Criminal Code Act 1995
Act No. 12 of 1995 as amended
This compilation was prepared on 26 May 2009
taking into account amendments up to Act No. 33 of 2009
The text of any of those
amendments not in force
on that date is appended in the Notes section
The operation of amendments that
have been incorporated may be
affected by application provisions that are set out in the Notes section
Prepared by the Office of
Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra
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.......... 52
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—Explosives and lethal devices 71
Subdivision A—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 Subdivision.................................... 74
72.8....... Ministerial certificates relating to proceedings................................. 74
72.9....... Jurisdiction of State courts preserved.............................................. 75
72.10..... Definitions........................................................................................ 75
Subdivision B—Plastic explosives 75
72.11..... Purpose............................................................................................. 75
72.12..... Trafficking in unmarked plastic explosives etc................................. 75
72.13..... Importing or exporting unmarked plastic explosives etc.................. 76
72.14..... Manufacturing unmarked plastic explosives etc............................... 76
72.15..... Possessing unmarked plastic explosives etc..................................... 77
72.16..... Defences........................................................................................... 77
72.17..... Packaging requirements for plastic explosives.................................. 78
72.18..... Authorisation for research etc.......................................................... 79
72.19..... Authorisation for defence and police purposes—15 year limit....... 80
72.20..... Authorisation for existing stocks—3 year limit............................... 81
72.21..... Authorisation of manufacturers—6 month transitional period........ 82
72.22..... Authorisation for overseas defence purposes—7 day limit............. 83
72.23..... Authorisation for overseas Australian Federal Police purposes—7 day limit 84
72.24..... Forfeited plastic explosives.............................................................. 84
72.25..... Surrendered plastic explosives.......................................................... 85
72.26..... Destruction of plastic explosives obtained overseas for defence purposes 85
72.27..... Destruction of plastic explosives obtained overseas for Australian Federal Police purposes 86
72.28..... Delegation by Minister..................................................................... 86
72.29..... Delegation by Minister for Defence................................................. 86
72.30..... Review by Administrative Appeals Tribunal of authorisation decisions 87
72.31..... Geographical jurisdiction.................................................................. 87
72.32..... Saving of other laws.......................................................................... 87
72.33..... Marking requirements....................................................................... 87
72.34..... Detection agents and minimum manufacture concentrations............ 88
72.35..... Presumption as to concentration of detection agent......................... 89
72.36..... Definitions........................................................................................ 89
Division 73—People smuggling and related offences 93
Subdivision A—People smuggling offences 93
73.1....... Offence of people smuggling............................................................ 93
73.2....... Aggravated offence of people smuggling (exploitation etc.)............. 93
73.3....... Aggravated offence of people smuggling (at least 5 people)............ 94
73.4....... Jurisdictional requirement................................................................. 95
73.5....... Attorney‑General’s consent required............................................... 96
Subdivision B—Document offences related to people smuggling and unlawful entry into foreign countries 96
73.6....... Meaning of travel or identity document............................................ 96
73.7....... Meaning of false travel or identity document.................................... 96
73.8....... Making, providing or possessing a false travel or identity document 97
73.9....... Providing or possessing a travel or identity document issued or altered dishonestly or as a result of threats 98
73.10..... Providing or possessing a travel or identity document to be used by a person who is not the rightful user 99
73.11..... Taking possession of or destroying another person’s travel or identity document 99
73.12..... Jurisdictional requirement............................................................... 100
Chapter 5—The security of the Commonwealth 101
Part 5.1—Treason and sedition 101
Division 80—Treason and sedition 101
80.1A.... Definition of organisation.............................................................. 101
80.1....... Treason........................................................................................... 101
80.2....... Sedition........................................................................................... 103
80.3....... Defence for acts done in good faith................................................ 105
80.4....... Extended geographical jurisdiction for offences.............................. 107
80.5....... Attorney‑General’s consent required............................................. 107
80.6....... Division not intended to exclude State or Territory law................ 107
Part 5.2—Offences relating to espionage and similar activities 108
Division 90—Preliminary 108
90.1....... Definitions...................................................................................... 108
Division 91—Offences relating to espionage and similar activities 110
91.1....... Espionage and similar activities...................................................... 110
91.2....... Defence—information lawfully available....................................... 112
Division 93—Prosecutions and hearings 113
93.1....... Institution of prosecution............................................................... 113
93.2....... Hearing in camera etc...................................................................... 113
Division 94—Forfeiture 115
94.1....... Forfeiture of articles etc.................................................................. 115
Part 5.3—Terrorism 116
Division 100—Preliminary 116
100.1..... Definitions...................................................................................... 116
100.2..... Referring States............................................................................... 120
100.3..... Constitutional basis for the operation of this Part......................... 121
100.4..... Application of provisions.............................................................. 122
100.5..... Application of Acts Interpretation Act 1901................................... 125
100.6..... Concurrent operation intended....................................................... 125
100.7..... Regulations may modify operation of this Part to deal with interaction between this Part and State and Territory laws........................................................................................................ 126
100.8..... Approval for changes to or affecting this Part............................... 126
Division 101—Terrorism 127
101.1..... Terrorist acts.................................................................................. 127
101.2..... Providing or receiving training connected with terrorist acts.......... 127
101.4..... Possessing things connected with terrorist acts............................. 128
101.5..... Collecting or making documents likely to facilitate terrorist acts... 129
101.6..... Other acts done in preparation for, or planning, terrorist acts....... 130
Division 102—Terrorist organisations 131
Subdivision A—Definitions 131
102.1..... Definitions...................................................................................... 131
102.1A.. Reviews by Parliamentary Joint Committee on ASIO, ASIS and DSD 134
Subdivision B—Offences 136
102.2..... Directing the activities of a terrorist organisation........................... 136
102.3..... Membership of a terrorist organisation.......................................... 136
102.4..... Recruiting for a terrorist organisation............................................. 137
102.5..... Training a terrorist organisation or receiving training from a terrorist organisation 137
102.6..... Getting funds to, from or for a terrorist organisation..................... 138
102.7..... Providing support to a terrorist organisation................................. 139
102.8..... Associating with terrorist organisations......................................... 139
Subdivision C—General provisions relating to offences 142
102.9..... Extended geographical jurisdiction for offences.............................. 142
102.10... Alternative verdicts........................................................................ 142
Division 103—Financing terrorism 143
103.1..... Financing terrorism......................................................................... 143
103.2..... Financing a terrorist........................................................................ 143
103.3..... Extended geographical jurisdiction for offences.............................. 144
Division 104—Control orders 145
Subdivision A—Object of this Division 145
104.1..... Object of this Division................................................................... 145
Subdivision B—Making an interim control order 145
104.2..... Attorney‑General’s consent to request an interim control order... 145
104.3..... Requesting the court to make an interim control order................... 147
104.4..... Making an interim control order..................................................... 147
104.5..... Terms of an interim control order................................................... 148
Subdivision C—Making an urgent interim control order 150
104.6..... Requesting an urgent interim control order by electronic means.... 150
104.7..... Making an urgent interim control order by electronic means......... 151
104.8..... Requesting an urgent interim control order in person..................... 152
104.9..... Making an urgent interim control order in person.......................... 153
104.10... Obtaining the Attorney‑General’s consent within 4 hours............ 153
104.11... Court to assume that exercise of power not authorised by urgent interim control order 154
Subdivision D—Confirming an interim control order 154
104.12... Service, explanation and notification of an interim control order... 154
104.12A Election to confirm control order.................................................... 155
104.13... Lawyer may request a copy of an interim control order................ 157
104.14... Confirming an interim control order............................................... 157
104.15... When a declaration, or a revocation, variation or confirmation of a control order, is in force 159
104.16... Terms of a confirmed control order................................................ 159
104.17... Service of a declaration, or a revocation, variation or confirmation of a control order 160
Subdivision E—Rights in respect of a control order 160
104.18... Application by the person for a revocation or variation of a control order 160
104.19... Application by the AFP Commissioner for a revocation or variation of a control order 161
104.20... Revocation or variation of a control order...................................... 162
104.21... Lawyer may request a copy of a control order.............................. 162
104.22... Treatment of photographs and impressions of fingerprints........... 163
Subdivision F—Adding obligations, prohibitions or restrictions to a control order 163
104.23... Application by the AFP Commissioner for addition of obligations, prohibitions or restrictions 163
104.24... Varying a control order................................................................... 165
104.25... Terms of a varied control order...................................................... 166
104.26... Service and explanation of a varied control order........................... 166
Subdivision G—Contravening a control order 167
104.27... Offence for contravening a control order........................................ 167
Subdivision H—Miscellaneous 167
104.28... Special rules for young people....................................................... 167
104.28A Interlocutory proceedings............................................................... 167
104.29... Reporting requirements.................................................................. 168
