offence
provides that the offence is an offence of absolute liability:
(a) there are no fault elements for
any of the physical elements of the offence; and
(b) the defence of mistake of fact
under section 9.2 is unavailable.
(2) If a law that creates an offence provides
that absolute liability applies to a particular physical element of the
offence:
(a) there are no fault elements for
that physical element; and
(b) the defence of mistake of fact
under section 9.2 is unavailable in relation to that physical element.
(3) The existence of absolute liability does
not make any other defence unavailable.
Part 2.3—Circumstances in which there is no criminal responsibility
Note: This Part sets out defences that are generally
available. Defences that apply to a more limited class of offences are dealt
with elsewhere in this Code and in other laws.
Division 7—Circumstances involving lack of capacity
7.1
Children under 10
A child under 10 years old is not
criminally responsible for an offence.
7.2
Children over 10 but under 14
(1) A child aged 10 years or more but
under 14 years old can only be criminally responsible for an offence if the
child knows that his or her conduct is wrong.
(2) The question whether a child knows that
his or her conduct is wrong is one of fact. The burden of proving this is on
the prosecution.
7.3
Mental impairment
(1) A person is not criminally responsible
for an offence if, at the time of carrying out the conduct constituting the
offence, the person was suffering from a mental impairment that had the effect
that:
(a) the person did not know the
nature and quality of the conduct; or
(b) the person did not know that
the conduct was wrong (that is, the person could not reason with a moderate
degree of sense and composure about whether the conduct, as perceived by
reasonable people, was wrong); or
(c) the person was unable to
control the conduct.
(2) The question whether the person was
suffering from a mental impairment is one of fact.
(3) A person is presumed not to have been
suffering from such a mental impairment. The presumption is only displaced if
it is proved on the balance of probabilities (by the prosecution or the
defence) that the person was suffering from such a mental impairment.
(4) The prosecution can only rely on this
section if the court gives leave.
(5) The tribunal of fact must return a
special verdict that a person is not guilty of an offence because of mental
impairment if and only if it is satisfied that the person is not criminally
responsible for the offence only because of a mental impairment.
(6) A person cannot rely on a mental
impairment to deny voluntariness or the existence of a fault element but may
rely on this section to deny criminal responsibility.
(7) If the tribunal of fact is satisfied that
a person carried out conduct as a result of a delusion caused by a mental
impairment, the delusion cannot otherwise be relied on as a defence.
(8) In this section:
mental impairment includes senility,
intellectual disability, mental illness, brain damage and severe personality
disorder.
(9) The reference in subsection (8) to mental
illness is a reference to an underlying pathological infirmity of the mind,
whether of long or short duration and whether permanent or temporary, but does
not include a condition that results from the reaction of a healthy mind to
extraordinary external stimuli. However, such a condition may be evidence of a mental
illness if it involves some abnormality and is prone to recur.
Division 8—Intoxication
8.1
Definition—self‑induced intoxication
For the purposes of this Division,
intoxication is self‑induced unless it came about:
(a) involuntarily; or
(b) as a result of fraud, sudden or
extraordinary emergency, accident, reasonable mistake, duress or force.
8.2
Intoxication (offences involving basic intent)
(1) Evidence of self‑induced
intoxication cannot be considered in determining whether a fault element of
basic intent existed.
(2) A fault element of basic intent is a
fault element of intention for a physical element that consists only of
conduct.
Note: A fault element of intention with respect to a
circumstance or with respect to a result is not a fault element of basic
intent.
(3) This section does not prevent evidence of
self‑induced intoxication being taken into consideration in determining
whether conduct was accidental.
(4) This section does not prevent evidence of
self‑induced intoxication being taken into consideration in determining
whether a person had a mistaken belief about facts if the person had considered
whether or not the facts existed.
(5) A person may be regarded as having
considered whether or not facts existed if:
(a) he or she had considered, on a
previous occasion, whether those facts existed in circumstances surrounding
that occasion; and
(b) he or she honestly and reasonably
believed that the circumstances surrounding the present occasion were the same,
or substantially the same, as those surrounding the previous occasion.
8.3
Intoxication (negligence as fault element)
(1) If negligence is a fault element for a
particular physical element of an offence, in determining whether that fault
element existed in relation to a person who is intoxicated, regard must be had
to the standard of a reasonable person who is not intoxicated.
(2) However, if intoxication is not self‑induced,
regard must be had to the standard of a reasonable person intoxicated to the
same extent as the person concerned.
8.4
Intoxication (relevance to defences)
(1) If any part of a defence is based on
actual knowledge or belief, evidence of intoxication may be considered in
determining whether that knowledge or belief existed.
(2) If any part of a defence is based on
reasonable belief, in determining whether that reasonable belief existed,
regard must be had to the standard of a reasonable person who is not
intoxicated.
(3) If a person’s intoxication is not self‑induced,
in determining whether any part of a defence based on reasonable belief exists,
regard must be had to the standard of a reasonable person intoxicated to the
same extent as the person concerned.
(4) If, in relation to an offence:
(a) each physical element has a fault
element of basic intent; and
(b) any part of a defence is based on
actual knowledge or belief;
evidence of self‑induced intoxication cannot be
considered in determining whether that knowledge or belief existed.
(5) A fault element of basic intent is a
fault element of intention for a physical element that consists only of
conduct.
Note: A fault element of intention with respect to a
circumstance or with respect to a result is not a fault element of basic
intent.
8.5
Involuntary intoxication
A person is not criminally responsible
for an offence if the person’s conduct constituting the offence was as a result
of intoxication that was not self‑induced.
Division 9—Circumstances involving mistake or ignorance
9.1
Mistake or ignorance of fact (fault elements other than negligence)
(1) A person is not criminally responsible
for an offence that has a physical element for which there is a fault element
other than negligence if:
(a) at the time of the conduct
constituting the physical element, the person is under a mistaken belief about,
or is ignorant of, facts; and
(b) the existence of that mistaken
belief or ignorance negates any fault element applying to that physical
element.
(2) In determining whether a person was under
a mistaken belief about, or was ignorant of, facts, the tribunal of fact may
consider whether the mistaken belief or ignorance was reasonable in the
circumstances.
9.2
Mistake of fact (strict liability)
(1) A person is not criminally responsible
for an offence that has a physical element for which there is no fault element
if:
(a) at or before the time of the
conduct constituting the physical element, the person considered whether or not
facts existed, and is under a mistaken but reasonable belief about those facts;
and
(b) had those facts existed, the
conduct would not have constituted an offence.
(2) A person may be regarded as having
considered whether or not facts existed if:
(a) he or she had considered, on a
previous occasion, whether those facts existed in the circumstances surrounding
that occasion; and
(b) he or she honestly and reasonably
believed that the circumstances surrounding the present occasion were the same,
or substantially the same, as those surrounding the previous occasion.
Note: Section 6.2 prevents this section
applying in situations of absolute liability.
9.3
Mistake or ignorance of statute law
(1) A person can be criminally responsible
for an offence even if, at the time of the conduct constituting the offence, he
or she is mistaken about, or ignorant of, the existence or content of an Act
that directly or indirectly creates the offence or directly or indirectly
affects the scope or operation of the offence.
(2) Subsection (1) does not apply, and
the person is not criminally responsible for the offence in those
circumstances, if the Act is expressly to the contrary effect.
9.4
Mistake or ignorance of subordinate legislation
(1) A person can be criminally responsible
for an offence even if, at the time of the conduct constituting the offence, he
or she is mistaken about, or ignorant of, the existence or content of the
subordinate legislation that directly or indirectly creates the offence or
directly or indirectly affects the scope or operation of the offence.
(2) Subsection (1) does not apply, and
the person is not criminally responsible for the offence in those
circumstances, if:
(a) the subordinate legislation is
expressly to the contrary effect; or
(c) at the time of the conduct, the
subordinate legislation:
(i) has not been made
available to the public (by means of the Register under the Legislative
Instruments Act 2003 or otherwise); and
(ii) has not otherwise been
made available to persons likely to be affected by it in such a way that the
person would have become aware of its contents by exercising due diligence.
(3) In this
section:
available includes available by sale.
subordinate legislation means an instrument
of a legislative character made directly or indirectly under an Act, or in
force directly or indirectly under an Act.
9.5
Claim of right
(1) A person is not criminally responsible
for an offence that has a physical element relating to property if:
(a) at the time of the conduct
constituting the offence, the person is under a mistaken belief about a
proprietary or possessory right; and
(b) the existence of that right
would negate a fault element for any physical element of the offence.
(2) A person is not criminally responsible
for any other offence arising necessarily out of the exercise of the
proprietary or possessory right that he or she mistakenly believes to exist.
(3) This section does not negate criminal
responsibility for an offence relating to the use of force against a person.
Division 10—Circumstances involving external factors
10.1
Intervening conduct or event
A person is not criminally responsible
for an offence that has a physical element to which absolute liability or
strict liability applies if:
(a) the physical element is brought
about by another person over whom the person has no control or by a non‑human
act or event over which the person has no control; and
(b) the person could not reasonably
be expected to guard against the bringing about of that physical element.
10.2
Duress
(1) A person is not criminally responsible
for an offence if he or she carries out the conduct constituting the offence
under duress.
(2) A person carries out conduct under duress
if and only if he or she reasonably believes that:
(a) a threat has been made that will
be carried out unless an offence is committed; and
(b) there is no reasonable way that the
threat can be rendered ineffective; and
(c) the conduct is a reasonable
response to the threat.
(3) This section does not apply if the threat
is made by or on behalf of a person with whom the person under duress is
voluntarily associating for the purpose of carrying out conduct of the kind
actually carried out.
10.3
Sudden or extraordinary emergency
(1) A person is not criminally responsible
for an offence if he or she carries out the conduct constituting the offence in
response to circumstances of sudden or extraordinary emergency.
(2) This section applies if and only if the
person carrying out the conduct reasonably believes that:
(a) circumstances of sudden or
extraordinary emergency exist; and
(b) committing the offence is the only
reasonable way to deal with the emergency; and
(c) the conduct is a reasonable
response to the emergency.
10.4
Self‑defence
(1) A person is not criminally responsible
for an offence if he or she carries out the conduct constituting the offence in
self‑defence.
(2) A person carries out conduct in self‑defence
if and only if he or she believes the conduct is necessary:
(a) to defend himself or herself or
another person; or
(b) to prevent or terminate the
unlawful imprisonment of himself or herself or another person; or
(c) to protect property from unlawful
appropriation, destruction, damage or interference; or
(d) to prevent criminal trespass to
any land or premises; or
(e) to remove from any land or
premises a person who is committing criminal trespass;
and the conduct is a reasonable response in the
circumstances as he or she perceives them.
(3) This section does not apply if the person
uses force that involves the intentional infliction of death or really serious
injury:
(a) to protect property; or
(b) to prevent criminal trespass; or
(c) to remove a person who is
committing criminal trespass.
(4) This section does not apply if:
(a) the person is responding to lawful
conduct; and
(b) he or she knew that the conduct
was lawful.
However, conduct is not lawful merely because the person
carrying it out is not criminally responsible for it.
10.5
Lawful authority
A person is not criminally responsible
for an offence if the conduct constituting the offence is justified or excused
by or under a law.
Part 2.4—Extensions of criminal responsibility
Division 11
11.1
Attempt
(1) A person who attempts to commit an
offence is guilty of the offence of attempting to commit that offence and is
punishable as if the offence attempted had been committed.
(2) For the person to be guilty, the person’s
conduct must be more than merely preparatory to the commission of the offence.
The question whether conduct is more than merely preparatory to the commission
of the offence is one of fact.
(3) For the offence of attempting to commit
an offence, intention and knowledge are fault elements in relation to each
physical element of the offence attempted.
Note: Under section 3.2, only one of the fault
elements of intention or knowledge would need to be established in respect of
each physical element of the offence attempted.
(3A) Subsection (3) has effect subject to subsection (6A).
(4) A person may be found guilty even if:
(a) committing the offence attempted
is impossible; or
(b) the person actually committed the
offence attempted.
(5) A person who is found guilty of
attempting to commit an offence cannot be subsequently charged with the
completed offence.
(6) Any defences, procedures, limitations or
qualifying provisions that apply to an offence apply also to the offence of attempting
to commit that offence.
(6A) Any special liability provisions that apply
to an offence apply also to the offence of attempting to commit that offence.
(7) It is not an offence to attempt to commit
an offence against section 11.2 (complicity and common purpose), section 11.5
(conspiracy to commit an offence) or section 135.4 (conspiracy to
defraud).
11.2
Complicity and common purpose
(1) A person who aids, abets, counsels or
procures the commission of an offence by another person is taken to have
committed that offence and is punishable accordingly.
(2) For the person to be guilty:
(a) the person’s conduct must have in
fact aided, abetted, counselled or procured the commission of the offence by
the other person; and
(b) the offence must have been
committed by the other person.
(3) For the person to be guilty, the person
must have intended that:
(a) his or her conduct would aid,
abet, counsel or procure the commission of any offence (including its fault
elements) of the type the other person committed; or
(b) his or her conduct would aid,
abet, counsel or procure the commission of an offence and have been reckless
about the commission of the offence (including its fault elements) that the
other person in fact committed.
(3A) Subsection (3) has effect subject to subsection (6).
(4) A person cannot be found guilty of
aiding, abetting, counselling or procuring the commission of an offence if,
before the offence was committed, the person:
(a) terminated his or her involvement;
and
(b) took all reasonable steps to
prevent the commission of the offence.
(5) A person may be found guilty of aiding,
abetting, counselling or procuring the commission of an offence even if the
principal offender has not been prosecuted or has not been found guilty.
(6) Any special liability provisions that
apply to an offence apply also to the offence of aiding, abetting, counselling
or procuring the commission of that offence.
