Schedule—The Criminal Code
Section 3
Chapter 1—Codification
Division 1
1.1
Codification
The only offences against laws of the
Commonwealth are those offences created by, or under the authority of, this
Code or any other Act.
Note: Under subsection 38(1) of the Acts
Interpretation Act 1901, Act means an Act passed by the
Parliament of the Commonwealth.
Chapter 2—General principles of criminal responsibility
Part 2.1—Purpose and application
Division 2
2.1
Purpose
The purpose of this Chapter is to
codify the general principles of criminal responsibility under laws of the
Commonwealth. It contains all the general principles of criminal
responsibility that apply to any offence, irrespective of how the offence is
created.
2.2
Application
(1) This Chapter applies to all offences
against this Code.
(2) Subject to section 2.3, this Chapter
applies on and after 15 December 2001 to all other offences.
(3) Section 11.6 applies to all
offences.
2.3
Application of provisions relating to intoxication
Subsections 4.2(6) and (7) and Division 8
apply to all offences. For the purpose of interpreting those provisions in
connection with an offence, the other provisions of this Chapter may be
considered, whether or not those other provisions apply to the offence
concerned.
Part 2.2—The elements of an offence
Division 3—General
3.1
Elements
(1) An offence consists of physical
elements and fault elements.
(2) However, the law that creates the offence
may provide that there is no fault element for one or more physical elements.
(3) The law that creates the offence may
provide different fault elements for different physical elements.
3.2
Establishing guilt in respect of offences
In order for a person to be found guilty
of committing an offence the following must be proved:
(a) the existence of such physical
elements as are, under the law creating the offence, relevant to establishing
guilt;
(b) in respect of each such physical
element for which a fault element is required, one of the fault elements for
the physical element.
Note 1: See Part 2.6 on proof of criminal
responsibility.
Note 2: See Part 2.7 on geographical jurisdiction.
Division 4—Physical elements
4.1
Physical elements
(1) A physical element of an offence may
be:
(a) conduct; or
(b) a result of conduct; or
(c) a circumstance in which conduct,
or a result of conduct, occurs.
(2) In this Code:
conduct means an act, an omission to perform
an act or a state of affairs.
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
4.2
Voluntariness
(1) Conduct can only be a physical element if
it is voluntary.
(2) Conduct is only voluntary if it is a
product of the will of the person whose conduct it is.
(3) The following are examples of conduct
that is not voluntary:
(a) a spasm, convulsion or other
unwilled bodily movement;
(b) an act performed during sleep or
unconsciousness;
(c) an act performed during impaired
consciousness depriving the person of the will to act.
(4) An omission to perform an act is only
voluntary if the act omitted is one which the person is capable of performing.
(5) If the conduct constituting an offence
consists only of a state of affairs, the state of affairs is only voluntary if
it is one over which the person is capable of exercising control.
(6) Evidence of self‑induced
intoxication cannot be considered in determining whether conduct is voluntary.
(7) Intoxication is self‑induced unless
it came about:
(a) involuntarily; or
(b) as a result of fraud, sudden or
extraordinary emergency, accident, reasonable mistake, duress or force.
4.3
Omissions
An omission to perform an act can only
be a physical element if:
(a) the law creating the offence makes
it so; or
(b) the law creating the offence
impliedly provides that the offence is committed by an omission to perform an
act that by law there is a duty to perform.
Division 5—Fault elements
5.1
Fault elements
(1) A fault element for a particular
physical element may be intention, knowledge, recklessness or negligence.
(2) Subsection (1) does not prevent a
law that creates a particular offence from specifying other fault elements for
a physical element of that offence.
5.2
Intention
(1) A person has intention with respect to
conduct if he or she means to engage in that conduct.
(2) A person has intention with respect to a
circumstance if he or she believes that it exists or will exist.
(3) A person has intention with respect to a
result if he or she means to bring it about or is aware that it will occur in
the ordinary course of events.