104.30... Requirement to notify Attorney‑General of declarations, revocations or variations 169
104.31... Queensland public interest monitor functions and powers not affected 169
104.32... Sunset provision............................................................................. 169
Division 105—Preventative detention orders 170
Subdivision A—Preliminary 170
105.1..... Object............................................................................................. 170
105.2..... Issuing authorities for continued preventative detention orders.... 170
105.3..... Police officer detaining person under a preventative detention order 171
Subdivision B—Preventative detention orders 171
105.4..... Basis for applying for, and making, preventative detention orders 171
105.5..... No preventative detention order in relation to person under 16 years of age 172
105.5A.. Special assistance for person with inadequate knowledge of English language or disability 173
105.6..... Restrictions on multiple preventative detention orders................. 174
105.7..... Application for initial preventative detention order....................... 175
105.8..... Senior AFP member may make initial preventative detention order 177
105.9..... Duration of initial preventative detention order............................. 179
105.10... Extension of initial preventative detention order............................ 180
105.10A Notice of application for continued preventative detention order. 181
105.11... Application for continued preventative detention order................ 181
105.12... Judge, Federal Magistrate, AAT member or retired judge may make continued preventative detention order 183
105.13... Duration of continued preventative detention order...................... 184
105.14... Extension of continued preventative detention order..................... 185
105.14A Basis for applying for, and making, prohibited contact order........ 186
105.15... Prohibited contact order (person in relation to whom preventative detention order is being sought) 187
105.16... Prohibited contact order (person in relation to whom preventative detention order is already in force) 188
105.17... Revocation of preventative detention order or prohibited contact order 188
105.18... Status of person making continued preventative detention order.. 190
Subdivision C—Carrying out preventative detention orders 191
105.19... Power to detain person under preventative detention order.......... 191
105.20... Endorsement of order with date and time person taken into custody 193
105.21... Requirement to provide name etc................................................... 193
105.22... Power to enter premises................................................................. 194
105.23... Power to conduct a frisk search...................................................... 195
105.24... Power to conduct an ordinary search............................................. 195
105.25... Warrant under Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 195
105.26... Release of person from preventative detention.............................. 196
105.27... Arrangement for detainee to be held in State or Territory prison or remand centre 198
Subdivision D—Informing person detained about preventative detention order 198
105.28... Effect of initial preventative detention order to be explained to person detained 198
105.29... Effect of continued preventative detention order to be explained to person detained 200
105.30... Person being detained to be informed of extension of preventative detention order 202
105.31... Compliance with obligations to inform.......................................... 202
105.32... Copy of preventative detention order............................................ 203
Subdivision E—Treatment of person detained 205
105.33... Humane treatment of person being detained.................................. 205
105.33A Detention of persons under 18....................................................... 205
105.34... Restriction on contact with other people....................................... 205
105.35... Contacting family members etc...................................................... 206
105.36... Contacting Ombudsman etc............................................................ 207
105.37... Contacting lawyer........................................................................... 207
105.38... Monitoring contact under section 105.35 or 105.37...................... 209
105.39... Special contact rules for person under 18 or incapable of managing own affairs 210
105.40... Entitlement to contact subject to prohibited contact order............ 212
105.41... Disclosure offences......................................................................... 212
105.42... Questioning of person prohibited while person is detained........... 218
105.43... Taking fingerprints, recordings, samples of handwriting or photographs 219
105.44... Use of identification material.......................................................... 221
105.45... Offences of contravening safeguards.............................................. 222
Subdivision F—Miscellaneous 222
105.46... Nature of functions of Federal Magistrate..................................... 222
105.47... Annual report................................................................................. 223
105.48... Certain functions and powers not affected..................................... 224
105.49... Queensland public interest monitor functions and powers not affected 224
105.50... Law relating to legal professional privilege not affected................. 224
105.51... Legal proceedings in relation to preventative detention orders...... 224
105.52... Review by State and Territory courts............................................ 226
105.53... Sunset provision............................................................................. 227
Division 106—Transitional provisions 228
106.1..... Saving—regulations originally made for the purposes of paragraph (c) of the definition of terrorist organisation........................................................................................................ 228
106.2..... Saving—regulations made for the purposes of paragraph (a) of the definition of terrorist organisation 228
106.3..... Application provision.................................................................... 229
Part 5.4—Harming Australians 230
Division 115—Harming Australians 230
115.1..... Murder of an Australian citizen or a resident of Australia............. 230
115.2..... Manslaughter of an Australian citizen or a resident of Australia... 230
115.3..... Intentionally causing serious harm to an Australian citizen or a resident of Australia 231
115.4..... Recklessly causing serious harm to an Australian citizen or a resident of Australia 231
115.5..... Saving of other laws........................................................................ 231
115.6..... Bringing proceedings under this Division....................................... 231
115.7..... Ministerial certificates relating to proceedings............................... 232
115.8..... Geographical jurisdiction................................................................ 232
115.9..... Meaning of causes death or harm................................................... 232
Chapter 7—The proper administration of Government 233
Part 7.1—Preliminary 233
Division 130—Preliminary 233
130.1..... Definitions...................................................................................... 233
130.2..... When property belongs to a person............................................... 234
130.3..... Dishonesty..................................................................................... 235
130.4..... Determination of dishonesty to be a matter for the trier of fact.... 235
Part 7.2—Theft and other property offences 236
Division 131—Theft 236
131.1..... Theft............................................................................................... 236
131.2..... Special rules about the meaning of dishonesty............................... 236
131.3..... Appropriation of property............................................................ 237
131.4..... Theft of land or things forming part of land................................... 237
131.5..... Trust property............................................................................... 237
131.6..... Obligation to deal with property in a particular way..................... 238
131.7..... Property obtained because of fundamental mistake....................... 238
131.8..... Property of a corporation sole....................................................... 239
131.9..... Property belonging to 2 or more persons....................................... 239
131.10... Intention of permanently depriving a person of property............. 239
131.11... General deficiency.......................................................................... 240
Division 132—Other property offences 241
132.1..... Receiving......................................................................................... 241
132.2..... Robbery.......................................................................................... 244
132.3..... Aggravated robbery........................................................................ 245
132.4..... Burglary.......................................................................................... 246
132.5..... Aggravated burglary........................................................................ 248
132.6..... Making off without payment......................................................... 249
132.7..... Going equipped for theft or a property offence............................. 249
132.8..... Dishonest taking or retention of property..................................... 251
132.9..... Geographical jurisdiction................................................................ 252
Part 7.3—Fraudulent conduct 253
Division 133—Preliminary 253
133.1..... Definitions...................................................................................... 253
Division 134—Obtaining property or a financial advantage by deception 254
134.1..... Obtaining property by deception................................................... 254
134.2..... Obtaining a financial advantage by deception................................. 257
134.3..... Geographical jurisdiction................................................................ 257
Division 135—Other offences involving fraudulent conduct 258
135.1..... General dishonesty......................................................................... 258
135.2..... Obtaining financial advantage......................................................... 259
135.4..... Conspiracy to defraud.................................................................... 260
135.5..... Geographical jurisdiction................................................................ 262
Part 7.4—False or misleading statements 263
Division 136—False or misleading statements in applications 263
136.1..... False or misleading statements in applications............................... 263
Division 137—False or misleading information or documents 266
137.1..... False or misleading information...................................................... 266
137.2..... False or misleading documents....................................................... 267
137.3..... Geographical jurisdiction................................................................ 268
Part 7.5—Unwarranted demands 269
Division 138—Preliminary 269
138.1..... Unwarranted demand with menaces............................................... 269
138.2..... Menaces.......................................................................................... 269
Division 139—Unwarranted demands 271
139.1..... Unwarranted demands of a Commonwealth public official............ 271
139.2..... Unwarranted demands made by a Commonwealth public official. 271
139.3..... Geographical jurisdiction................................................................ 272
Part 7.6—Bribery and related offences 273
Division 140—Preliminary 273
140.1..... Definition........................................................................................ 273
140.2..... Obtaining........................................................................................ 273
Division 141—Bribery 274
141.1..... Bribery of a Commonwealth public official................................... 274
Division 142—Offences relating to bribery 276
142.1..... Corrupting benefits given to, or received by, a Commonwealth public official 276
142.2..... Abuse of public office.................................................................... 277
142.3..... Geographical jurisdiction................................................................ 278
Part 7.7—Forgery and related offences 279
Division 143—Preliminary 279
143.1..... Definitions...................................................................................... 279