(7) If the trier of fact is satisfied beyond
reasonable doubt that a person either:
(a) is guilty of a particular offence
otherwise than because of the operation of subsection (1); or
(b) is guilty of that offence because
of the operation of subsection (1);
but is not able to determine which, the trier of fact may
nonetheless find the person guilty of that offence.
11.3
Innocent agency
A person who:
(a) has, in relation to each
physical element of an offence, a fault element applicable to that physical
element; and
(b) procures conduct of another
person that (whether or not together with conduct of the procurer) would have
constituted an offence on the part of the procurer if the procurer had engaged
in it;
is taken to have committed that offence and is
punishable accordingly.
11.4
Incitement
(1) A person who urges the commission of
an offence is guilty of the offence of incitement.
(2) For the person to be guilty, the person
must intend that the offence incited be committed.
(2A) Subsection (2) has effect subject to subsection (4A).
(3) A person may be found guilty even if
committing the offence incited is impossible.
(4) Any defences, procedures, limitations or
qualifying provisions that apply to an offence apply also to the offence of
incitement in respect of that offence.
(4A) Any special liability provisions that apply
to an offence apply also to the offence of incitement in respect of that
offence.
(5) It is not an offence to incite the
commission of an offence against section 11.1 (attempt), this section or
section 11.5 (conspiracy).
Penalty:
(a) if the offence incited is punishable
by life imprisonment—imprisonment for 10 years; or
(b) if the offence incited is
punishable by imprisonment for 14 years or more, but is not punishable by life
imprisonment—imprisonment for 7 years; or
(c) if the offence incited is
punishable by imprisonment for 10 years or more, but is not punishable by
imprisonment for 14 years or more—imprisonment for 5 years; or
(d) if the offence is otherwise
punishable by imprisonment—imprisonment for 3 years or for the maximum term of
imprisonment for the offence incited, whichever is the lesser; or
(e) if the offence incited is not
punishable by imprisonment—the number of penalty units equal to the maximum
number of penalty units applicable to the offence incited.
Note: Under section 4D
of the Crimes Act 1914, these penalties are only maximum penalties.
Subsection 4B(2) of that Act allows a court to impose an appropriate fine
instead of, or in addition to, a term of imprisonment. If a body corporate is
convicted of the offence, subsection 4B(3) of that Act allows a court to impose
a fine of an amount not greater than 5 times the maximum fine that the court
could impose on an individual convicted of the same offence. Penalty units are
defined in section 4AA of that Act.
11.5
Conspiracy
(1) A person who conspires with another
person to commit an offence punishable by imprisonment for more than 12 months,
or by a fine of 200 penalty units or more, is guilty of the offence of
conspiracy to commit that offence and is punishable as if the offence to which
the conspiracy relates had been committed.
Note: Penalty units are defined in section 4AA
of the Crimes Act 1914.
(2) For the person to be guilty:
(a) the person must have entered into
an agreement with one or more other persons; and
(b) the person and at least one other
party to the agreement must have intended that an offence would be committed
pursuant to the agreement; and
(c) the person or at least one other
party to the agreement must have committed an overt act pursuant to the
agreement.
(2A) Subsection (2) has effect subject to subsection (7A).
(3) A person may be found guilty of
conspiracy to commit an offence even if:
(a) committing the offence is
impossible; or
(b) the only other party to the
agreement is a body corporate; or
(c) each other party to the agreement
is at least one of the following:
(i) a person who is not
criminally responsible;
(ii) a person for whose
benefit or protection the offence exists; or
(d) subject to paragraph (4)(a),
all other parties to the agreement have been acquitted of the conspiracy.
(4) A person
cannot be found guilty of conspiracy to commit an offence if:
(a) all other parties to the agreement
have been acquitted of the conspiracy and a finding of guilt would be
inconsistent with their acquittal; or
(b) he or she is a person for whose
benefit or protection the offence exists.
(5) A person cannot be found guilty of
conspiracy to commit an offence if, before the commission of an overt act
pursuant to the agreement, the person:
(a) withdrew from the agreement; and
(b) took all reasonable steps to
prevent the commission of the offence.
(6) A court may dismiss a charge of
conspiracy if it thinks that the interests of justice require it to do so.
(7) Any defences, procedures, limitations or
qualifying provisions that apply to an offence apply also to the offence of
conspiracy to commit that offence.
(7A) Any special liability provisions that apply
to an offence apply also to the offence of conspiracy to commit that offence.
(8) Proceedings for an offence of conspiracy
must not be commenced without the consent of the Director of Public
Prosecutions. However, a person may be arrested for, charged with, or remanded
in custody or on bail in connection with, an offence of conspiracy before the
necessary consent has been given.
11.6
References in Acts to offences
(1) A reference in a law of the Commonwealth
to an offence against a law of the Commonwealth (including this Code) includes
a reference to an offence against section 11.1 (attempt), 11.4
(incitement) or 11.5 (conspiracy) of this Code that relates to such an offence.
(2) A
reference in a law of the Commonwealth (including this Code) to a particular
offence includes a reference to an offence against section 11.1 (attempt),
11.4 (incitement) or 11.5 (conspiracy) of this Code that relates to that
particular offence.
(3) Subsection (1) or (2) does not apply
if a law of the Commonwealth is expressly or impliedly to the contrary effect.
(4) In particular, an express reference in a
law of the Commonwealth to:
(a) an offence against, under or
created by the Crimes Act 1914; or
(b) an offence against, under or
created by a particular provision of the Crimes Act 1914; or
(c) an offence arising out of the
first‑mentioned law or another law of the Commonwealth; or
(d) an offence arising out of a
particular provision; or
(e) an offence against, under or
created by the Taxation Administration Act 1953;
does not mean that the first‑mentioned law is
impliedly to the contrary effect.
Note: Sections 11.2 (complicity and common
purpose) and 11.3 (innocent agency) of this Code operate as extensions of
principal offences and are therefore not referred to in this section.
Part 2.5—Corporate criminal responsibility
Division 12
12.1
General principles
(1) This Code applies to bodies corporate
in the same way as it applies to individuals. It so applies with such
modifications as are set out in this Part, and with such other modifications as
are made necessary by the fact that criminal liability is being imposed on
bodies corporate rather than individuals.
(2) A body corporate may be found guilty
of any offence, including one punishable by imprisonment.
Note: Section 4B of the Crimes Act 1914
enables a fine to be imposed for offences that only specify imprisonment as a
penalty.
12.2
Physical elements
If a physical element of an offence is
committed by an employee, agent or officer of a body corporate acting within
the actual or apparent scope of his or her employment, or within his or her
actual or apparent authority, the physical element must also be attributed to
the body corporate.
12.3
Fault elements other than negligence
(1) If intention, knowledge or recklessness
is a fault element in relation to a physical element of an offence, that fault
element must be attributed to a body corporate that expressly, tacitly or
impliedly authorised or permitted the commission of the offence.
(2) The means by which such an authorisation
or permission may be established include:
(a) proving that the body corporate’s
board of directors intentionally, knowingly or recklessly carried out the
relevant conduct, or expressly, tacitly or impliedly authorised or permitted
the commission of the offence; or
(b) proving that a high managerial
agent of the body corporate intentionally, knowingly or recklessly engaged in
the relevant conduct, or expressly, tacitly or impliedly authorised or
permitted the commission of the offence; or
(c) proving that a corporate culture
existed within the body corporate that directed, encouraged, tolerated or led
to non‑compliance with the relevant provision; or
(d) proving that the body corporate
failed to create and maintain a corporate culture that required compliance with
the relevant provision.
(3) Paragraph (2)(b) does not apply if
the body corporate proves that it exercised due diligence to prevent the
conduct, or the authorisation or permission.
(4) Factors relevant to the application of paragraph (2)(c)
or (d) include:
(a) whether authority to commit an
offence of the same or a similar character had been given by a high managerial
agent of the body corporate; and
(b) whether the employee, agent or
officer of the body corporate who committed the offence believed on reasonable
grounds, or entertained a reasonable expectation, that a high managerial agent
of the body corporate would have authorised or permitted the commission of the
offence.
(5) If recklessness is not a fault element in
relation to a physical element of an offence, subsection (2) does not
enable the fault element to be proved by proving that the board of directors,
or a high managerial agent, of the body corporate recklessly engaged in the
conduct or recklessly authorised or permitted the commission of the offence.
(6) In this section:
board of directors means the body (by
whatever name called) exercising the executive authority of the body corporate.
corporate culture means an attitude, policy,
rule, course of conduct or practice existing within the body corporate
generally or in the part of the body corporate in which the relevant activities
takes place.
high managerial agent means an employee,
agent or officer of the body corporate with duties of such responsibility that
his or her conduct may fairly be assumed to represent the body corporate’s
policy.
12.4
Negligence
(1) The test of negligence for a body
corporate is that set out in section 5.5.
(2) If:
(a) negligence is a fault element in
relation to a physical element of an offence; and
(b) no individual employee, agent or
officer of the body corporate has that fault element;
that fault element may exist on the part of the body
corporate if the body corporate’s conduct is negligent when viewed as a whole
(that is, by aggregating the conduct of any number of its employees, agents or
officers).
(3) Negligence may be evidenced by the fact
that the prohibited conduct was substantially attributable to:
(a) inadequate corporate management,
control or supervision of the conduct of one or more of its employees, agents
or officers; or
(b) failure to provide adequate
systems for conveying relevant information to relevant persons in the body
corporate.
12.5
Mistake of fact (strict liability)
(1) A body corporate can only rely on section 9.2
(mistake of fact (strict liability)) in respect of conduct that would, apart
from this section, constitute an offence on its part if:
(a) the employee, agent or officer of
the body corporate who carried out the conduct was under a mistaken but
reasonable belief about facts that, had they existed, would have meant that the
conduct would not have constituted an offence; and
(b) the body corporate proves that it
exercised due diligence to prevent the conduct.
(2) A failure to exercise due diligence may
be evidenced by the fact that the prohibited conduct was substantially
attributable to:
(a) inadequate corporate management,
control or supervision of the conduct of one or more of its employees, agents
or officers; or
(b) failure to provide adequate
systems for conveying relevant information to relevant persons in the body
corporate.
12.6
Intervening conduct or event
A body corporate cannot rely on section 10.1
(intervening conduct or event) in respect of a physical element of an offence
brought about by another person if the other person is an employee, agent or
officer of the body corporate.
Part 2.6—Proof of criminal
responsibility
Division 13
13.1
Legal burden of proof—prosecution
(1) The prosecution bears a legal burden
of proving every element of an offence relevant to the guilt of the person
charged.
Note: See section 3.2 on what elements are
relevant to a person’s guilt.
(2) The prosecution also bears a legal
burden of disproving any matter in relation to which the defendant has
discharged an evidential burden of proof imposed on the defendant.
(3) In this Code:
legal burden, in relation to a matter, means
the burden of proving the existence of the matter.
13.2
Standard of proof—prosecution
(1) A legal burden of proof on the
prosecution must be discharged beyond reasonable doubt.
(2) Subsection (1) does not apply if the
law creating the offence specifies a different standard of proof.
13.3
Evidential burden of proof—defence
(1) Subject to section 13.4, a burden
of proof that a law imposes on a defendant is an evidential burden only.
(2) A defendant who wishes to deny criminal
responsibility by relying on a provision of Part 2.3 (other than section 7.3)
bears an evidential burden in relation to that matter.
(3) A defendant who wishes to rely on any
exception, exemption, excuse, qualification or justification provided by the
law creating an offence bears an evidential burden in relation to that matter.
The exception, exemption, excuse, qualification or justification need not
accompany the description of the offence.
(4) The defendant no longer bears the
evidential burden in relation to a matter if evidence sufficient to discharge
the burden is adduced by the prosecution or by the court.
(5) The question whether an evidential burden
has been discharged is one of law.
(6) In this Code:
evidential burden, in relation to a matter,
means the burden of adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist.
13.4
Legal burden of proof—defence
A burden of proof that a law imposes
on the defendant is a legal burden if and only if the law expressly:
(a) specifies that the burden of
proof in relation to the matter in question is a legal burden; or
(b) requires the defendant to prove
the matter; or
(c) creates a presumption that the
matter exists unless the contrary is proved.
13.5 Standard
of proof—defence
A legal burden of proof on the
defendant must be discharged on the balance of probabilities.
13.6
Use of averments
A law that allows the prosecution to
make an averment is taken not to allow the prosecution:
(a) to aver any fault element of an
offence; or
(b) to make an averment in prosecuting
for an offence that is directly punishable by imprisonment.
Part 2.7—Geographical jurisdiction
Division 14—Standard geographical jurisdiction
14.1
Standard geographical jurisdiction
(1) This section may apply to a particular
offence in either of the following ways:
(a) unless the contrary intention
appears, this section applies to the following offences:
(i) a primary offence,
where the provision creating the offence commences at or after the commencement
of this section;
(ii) an ancillary offence,
to the extent to which it relates to a primary offence covered by subparagraph (i);
(b) if a law of the Commonwealth
provides that this section applies to a particular offence—this section applies
to that offence.
Note: In the case of paragraph (b), the
expression offence is given an extended meaning by subsection
11.2(1), section 11.3 and subsection 11.6(1).
(2) If this section applies to a particular
offence, a person does not commit the offence unless:
(a) the conduct constituting the
alleged offence occurs:
(i) wholly or partly in Australia;
or
(ii) wholly or partly on
board an Australian aircraft or an Australian ship; or
(b) the conduct constituting the
alleged offence occurs wholly outside Australia and a result of the conduct
occurs:
(i) wholly or partly in Australia;
or
(ii) wholly or partly on
board an Australian aircraft or an Australian ship; or
(c) all of the following conditions
are satisfied:
(i) the alleged offence is
an ancillary offence;
(ii) the conduct
constituting the alleged offence occurs wholly outside Australia;
(iii) the conduct
constituting the primary offence to which the ancillary offence relates, or a
result of that conduct, occurs, or is intended by the person to occur, wholly
or partly in Australia or wholly or partly on board an Australian aircraft or
an Australian ship.