143.2..... False documents............................................................................. 279
143.3..... False Commonwealth documents................................................... 280
143.4..... Inducing acceptance of false documents......................................... 282
Division 144—Forgery 283
144.1..... Forgery........................................................................................... 283
Division 145—Offences relating to forgery 285
145.1..... Using forged document................................................................... 285
145.2..... Possession of forged document...................................................... 286
145.3..... Possession, making or adaptation of devices etc. for making forgeries 288
145.4..... Falsification of documents etc........................................................ 289
145.5..... Giving information derived from false or misleading documents.... 290
145.6..... Geographical jurisdiction................................................................ 291
Part 7.8—Causing harm to, and impersonation and obstruction of, Commonwealth public officials 292
Division 146—Preliminary 292
146.1..... Definitions...................................................................................... 292
146.2..... Causing harm.................................................................................. 293
Division 147—Causing harm to Commonwealth public officials 294
147.1..... Causing harm to a Commonwealth public official etc.................... 294
147.2..... Threatening to cause harm to a Commonwealth public official etc. 295
147.3..... Geographical jurisdiction................................................................ 298
Division 148—Impersonation of Commonwealth public officials 299
148.1..... Impersonation of an official by a non‑official................................ 299
148.2..... Impersonation of an official by another official............................. 300
148.3..... Geographical jurisdiction................................................................ 301
Division 149—Obstruction of Commonwealth public officials 302
149.1..... Obstruction of Commonwealth public officials............................. 302
Part 7.20—Miscellaneous 304
Division 261—Miscellaneous 304
261.1..... Saving of other laws........................................................................ 304
261.2..... Contempt of court.......................................................................... 304
261.3..... Ancillary offences........................................................................... 304
Chapter 8—Offences against humanity and related offences 305
Division 268—Genocide, crimes against humanity, war crimes and crimes against the administration of the justice of the International Criminal Court 305
Subdivision A—Introductory 305
268.1..... Purpose of Division........................................................................ 305
268.2..... Outline of offences......................................................................... 305
Subdivision B—Genocide 306
268.3..... Genocide by killing......................................................................... 306
268.4..... Genocide by causing serious bodily or mental harm...................... 306
268.5..... Genocide by deliberately inflicting conditions of life calculated to bring about physical destruction 306
268.6..... Genocide by imposing measures intended to prevent births.......... 307
268.7..... Genocide by forcibly transferring children..................................... 307
Subdivision C—Crimes against humanity 308
268.8..... Crime against humanity—murder................................................... 308
268.9..... Crime against humanity—extermination........................................ 308
268.10... Crime against humanity—enslavement.......................................... 309
268.11... Crime against humanity—deportation or forcible transfer of population 309
268.12... Crime against humanity—imprisonment or other severe deprivation of physical liberty 310
268.13... Crime against humanity—torture................................................... 310
268.14... Crime against humanity—rape....................................................... 311
268.15... Crime against humanity—sexual slavery........................................ 312
268.16... Crime against humanity—enforced prostitution............................ 313
268.17... Crime against humanity—forced pregnancy.................................. 314
268.18... Crime against humanity—enforced sterilisation............................. 315
268.19... Crime against humanity—sexual violence...................................... 315
268.20... Crime against humanity—persecution........................................... 317
268.21... Crime against humanity—enforced disappearance of persons....... 318
268.22... Crime against humanity—apartheid............................................... 319
268.23... Crime against humanity—other inhumane act................................ 319
Subdivision D—War crimes that are grave breaches of the Geneva Conventions and of Protocol I to the Geneva Conventions 320
268.24... War crime—wilful killing................................................................ 320
268.25... War crime—torture......................................................................... 320
268.26... War crime—inhumane treatment.................................................... 321
268.27... War crime—biological experiments................................................ 321
268.28... War crime—wilfully causing great suffering................................... 322
268.29... War crime—destruction and appropriation of property................ 322
268.30... War crime—compelling service in hostile forces............................ 323
268.31... War crime—denying a fair trial....................................................... 323
268.32... War crime—unlawful deportation or transfer................................ 324
268.33... War crime—unlawful confinement................................................. 324
268.34... War crime—taking hostages........................................................... 325
Subdivision E—Other serious war crimes that are committed in the course of an international armed conflict 326
268.35... War crime—attacking civilians....................................................... 326
268.36... War crime—attacking civilian objects............................................. 326
268.37... War crime—attacking personnel or objects involved in a humanitarian assistance or peacekeeping mission 326
268.38... War crime—excessive incidental death, injury or damage.............. 327
268.39... War crime—attacking undefended places....................................... 328
268.40... War crime—killing or injuring a person who is hors de combat..... 328
268.41... War crime—improper use of a flag of truce................................... 329
268.42... War crime—improper use of a flag, insignia or uniform of the adverse party 329
268.43... War crime—improper use of a flag, insignia or uniform of the United Nations 330
268.44... War crime—improper use of the distinctive emblems of the Geneva Conventions 330
268.45... War crime—transfer of population................................................ 331
268.46... War crime—attacking protected objects......................................... 331
268.47... War crime—mutilation................................................................... 332
268.48... War crime—medical or scientific experiments................................ 332
268.49... War crime—treacherously killing or injuring.................................. 333
268.50... War crime—denying quarter........................................................... 334
268.51... War crime—destroying or seizing the enemy’s property.............. 335
268.52... War crime—depriving nationals of the adverse power of rights or actions 335
268.53... War crime—compelling participation in military operations......... 335
268.54... War crime—pillaging...................................................................... 336
268.55... War crime—employing poison or poisoned weapons................... 336
268.56... War crime—employing prohibited gases, liquids, materials or devices 337
268.57... War crime—employing prohibited bullets..................................... 337
268.58... War crime—outrages upon personal dignity.................................. 337
268.59... War crime—rape............................................................................. 338
268.60... War crime—sexual slavery............................................................. 339
268.61... War crime—enforced prostitution.................................................. 340
268.62... War crime—forced pregnancy........................................................ 341
268.63... War crime—enforced sterilisation.................................................. 342
268.64... War crime—sexual violence............................................................ 342
268.65... War crime—using protected persons as shields............................. 344
268.66... War crime—attacking persons or objects using the distinctive emblems of the Geneva Conventions 344
268.67... War crime—starvation as a method of warfare.............................. 345
268.68... War crime—using, conscripting or enlisting children..................... 345
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 347
268.69... Definition of religious personnel.................................................... 347
268.70... War crime—murder........................................................................ 347
268.71... War crime—mutilation................................................................... 348
268.72... War crime—cruel treatment............................................................ 349
268.73... War crime—torture......................................................................... 350
268.74... War crime—outrages upon personal dignity.................................. 350
268.75... War crime—taking hostages........................................................... 352
268.76... War crime—sentencing or execution without due process............. 352
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 354
268.77... War crime—attacking civilians....................................................... 354
268.78... War crime—attacking persons or objects using the distinctive emblems of the Geneva Conventions 354
268.79... War crime—attacking personnel or objects involved in a humanitarian assistance or peacekeeping mission 355
268.80... War crime—attacking protected objects......................................... 356
268.81... War crime—pillaging...................................................................... 357
268.82... War crime—rape............................................................................. 357
268.83... War crime—sexual slavery............................................................. 359
268.84... War crime—enforced prostitution.................................................. 359
268.85... War crime—forced pregnancy........................................................ 361
268.86... War crime—enforced sterilisation.................................................. 361
268.87... War crime—sexual violence............................................................ 362
268.88... War crime—using, conscripting or enlisting children..................... 363
268.89... War crime—displacing civilians...................................................... 365
268.90... War crime—treacherously killing or injuring.................................. 365
268.91... War crime—denying quarter........................................................... 366
268.92... War crime—mutilation................................................................... 366
268.93... War crime—medical or scientific experiments................................ 367
268.94... War crime—destroying or seizing an adversary’s property.......... 368
Subdivision H—War crimes that are grave breaches of Protocol I to the Geneva Conventions 369
268.95... War crime—medical procedure....................................................... 369
268.96... War crime—removal of blood, tissue or organs for transplantation 369
268.97... War crime—attack against works or installations containing dangerous forces resulting in excessive loss of life or injury to civilians....................................................................................... 370
268.98... War crime—attacking undefended places or demilitarized zones... 371
268.99... War crime—unjustifiable delay in the repatriation of prisoners of war or civilians 371
268.100. War crime—apartheid..................................................................... 372
268.101. War crime—attacking protected objects......................................... 372
Subdivision J—Crimes against the administration of the justice of the International Criminal Court 373
268.102. Perjury............................................................................................ 373
268.103. Falsifying evidence......................................................................... 373
268.104. Destroying or concealing evidence.................................................. 374
268.105. Deceiving witnesses........................................................................ 374
268.106. Corrupting witnesses or interpreters.............................................. 374
268.107. Threatening witnesses or interpreters............................................ 375
268.108. Preventing witnesses or interpreters.............................................. 376
268.109. Preventing production of things in evidence................................... 376
268.110. Reprisals against witnesses............................................................ 376
268.111. Reprisals against officials of the International Criminal Court....... 377
268.112. Perverting the course of justice....................................................... 377
268.113. Receipt of a corrupting benefit by an official of the International Criminal Court 378
268.114. Subdivision not to apply to certain conduct.................................. 378
Subdivision K—Miscellaneous 379
268.115. Responsibility of commanders and other superiors....................... 379
268.116. Defence of superior orders............................................................. 380
268.117. Geographical jurisdiction................................................................ 380
268.118. Double jeopardy............................................................................. 380
268.119. Offences related to exercise of jurisdiction of International Criminal Court 381
268.120. Saving of other laws........................................................................ 381
268.121. Bringing proceedings under this Division....................................... 381
268.122. Attorney‑General’s decisions in relation to consents to be final... 381
268.123. Legal representation........................................................................ 382
268.124. Proof of application of Geneva Conventions or Protocol I to the Geneva Conventions 382
Division 270—Slavery, sexual servitude and deceptive recruiting 384
270.1..... Definition of slavery....................................................................... 384
270.2..... Slavery is unlawful......................................................................... 384
270.3..... Slavery offences.............................................................................. 384
270.4..... Definition of sexual servitude......................................................... 385
270.5..... Jurisdictional requirement............................................................... 385
270.6..... Sexual servitude offences................................................................ 386
270.7..... Deceptive recruiting for sexual services.......................................... 386
270.8..... Aggravated offences........................................................................ 388
270.9..... Alternative verdict if aggravated offence not proven...................... 388
270.12... Other laws not excluded................................................................. 388
270.13... Double jeopardy............................................................................. 389
270.14... External Territories......................................................................... 389
Division 271—Trafficking in persons and debt bondage 390
Subdivision A—Definitions 390
271.1..... Definitions...................................................................................... 390
Subdivision B—Offences relating to trafficking in persons 390
271.2..... Offence of trafficking in persons.................................................... 390
271.3..... Aggravated offence of trafficking in persons.................................. 393
271.4..... Offence of trafficking in children.................................................... 394
271.5..... Offence of domestic trafficking in persons..................................... 395
271.6..... Aggravated offence of domestic trafficking in persons................... 397
271.7..... Offence of domestic trafficking in children..................................... 397
Subdivision C—Offences relating to debt bondage 398
271.8..... Offence of debt bondage................................................................. 398
271.9..... Offence of aggravated debt bondage............................................... 399
Subdivision D—General provisions relating to offences under this Division 399
271.10... Jurisdictional requirement for offences other than offences related to domestic trafficking in persons 399
271.11... Jurisdictional requirement for offences related to domestic trafficking in persons 399
271.12... Other laws not excluded................................................................. 400
271.13... Double jeopardy............................................................................. 400
Chapter 9—Dangers to the community 401
Part 9.1—Serious drug offences 401
Division 300—Preliminary 401
300.1..... Purpose........................................................................................... 401
300.2..... Definitions...................................................................................... 401
300.3..... Geographical jurisdiction................................................................ 404
300.4..... Concurrent operation intended....................................................... 404
300.5..... Particular identity of drugs, plants and precursors........................ 405
Division 301—Listing additional drugs, plants and precursors 406
Subdivision A—Interim regulations 406
301.1..... Interim regulations—controlled drugs and controlled plants.......... 406
301.2..... Interim regulations—controlled precursors.................................... 406
301.3..... Interim regulations—border controlled drugs and border controlled plants 407
301.4..... Interim regulations—border controlled precursors......................... 407
301.5..... Interim regulations—commercial, marketable and trafficable quantities 408
Subdivision B—Emergency determinations 409
301.6..... Emergency determinations—controlled drugs and controlled plants 409
301.7..... Emergency determinations—controlled precursors........................ 410
301.8..... Emergency determinations—border controlled drugs and border controlled plants 410
301.9..... Emergency determinations—border controlled precursors............ 411
301.10... Emergency determinations—commercial, marketable and trafficable quantities 411
301.11... General rules—period of effect, publication etc............................. 412
301.12... General rule—inconsistency with regulations................................ 413
Division 302—Trafficking controlled drugs 414
302.1..... Meaning of traffics.......................................................................... 414
302.2..... Trafficking commercial quantities of controlled drugs.................... 414
302.3..... Trafficking marketable quantities of controlled drugs.................... 414
302.4..... Trafficking controlled drugs............................................................ 415
302.5..... Presumption where trafficable quantities are involved................... 415
302.6..... Purchase of controlled drugs is not an ancillary offence................. 416
Division 303—Commercial cultivation of controlled plants 417
303.1..... Meanings of cultivate and cultivates a plant................................... 417
303.2..... Meaning of product of a plant........................................................ 417
303.3..... Meaning of cultivates a plant for a commercial purpose............... 417
303.4..... Cultivating commercial quantities of controlled plants.................. 418
303.5..... Cultivating marketable quantities of controlled plants................... 418
303.6..... Cultivating controlled plants.......................................................... 418
303.7..... Presumption where trafficable quantities are involved................... 419
Division 304—Selling controlled plants 420
304.1..... Selling commercial quantities of controlled plants.......................... 420
304.2..... Selling marketable quantities of controlled plants.......................... 420
304.3..... Selling controlled plants.................................................................. 420
Division 305—Commercial manufacture of controlled drugs 422
305.1..... Meanings of manufacture and manufactures a substance.............. 422
305.2..... Meaning of manufactures a substance for a commercial purpose. 422
305.3..... Manufacturing commercial quantities of controlled drugs.............. 422
305.4..... Manufacturing marketable quantities of controlled drugs.............. 423
305.5..... Manufacturing controlled drugs...................................................... 423
305.6..... Presumption where trafficable quantities are involved................... 424
Division 306—Pre‑trafficking controlled precursors 425
306.1..... Meaning of pre‑traffics................................................................... 425
306.2..... Pre‑trafficking commercial quantities of controlled precursors...... 425
306.3..... Pre‑trafficking marketable quantities of controlled precursors....... 426
306.4..... Pre‑trafficking controlled precursors.............................................. 426
306.5..... Presumption for pre‑trafficking controlled precursors—sale......... 427
306.6..... Presumptions for pre‑trafficking controlled precursors—manufacture for drug manufacture 427
306.7..... Presumptions for pre‑trafficking controlled precursors—manufacture for sale 428
306.8..... Presumptions for pre‑trafficking controlled precursors—possession 429
Division 307—Import‑export offences 430
Subdivision A—Importing and exporting border controlled drugs or border controlled plants 430
307.1..... Importing and exporting commercial quantities of border controlled drugs or border controlled plants 430
307.2..... Importing and exporting marketable quantities of border controlled drugs or border controlled plants 430
307.3..... Importing and exporting border controlled drugs or border controlled plants 431
307.4..... Importing and exporting border controlled drugs or border controlled plants—no defence relating to lack of commercial intent............................................................................................... 431
Subdivision B—Possessing unlawfully imported border controlled drugs or border controlled plants 432
307.5..... Possessing commercial quantities of unlawfully imported border controlled drugs or border controlled plants 432
307.6..... Possessing marketable quantities of unlawfully imported border controlled drugs or border controlled plants 432
307.7..... Possessing unlawfully imported border controlled drugs or border controlled plants 433
Subdivision C—Possessing border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported 433
307.8..... Possessing commercial quantities of border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported............................................................... 433
307.9..... Possessing marketable quantities of border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported............................................................... 434
307.10... Possessing border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported......................................................................................... 435
Subdivision D—Importing and exporting border controlled precursors 435
307.11... Importing and exporting commercial quantities of border controlled precursors 435
307.12... Importing and exporting marketable quantities of border controlled precursors 436
307.13... Importing and exporting border controlled precursors................... 437
307.14... Presumptions for importing and exporting border controlled precursors 437
Division 308—Possession offences 439
308.1..... Possessing controlled drugs............................................................ 439
308.2..... Possessing controlled precursors.................................................... 440
308.3..... Possessing plant material, equipment or instructions for commercial cultivation of controlled plants 440
308.4..... Possessing substance, equipment or instructions for commercial manufacture of controlled drugs 441
Division 309—Drug offences involving children 442
309.1..... Children not criminally responsible for offences against this Division 442
309.2..... Supplying controlled drugs to children........................................... 442
309.3..... Supplying marketable quantities of controlled drugs to children for trafficking 442
309.4..... Supplying controlled drugs to children for trafficking.................... 443
309.5..... Presumption where trafficable quantities are involved................... 443