Defence—primary offence
(3) If this section applies to a particular
offence, a person is not guilty of the offence if:
(aa) the alleged offence is a primary
offence; and
(a) the conduct constituting the
alleged offence occurs wholly in a foreign country, but not on board an
Australian aircraft or an Australian ship; and
(b) there is not in force in:
(i) the foreign country
where the conduct constituting the alleged offence occurs; or
(ii) the part of the
foreign country where the conduct constituting the alleged offence occurs;
a law of that foreign country,
or a law of that part of that foreign country, that creates an offence that
corresponds to the first‑mentioned offence.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (3). See subsection 13.3(3).
(4) For the purposes of the application of
subsection 13.3(3) to an offence, subsection (3) of this section is taken
to be an exception provided by the law creating the offence.
Defence—ancillary offence
(5) If this section applies to a particular
offence, a person is not guilty of the offence if:
(a) the alleged offence is an
ancillary offence; and
(b) the conduct constituting the
alleged offence occurs wholly in a foreign country, but not on board an
Australian aircraft or an Australian ship; and
(c) the conduct constituting the
primary offence to which the ancillary offence relates, or a result of that
conduct, occurs, or is intended by the person to occur, wholly in a foreign
country, but not on board an Australian aircraft or an Australian ship; and
(d) there is not in force in:
(i) the foreign country
where the conduct constituting the primary offence to which the ancillary
offence relates, or a result of that conduct, occurs, or is intended by the
person to occur; or
(ii) the part of the
foreign country where the conduct constituting the primary offence to which the
ancillary offence relates, or a result of that conduct, occurs, or is intended
by the person to occur;
a law of that foreign country,
or a law of that part of that foreign country, that creates an offence that
corresponds to the primary offence.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (5). See subsection 13.3(3).
(6) For the purposes of the application of
subsection 13.3(3) to an offence, subsection (5) of this section is taken
to be an exception provided by the law creating the offence.
Division 15—Extended geographical jurisdiction
15.1
Extended geographical jurisdiction—category A
(1) If a law of the Commonwealth provides
that this section applies to a particular offence, a person does not commit the
offence unless:
(a) the conduct constituting the
alleged offence occurs:
(i) wholly or partly in Australia;
or
(ii) wholly or partly on
board an Australian aircraft or an Australian ship; or
(b) the conduct constituting the
alleged offence occurs wholly outside Australia and a result of the conduct
occurs:
(i) wholly or partly in Australia;
or
(ii) wholly or partly on
board an Australian aircraft or an Australian ship; or
(c) the conduct constituting the
alleged offence occurs wholly outside Australia and:
(i) at the time of the
alleged offence, the person is an Australian citizen; or
(ii) at the time of the
alleged offence, the person is a body corporate incorporated by or under a law
of the Commonwealth or of a State or Territory; or
(d) all of the following conditions
are satisfied:
(i) the alleged offence is
an ancillary offence;
(ii) the conduct
constituting the alleged offence occurs wholly outside Australia;
(iii) the conduct
constituting the primary offence to which the ancillary offence relates, or a
result of that conduct, occurs, or is intended by the person to occur, wholly
or partly in Australia or wholly or partly on board an Australian aircraft or
an Australian ship.
Note: The expression offence is given
an extended meaning by subsection 11.2(1), section 11.3 and subsection
11.6(1).
Defence—primary offence
(2) If a law of the Commonwealth provides
that this section applies to a particular offence, a person is not guilty of
the offence if:
(aa) the alleged offence is a primary
offence; and
(a) the conduct constituting the
alleged offence occurs wholly in a foreign country, but not on board an
Australian aircraft or an Australian ship; and
(b) the person is neither:
(i) an Australian citizen;
nor
(ii) a body corporate
incorporated by or under a law of the Commonwealth or of a State or Territory;
and
(c) there is not in force in:
(i) the foreign country
where the conduct constituting the alleged offence occurs; or
(ii) the part of the
foreign country where the conduct constituting the alleged offence occurs;
a law of that foreign country,
or a law of that part of that foreign country, that creates an offence that
corresponds to the first‑mentioned offence.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (2). See subsection 13.3(3).
(3) For the purposes of the application of
subsection 13.3(3) to an offence, subsection (2) of this section is taken
to be an exception provided by the law creating the offence.
Defence—ancillary offence
(4) If a law of the Commonwealth provides
that this section applies to a particular offence, a person is not guilty of
the offence if:
(a) the alleged offence is an
ancillary offence; and
(b) the conduct constituting the
alleged offence occurs wholly in a foreign country, but not on board an
Australian aircraft or an Australian ship; and
(c) the conduct constituting the
primary offence to which the ancillary offence relates, or a result of that
conduct, occurs, or is intended by the person to occur, wholly in a foreign
country, but not on board an Australian aircraft or an Australian ship; and
(d) the person is neither:
(i) an Australian citizen;
nor
(ii) a body corporate
incorporated by or under a law of the Commonwealth or of a State or Territory;
and
(e) there is not in force in:
(i) the foreign country
where the conduct constituting the primary offence to which the ancillary
offence relates, or a result of that conduct, occurs, or is intended by the
person to occur; or
(ii) the part of the
foreign country where the conduct constituting the primary offence to which the
ancillary offence relates, or a result of that conduct, occurs, or is intended
by the person to occur;
a law of that foreign country,
or a law of that part of that foreign country, that creates an offence that
corresponds to the primary offence.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (4). See subsection 13.3(3).
(5) For the purposes of the application of
subsection 13.3(3) to an offence, subsection (4) of this section is taken
to be an exception provided by the law creating the offence.
15.2
Extended geographical jurisdiction—category B
(1) If a law of the Commonwealth provides
that this section applies to a particular offence, a person does not commit the
offence unless:
(a) the conduct constituting the
alleged offence occurs:
(i) wholly or partly in Australia;
or
(ii) wholly or partly on
board an Australian aircraft or an Australian ship; or
(b) the conduct constituting the
alleged offence occurs wholly outside Australia and a result of the conduct
occurs:
(i) wholly or partly in Australia;
or
(ii) wholly or partly on
board an Australian aircraft or an Australian ship; or
(c) the conduct constituting the
alleged offence occurs wholly outside Australia and:
(i) at the time of the
alleged offence, the person is an Australian citizen; or
(ii) at the time of the
alleged offence, the person is a resident of Australia; or
(iii) at the time of the
alleged offence, the person is a body corporate incorporated by or under a law
of the Commonwealth or of a State or Territory; or
(d) all of the following conditions
are satisfied:
(i) the alleged offence is
an ancillary offence;
(ii) the conduct
constituting the alleged offence occurs wholly outside Australia;
(iii) the conduct
constituting the primary offence to which the ancillary offence relates, or a
result of that conduct, occurs, or is intended by the person to occur, wholly
or partly in Australia or wholly or partly on board an Australian aircraft or
an Australian ship.
Note: The expression offence is given
an extended meaning by subsection 11.2(1), section 11.3 and subsection
11.6(1).
Defence—primary offence
(2) If a law of the Commonwealth provides
that this section applies to a particular offence, a person is not guilty of
the offence if:
(aa) the alleged offence is a primary
offence; and
(a) the conduct constituting the
alleged offence occurs wholly in a foreign country, but not on board an
Australian aircraft or an Australian ship; and
(b) the person is neither:
(i) an Australian citizen;
nor
(ii) a body corporate
incorporated by or under a law of the Commonwealth or of a State or Territory;
and
(c) there is not in force in:
(i) the foreign country
where the conduct constituting the alleged offence occurs; or
(ii) the part of the
foreign country where the conduct constituting the alleged offence occurs;
a law of that foreign country,
or a law of that part of that foreign country, that creates an offence that
corresponds to the first‑mentioned offence.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (2). See subsection 13.3(3).
(3) For the purposes of the application of
subsection 13.3(3) to an offence, subsection (2) of this section is taken
to be an exception provided by the law creating the offence.
Defence—ancillary offence
(4) If a law of the Commonwealth provides
that this section applies to a particular offence, a person is not guilty of
the offence if:
(a) the alleged offence is an
ancillary offence; and
(b) the conduct constituting the
alleged offence occurs wholly in a foreign country, but not on board an
Australian aircraft or an Australian ship; and
(c) the conduct constituting the
primary offence to which the ancillary offence relates, or a result of that
conduct, occurs, or is intended by the person to occur, wholly in a foreign
country, but not on board an Australian aircraft or an Australian ship; and
(d) the person is neither:
(i) an Australian citizen;
nor
(ii) a body corporate
incorporated by or under a law of the Commonwealth or of a State or Territory;
and
(e) there is not in force in:
(i) the foreign country
where the conduct constituting the primary offence to which the ancillary
offence relates, or a result of that conduct, occurs, or is intended by the
person to occur; or
(ii) the part of the
foreign country where the conduct constituting the primary offence to which the
ancillary offence relates, or a result of that conduct, occurs, or is intended
by the person to occur;
a law of that foreign country,
or a law of that part of that foreign country, that creates an offence that
corresponds to the primary offence.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (4). See subsection 13.3(3).
(5) For the purposes of the application of
subsection 13.3(3) to an offence, subsection (4) of this section is taken
to be an exception provided by the law creating the offence.
15.3
Extended geographical jurisdiction—category C
(1) If a law of the Commonwealth provides
that this section applies to a particular offence, the offence applies:
(a) whether or not the conduct
constituting the alleged offence occurs in Australia; and
(b) whether or not a result of the
conduct constituting the alleged offence occurs in Australia.
Note: The expression offence is given
an extended meaning by subsection 11.2(1), section 11.3 and subsection
11.6(1).
Defence—primary offence
(2) If a law of the Commonwealth provides
that this section applies to a particular offence, a person is not guilty of
the offence if:
(aa) the alleged offence is a primary
offence; and
(a) the conduct constituting the
alleged offence occurs wholly in a foreign country, but not on board an
Australian aircraft or an Australian ship; and
(b) the person is neither:
(i) an Australian citizen;
nor
(ii) a body corporate
incorporated by or under a law of the Commonwealth or of a State or Territory;
and
(c) there is not in force in:
(i) the foreign country
where the conduct constituting the alleged offence occurs; or
(ii) the part of the
foreign country where the conduct constituting the alleged offence occurs;
a law of that foreign country,
or that part of that foreign country, that creates an offence that corresponds
to the first‑mentioned offence.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (2). See subsection 13.3(3).
(3) For the purposes of the application of
subsection 13.3(3) to an offence, subsection (2) of this section is taken
to be an exception provided by the law creating the offence.
Defence—ancillary offence
(4) If a law of the Commonwealth provides
that this section applies to a particular offence, a person is not guilty of
the offence if:
(a) the alleged offence is an
ancillary offence; and
(b) the conduct constituting the
alleged offence occurs wholly in a foreign country, but not on board an
Australian aircraft or an Australian ship; and
(c) the conduct constituting the
primary offence to which the ancillary offence relates, or a result of that
conduct, occurs, or is intended by the person to occur, wholly in a foreign
country, but not on board an Australian aircraft or an Australian ship; and
(d) the person is neither:
(i) an Australian citizen;
nor
(ii) a body corporate
incorporated by or under a law of the Commonwealth or of a State or Territory;
and
(e) there is not in force in:
(i) the foreign country
where the conduct constituting the primary offence to which the ancillary
offence relates, or a result of that conduct, occurs, or is intended by the
person to occur; or
(ii) the part of the
foreign country where the conduct constituting the primary offence to which the
ancillary offence relates, or a result of that conduct, occurs, or is intended
by the person to occur;
a law of that foreign country,
or a law of that part of that foreign country, that creates an offence that
corresponds to the primary offence.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (4). See subsection 13.3(3).
(5) For the purposes of the application of
subsection 13.3(3) to an offence, subsection (4) of this section is taken
to be an exception provided by the law creating the offence.
15.4
Extended geographical jurisdiction—category D
If a law of the Commonwealth provides
that this section applies to a particular offence, the offence applies:
(a) whether or not the conduct
constituting the alleged offence occurs in Australia; and
(b) whether or not a result of the
conduct constituting the alleged offence occurs in Australia.
Note: The expression offence is given
an extended meaning by subsection 11.2(1), section 11.3 and subsection
11.6(1).
Division 16—Miscellaneous
16.1
Attorney‑General’s consent required for prosecution if alleged conduct
occurs wholly in a foreign country in certain circumstances
(1) Proceedings for an offence must not be
commenced without the Attorney‑General’s written consent if:
(a) section 14.1, 15.1, 15.2,
15.3 or 15.4 applies to the offence; and
(b) the conduct constituting the alleged
offence occurs wholly in a foreign country; and
(c) at the time of the alleged
offence, the person alleged to have committed the offence is neither:
(i) an Australian citizen;
nor
(ii) a body corporate
incorporated by or under a law of the Commonwealth or of a State or Territory.
(2) However, a person may be arrested for,
charged with, or remanded in custody or released on bail in connection with an
offence before the necessary consent has been given.
16.2
When conduct taken to occur partly in Australia
Sending things
(1) For the purposes of this Part, if a
person sends a thing, or causes a thing to be sent:
(a) from a point outside Australia to
a point in Australia; or
(b) from a point in Australia to a
point outside Australia;
that conduct is taken to have occurred partly in Australia.
Sending electronic communications
(2) For the purposes of this Part, if a
person sends, or causes to be sent, an electronic communication:
(a) from a point outside Australia to
a point in Australia; or
(b) from a point in Australia to a
point outside Australia;
that conduct is taken to have occurred partly in Australia.