309.6..... Meaning of procures an individual to traffic.................................. 443
309.7..... Procuring children for trafficking marketable quantities of controlled drugs 444
309.8..... Procuring children for trafficking controlled drugs......................... 444
309.9..... Meaning of procures an individual to pre‑traffic........................... 445
309.10... Procuring children for pre‑trafficking marketable quantities of controlled precursors 445
309.11... Procuring children for pre‑trafficking controlled precursors.......... 445
309.12... Procuring children for importing or exporting marketable quantities of border controlled drugs or border controlled plants.............................................................................................. 446
309.13... Procuring children for importing or exporting border controlled drugs or border controlled plants 446
309.14... Procuring children for importing or exporting marketable quantities of border controlled precursors 447
309.15... Procuring children for importing or exporting border controlled precursors 448
Division 310—Harm and danger to children under 14 from serious drug offences 450
310.1..... Children not criminally responsible for offences against this Division 450
310.2..... Danger from exposure to unlawful manufacturing.......................... 450
310.3..... Harm from exposure to unlawful manufacturing............................ 451
310.4..... Aggravated offences—manufacturing controlled drugs and controlled precursors 452
Division 311—Combining quantities of drugs, plants or precursors 454
Subdivision A—Combining different parcels on the same occasion 454
311.1..... Combining different parcels on the same occasion......................... 454
Subdivision B—Combining parcels from organised commercial activities 455
311.2..... Business of trafficking controlled drugs......................................... 455
311.3..... Business of pre‑trafficking by selling controlled precursors.......... 456
311.4..... Business of importing or exporting border controlled drugs or border controlled plants 457
311.5..... Business of importing or exporting border controlled precursors.. 457
311.6..... Business of supplying controlled drugs to children....................... 458
311.7..... General rules—combining parcels from organised commercial activities 459
Subdivision C—Combining parcels from multiple offences 460
311.8..... Multiple offences—trafficking controlled drugs............................ 460
311.9..... Multiple offences—cultivating controlled plants........................... 460
311.10... Multiple offences—selling controlled plants................................. 460
311.11... Multiple offences—manufacturing controlled drugs...................... 461
311.12... Multiple offences—pre‑trafficking controlled precursors............. 461
311.13... Multiple offences—importing or exporting border controlled drugs or border controlled plants 462
311.14... Multiple offences—possessing unlawfully imported border controlled drugs or border controlled plants 462
311.15... Multiple offences—possessing border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported............................................................... 463
311.16... Multiple offences—importing or exporting border controlled precursors 463
311.17... Multiple offences—supplying controlled drugs to children for trafficking 464
311.18... Multiple offences—procuring children for trafficking controlled drugs 464
311.19... Multiple offences—procuring children for pre‑trafficking controlled precursors 465
311.20... Multiple offences—procuring children for importing or exporting border controlled drugs or border controlled plants........................................................................................................ 465
311.21... Multiple offences—procuring children for importing or exporting border controlled precursors 466
311.22... General rules—combining parcels from multiple offences............. 466
Division 312—Working out quantities of drugs, plants or precursors 467
312.1..... Working out quantities of drugs and precursors in mixtures.......... 467
312.2..... Working out quantities where different kinds of drugs, plants or precursors are involved 467
Division 313—Defences and alternative verdicts 470
313.1..... Defence—conduct justified or excused by or under a law of a State or Territory 470
313.2..... Defence—reasonable belief that conduct is justified or excused by or under a law 470
313.3..... Alternative verdict—offence not proved........................................ 470
313.4..... Alternative verdict—mistake as to quantity of drug, plant or precursor 471
313.5..... Alternative verdict—mistake as to identity of drug, plant or precursor 472
Division 314—Drugs, plants, precursors and quantities 473
314.1..... Controlled drugs............................................................................. 473
314.2..... Controlled plants............................................................................ 475
314.3..... Controlled precursors..................................................................... 476
314.4..... Border controlled drugs.................................................................. 476
314.5..... Border controlled plants................................................................. 484
314.6..... Border controlled precursors.......................................................... 484
Part 9.4—Dangerous weapons 486
Division 360—Cross‑border firearms trafficking 486
360.1..... Disposal and acquisition of a firearm............................................. 486
360.2..... Cross‑border offence of disposal or acquisition of a firearm.......... 486
360.3..... Taking or sending a firearm across borders..................................... 487
360.4..... Concurrent operation intended....................................................... 488
Part 9.6—Contamination of goods 489
380.1..... Definitions...................................................................................... 489
380.2..... Contaminating goods...................................................................... 489
380.3..... Threatening to contaminate goods.................................................. 491
380.4..... Making false statements about contamination of goods................. 493
380.5..... Extended geographical jurisdiction—category D............................ 495
Chapter 10—National infrastructure 496
Part 10.2—Money laundering 496
Division 400—Money laundering 496
400.1..... Definitions...................................................................................... 496
400.2..... Meaning of dealing with money or other property......................... 498
400.3..... Dealing in proceeds of crime etc.—money or property worth $1,000,000 or more 499
400.4..... Dealing in proceeds of crime etc.—money or property worth $100,000 or more 500
400.5..... Dealing in proceeds of crime etc.—money or property worth $50,000 or more 501
400.6..... Dealing in proceeds of crime etc.—money or property worth $10,000 or more 503
400.7..... Dealing in proceeds of crime etc.—money or property worth $1,000 or more 504
400.8..... Dealing in proceeds of crime etc.—money or property of any value 505
400.9..... Possession etc. of property reasonably suspected of being proceeds of crime etc. 506
400.10... Mistake of fact as to the value of money or property................... 508
400.11... Proof of certain matters relating to kinds of offences not required 509
400.12... Combining several contraventions in a single charge...................... 509
400.13... Proof of other offences is not required........................................... 510
400.14... Alternative verdicts........................................................................ 510
400.15... Geographical jurisdiction................................................................ 511
400.16... Saving of other laws........................................................................ 511
Part 10.5—Postal services 512
Division 470—Preliminary 512
470.1..... Definitions...................................................................................... 512
470.2..... Dishonesty..................................................................................... 514
470.3..... Determination of dishonesty to be a matter for the trier of fact.... 514
Division 471—Postal offences 515
471.1..... Theft of mail‑receptacles, articles or postal messages.................... 515
471.2..... Receiving stolen mail‑receptacles, articles or postal messages....... 516
471.3..... Taking or concealing of mail‑receptacles, articles or postal messages 518
471.4..... Dishonest removal of postage stamps or postmarks..................... 518
471.5..... Dishonest use of previously used, defaced or obliterated stamps. 518
471.6..... Damaging or destroying mail‑receptacles, articles or postal messages 519
471.7..... Tampering with mail‑receptacles.................................................... 519
471.8..... Dishonestly obtaining delivery of articles...................................... 520
471.9..... Geographical jurisdiction................................................................ 520
471.10... Hoaxes—explosives and dangerous substances.............................. 520
471.11... Using a postal or similar service to make a threat.......................... 521
471.12... Using a postal or similar service to menace, harass or cause offence 522
471.13... Causing a dangerous article to be carried by a postal or similar service.. 522
471.14... Geographical jurisdiction................................................................ 523
471.15... Causing an explosive, or a dangerous or harmful substance, to be carried by post 523
Division 472—Miscellaneous 524
472.1..... Saving of other laws........................................................................ 524
472.2..... Interpretation of other laws............................................................ 524
Part 10.6—Telecommunications Services 525
Division 473—Preliminary 525
473.1..... Definitions...................................................................................... 525
473.2..... Possession or control of data or material in the form of data......... 532
473.3..... Producing, supplying or obtaining data or material in the form of data.. 532
473.4..... Determining whether material is offensive..................................... 532
Division 474—Telecommunications offences 533
Subdivision A—Dishonesty with respect to carriage services 533
474.1..... Dishonesty..................................................................................... 533
474.2..... General dishonesty with respect to a carriage service provider..... 533
Subdivision B—Interference with telecommunications 534
474.3..... Person acting for a carrier or carriage service provider................... 534
474.4..... Interception devices........................................................................ 534
474.5..... Wrongful delivery of communications............................................ 535
474.6..... Interference with facilities.............................................................. 536
474.7..... Modification etc. of a telecommunications device identifier.......... 537
474.8..... Possession or control of data or a device with intent to modify a telecommunications device identifier 538
474.9..... Producing, supplying or obtaining data or a device with intent to modify a telecommunications device identifier........................................................................................................ 539
474.10... Copying subscription‑specific secure data..................................... 540
474.11... Possession or control of data or a device with intent to copy an account identifier 542
474.12... Producing, supplying or obtaining data or a device with intent to copy an account identifier 543
Subdivision C—Offences related to use of telecommunications 544
474.13... Use of a carriage service.................................................................. 544
474.14... Using a telecommunications network with intention to commit a serious offence 545
474.15... Using a carriage service to make a threat........................................ 546
474.16... Using a carriage service for a hoax threat........................................ 547
474.17... Using a carriage service to menace, harass or cause offence........... 547
474.18... Improper use of emergency call service.......................................... 547
474.19... Using a carriage service for child pornography material................. 548
474.20... Possessing, controlling, producing, supplying or obtaining child pornography material for use through a carriage service........................................................................................................ 549
474.21... Defences in respect of child pornography material........................ 549
474.22... Using a carriage service for child abuse material............................. 551
474.23... Possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service........................................................................................................ 551
474.24... Defences in respect of child abuse material.................................... 552
474.25... Obligations of Internet service providers and Internet content hosts 554
474.26... Using a carriage service to procure persons under 16 years of age. 554
474.27... Using a carriage service to “groom” persons under 16 years of age 555
474.28... Provisions relating to offences against sections 474.26 and 474.27 557
474.29... Defences to offences against section 474.26 or 474.27.................. 559
474.29A Using a carriage service for suicide related material........................ 559
474.29B Possessing, controlling, producing, supplying or obtaining suicide related material for use through a carriage service........................................................................................................ 561
474.30... Defences for NRS employees and emergency call persons............ 562
Division 475—Miscellaneous 563
475.1..... Saving of other laws........................................................................ 563
475.2..... Geographical jurisdiction................................................................ 563
Part 10.7—Computer offences 564
Division 476—Preliminary 564
476.1..... Definitions...................................................................................... 564
476.2..... Meaning of unauthorised access, modification or impairment....... 565
476.3..... Geographical jurisdiction................................................................ 566
476.4..... Saving of other laws........................................................................ 566
476.5..... Liability for certain acts.................................................................. 566
Division 477—Serious computer offences 569
477.1..... Unauthorised access, modification or impairment with intent to commit a serious offence 569
477.2..... Unauthorised modification of data to cause impairment................ 570
477.3..... Unauthorised impairment of electronic communication................. 572
Division 478—Other computer offences 573
478.1..... Unauthorised access to, or modification of, restricted data............ 573
478.2..... Unauthorised impairment of data held on a computer disk etc...... 573
478.3..... Possession or control of data with intent to commit a computer offence 574
478.4..... Producing, supplying or obtaining data with intent to commit a computer offence 575
Part 10.8—Financial information offences 576
480.1..... Definitions...................................................................................... 576
480.2..... Dishonesty..................................................................................... 577
480.3..... Constitutional application of this Part........................................... 577
480.4..... Dishonestly obtaining or dealing in personal financial information 577
480.5..... Possession or control of thing with intent to dishonestly obtain or deal in personal financial information 577
480.6..... Importation of thing with intent to dishonestly obtain or deal in personal financial information 578
Dictionary 579
Notes 593
An Act relating to the criminal law
1 Short title [see Note 1]
This Act may be cited as the Criminal Code Act 1995.
2 Commencement [see Note 1]
(1) Subject to subsection (2), this Act commences on a day to be fixed by Proclamation.
(2) If this Act does not commence under subsection (1) within the period of 5 years beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.
(1) The Schedule has effect as a law of the Commonwealth.
(2) The Schedule may be cited as the Criminal Code.
3A External Territories
The Criminal Code extends to every external Territory.
Unless the contrary intention appears, an installation (within the meaning of the Customs Act 1901) that is deemed by section 5C of the Customs Act 1901 to be part of Australia is also taken to be part of Australia for the purposes of the Criminal Code.
(1) Expressions used in the Code (or in a particular provision of the Code) that are defined in the Dictionary at the end of the Code have the meanings given to them in the Dictionary.
(2) Definitions in the Code of expressions used in the Code apply to its construction except insofar as the context or subject matter otherwise indicates or requires.
The Governor‑General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
Section 3
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
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.
(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
(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.
(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.
(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.
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.
(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.
(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.
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.
(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.
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
(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.
(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
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.
(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.
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.
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.
(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.
(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.
(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.
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
(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.
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.
(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.
(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
(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.
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.
(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
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.
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).
(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.
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
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.
(1A) In a prosecution for an offence under subsection (1), it is not necessary to prove that business, or a business advantage, was actually obtained or retained.
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, or be perceived to be, customary, necessary or required 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... |
this written law requires or permits the provision of the benefit ... |
|
1 |
an employee or official of a foreign government body |
in the place where the central administration of the body is located |
a written 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 written 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 written 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 written 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 written 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 written 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 written 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 written 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 written 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 written 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 written 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.
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
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.
(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.
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.
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.
(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—Explosives and lethal devices
Subdivision A—International terrorist activities using explosive or lethal devices
The purpose of this Subdivision 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 Subdivision 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.
(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 Subdivision 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.
This Subdivision 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 Subdivision in respect of that conduct.
72.7 Bringing proceedings under this Subdivision
(1) Proceedings for an offence under 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 under this Subdivision before the necessary consent has been given.
(3) In determining whether to bring proceedings for an offence under this Subdivision, 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 Subdivision, 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 Subdivision, including a question of interpretation of the Convention, is taken not to be a matter arising directly under a treaty.
In this Subdivision:
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.
Subdivision B—Plastic explosives
The purpose of this Subdivision is to create offences relating to plastic explosives and give effect to the Convention on the Marking of Plastic Explosives.
Note: The Convention requires the introduction of detection agents into plastic explosives so as to render the explosives detectable by vapour detection means. This is known as the marking of the explosives.
72.12 Trafficking in unmarked plastic explosives etc.
(1) A person commits an offence if:
(a) the person traffics in a substance; and
(b) the substance is a plastic explosive; and
(c) the plastic explosive breaches a marking requirement; and
(d) the trafficking is not authorised under section 72.18, 72.19, 72.20, 72.21, 72.22 or 72.23.
Penalty: Imprisonment for 10 years.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Strict liability applies to paragraphs (1)(c) and (d).
Note 1: For the marking requirements, see section 72.33.
Note 2: For defences, see section 72.16.
72.13 Importing or exporting unmarked plastic explosives etc.
(1) A person commits an offence if:
(a) the person imports or exports a substance; and
(b) the substance is a plastic explosive; and
(c) the plastic explosive breaches a marking requirement; and
(d) the import or export is not authorised under section 72.18, 72.19, 72.20, 72.22 or 72.23.
Penalty: Imprisonment for 10 years.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Strict liability applies to paragraphs (1)(c) and (d).
Note 1: For the marking requirements, see section 72.33.
Note 2: For defences, see section 72.16.
72.14 Manufacturing unmarked plastic explosives etc.
(1) A person commits an offence if:
(a) the person:
(i) engages in the manufacture of a substance; or
(ii) exercises control or direction over the manufacture of a substance; and
(b) the substance is a plastic explosive; and
(c) the plastic explosive breaches the first marking requirement; and
(d) the manufacture is not authorised under section 72.18 or 72.21.
Penalty: Imprisonment for 10 years.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Strict liability applies to paragraphs (1)(c) and (d).
Note 1: For the marking requirements, see section 72.33.
Note 2: For defences, see section 72.16.
72.15 Possessing unmarked plastic explosives etc.
(1) A person commits an offence if:
(a) the person possesses a substance; and
(b) the substance is a plastic explosive; and
(c) the plastic explosive breaches a marking requirement; and
(d) the possession is not authorised under section 72.18, 72.19, 72.20, 72.21, 72.22 or 72.23.
Penalty: Imprisonment for 2 years.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Strict liability applies to paragraphs (1)(c) and (d).
Note 1: For the marking requirements, see section 72.33.
Note 2: For defences, see section 72.16.
(1) If:
(a) a person is charged with an offence against section 72.12, 72.13, 72.14 or 72.15; and
(b) the prosecution alleges that the plastic explosive breached a particular marking requirement;
it is a defence if the defendant proves that he or she had no reasonable grounds for suspecting that the plastic explosive breached that marking requirement.
Note 1: A defendant bears a legal burden in relation to the matter in subsection (1) (see section 13.4).
Note 2: For the marking requirements, see section 72.33.
(2) If:
(a) a person is charged with an offence against section 72.12, 72.13 or 72.15; and
(b) the prosecution alleges that the plastic explosive breached the second marking requirement;
it is a defence if the defendant proves that, at the time of the alleged offence:
(c) the plastic explosive contained a detection agent; and
(d) the concentration of the detection agent in the plastic explosive was not less than the minimum manufacture concentration for the detection agent; and
(e) the detection agent was homogenously distributed throughout the plastic explosive.
Note 1: A defendant bears a legal burden in relation to the matter in subsection (2) (see section 13.4).