Point
(3) For the purposes of this section, point
includes a mobile or potentially mobile point, whether on land, underground, in
the atmosphere, underwater, at sea or anywhere else.
16.3
Meaning of Australia
(1) For the purposes of the application of
this Part to a particular primary offence, Australia has the same
meaning it would have if it were used in a geographical sense in the provision
creating the primary offence.
(2) For the purposes of the application of
this Part to a particular ancillary offence, Australia has the
same meaning it would have if it were used in a geographical sense in the
provision creating the primary offence to which the ancillary offence relates.
(3) For the purposes of this Part, if a
provision creating an offence extends to an external Territory, it is to be
assumed that if the expression Australia were used in a
geographical sense in that provision, that expression would include that
external Territory.
(4) This section does not affect the meaning
of the expressions Australian aircraft, Australian citizen
or Australian ship.
16.4
Result of conduct
A reference in this Part to a result
of conduct constituting an offence is a reference to a result that is a
physical element of the offence (within the meaning of subsection 4.1(1)).
Chapter 4—The integrity and
security of the international community and foreign governments
Division 70—Bribery of foreign public officials
70.1
Definitions
In this
Division:
benefit includes any advantage and is not
limited to property.
business advantage means an advantage in the
conduct of business.
control, in relation to a company, body or
association, includes control as a result of, or by means of, trusts,
agreements, arrangements, understandings and practices, whether or not having
legal or equitable force and whether or not based on legal or equitable rights.
duty, in relation to a foreign public
official, means any authority, duty, function or power that:
(a) is conferred on the official; or
(b) that the official holds himself or
herself out as having.
foreign government body means:
(a) the government of a foreign
country or of part of a foreign country; or
(b) an authority of the government of
a foreign country; or
(c) an authority of the government of
part of a foreign country; or
(d) a foreign local government body or
foreign regional government body; or
(e) a foreign public enterprise.
foreign public
enterprise means a company or any other body or association where:
(a) in the case of a company—one of
the following applies:
(i) the government of a
foreign country or of part of a foreign country holds more than 50% of the
issued share capital of the company;
(ii) the government of a
foreign country or of part of a foreign country holds more than 50% of the
voting power in the company;
(iii) the government of a
foreign country or of part of a foreign country is in a position to appoint
more than 50% of the company’s board of directors;
(iv) the directors (however
described) of the company are accustomed or under an obligation (whether formal
or informal) to act in accordance with the directions, instructions or wishes
of the government of a foreign country or of part of a foreign country;
(v) the government of a
foreign country or of part of a foreign country is in a position to exercise
control over the company; and
(b) in the case of any other body or
association—either of the following applies:
(i) the members of the
executive committee (however described) of the body or association are
accustomed or under an obligation (whether formal or informal) to act in
accordance with the directions, instructions or wishes of the government of a
foreign country or of part of a foreign country;
(ii) the government of a
foreign country or of part of a foreign country is in a position to exercise
control over the body or association; and
(c) the company, body or association:
(i) enjoys special legal
rights or a special legal status under a law of a foreign country or of part of
a foreign country; or
(ii) enjoys
special benefits or privileges under a law of a foreign country or of part of a
foreign country;
because of the relationship of
the company, body or association with the government of the foreign country or
of the part of the foreign country, as the case may be.
foreign public
official means:
(a) an employee or official of a
foreign government body; or
(b) an individual who performs work
for a foreign government body under a contract; or
(c) an individual who holds or
performs the duties of an appointment, office or position under a law of a
foreign country or of part of a foreign country; or
(d) an individual who holds or
performs the duties of an appointment, office or position created by custom or
convention of a foreign country or of part of a foreign country; or
(e) an individual who is otherwise in
the service of a foreign government body (including service as a member of a
military force or police force); or
(f) a member of the executive,
judiciary or magistracy of a foreign country or of part of a foreign country;
or
(g) an employee of a public
international organisation; or
(h) an individual who performs work
for a public international organisation under a contract; or
(i) an individual who holds or
performs the duties of an office or position in a public international
organisation; or
(j) an individual who is otherwise in
the service of a public international organisation; or
(k) a member or officer of the
legislature of a foreign country or of part of a foreign country; or
(l) an individual who:
(i) is an authorised
intermediary of a foreign public official covered by any of the above
paragraphs; or
(ii) holds himself or
herself out to be the authorised intermediary of a foreign public official
covered by any of the above paragraphs.
public international
organisation means:
(a) an organisation:
(i) of which 2 or more
countries, or the governments of 2 or more countries, are members; or
(ii) that is constituted by
persons representing 2 or more countries, or representing the governments of 2
or more countries; or
(b) an organisation established by, or
a group of organisations constituted by:
(i) organisations of which
2 or more countries, or the governments of 2 or more countries, are members; or
(ii) organisations that are
constituted by the representatives of 2 or more countries, or the governments
of 2 or more countries; or
(c) an organisation that is:
(i) an organ of, or office
within, an organisation described in paragraph (a) or (b); or
(ii) a commission, council
or other body established by an organisation so described or such an organ; or
(iii) a committee, or
subcommittee of a committee, of an organisation described in paragraph (a)
or (b), or of such an organ, council or body.
share includes stock.
70.2
Bribing a foreign public official
(1) A person is guilty of an offence if:
(a) the person:
(i) provides a benefit to
another person; or
(ii) causes a benefit to be
provided to another person; or
(iii) offers to provide, or
promises to provide, a benefit to another person; or
(iv) causes an offer of the
provision of a benefit, or a promise of the provision of a benefit, to be made
to another person; and
(b) the benefit is not legitimately
due to the other person; and
(c) the first‑mentioned person
does so with the intention of influencing a foreign public official (who may be
the other person) in the exercise of the official’s duties as a foreign public
official in order to:
(i) obtain or retain
business; or
(ii) obtain
or retain a business advantage that is not legitimately due to the recipient,
or intended recipient, of the business advantage (who may be the first‑mentioned
person).
Penalty: Imprisonment for 10
years.
Note 1: For defences, see sections 70.3 and 70.4.
Note 2: Section 4B of the Crimes Act 1914
allows a court to impose a fine instead of imprisonment or in addition to
imprisonment.
Benefit that is not legitimately due
(2) For the purposes of this section, in
working out if a benefit is not legitimately due to a person in a
particular situation, disregard the following:
(a) the fact that the benefit may be
customary, or perceived to be customary, in the situation;
(b) the value of the benefit;
(c) any official tolerance of the
benefit.
Business advantage that is not legitimately due
(3) For the purposes of this section, in
working out if a business advantage is not legitimately due to a
person in a particular situation, disregard the following:
(a) the fact that the business
advantage may be customary, or perceived to be customary, in the situation;
(b) the value of the business
advantage;
(c) any official tolerance of the
business advantage.
70.3
Defence—conduct lawful in foreign public official’s country
(1) A person is not guilty of an offence
against section 70.2 in the cases set out in the following table:
|
Defence of lawful conduct
|
|
Item
|
In a case where the person’s conduct occurred in
relation to this kind of foreign public official...
|
and if it were assumed that the person’s conduct had
occurred wholly...
|
the person would not have been guilty of an offence
against...
|
|
1
|
an employee or official of a foreign government body
|
in the place where the central administration of the body
is located
|
a law in force in that place
|
|
2
|
an individual who performs work for a foreign government
body under a contract
|
in the place where the central administration of the body
is located
|
a law in force in that place
|
|
3
|
an individual who holds or performs the duties of an
appointment, office or position under a law of a foreign country or of part
of a foreign country
|
in the foreign country or in the part of the foreign
country, as the case may be
|
a law in force in the foreign country or in the part of
the foreign country, as the case may be
|
|
4
|
an individual who holds or performs the duties of an
appointment, office or position created by custom or convention of a foreign
country or of part of a foreign country
|
in the foreign country or in the part of the foreign
country, as the case may be
|
a law in force in the foreign country or in the part of
the foreign country, as the case may be
|
|
5
|
an individual who is otherwise in the service of a foreign
government body (including service as a member of a military force or police
force)
|
in the place where the central administration of the body
is located
|
a law in force in that place
|
|
6
|
a member of the executive, judiciary or magistracy of a
foreign country or of part of a foreign country
|
in the foreign country or in the part of the foreign
country, as the case may be
|
a law in force in the foreign country or in the part of
the foreign country, as the case may be
|
|
7
|
an employee of a public international organisation
|
in the place where the headquarters of the organisation is
located
|
a law in force in that place
|
|
8
|
an individual who performs work for a public international
organisation under a contract
|
in the place where the headquarters of the organisation is
located
|
a law in force in that place
|
|
9
|
an individual who holds or performs the duties of a public
office or position in a public international organisation
|
in the place where the headquarters of the organisation is
located
|
a law in force in that place
|
|
10
|
an individual who is otherwise in the service of a public
international organisation
|
in the place where the headquarters of the organisation is
located
|
a law in force in that place
|
|
11
|
a member or officer of the legislature of a foreign
country or of part of a foreign country
|
in the foreign country or in the part of the foreign country,
as the case may be
|
a law in force in the foreign country or in the part of
the foreign country, as the case may be
|
Note: A defendant bears an evidential burden in
relation to the matter in subsection (1). See subsection 13.3(3).
(2) A person is not guilty of an offence
against section 70.2 if:
(a) the person’s conduct occurred in
relation to a foreign public official covered by paragraph (l) of the
definition of foreign public official in section 70.1 (which
deals with intermediaries of foreign public officials covered by other
paragraphs of that definition); and
(b) assuming that the first‑mentioned
person’s conduct had occurred instead in relation to:
(i) the other foreign
public official of whom the first‑mentioned foreign public official was
an authorised intermediary; or
(ii) the other foreign
public official in relation to whom the first‑mentioned foreign public
official held himself or herself out to be an authorised intermediary;
subsection (1) would have
applied in relation to the first‑mentioned person.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2). See subsection 13.3(3).
(3) To avoid doubt, if:
(a) a person’s conduct occurred in
relation to a foreign public official covered by 2 or more paragraphs of the
definition of foreign public official in section 70.1; and
(b) at least one of the corresponding
items in subsection (1) is applicable to the conduct of the first‑mentioned
person;
subsection (1) applies to the conduct of the first‑mentioned
person.
70.4
Defence—facilitation payments
(1) A person is not guilty of an offence
against section 70.2 if:
(a) the value of the benefit was of a
minor nature; and
(b) the person’s conduct was engaged
in for the sole or dominant purpose of expediting or securing the performance
of a routine government action of a minor nature; and
(c) as soon as practicable after the
conduct occurred, the person made a record of the conduct that complies with subsection (3);
and
(d) any of the following subparagraphs
applies:
(i) the person has
retained that record at all relevant times;
(ii) that record has been
lost or destroyed because of the actions of another person over whom the first‑mentioned
person had no control, or because of a non‑human act or event over which
the first‑mentioned person had no control, and the first‑mentioned
person could not reasonably be expected to have guarded against the bringing
about of that loss or that destruction;
(iii) a
prosecution for the offence is instituted more than 7 years after the conduct
occurred.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (1). See subsection 13.3(3).
Routine government action
(2) For the purposes of this section, a routine
government action is an action of a foreign public official that:
(a) is ordinarily and commonly
performed by the official; and
(b) is covered by any of the following
subparagraphs:
(i) granting a permit,
licence or other official document that qualifies a person to do business in a
foreign country or in a part of a foreign country;
(ii) processing government
papers such as a visa or work permit;
(iii) providing police
protection or mail collection or delivery;
(iv) scheduling inspections
associated with contract performance or related to the transit of goods;
(v) providing
telecommunications services, power or water;
(vi) loading and unloading
cargo;
(vii) protecting perishable
products, or commodities, from deterioration;
(viii) any other action of a
similar nature; and
(c) does not involve a decision about:
(i) whether to award new
business; or
(ii) whether to continue
existing business with a particular person; or
(iii) the terms of new
business or existing business; and
(d) does not involve encouraging a
decision about:
(i) whether to award new
business; or
(ii) whether to continue
existing business with a particular person; or
(iii) the terms of new
business or existing business.
Content of records
(3) A record of particular conduct engaged in
by a person complies with this subsection if the record sets out:
(a) the value of the benefit
concerned; and
(b) the date on which the conduct
occurred; and
(c) the identity of the foreign public
official in relation to whom the conduct occurred; and
(d) if that foreign public official is
not the other person mentioned in paragraph 70.2(1)(a)—the identity of that
other person; and
(e) particulars of the routine
government action that was sought to be expedited or secured by the conduct;
and
(f) the person’s signature or some
other means of verifying the person’s identity.
70.5
Territorial and nationality requirements
(1) A person does not commit an offence
against section 70.2 unless:
(a) the conduct constituting the
alleged offence occurs:
(i) wholly or partly in Australia;
or
(ii) wholly or partly on
board an Australian aircraft or an Australian ship; or
(b) the conduct constituting the
alleged offence occurs wholly outside Australia and:
(i) at the time of the
alleged offence, the person is an Australian citizen; or
(ii) at the time of the
alleged offence, the person is a resident of Australia; or
(iii) at the time of the
alleged offence, the person is a body corporate incorporated by or under a law
of the Commonwealth or of a State or Territory.
Note: The expression offence against section 70.2
is given an extended meaning by subsections 11.2(1) and 11.6(2).
(2) Proceedings
for an offence against section 70.2 must not be commenced without the
Attorney‑General’s written consent if:
(a) the conduct constituting the alleged
offence occurs wholly outside Australia; and
(b) at the time of the alleged
offence, the person alleged to have committed the offence is:
(i) a resident of Australia;
and
(ii) not an Australian
citizen.
(3) However, a person may be arrested for,
charged with, or remanded in custody or released on bail in connection with an
offence against section 70.2 before the necessary consent has been given.
70.6
Saving of other laws
This Division is not intended to exclude
or limit the operation of any other law of the Commonwealth or any law of a
State or Territory.
Division 71—Offences against United Nations and associated personnel
71.1
Purpose
The purpose of this Division is to
protect United Nations and associated personnel and give effect to the
Convention on the Safety of United Nations and Associated Personnel.
71.2
Murder of a UN or associated person
(1) A person is guilty of an offence if:
(a) the person’s conduct causes the
death of another person; and
(b) that other person is a UN or associated
person; and
(c) the UN or associated person is
engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person
intends to cause, or is reckless as to causing, the death of the UN or
associated person or any other person by the conduct.
Maximum penalty: Imprisonment for life.
Note: Section 71.23 defines UN
enforcement action, UN operation and UN or
associated person.
(2) Strict liability applies to paragraphs (1)(b)
and (c).
71.3
Manslaughter of a UN or associated person
(1) A person is guilty of an offence if:
(a) the person’s conduct causes the
death of another person; and
(b) that other person is a UN or
associated person; and
(c) the UN or associated person is
engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person
intends to cause, or is reckless as to causing, serious harm to the UN or
associated person or any other person by the conduct.
Maximum penalty: Imprisonment for 25 years.
Note: Section 71.23 defines UN
enforcement action, UN operation and UN or
associated person.
(2) Strict liability applies to paragraphs (1)(b)
and (c).
71.4
Intentionally causing serious harm to a UN or associated person
(1) A person is guilty of an offence if:
(a) the person’s conduct causes
serious harm to another person; and
(b) that other person is a UN or
associated person; and
(c) the UN or associated person is
engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person
intends to cause serious harm to the UN or associated person or any other
person by the conduct.
Maximum penalty: Imprisonment for 20 years.
Maximum penalty (aggravated offence): Imprisonment for 25
years.
Note 1: Section 71.23 defines UN enforcement
action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated
offence.
(2) Strict liability applies to paragraphs (1)(b)
and (c).
71.5
Recklessly causing serious harm to a UN or associated person
(1) A person is guilty of an offence if:
(a) the person’s conduct causes
serious harm to another person; and
(b) that other person is a UN or
associated person; and
(c) the UN or associated person is
engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person
is reckless as to causing serious harm to the UN or associated person or any
other person by the conduct.
Maximum penalty: Imprisonment for 15 years.
Maximum penalty (aggravated offence): Imprisonment for 19
years.
Note 1: Section 71.23 defines UN enforcement
action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated
offence.
(2) Strict liability applies to paragraphs (1)(b)
and (c).
71.6
Intentionally causing harm to a UN or associated person
(1) A person is guilty of an offence if:
(a) the person’s conduct causes harm
to another person without the consent of that person; and
(b) that other person is a UN or
associated person; and
(c) the UN or associated person is
engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person
intends to cause harm to the UN or associated person or any other person by the
conduct.
Maximum penalty: Imprisonment for 10 years.
Maximum penalty (aggravated offence): Imprisonment for 13
years.
Note 1: Section 71.23 defines UN enforcement
action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated
offence.
(2) Strict liability applies to paragraphs (1)(b)
and (c).
71.7
Recklessly causing harm to a UN or associated person
(1) A person is guilty of an offence if:
(a) the person’s conduct causes harm
to another person without the consent of that person; and
(b) that other person is a UN or
associated person; and
(c) the UN or associated person is
engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person
is reckless as to causing harm to the UN or associated person or any other
person by the conduct.
Maximum penalty: Imprisonment for 7 years.
Maximum penalty (aggravated offence): Imprisonment for 9
years.
Note 1: Section 71.23 defines UN enforcement
action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated
offence.
(2) Strict liability applies to paragraphs (1)(b)
and (c).
71.8
Unlawful sexual penetration
(1) A person is guilty of an offence if:
(a) the person sexually penetrates
another person without the consent of that person; and
(b) that other person is a UN or
associated person; and
(c) the UN or associated person is
engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person
knows about, or is reckless as to, the lack of consent.
Maximum penalty: Imprisonment for 15 years.
Maximum penalty (aggravated offence): Imprisonment for 20
years.
Note 1: Section 71.23 defines UN enforcement
action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated
offence.
(2) Strict liability applies to paragraphs (1)(b)
and (c).
(3) In this section:
sexually penetrate means:
(a) penetrate (to any extent) the
genitalia or anus of a person by any part of the body of another person or by
any object manipulated by that other person; or
(b) penetrate (to any extent) the
mouth of a person by the penis of another person; or
(c) continue to sexually penetrate as
defined in paragraph (a) or (b).
(4) In this section, being reckless
as to a lack of consent to sexual penetration includes not giving any thought
to whether or not the person is consenting to sexual penetration.
(5) In this section, the genitalia or others
parts of the body of a person include surgically constructed genitalia or other
parts of the body of the person.
71.9
Kidnapping a UN or associated person
(1) A person is guilty of an offence if:
(a) the person takes or detains
another person without his or her consent; and
(b) that other person is a UN or
associated person; and
(c) the UN or associated person is
engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person
takes or detains the UN or associated person with the intention of:
(i) holding him or her to
ransom or as a hostage; or
(ii) taking or sending him
or her out of the country; or
(iii) committing a serious
offence against him or her or another person.
Maximum penalty: Imprisonment for 15 years.
Maximum penalty (aggravated offence): Imprisonment for 19
years.
Note 1: Section 71.23 defines UN enforcement
action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated
offence.
(2) Strict liability applies to paragraphs (1)(b)
and (c).
(3) In this section, serious offence means
an offence under a law of the Commonwealth, a State or Territory or a foreign
law the maximum penalty for which is death, or imprisonment for not less than
12 months.
71.10
Unlawful detention of UN or associated person
(1) A person is guilty of an offence if:
(a) the person takes or detains
another person without that other person’s consent; and
(b) that other person is a UN or
associated person; and
(c) the UN or associated person is engaged
in a UN operation that is not a UN enforcement action.
Maximum penalty: Imprisonment for 5 years.
Maximum penalty (aggravated offence): Imprisonment for 6
years.
Note 1: Section 71.23 defines UN enforcement
action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated
offence.
(2) Strict liability applies to paragraphs (1)(b)
and (c).
71.11
Intentionally causing damage to UN or associated person’s property etc.
(1) A person is guilty of an offence if:
(a) the person’s conduct causes damage
to official premises, private accommodation or a means of transportation (the property);
and
(b) the property is occupied or used
by a UN or associated person; and
(c) the conduct gives rise to a danger
of serious harm to a person; and
(d) that person is the UN or
associated person referred to in paragraph (b); and
(e) the UN or associated person is
engaged in a UN operation that is not a UN enforcement action; and
(f) the first‑mentioned person
intends to cause the damage to the property; and
(g) the first‑mentioned person
is reckless as to the danger to the person referred to in paragraph (c).
Maximum penalty: Imprisonment for 10 years.
Note: Section 71.23 defines UN
enforcement action, UN operation and UN or
associated person.
(2) Strict liability applies to paragraphs (1)(b),
(d) and (e).
71.12
Threatening to commit other offences
A person is guilty of an offence if the
person:
(a) threatens to commit an offence
(the threatened offence) under any of sections 71.2 to 71.11;
and
(b) intends to compel any other person
to do or omit to do an act by making the threat.
Maximum penalty:
(a) if the threatened offence is the
offence under section 71.2 (murder of a UN or associated
person)—imprisonment for 10 years; or
(b) if the threatened offence is the
offence under section 71.3, 71.4, 71.5, 71.8 or 71.9 (manslaughter of,
causing serious harm to, kidnapping, or sexually penetrating, a UN or
associated person)—imprisonment for 7 years; or
(c) if the threatened offence is the offence
under section 71.6 or 71.11 (causing harm to, or damaging the property
etc. of, a UN or associated person)—imprisonment for 5 years; or
(d) if the threatened offence is the
offence under section 71.7 or 71.10 (recklessly causing harm to, or
unlawful detention of, a UN or associated person)—imprisonment for 3 years.
Note: Section 71.23 defines UN or
associated person.
71.13
Aggravated offences
(1) For the purposes of this Division, an
offence against section 71.4, 71.5, 71.6, 71.7, 71.8, 71.9 or 71.10 is an aggravated
offence if:
(a) the offence was committed during
torture; or
(b) the offence was committed by the
use or threatened use of an offensive weapon; or
(c) the offence was committed against
a person in an abuse of authority.
(2) If the prosecution intends to prove an
aggravated offence, the charge must allege the relevant aggravated offence.
(3) In order to prove an aggravated offence,
the prosecution must prove that the defendant intended to commit, or was
reckless as to committing, the matters referred to in paragraph (1)(a),
(b) or (c).
(4) In this section:
offensive weapon includes:
(a) an article made or adapted for use
for causing injury to, or incapacitating, a person; or
(b) an article where the person who
has the article intends, or threatens to use, the article to cause injury to,
or to incapacitate, another person.
torture means the deliberate and systematic
infliction of severe pain over a period of time.
71.14
Defence—activities involving serious harm
A person is not criminally responsible
for an offence against section 71.4 or 71.5 if the conduct causing serious
harm to another person is engaged in by the first‑mentioned person:
(a) for the purpose of benefiting the
other person or in pursuance of a socially acceptable function or activity; and
(b) having regard to the purpose,
function or activity, the conduct was reasonable.
Note 1: If a person causes less than serious harm to
another person, the prosecution is obliged to prove that the harm was caused
without the consent of the person harmed (see for example section 71.6).
Note 2: A defendant bears an evidential burden in
relation to the matter in this section, see subsection 13.3(3).
71.15
Defence—medical or hygienic procedures
A person is not criminally responsible
for an offence against section 71.8 in respect of any sexual penetration
carried out in the course of a procedure in good faith for medical or hygienic
purposes.
Note: A defendant bears an evidential burden in
relation to the matter in this section, see subsection 13.3(3).
71.16
Jurisdictional requirement
(1) A person commits an offence under this
Division only if:
(a) the conduct constituting the
alleged offence occurs:
(i) wholly or partly in Australia;
or
(ii) wholly or partly on
board an Australian aircraft or an Australian ship; or
(b) the conduct constituting the
alleged offence occurs wholly outside Australia and:
(i) at the time of the
alleged offence, the person is an Australian citizen; or
(ii) at the time of the
alleged offence, the person is a body corporate incorporated by or under a law
of the Commonwealth or of a State or Territory; or
(iii) at the time of the
alleged offence, the person is a stateless person whose habitual residence is
in Australia; or
(iv) the conduct is subject
to the jurisdiction of another State Party to the Convention established in
accordance with paragraph 1 or 2 of article 10 and the person enters Australia;
or
(c) the alleged offence is committed
against an Australian citizen; or
(d) by engaging in the conduct
constituting the alleged offence, the person intends to compel a legislative,
executive or judicial institution of the Commonwealth, a State or a Territory
to do or omit to do an act.
(2) In this
section:
Australian aircraft means:
(a) an aircraft registered, or
required to be registered, under the Civil Aviation Regulations as an
Australian aircraft; or
(b) an aircraft (other than a defence
aircraft) that is owned by, or in the possession or control of, a Commonwealth
entity; or
(c) a defence aircraft.
Australian ship means:
(a) a ship registered, or required to
be registered, under the Shipping Registration Act 1981; or
(b) an unregistered ship that has
Australian nationality; or
(c) a defence ship.
defence aircraft means an aircraft of any part
of the Australian Defence Force, and includes an aircraft that is being
commanded or piloted by a member of that Force in the course of his or her
duties as such a member.
defence ship means a ship of any part of the
Australian Defence Force, and includes a ship that is being operated or
commanded by a member of that Force in the course of his or her duties as such
a member.
71.17
Exclusion of this Division if State/Territory laws provide for corresponding
offences
(1) A State or Territory court does not have
jurisdiction to determine a charge of an offence under this Division if
the conduct constituting the offence also constitutes an offence (the State
offence) against the law of that State or Territory.
(2) If:
(a) a prosecution is brought against a
person under this Division; and
(b) a court finds that there is a
corresponding State offence;
then this section does not prevent the person from being
prosecuted for the State offence.
71.18
Double jeopardy
If a person has been convicted or acquitted
of an offence in respect of conduct under the law of a foreign country, the
person cannot be convicted of an offence under this Division in respect of that
conduct.
71.19
Saving of other laws
This Division is not intended to exclude
or limit the operation of any other law of the Commonwealth or of a State or
Territory.
71.20
Bringing proceedings under this Division
(1) Proceedings for an offence under this
Division must not be commenced without the Attorney‑General’s written
consent.
(2) However, a person may be arrested,
charged, remanded in custody, or released on bail, in connection with an
offence under this Division before the necessary consent has been given.
71.21
Ministerial certificates relating to proceedings
(1) The Minister for Foreign Affairs may
issue a certificate stating any of the following matters:
(a) the Convention entered into force
for Australia on a specified day;
(b) the Convention remains in force
for Australia or any other State Party on a specified day;
(c) a matter relevant to the
establishment of jurisdiction by a State Party under paragraph 1 or 2 of
article 10 of the Convention;
(d) a matter relevant to whether a
person is or was a UN or associated person;
(e) a matter relevant to whether an
operation is or was a UN operation.
(2) The
Minister for Immigration and Multicultural Affairs may issue a certificate
stating that:
(a) a person is or was an Australian
citizen at a particular time; or
(b) a person is or was a stateless
person whose habitual residence is or was in Australia.
(3) In any proceedings, a certificate under
this section is prima facie evidence of the matters in the certificate.