Note 2: For the marking requirements, see section 72.33.
Note 3: For minimum manufacture concentration, see section 72.34.
72.17 Packaging requirements for plastic explosives
(1) A person commits an offence if:
(a) the person manufactures a substance; and
(b) the substance is a plastic explosive; and
(c) within 24 hours after the manufacture of the plastic explosive, the person does not cause the plastic explosive to be contained, enclosed or packaged in a wrapper with:
(i) the expression “PLASTIC EXPLOSIVE” (in upper‑case lettering); and
(ii) the date of manufacture of the plastic explosive; and
(iii) if the plastic explosive is of a prescribed type—that type; and
(iv) if the plastic explosive contains a detection agent for the purpose of meeting the first marking requirement—the name of the detection agent; and
(v) if the plastic explosive contains a detection agent for the purpose of meeting the first marking requirement—the concentration of the detection agent in the plastic explosive at the time of manufacture, expressed as a percentage by mass;
legibly displayed on the outer surface of the wrapper.
Penalty: Imprisonment for 2 years.
(2) The fault element for paragraphs (1)(b) and (c) is recklessness.
72.18 Authorisation for research etc.
Authorisation
(1) A responsible Minister may, by writing, authorise:
(a) the trafficking in; or
(b) the import, export, manufacture or possession of;
an unmarked plastic explosive.
(2) A responsible Minister must not give an authorisation under subsection (1) in relation to an unmarked plastic explosive unless the responsible Minister is satisfied that:
(a) the plastic explosive is for use exclusively for one or more of the following:
(i) research, development or testing of new or modified explosives;
(ii) development or testing of explosives detection equipment;
(iii) training in explosives detection;
(iv) forensic science; or
(b) both:
(i) the plastic explosive is an integral part of an explosive device that was manufactured exclusively for defence purposes; and
(ii) the explosive device is for use exclusively for defence purposes; or
(c) the plastic explosive will, within 3 years after the commencement of this section, become an integral part of an explosive device manufactured exclusively for defence purposes.
(3) An authorisation under subsection (1) must specify the grounds on which it was given.
Conditions and restrictions
(4) An authorisation under subsection (1) is subject to such conditions and restrictions as are specified in the authorisation.
(5) A responsible Minister must not give an authorisation under subsection (1) in relation to an unmarked plastic explosive on grounds covered by paragraph (2)(a) unless the authorisation is subject to a condition imposing a limit as to the quantity of the plastic explosive.
Criteria
(6) In exercising a power conferred by this section in relation to:
(a) the trafficking in; or
(b) the import, export, manufacture or possession of;
an unmarked plastic explosive, a responsible Minister must have regard to:
(c) the Convention on the Marking of Plastic Explosives; and
(d) whether the trafficking, import, export, manufacture or possession is reasonable; and
(e) such other matters (if any) as the responsible Minister considers relevant.
72.19 Authorisation for defence and police purposes—15 year limit
Authorisation
(1) A responsible Minister may, by writing, authorise:
(a) the trafficking in; or
(b) the import, export or possession of;
an unmarked plastic explosive that was:
(c) manufactured before the commencement of this section; or
(d) manufactured after the commencement of this section in accordance with an authorisation given under subsection 72.21(2).
(2) A responsible Minister must not give an authorisation under subsection (1) in relation to an unmarked plastic explosive unless the responsible Minister is satisfied that the plastic explosive is exclusively for use in connection with:
(a) the operation of the Australian Defence Force; or
(b) the operation in Australia of a visiting force (within the meaning of the Defence (Visiting Forces) Act 1963); or
(c) the operation of:
(i) the Australian Federal Police; or
(ii) the police force or police service of a State or Territory.
Conditions and restrictions
(3) An authorisation under subsection (1) is subject to such conditions and restrictions as are specified in the authorisation.
Criteria
(4) In exercising a power conferred by this section in relation to:
(a) the trafficking in; or
(b) the import, export or possession of;
an unmarked plastic explosive, a responsible Minister must have regard to:
(c) the Convention on the Marking of Plastic Explosives; and
(d) whether the trafficking, import, export or possession is reasonable; and
(e) such other matters (if any) as the responsible Minister considers relevant.
Sunset
(5) This section ceases to have effect at the end of 15 years after its commencement.
72.20 Authorisation for existing stocks—3 year limit
Authorisation
(1) A responsible Minister may, by writing, authorise:
(a) the trafficking in; or
(b) the import, export or possession of;
an unmarked plastic explosive that was manufactured before the commencement of this section.
Conditions and restrictions
(2) An authorisation under subsection (1) is subject to such conditions and restrictions as are specified in the authorisation.
(3) A responsible Minister must not give an authorisation under subsection (1) in relation to an unmarked plastic explosive unless the authorisation is subject to a condition that, within 3 years after the commencement of this section:
(a) the plastic explosive will not exist; or
(b) the plastic explosive will be made permanently ineffective.
Criteria
(4) In exercising a power conferred by this section in relation to:
(a) the trafficking in; or
(b) the import, export or possession of;
an unmarked plastic explosive, a responsible Minister must have regard to:
(c) the Convention on the Marking of Plastic Explosives; and
(d) whether the trafficking, import, export or possession is reasonable; and
(e) such other matters (if any) as the responsible Minister considers relevant.
72.21 Authorisation of manufacturers—6 month transitional period
Object
(1) The object of this section is to allow manufacturers a 6 month transitional period for compliance with sections 72.12, 72.14 and 72.15.
Authorisation
(2) A responsible Minister may, by writing, authorise:
(a) the manufacture of an unmarked plastic explosive after the commencement of this section; or
(b) the trafficking in an unmarked plastic explosive manufactured after the commencement of this section; or
(c) the possession of an unmarked plastic explosive manufactured after the commencement of this section.
(3) A responsible Minister must not give an authorisation under subsection (2) in relation to an unmarked plastic explosive unless the responsible Minister is satisfied that the plastic explosive is exclusively for use in connection with:
(a) the operation of the Australian Defence Force; or
(b) the operation in Australia of a visiting force (within the meaning of the Defence (Visiting Forces) Act 1963); or
(c) the operation of:
(i) the Australian Federal Police; or
(ii) the police force or police service of a State or Territory.
Conditions and restrictions
(4) An authorisation under subsection (2) is subject to such conditions and restrictions as are specified in the authorisation.
Sunset
(5) This section ceases to have effect at the end of 6 months after its commencement.
72.22 Authorisation for overseas defence purposes—7 day limit
(1) A member of the Australian Defence Force is authorised to possess, import or traffic in an unmarked plastic explosive if:
(a) the plastic explosive was obtained in the course of the operation outside Australia of the Australian Defence Force; and
(b) the member believes on reasonable grounds that there is insufficient time to obtain an authorisation under this Subdivision because of:
(i) an emergency; or
(ii) any other sudden or unexpected circumstances.
(2) An authorisation under subsection (1) ceases to have effect at the end of the seventh day after the day on which the plastic explosive was obtained.
72.23 Authorisation for overseas Australian Federal Police purposes—7 day limit
(1) A member of the Australian Federal Police is authorised to possess, import or traffic in an unmarked plastic explosive if:
(a) the plastic explosive was obtained in the course of the operation outside Australia of the Australian Federal Police; and
(b) the member believes on reasonable grounds that there is insufficient time to obtain an authorisation under this Subdivision because of:
(i) an emergency; or
(ii) any other sudden or unexpected circumstances.
(2) An authorisation under subsection (1) ceases to have effect at the end of the seventh day after the day on which the plastic explosive was obtained.
72.24 Forfeited plastic explosives
(1) If a court:
(a) convicts a person of an offence against this Subdivision in relation to a plastic explosive; or
(b) makes an order under section 19B of the Crimes Act 1914 in respect of a person charged with an offence against this Subdivision in relation to a plastic explosive;
the court may order the forfeiture to the Commonwealth of the plastic explosive.
(2) A plastic explosive forfeited to the Commonwealth under subsection (1) becomes the property of the Commonwealth.
(3) A plastic explosive forfeited to the Commonwealth under subsection (1) is to be dealt with in such manner as a responsible Minister directs.
(4) Without limiting subsection (3), a responsible Minister may direct that a plastic explosive forfeited to the Commonwealth under subsection (1) be:
(a) destroyed; or
(b) used exclusively for one or more of the purposes covered by paragraph 72.18(2)(a).
Note 1: See also section 10.5 (lawful authority).
Note 2: See also section 229 of the Customs Act 1901 (forfeiture of goods that have been unlawfully imported or exported).
72.25 Surrendered plastic explosives
(1) A person may surrender a plastic explosive to the Commonwealth at a place, and in a manner, prescribed for the purposes of this subsection.