71.22
Jurisdiction of State courts preserved
For the purposes of section 38 of
the Judiciary Act 1903, a matter arising under this Act, including a
question of interpretation of the Convention, is taken not to be a matter
arising directly under a treaty.
71.23
Definitions
(1) In this
Division:
associated personnel means:
(a) persons assigned by a government,
or an intergovernmental organisation, with the agreement of the competent organ
of the United Nations; or
(b) persons engaged by the Secretary‑General
of the United Nations, a specialised agency or the International Atomic Energy
Agency; or
(c) persons deployed by a humanitarian
non‑governmental organisation or agency under an agreement with the
Secretary‑General of the United Nations, a specialised agency or the
International Atomic Energy Agency;
to carry out activities in support of the fulfilment of
the mandate of a UN operation.
Convention means the Convention on the Safety
of United Nations and Associated Personnel, done at New York on 9 December 1994.
Note: The text of the Convention is set out in
Australian Treaty Series 1995 No. 1. In 2000 this was available in the
Australian Treaties Library of the Department of Foreign Affairs and Trade,
accessible on the Internet through that Department’s world‑wide web site.
UN enforcement action means a UN operation:
(a) that is authorised by the Security
Council as an enforcement action under Chapter VII of the Charter of the United
Nations; and
(b) in which any of the UN or
associated personnel are engaged as combatants against organised armed forces;
and
(c) to which the law of international
armed conflict applies.
UN operation means an operation established
by the competent organ of the United Nations in accordance with the Charter of
the United Nations and conducted under United Nations authority and control if:
(a) the operation is for the purpose
of maintaining or restoring international peace and security; or
(b) the Security Council or the
General Assembly has declared, for the purposes of the Convention, that there
exists an exceptional risk to the safety of the personnel engaged in the
operation.
UN or associated person means a person who is
a member of any UN personnel or associated personnel.
UN personnel means:
(a) persons engaged or deployed by the
Secretary‑General of the United Nations as members of the military,
police or civilian components of a UN operation; or
(b) any other officials or experts on
mission of the United Nations, its specialised agencies or the International
Atomic Energy Agency who are present in an official capacity in the area where
a UN operation is being conducted.
(2) In this Division, a person’s conduct causes
death or harm if it substantially contributes to the death or harm.
Division 72—International terrorist activities using explosive or lethal
devices
72.1
Purpose
The purpose of this Division is to
create offences relating to international terrorist activities using explosive
or lethal devices and give effect to the International Convention
for the Suppression of Terrorist Bombings, done at New York on 15 December 1997.
Note: The text of the Convention is available in the
Australian Treaties Library of the Department of Foreign Affairs and Trade,
accessible on the Internet through that Department’s world‑wide web site.
72.2
ADF members not liable for prosecution
Nothing in this Division makes a member
of the Australian Defence Force acting in connection with the defence or
security of Australia liable to be prosecuted for an offence.
72.3
Offences
(1) A person commits an offence if:
(a) the person intentionally delivers,
places, discharges or detonates a device; and
(b) the device is an explosive or
other lethal device and the person is reckless as to that fact; and
(c) the device is delivered, placed,
discharged, or detonated, to, in, into or against:
(i) a place of public use;
or
(ii) a government facility;
or
(iii) a public
transportation system; or
(iv) an infrastructure
facility; and
(d) the person intends to cause death
or serious harm.
Penalty: Imprisonment for life.
(2) A person
commits an offence if:
(a) the person intentionally delivers,
places, discharges or detonates a device; and
(b) the device is an explosive or
other lethal device and the person is reckless as to that fact; and
(c) the device is delivered, placed,
discharged, or detonated, to, in, into or against:
(i) a place of public use;
or
(ii) a government facility;
or
(iii) a public
transportation system; or
(iv) an infrastructure
facility; and
(d) the person intends to cause
extensive destruction to the place, facility or system; and
(e) the person is reckless as to
whether that intended destruction results or is likely to result in major
economic loss.
Penalty: Imprisonment for life.
(3) Strict liability applies to paragraphs (1)(c)
and (2)(c).
72.4
Jurisdictional requirement
(1) A person commits an offence under this
Division only if one or more of the following paragraphs applies and the
circumstances relating to the alleged offence are not exclusively internal (see
subsection (2)):
(a) the conduct constituting the
alleged offence occurs:
(i) wholly or partly in Australia;
or
(ii) wholly or partly on
board an Australian ship or an Australian aircraft;
(b) at the time of the alleged
offence, the person is an Australian citizen;
(c) at the time of the alleged
offence, the person is a stateless person whose habitual residence is in Australia;
(d) the conduct is subject to the
jurisdiction of another State Party to the Convention established in accordance
with paragraph 1 or 2 of Article 6 of the Convention and the person is in Australia;
(e) the alleged offence is committed
against a government facility of the Commonwealth, or of a State or Territory,
that is located outside Australia;
(f) the alleged offence is committed
against:
(i) an Australian citizen;
or
(ii) a body corporate
incorporated by or under a law of the Commonwealth or of a State or Territory;
(g) by engaging in the conduct
constituting the alleged offence, the person intends to compel a legislative,
executive or judicial institution of the Commonwealth, a State or a Territory
to do or omit to do an act.
(2) The circumstances relating to the alleged
offence are exclusively internal if:
(a) the conduct constituting the
alleged offence occurs wholly within Australia; and
(b) the alleged offender is an
Australian citizen; and
(c) all of the persons against whom
the offence is committed are Australian citizens or bodies corporate
incorporated by or under a law of the Commonwealth or of a State or Territory;
and
(d) the alleged offender is in Australia;
and
(e) no other State Party to the
Convention has a basis under paragraph 1 or 2 of Article 6 of the Convention
for exercising jurisdiction in relation to the conduct.
72.5
Saving of other laws
This Division is not intended to exclude
or limit the operation of any other law of the Commonwealth or of a State or
Territory.
72.6
Double jeopardy and foreign offences
If a person has been convicted or
acquitted of an offence in respect of conduct under the law of a foreign
country, the person cannot be convicted of an offence under this Division in
respect of that conduct.
72.7
Bringing proceedings under this Division
(1) Proceedings for an offence under this
Division must not be commenced without the Attorney‑General’s written
consent.
(2) However, a person may be arrested,
charged, remanded in custody, or released on bail, in connection with an
offence under this Division before the necessary consent has been given.
(3) In determining whether to bring
proceedings for an offence under this Division, the Attorney‑General must
have regard to the terms of the Convention, including paragraph 2 of Article
19.
(4) In determining whether to bring
proceedings for an offence under this Division, the Attorney‑General must
also have regard to:
(a) whether the conduct constituting
the offence also gives rise to an offence under a law of a State or Territory;
and
(b) whether a prosecution relating to
the conduct under the State or Territory law has been or will be commenced.
72.8
Ministerial certificates relating to proceedings
(1) The Minister administering the Charter
of the United Nations Act 1945 may issue a certificate stating any of
the following matters:
(a) that the Convention entered into
force for Australia on a specified day;
(b) that the Convention remains in
force for Australia or any other State Party on a specified day;
(c) a matter relevant to the
establishment of jurisdiction by a State Party under paragraph 1 or 2 of
Article 6 of the Convention.
(2) The Minister administering the Australian
Citizenship Act 2007 may issue a certificate stating that:
(a) a person is or was an Australian
citizen at a particular time; or
(b) a person is or was a stateless
person whose habitual residence is or was in Australia at a particular time.
(3) In any proceedings, a certificate under
this section is prima facie evidence of the matters in the certificate.
72.9
Jurisdiction of State courts preserved
For the purposes of section 38 of
the Judiciary Act 1903, a matter arising under this Division, including
a question of interpretation of the Convention, is taken not to be a matter
arising directly under a treaty.
72.10
Definitions
In this Division:
Convention means the Convention referred to
in section 72.1.
explosive or other lethal device has the same
meaning as in the Convention.
government facility has the same meaning as State
or government facility has in the Convention.
infrastructure facility has the same meaning
as in the Convention.
place of public use has the same meaning as
in the Convention.
public transportation system has the same
meaning as in the Convention.
Division 73—People smuggling and related offences
Subdivision A—People smuggling
offences
73.1
Offence of people smuggling
(1) A person (the first person)
is guilty of an offence if:
(a) the first person organises or
facilitates the entry of another person (the other person) into a
foreign country (whether or not via Australia); and
(b) the entry of the other person into
the foreign country does not comply with the requirements under that country’s
law for entry into the country; and
(c) the other person is not a citizen
or permanent resident of the foreign country; and
(d) the first person organises or
facilitates the entry:
(i) having obtained
(whether directly or indirectly) a benefit to do so; or
(ii) with the intention of
obtaining (whether directly or indirectly) a benefit.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or
both.
(2) Absolute liability applies to the paragraph (1)(c)
element of the offence.
(3) For the purposes of this Code, an offence
against subsection (1) is to be known as the offence of people smuggling.
73.2
Aggravated offence of people smuggling (exploitation etc.)
(1) A person (the first person)
is guilty of an offence if the first person commits the offence of people
smuggling in relation to another person (the victim) and any of
the following applies:
(a) the first person commits the
offence intending that the victim will be exploited after entry into the
foreign country (whether by the first person or another);
(b) in committing the offence, the
first person subjects the victim to cruel, inhuman or degrading treatment;
(c) in committing the offence, the
first person’s conduct:
(i) gives rise to a danger
of death or serious harm to the victim; and
(ii) the first person is
reckless as to the danger of death or serious harm to the victim that arises
from the conduct.
Penalty: Imprisonment for 20 years or 2,000 penalty units, or
both.
(3) In this section:
forced labour means the condition of a person
who provides labour or services (other than sexual services) and who, because
of the use of force or threats:
(a) is not free to cease providing
labour or services; or
(b) is not free to leave the place or
area where the person provides labour or services.
sexual servitude has the same meaning as in
Division 270.
slavery has the same meaning as in Division 270.
threat means:
(a) a threat of force; or
(b) a threat to cause a person’s
deportation; or
(c) a threat of any other detrimental
action unless there are reasonable grounds for the threat of that action in
connection with the provision of labour or services by a person.
73.3
Aggravated offence of people smuggling (at least 5 people)
(1) A person (the first person)
is guilty of an offence if:
(a) the first person organises or
facilitates the entry of a group of at least 5 persons (the other persons)
into a foreign country (whether or not via Australia); and
(b) the entry of at least 5 of the
other persons into the foreign country does not comply with the requirements
under that country’s law for entry into that country; and
(c) at least 5 of the other persons
whose entry into the foreign country is covered by paragraph (b) are not
citizens or permanent residents of the foreign country; and
(d) the first person organises or
facilitates the entry:
(i) having obtained
(whether directly or indirectly) a benefit to do so; or
(ii) with the intention of
obtaining (whether directly or indirectly) a benefit.
Penalty: Imprisonment for 20 years or 2,000 penalty units, or
both.
(2) Absolute liability applies to the paragraph (1)(c)
element of the offence.
(3) If, on a trial for an offence against subsection (1),
the trier of fact is not satisfied that the defendant is guilty of that
offence, but is satisfied beyond reasonable doubt that the defendant is guilty
of an offence against subsection 73.1(1), the trier of fact may find the
defendant not guilty of an offence against subsection (1) but guilty of an
offence against subsection 73.1(1), so long as the defendant has been accorded
procedural fairness in relation to that finding of guilt.
73.4
Jurisdictional requirement
A person commits an offence against this
Subdivision only if:
(a) both:
(i) the person is an
Australian citizen or a resident of Australia; and
(ii) the conduct constituting
the alleged offence occurs wholly outside Australia; or
(b) both:
(i) the conduct
constituting the alleged offence occurs wholly or partly in Australia; and
(ii) a result of the
conduct occurs, or is intended by the person to occur, outside Australia.
73.5
Attorney‑General’s consent required
(1) Proceedings for an offence against this
Subdivision must not be commenced without the Attorney‑General’s written
consent.
(2) However, a person may be arrested,
charged, remanded in custody or released on bail in connection with an offence
against this Subdivision before the necessary consent has been given.
Subdivision B—Document offences
related to people smuggling and unlawful entry into foreign countries
73.6
Meaning of travel or identity document
(1) For the purposes of this Subdivision, a
document is a travel or identity document if it is:
(a) a travel document; or
(b) an identity document.
73.7
Meaning of false travel or identity document
(1) For the purposes of this Subdivision, a
travel or identity document is a false travel or identity document if,
and only if:
(a) the document, or any part of the
document:
(i) purports to have been
made in the form in which it is made by a person who did not make it in that
form; or
(ii) purports
to have been made in the form in which it is made on the authority of a person
who did not authorise its making in that form; or
(b) the document, or any part of the
document:
(i) purports to have been
made in the terms in which it is made by a person who did not make it in those
terms; or
(ii) purports to have been
made in the terms in which it is made on the authority of a person who did not
authorise its making in those terms; or
(c) the document, or any part of the
document:
(i) purports to have been altered in any respect
by a person who did not alter it in that respect; or
(ii) purports to have been
altered in any respect on the authority of a person who did not authorise its
alteration in that respect; or
(d) the document, or any part of the
document:
(i) purports
to have been made or altered by a person who did not exist; or
(ii) purports to have been
made or altered on the authority of a person who did not exist; or
(e) the document, or any part of the
document, purports to have been made or altered on a date on which, at a time
at which, at a place at which, or otherwise in circumstances in which, it was
not made or altered.
(2) For the purposes of this Subdivision, a
person is taken to make a false travel or identity document if
the person alters a document so as to make it a false travel or identity
document (whether or not it was already a false travel or identity document
before the alteration).
(3) This section has effect as if a document
that purports to be a true copy of another document were the original document.
73.8
Making, providing or possessing a false travel or identity document
A person (the first person)
is guilty of an offence if:
(a) the first person makes, provides
or possesses a false travel or identity document; and
(b) the first person intends that the
document will be used to facilitate the entry of another person (the other
person) into a foreign country, where the entry of the other person
into the foreign country would not comply with the requirements under that country’s
law for entry into the country; and
(c) the first person made, provided or
possessed the document:
(i) having obtained
(whether directly or indirectly) a benefit to do so; or
(ii) with the intention of
obtaining (whether directly or indirectly) a benefit.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or
both.
73.9
Providing or possessing a travel or identity document issued or altered
dishonestly or as a result of threats
(1) A person (the first person)
is guilty of an offence if:
(a) the first person provides or
possesses a travel or identity document; and
(b) the first person knows that:
(i) the issue of the
travel or identity document; or
(ii) an alteration of the
travel or identity document;
has been obtained dishonestly or
by threats; and
(c) the first person intends that the
document will be used to facilitate the entry of another person (the other
person) into a foreign country, where the entry of the other person
into the foreign country would not comply with the requirements under that
country’s law for entry into the country; and
(d) the first person provided or
possessed the document:
(i) having obtained
(whether directly or indirectly) a benefit to do so; or
(ii) with the intention of
obtaining (whether directly or indirectly) a benefit.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or
both.
(2) For the purposes of subsection (1),
a threat may be:
(a) express or implied; or
(b) conditional or unconditional.
(3) For the purposes of subsection (1), dishonest
means:
(a) dishonest according to the
standards of ordinary people; and
(b) known by the defendant to be
dishonest according to the standards of ordinary people.
(4) In a prosecution for an offence against
this section, the determination of dishonesty is a matter for the trier of
fact.
73.10
Providing or possessing a travel or identity document to be used by a person
who is not the rightful user
A person (the first person)
is guilty of an offence if:
(a) the first person provides or
possesses a travel or identity document; and
(b) the first person intends that the
document will be used to facilitate the entry of another person (the other
person) into a foreign country, where the entry of the other person
into the foreign country would not comply with the requirements under that
country’s law for entry into the country; and
(c) the first person knows that the
other person is not the person to whom the document applies; and
(d) the first person provided or
possessed the document:
(i) having obtained
(whether directly or indirectly) a benefit to do so; or
(ii) with the intention of
obtaining (whether directly or indirectly) a benefit.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or
both.
73.11
Taking possession of or destroying another person’s travel or identity document
A person (the first person)
is guilty of an offence if:
(a) the first person takes possession
of, or destroys, a travel or identity document that applies to another person
(the other person); and
(b) the first person does so intending
to conceal the other person’s identity or nationality; and
(c) at the time of doing so, the first
person intends to organise or facilitate the entry of the other person into a
foreign country:
(i) having obtained, or
with the intention of obtaining, whether directly or indirectly, a benefit to
organise or facilitate that entry; and
(ii) where the entry of the
other person into the foreign country would not comply with the requirements
under that country’s law for entry into the country.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or
both.
73.12
Jurisdictional requirement
Section 15.2 (extended geographical
jurisdiction—category B) applies to an offence against this Subdivision.
Chapter 5—The security of the Commonwealth
Part 5.1—Treason and sedition
Division 80—Treason and sedition
80.1A
Definition of organisation
In this Division:
organisation means:
(a) a body corporate; or
(b) an unincorporated body;
whether or not the body is based outside Australia,
consists of persons who are not Australian citizens, or is part of a larger
organisation.
80.1
Treason
(1) A person commits an offence, called
treason, if the person:
(a) causes the death of the Sovereign,
the heir apparent of the Sovereign, the consort of the Sovereign, the Governor‑General
or the Prime Minister; or
(b) causes harm to the Sovereign, the
Governor‑General or the Prime Minister resulting in the death of the
Sovereign, the Governor‑General or the Prime Minister; or
(c) causes harm to the Sovereign, the
Governor‑General or the Prime Minister, or imprisons or restrains the
Sovereign, the Governor‑General or the Prime Minister; or
(d) levies war, or does any act
preparatory to levying war, against the Commonwealth; or
(e) engages in conduct that assists by
any means whatever, with intent to assist, an enemy:
(i) at war with the
Commonwealth, whether or not the existence of a state of war has been declared;
and
(ii) specified by
Proclamation made for the purpose of this paragraph to be an enemy at war with
the Commonwealth; or
(f) engages in conduct that assists
by any means whatever, with intent to assist:
(i) another country; or
(ii) an organisation;
that is engaged in armed
hostilities against the Australian Defence Force; or
(g) instigates a person who is not an
Australian citizen to make an armed invasion of the Commonwealth or a Territory
of the Commonwealth; or
(h) forms an intention to do any act
referred to in a preceding paragraph and manifests that intention by an overt
act.
Penalty: Imprisonment for life.
(1A) Paragraphs (1)(e)
and (f) do not apply to engagement in conduct by way of, or for the purposes
of, the provision of aid of a humanitarian nature.
Note 1 A defendant
bears an evidential burden in relation to the matter in subsection (1A).
See subsection 13.3(3).
Note 2: There is a defence in section 80.3 for
acts done in good faith.
(1B) Paragraph (1)(h)
does not apply to formation of an intention to engage in conduct that:
(a) is
referred to in paragraph (1)(e) or (f); and
(b) is
by way of, or for the purposes of, the provision of aid of a humanitarian
nature.
Note: A
defendant bears an evidential burden in relation to the matter in subsection (1B).
See subsection 13.3(3).
(2) A person commits an offence if the person:
(a) receives or assists another person
who, to his or her knowledge, has committed treason with the intention of
allowing him or her to escape punishment or apprehension; or
(b) knowing that another person
intends to commit treason, does not inform a constable of it within a
reasonable time or use other reasonable endeavours to prevent the commission of
the offence.
Penalty: Imprisonment for life.
(5) On the trial of a person charged with
treason on the ground that he or she formed an intention to do an act referred
to in paragraph (1)(a), (b), (c), (d), (e), (f) or (g) and manifested that
intention by an overt act, evidence of the overt act is not to be admitted
unless the overt act is alleged in the indictment.
(8) In this section:
constable means a member or special member of
the Australian Federal Police or a member of the police force or police service
of a State or Territory.
80.2
Sedition
Urging the overthrow of the Constitution or Government
(1) A person commits an offence if the person
urges another person to overthrow by force or violence:
(a) the Constitution; or
(b) the Government of the
Commonwealth, a State or a Territory; or
(c) the lawful authority of the
Government of the Commonwealth.
Penalty: Imprisonment for 7 years.
(2) Recklessness applies to the element of
the offence under subsection (1) that it is:
(a) the Constitution; or
(b) the Government of the
Commonwealth, a State or a Territory; or
(c) the lawful authority of the
Government of the Commonwealth;
that the first‑mentioned person urges the other
person to overthrow.
Urging interference in Parliamentary elections
(3) A person commits an offence if the person
urges another person to interfere by force or violence with lawful processes
for an election of a member or members of a House of the Parliament.
Penalty: Imprisonment for 7 years.
(4) Recklessness applies to the element of
the offence under subsection (3) that it is lawful processes for an
election of a member or members of a House of the Parliament that the first‑mentioned
person urges the other person to interfere with.
Urging violence within the community
(5) A person commits an offence if:
(a) the person urges a group or groups
(whether distinguished by race, religion, nationality or political opinion) to
use force or violence against another group or other groups (as so
distinguished); and
(b) the use of the force or violence
would threaten the peace, order and good government of the Commonwealth.
Penalty: Imprisonment for 7 years.
(6) Recklessness applies to the element of
the offence under subsection (5) that it is a group or groups that are
distinguished by race, religion, nationality or political opinion that the
first‑mentioned person urges the other person to use force or violence
against.
Urging a person to assist the enemy
(7) A person commits an offence if:
(a) the person urges another person to
engage in conduct; and
(b) the first‑mentioned person
intends the conduct to assist an organisation or country; and
(c) the organisation or country is:
(i) at war with the
Commonwealth, whether or not the existence of a state of war has been declared;
and
(ii) specified by
Proclamation made for the purpose of paragraph 80.1(1)(e) to be an enemy at war
with the Commonwealth.
Penalty: Imprisonment for 7 years.
Urging a person to assist those engaged in armed
hostilities
(8) A person
commits an offence if:
(a) the person urges another person to
engage in conduct; and
(b) the first‑mentioned person
intends the conduct to assist an organisation or country; and
(c) the organisation or country is
engaged in armed hostilities against the Australian Defence Force.
Penalty: Imprisonment for 7 years.
Defence
(9) Subsections (7) and (8) do not apply
to engagement in conduct by way of, or for the purposes of, the provision of
aid of a humanitarian nature.
Note 1: A defendant bears an evidential burden in
relation to the matter in subsection (9). See subsection 13.3(3).
Note 2: There is a defence in section 80.3 for
acts done in good faith.
80.3
Defence for acts done in good faith
(1) Sections 80.1 and 80.2 do not apply
to a person who:
(a) tries in good faith to show that
any of the following persons are mistaken in any of his or her counsels,
policies or actions:
(i) the Sovereign;
(ii) the Governor‑General;
(iii) the Governor of a
State;
(iv) the Administrator of a
Territory;
(v) an adviser of any of
the above;
(vi) a person responsible
for the government of another country; or
(b) points out in good faith errors or
defects in the following, with a view to reforming those errors or defects:
(i) the Government of the
Commonwealth, a State or a Territory;
(ii) the Constitution;
(iii) legislation of the
Commonwealth, a State, a Territory or another country;
(iv) the administration of
justice of or in the Commonwealth, a State, a Territory or another country; or
(c) urges in good faith another person
to attempt to lawfully procure a change to any matter established by law,
policy or practice in the Commonwealth, a State, a Territory or another
country; or
(d) points out in good faith any
matters that are producing, or have a tendency to produce, feelings of ill‑will
or hostility between different groups, in order to bring about the removal of
those matters; or
(e) does anything in good faith in
connection with an industrial dispute or an industrial matter; or
(f) publishes in good faith a report
or commentary about a matter of public interest.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (1). See subsection 13.3(3).
(2) In considering a defence under
subsection (1), the Court may have regard to any relevant matter,
including whether the acts were done:
(a) for a purpose intended to be
prejudicial to the safety or defence of the Commonwealth; or
(b) with the intention of assisting an
enemy:
(i) at war with the
Commonwealth; and
(ii) specified by
Proclamation made for the purpose of paragraph 80.1(1)(e) to be an enemy at war
with the Commonwealth; or
(c) with the intention of assisting
another country, or an organisation, that is engaged in armed hostilities
against the Australian Defence Force; or
(d) with the intention of assisting a
proclaimed enemy of a proclaimed country (within the meaning of subsection
24AA(4) of the Crimes Act 1914); or
(e) with the intention of assisting
persons specified in paragraphs 24AA(2)(a) and (b) of the Crimes Act 1914;
or
(f) with the intention of causing
violence or creating public disorder or a public disturbance.
80.4
Extended geographical jurisdiction for offences
Section 15.4 (extended geographical
jurisdiction—category D) applies to an offence against this Division.
80.5
Attorney‑General’s consent required
(1) Proceedings for an offence against this
Division must not be commenced without the Attorney‑General’s written
consent.
(2) Despite subsection (1):
(a) a person may be arrested for an
offence against this Division; or
(b) a warrant for the arrest of a
person for such an offence may be issued and executed;
and the person may be charged, and may be remanded in custody
or on bail, but:
(c) no further proceedings may be
taken until that consent has been obtained; and
(d) the person must be discharged if
proceedings are not continued within a reasonable time.
80.6
Division not intended to exclude State or Territory law
It is the intention of the Parliament
that this Division is not to apply to the exclusion of a law of a State or a
Territory to the extent that the law is capable of operating concurrently with
this Division.
Part 5.2—Offences relating to espionage and similar activities
Division 90—Preliminary
90.1
Definitions
(1) In this Part:
article includes any thing, substance or
material.
information means information of any kind,
whether true or false and whether in a material form or not, and includes:
(a) an opinion; and
(b) a report of a conversation.
intelligence or security agency has the
meaning given by section 85ZL of the Crimes Act 1914.
Record, in relation to information, means a
record of information in any form, including but not limited to, a document,
paper, database, software system or other article or system containing
information or from which information can be derived.
security or defence of a country includes the
operations, capabilities and technologies of, and methods and sources used by,
the country’s intelligence or security agencies.
sketch includes a representation of a place
or thing.
the Commonwealth includes the Territories.
(2) In this Part, unless the contrary
intention appears:
(a) expressions referring to
obtaining, recording, using, having in possession, communicating or retaining
include obtaining, recording, using, having in possession, communicating or
retaining in whole or in part, and whether the thing or information itself, or
only the substance, effect or description of the thing or information, is
obtained, recorded, used, possessed, communicated or retained; and
(b) a reference to a sketch, document
or article or to information is to be read as including a reference to a copy
of, a part of or a copy of a part of a sketch, document or article or
information.
(3) For the purposes of this Part, a place
that is occupied by, or a thing that is under the control of, the Commonwealth
is taken to belong to the Commonwealth.
(4) This Part applies to and in relation to a
document or article regardless of who made it and what information it contains.
Division 91—Offences relating to espionage and similar activities
91.1
Espionage and similar activities
(1) A person commits an offence if:
(a) the person communicates, or makes
available:
(i) information concerning
the Commonwealth’s security or defence; or
(ii) information concerning
the security or defence of another country, being information that the person
acquired (whether directly or indirectly) from the Commonwealth; and
(b) the person does so intending to
prejudice the Commonwealth’s security or defence; and
(c) the person’s act results in, or is
likely to result in, the information being communicated or made available to
another country or a foreign organisation, or to a person acting on behalf of
such a country or organisation.