(2) A plastic explosive surrendered to the Commonwealth under subsection (1) becomes the property of the Commonwealth.
(3) A plastic explosive surrendered to the Commonwealth under subsection (1) is to be dealt with in such manner as a responsible Minister directs.
(4) Without limiting subsection (3), a responsible Minister may direct that a plastic explosive surrendered to the Commonwealth under subsection (1) be:
(a) destroyed; or
(b) used exclusively for one or more of the purposes covered by paragraph 72.18(2)(a).
Note: See also section 10.5 (lawful authority).
72.26 Destruction of plastic explosives obtained overseas for defence purposes
A member of the Australian Defence Force may destroy an unmarked plastic explosive if the plastic explosive was obtained in the course of the operation outside Australia of the Australian Defence Force.
72.27 Destruction of plastic explosives obtained overseas for Australian Federal Police purposes
A member of the Australian Federal Police may destroy an unmarked plastic explosive if the plastic explosive was obtained in the course of the operation outside Australia of the Australian Federal Police.
(1) The Minister may, by writing, delegate to:
(a) the Secretary of the Department; or
(b) an SES employee, or an acting SES employee, in the Department, where the employee occupies or acts in a position with a classification of Senior Executive Band 3;
all or any of the Minister’s powers under sections 72.18, 72.19, 72.20, 72.21, 72.24 and 72.25.
(2) A delegate is, in the exercise of a power delegated under subsection (1), subject to the written directions of the Minister.
72.29 Delegation by Minister for Defence
(1) The Minister for Defence may, by writing, delegate to:
(a) an SES employee, or an acting SES employee, in the Department of Defence, where the employee occupies or acts in a position with a classification of Senior Executive Band 3; or
(b) an officer of the Australian Navy who holds the rank of Vice‑Admiral or a higher rank; or
(c) an officer of the Australian Army who holds the rank of Lieutenant‑General or a higher rank; or
(d) an officer of the Australian Air Force who holds the rank of Air Marshal or a higher rank; or
(e) an officer of the Australian Defence Force who is on deployment as the Commander of an Australian Task Force, contingent or force element that is operating outside Australia;
all or any of the powers of the Minister for Defence under sections 72.18, 72.19, 72.20, 72.21, 72.24 and 72.25.
(2) A delegate must not exercise a power delegated under subsection (1) unless the exercise of the power relates to:
(a) the operation of the Australian Defence Force; or
(b) the operation in Australia of a visiting force (within the meaning of the Defence (Visiting Forces) Act 1963); or
(c) the operation outside Australia of a person who, under a contract, performs services for the Australian Defence Force.
(3) A delegate is, in the exercise of a power delegated under subsection (1), subject to the written directions of the Minister for Defence.
72.30 Review by Administrative Appeals Tribunal of authorisation decisions
(1) An application may be made to the Administrative Appeals Tribunal for review of a decision refusing to give an authorisation under subsection 72.18(1), 72.19(1), 72.20(1) or 72.21(2).
(2) An application may be made to the Administrative Appeals Tribunal for review of a decision to specify a condition or restriction in an authorisation under subsection 72.18(1), 72.19(1), 72.20(1) or 72.21(2), but such an application may only be made by a person to whom the authorisation applies.
72.31 Geographical jurisdiction
Section 15.2 (extended geographical jurisdiction—category B) applies to each offence against this Subdivision.
This Subdivision is not intended to exclude or limit the operation of any other law of the Commonwealth or of a State or Territory.
(1) This section sets out the 2 marking requirements for a plastic explosive.
Concentration of detection agent at time of manufacture
(2) The first marking requirement is that, at the time of the manufacture of the plastic explosive, all of the following conditions were satisfied:
(a) the plastic explosive contained a detection agent;
(b) the concentration of the detection agent in the plastic explosive was not less than the minimum manufacture concentration for the detection agent;
(c) the detection agent was homogenously distributed throughout the plastic explosive.
Note: For minimum manufacture concentration, see section 72.34.
Freshness
(3) The second marking requirement is that less than 10 years have elapsed since the manufacture of the plastic explosive.
Interpretation
(4) In determining whether a plastic explosive manufactured before the commencement of this section breached the first marking requirement, assume that this section and sections 72.34 and 72.36 had been in force at the time of manufacture.
72.34 Detection agents and minimum manufacture concentrations
For the purposes of this Subdivision, the following table defines:
(a) detection agent; and
(b) the minimum manufacture concentration for each detection agent.
|
Detection agents and minimum manufacture concentrations |
||
|
Item |
Detection agent |
Minimum manufacture concentration |
|
1 |
Ethylene glycol dinitrate (EGDN) (molecular formula: C2H4(NO3)2) (molecular weight: 152) |
0.2% by mass |
|
2 |
2,3‑Dimethyl‑2,3‑dinitrobutane (DMNB) (molecular formula: C6H12(NO2)2) (molecular weight: 176) |
1% by mass |
|
3 |
para‑Mononitrotoluene (p‑MNT) (molecular formula: C7H7NO2) (molecular weight: 137) |
0.5% by mass |
|
4 |
a substance prescribed for the purposes of this table item |
the concentration prescribed for the purposes of this table item in relation to the substance |
72.35 Presumption as to concentration of detection agent
(1) This section applies in relation to a prosecution for an offence against this Subdivision.
(2) If no detection agent can be detected in a sample of a plastic explosive when tested using:
(a) a method generally accepted in the scientific community as a reliable means of measuring the concentration of detection agents in plastic explosives; or
(b) a method prescribed for the purposes of this paragraph;
it is presumed, unless the contrary is proved, that the plastic explosive breaches the first marking requirement.
Note: A defendant bears a legal burden in relation to proving the contrary (see section 13.4).
In this Subdivision:
Convention on the Marking of Plastic Explosives means:
(a) the Convention on the Marking of Plastic Explosives for the Purpose of Detection, done at Montreal on 1 March 1991; or
(b) if:
(i) the Convention is amended; and
(ii) the amendment binds Australia;
the Convention as so amended.
Note: In 2006, the text of the Convention was accessible through the Australian Treaties Library on the AustLII Internet site (www.austlii.edu.au).
Department of Defence means the Department that deals with matters relating to defence.
detection agent has the meaning given by section 72.34.
explosive device includes the following:
(a) a bomb;
(b) a grenade;
(c) a mine;
(d) a missile;
(e) a perforator;
(f) a projectile;
(g) a rocket;
(h) a shaped charge;
(i) a shell.
export includes take from Australia.
first marking requirement has the meaning given by subsection 72.33(2).
high explosive means an explosive with a velocity of detonation that is greater than the velocity of sound in the explosive (typically greater than 340 metres per second), and includes the following:
(a) cyclotetramethylenetetranitramine (HMX);
(b) pentaerythritol tetranitrate (PETN);
(c) cyclotrimethylenetrinitramine (RDX).
import includes bring into Australia.
manufacture a substance means any process by which a substance is produced, and includes the following:
(a) the process of transforming a substance into a different substance;
(b) the reprocessing of a substance.
marking requirement has the meaning given by section 72.33.
minimum manufacture concentration has the meaning given by section 72.34.
Minister for Defence means the Minister administering the Defence Act 1903.
plastic explosive means an explosive product (including an explosive product in flexible or elastic sheet form) that is:
(a) formulated with:
(i) one or more high explosives which in their pure form have a vapour pressure less than 10¯4 Pa at a temperature of 25°C; and
(ii) a binder material; and
(b) as a mixture, malleable or flexible at normal room temperature.
possess a substance includes the following:
(a) receive or obtain possession of the substance;
(b) have control over the disposition of the substance (whether or not the substance is in the custody of the person);
(c) have joint possession of the substance.
responsible Minister means:
(a) the Minister; or
(b) the Minister for Defence.
second marking requirement has the meaning given by subsection 72.33(3).
traffic in a substance means:
(a) transfer the substance; or
(b) offer the substance for sale; or
(c) invite the making of offers to buy the substance; or
(d) prepare the substance for transfer with the intention of transferring any of it or believing that another person intends to transfer any of it; or
(e) transport or deliver the substance with the intention of transferring any of it or believing that another person intends to transfer any of it; or
(f) guard or conceal the substance with the intention of transferring any of it or the intention of assisting another person to transfer any of it; or
(g) possess the substance with the intention of transferring any of it.
For the purposes of paragraph (d), preparing a substance for transfer includes packaging the substance or separating the substance into discrete units.
transfer means transfer ownership or possession.
unmarked plastic explosive means a plastic explosive that breaches a marking requirement.
wrapper, in relation to a plastic explosive, means a wrapper the inner surface of which is in contact with the plastic explosive.
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.
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.
(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.
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 de