Penalty: Imprisonment for 25 years.
(2) A person commits an offence if:
(a) the person communicates, or makes
available:
(i) information concerning
the Commonwealth’s security or defence; or
(ii) information concerning
the security or defence of another country, being information that the person
acquired (whether directly or indirectly) from the Commonwealth; and
(b) the person does so:
(i) without lawful
authority; and
(ii) intending to give an
advantage to another country’s security or defence; and
(c) the person’s act results in, or is
likely to result in, the information being communicated or made available to
another country or a foreign organisation, or to a person acting on behalf of
such a country or organisation.
Penalty: Imprisonment for 25 years.
(3) A person commits an offence if:
(a) the person makes, obtains or
copies a record (in any form) of:
(i) information concerning
the Commonwealth’s security or defence; or
(ii) information concerning
the security or defence of another country, being information that the person
acquired (whether directly or indirectly) from the Commonwealth; and
(b) the person does so:
(i) intending that the
record will, or may, be delivered to another country or a foreign organisation,
or to a person acting on behalf of such a country or organisation; and
(ii) intending to prejudice
the Commonwealth’s security or defence.
Penalty: Imprisonment for 25 years.
(4) A person commits an offence if:
(a) the person makes, obtains or
copies a record (in any form) of:
(i) information concerning
the Commonwealth’s security or defence; or
(ii) information concerning
the security or defence of another country, being information that the person
acquired (whether directly or indirectly) from the Commonwealth; and
(b) the person does so:
(i) without lawful
authority; and
(ii) intending that the
record will, or may, be delivered to another country or a foreign organisation,
or to a person acting on behalf of such a country or organisation; and
(iii) intending to give an
advantage to another country’s security or defence.
Penalty: Imprisonment for 25 years.
(5) For the purposes of subparagraphs (3)(b)(i)
and (4)(b)(ii), the person concerned does not need to have a particular
country, foreign organisation or person in mind at the time when the person
makes, obtains or copies the record.
(6) A person charged with an offence under
this section may only be remanded on bail by a judge of the Supreme Court of a
State or Territory. This subsection has effect despite anything in section 93.1.
Note: Section 93.1 deals with how a prosecution
is instituted.
(7) Section 15.4 of the Criminal Code
(extended geographical jurisdiction—category D) applies to offences under this
section.
91.2
Defence—information lawfully available
(1) It is a defence to a prosecution of an
offence against subsection 91.1(1) or (2) that the information the person
communicates or makes available is information that has already been communicated
or made available to the public with the authority of the Commonwealth.
(2) It is a defence to a prosecution of an
offence against subsection 91.1(3) or (4) that the record of information the
person makes, obtains or copies is a record of information that has already
been communicated or made available to the public with the authority of the
Commonwealth.
Note: A defendant bears an evidential burden in
relation to the matters in subsections (1) and (2). See subsection
13.3(3).
Division 93—Prosecutions and hearings
93.1
Institution of prosecution
(1) A prosecution under this Part may be
instituted only by, or with the consent of, the Attorney‑General or a
person acting under the Attorney‑General’s direction.
(2) However:
(a) a person charged with an offence
against this Part may be arrested, or a warrant for his or her arrest may be
issued and executed; and
(b) such a person may be remanded in
custody or on bail;
even if the consent of the Attorney‑General or a
person acting under his or her direction has not been obtained, but no further
proceedings are to be taken until that consent has been obtained.
(3) Nothing in this section prevents the
discharging of the accused if proceedings are not continued within a reasonable
time.
93.2
Hearing in camera etc.
(1) This section applies to a hearing of an
application or other proceedings before a federal court, a court exercising
federal jurisdiction or a court of a Territory, whether under this Act or
otherwise.
(2) At any time before or during the hearing,
the judge or magistrate, or other person presiding or competent to preside over
the proceedings, may, if satisfied that it is in the interest of the security
or defence of the Commonwealth:
(a) order that some or all of the
members of the public be excluded during the whole or a part of the hearing; or
(b) order that no report of the whole
or a specified part of, or relating to, the application or proceedings be
published; or
(c) make such order and give such
directions as he or she thinks necessary for ensuring that no person, without
the approval of the court, has access (whether before, during or after the
hearing) to any affidavit, exhibit, information or other document used in the
application or the proceedings that is on the file in the court or in the
records of the court.
(3) A person
commits an offence if the person contravenes an order made or direction given
under this section.
Penalty: Imprisonment for 5 years.
Division 94—Forfeiture
94.1
Forfeiture of articles etc.
A sketch, article, record or document
which is made, obtained, recorded, retained, forged, possessed or otherwise
dealt with in contravention of this Part is forfeited to the Commonwealth.
Part 5.3—Terrorism
Division 100—Preliminary
100.1
Definitions
(1) In this Part:
AFP member means:
(a) a member of the Australian Federal
Police (within the meaning of the Australian Federal Police Act 1979);
or
(b) a special member of the Australian
Federal Police (within the meaning of that Act).
Commonwealth place has the same meaning as in
the Commonwealth Places (Application of Laws) Act 1970.
confirmed control order means an order made
under section 104.16.
constitutional corporation means a
corporation to which paragraph 51(xx) of the Constitution applies.
continued preventative detention order means
an order made under section 105.12.
control order means an interim control order
or a confirmed control order.
corresponding State preventative detention law
means a law of a State or Territory that is, or particular provisions of a law
of a State or Territory that are, declared by the regulations to correspond to
Division 105 of this Act.
express amendment of the provisions of this
Part or Chapter 2 means the direct amendment of the provisions (whether by
the insertion, omission, repeal, substitution or relocation of words or
matter).
frisk search means:
(a) a search of a person conducted by
quickly running the hands over the person’s outer garments; and
(b) an examination of anything worn or
carried by the person that is conveniently and voluntarily removed by the
person.
funds means:
(a) property and assets of every kind,
whether tangible or intangible, movable or immovable, however acquired; and
(b) legal documents or instruments in
any form, including electronic or digital, evidencing title to, or interest in,
such property or assets, including, but not limited to, bank credits,
travellers cheques, bank cheques, money orders, shares, securities, bonds, debt
instruments, drafts and letters of credit.
identification material, in relation to a
person, means prints of the person’s hands, fingers, feet or toes, recordings
of the person’s voice, samples of the person’s handwriting or photographs
(including video recordings) of the person, but does not include tape
recordings made for the purposes of section 23U or 23V of the Crimes
Act 1914.
initial preventative detention order means an
order made under section 105.8.
interim control order means an order made
under section 104.4, 104.7 or 104.9.
issuing authority:
(a) for initial preventative detention
orders—means a senior AFP member; and
(b) for continued preventative
detention orders—means a person appointed under section 105.2.
issuing court means:
(a) the Federal Court of Australia; or
(b) the Family Court of Australia; or
(c) the Federal Magistrates Court.
Judge means a Judge of a court created by the
Parliament.
lawyer means a person enrolled as a legal
practitioner of a federal court or the Supreme Court of a State or Territory.
listed terrorist organisation means an
organisation that is specified by the regulations for the purposes of
paragraph (b) of the definition of terrorist organisation in
section 102.1.
ordinary search means a search of a person or
of articles in the possession of a person that may include:
(a) requiring the person to remove his
or her overcoat, coat or jacket and any gloves, shoes or hat; and
(b) an examination of those items.
organisation means a body corporate or an
unincorporated body, whether or not the body:
(a) is based outside Australia; or
(b) consists of persons who are not
Australian citizens; or
(c) is part of a larger organisation.
police officer means:
(a) an AFP member; or
(b) a member (however described) of a
police force of a State or Territory.
prescribed authority has the same meaning as
in Division 3 of Part III of the Australian Security Intelligence
Organisation Act 1979.
preventative detention order means an order
under section 105.8 or 105.12.
prohibited contact order means an order made
under section 105.15 or 105.16.
referring State has the meaning given by section 100.2.
seizable item means anything that:
(a) would present a danger to a
person; or
(b) could be used to assist a person
to escape from lawful custody; or
(c) could be used to contact another
person or to operate a device remotely.
senior AFP member means:
(a) the Commissioner of the Australian
Federal Police; or
(b) a Deputy Commissioner of the
Australian Federal Police; or
(c) an AFP member of, or above, the
rank of Superintendent.
superior court means:
(a) the High Court; or
(b) the Federal Court of Australia; or
(c) the Family Court of Australia or
of a State; or
(d) the Supreme Court of a State or
Territory; or
(e) the District Court (or equivalent)
of a State or Territory.
terrorist act means an action or threat of action where:
(a) the
action falls within subsection (2) and does not fall within subsection (3);
and
(b) the
action is done or the threat is made with the intention of advancing a
political, religious or ideological cause; and
(c) the action is done or the threat
is made with the intention of:
(i) coercing,
or influencing by intimidation, the
government of the Commonwealth or a State, Territory or foreign country, or of
part of a State, Territory or foreign country; or
(ii) intimidating the
public or a section of the public.
tracking device means any electronic device
capable of being used to determine or monitor the location of a person or an
object or the status of an object.
(2) Action falls within this subsection if
it:
(a) causes serious harm that is
physical harm to a person; or
(b) causes serious damage to property;
or
(c) causes
a person’s death; or
(d) endangers a person’s life, other
than the life of the person taking the action; or
(e) creates a serious risk to the
health or safety of the public or a section of the public; or
(f) seriously interferes with,
seriously disrupts, or destroys, an electronic system including, but not
limited to:
(i) an information system;
or
(ii) a telecommunications
system; or
(iii) a financial system; or
(iv) a system used for the
delivery of essential government services; or
(v) a system used for, or
by, an essential public utility; or
(vi) a system used for, or
by, a transport system.
(3) Action
falls within this subsection if it:
(a) is
advocacy, protest, dissent or industrial action; and
(b) is
not intended:
(i) to
cause serious harm that is physical harm to a person; or
(ii) to
cause a person’s death; or
(iii) to
endanger the life of a person, other than the person taking the action; or
(iv) to
create a serious risk to the health or safety of the public or a section of the
public.
(4) In this
Division:
(a) a reference to any person or
property is a reference to any person or property wherever situated, within or
outside Australia; and
(b) a reference to the public includes
a reference to the public of a country other than Australia.
100.2
Referring States
(1) A State is a referring State
if the Parliament of the State has referred the matters covered by subsections (2)
and (3) to the Parliament of the Commonwealth for the purposes of paragraph
51(xxxvii) of the Constitution:
(a) if and to the extent that the
matters are not otherwise included in the legislative powers of the Parliament
of the Commonwealth (otherwise than by a reference under paragraph 51(xxxvii)
of the Constitution); and
(b) if and to the extent that the
matters are included in the legislative powers of the Parliament of the State.
This subsection has
effect subject to subsection (5).
(2) This subsection covers the matters to
which the referred provisions relate to the extent of making laws with respect
to those matters by including the referred provisions in this Code.
(3) This subsection covers the matter of
terrorist acts, and of actions relating to terrorist acts, to the extent of
making laws with respect to that matter by making express amendment of this
Part or Chapter 2.
(4) A State is a referring State even
if a law of the State provides that the reference to the Commonwealth
Parliament of either or both of the matters covered by subsections (2) and
(3) is to terminate in particular circumstances.
(5) A
State ceases to be a referring State if a reference by the State of either or
both of the matters covered by subsections (2) and (3) terminate.
(6) In this section:
referred provisions means the provisions of
Part 5.3 of this Code as inserted by the Criminal Code Amendment
(Terrorism) Act 2002, to the extent to which they deal with matters that
are included in the legislative powers of the Parliaments of the States.
100.3
Constitutional basis for the operation of this Part
Operation in a referring State
(1) The operation of this Part in a referring
State is based on:
(a) the legislative powers that the
Commonwealth Parliament has under section 51 of the Constitution (other
than paragraph 51(xxxvii)); and
(b) the legislative powers that the
Commonwealth Parliament has in respect of matters to which this Part relates
because those matters are referred to it by the Parliament of the referring
State under paragraph 51(xxxvii) of the Constitution.
Note: The State reference fully supplements the
Commonwealth Parliament’s other powers by referring the matters to the
Commonwealth Parliament to the extent to which they are not otherwise included
in the legislative powers of the Commonwealth Parliament.
Operation in a non‑referring State
(2) The operation of this Part in a State
that is not a referring State is based on the legislative powers that the
Commonwealth Parliament has under section 51 of the Constitution (other
than paragraph 51(xxxvii)).
Note: Subsection 100.4(5) identifies particular
powers that are being relied on.
Operation in a Territory
(3) The operation of this Part in the Northern
Territory, the Australian Capital Territory or an external Territory is based
on:
(a) the legislative powers that the
Commonwealth Parliament has under section 122 of the Constitution to make
laws for the government of that Territory; and
(b) the legislative powers that the
Commonwealth Parliament has under section 51 of the Constitution (other
than paragraph 51(xxxvii)).
Despite subsection 22(3) of the Acts Interpretation Act
1901, this Part as applying in those Territories is a law of the
Commonwealth.
Operation outside Australia
(4) The operation of this Part outside Australia
and the external Territories is based on:
(a) the legislative powers that the
Commonwealth Parliament has under paragraph 51(xxix) of the Constitution; and
(b) the other legislative powers that
the Commonwealth Parliament has under section 51 of the Constitution
(other than paragraph 51(xxxvii)).
100.4 Application of provisions
Part generally applies to all terrorist acts and
preliminary acts
(1) Subject to subsection (4), this Part
applies to the following conduct:
(a) all actions or threats of action
that constitute terrorist acts (no matter where the action occurs, the threat
is made or the action, if carried out, would occur);
(b) all actions (preliminary
acts) that relate to terrorist acts but do not themselves constitute
terrorist