5.3
Knowledge
A person has knowledge of a circumstance
or a result if he or she is aware that it exists or will exist in the ordinary
course of events.
5.4
Recklessness
(1) A person is reckless with respect to a
circumstance if:
(a) he or she is aware of a
substantial risk that the circumstance exists or will exist; and
(b) having regard to the circumstances
known to him or her, it is unjustifiable to take the risk.
(2) A person
is reckless with respect to a result if:
(a) he or she is aware of a
substantial risk that the result will occur; and
(b) having regard to the circumstances
known to him or her, it is unjustifiable to take the risk.
(3) The question whether taking a risk is
unjustifiable is one of fact.
(4) If recklessness is a fault element for a
physical element of an offence, proof of intention, knowledge or recklessness
will satisfy that fault element.
5.5
Negligence
A person is negligent with respect to a
physical element of an offence if his or her conduct involves:
(a) such a great falling short of the
standard of care that a reasonable person would exercise in the circumstances;
and
(b) such a high risk that the physical
element exists or will exist;
that the conduct merits criminal punishment for the
offence.
5.6
Offences that do not specify fault elements
(1) If the law creating the offence does not
specify a fault element for a physical element that consists only of conduct,
intention is the fault element for that physical element.
(2) If the law creating the offence does not
specify a fault element for a physical element that consists of a circumstance
or a result, recklessness is the fault element for that physical element.
Note: Under subsection 5.4(4), recklessness can be
established by proving intention, knowledge or recklessness.
Division 6—Cases where fault elements are not required
6.1
Strict liability
(1) If a law that creates an offence
provides that the offence is an offence of strict liability:
(a) there are no fault elements for
any of the physical elements of the offence; and
(b) the defence of mistake of fact
under section 9.2 is available.
(2) If a law that creates an offence provides
that strict liability applies to a particular physical element of the offence:
(a) there are no fault elements for
that physical element; and
(b) the defence of mistake of fact
under section 9.2 is available in relation to that physical element.
(3) The existence of strict liability does
not make any other defence unavailable.
6.2
Absolute liability
(1) If a law that creates an offence
provides that the offence is an offence of absolute liability:
(a) there are no fault elements for
any of the physical elements of the offence; and
(b) the defence of mistake of fact
under section 9.2 is unavailable.
(2) If a law that creates an offence provides
that absolute liability applies to a particular physical element of the
offence:
(a) there are no fault elements for
that physical element; and
(b) the defence of mistake of fact
under section 9.2 is unavailable in relation to that physical element.
(3) The existence of absolute liability does
not make any other defence unavailable.
Part 2.3—Circumstances in which there is no criminal responsibility
Note: This Part sets out defences that are generally
available. Defences that apply to a more limited class of offences are dealt
with elsewhere in this Code and in other laws.
Division 7—Circumstances involving lack of capacity
7.1
Children under 10
A child under 10 years old is not
criminally responsible for an offence.
7.2
Children over 10 but under 14
(1) A child aged 10 years or more but
under 14 years old can only be criminally responsible for an offence if the
child knows that his or her conduct is wrong.
(2) The question whether a child knows that
his or her conduct is wrong is one of fact. The burden of proving this is on
the prosecution.
7.3
Mental impairment
(1) A person is not criminally responsible
for an offence if, at the time of carrying out the conduct constituting the
offence, the person was suffering from a mental impairment that had the effect
that:
(a) the person did not know the
nature and quality of the conduct; or
(b) the person did not know that
the conduct was wrong (that is, the person could not reason with a moderate
degree of sense and composure about whether the conduct, as perceived by
reasonable people, was wrong); or
(c) the person was unable to
control the conduct.
(2) The question whether the person was
suffering from a mental impairment is one of fact.
(3) A person is presumed not to have been
suffering from such a mental impairment. The presumption is only displaced if
it is proved on the balance of probabilities (by the prosecution or the
defence) that the person was suffering from such a mental impairment.
(4) The prosecution can only rely on this
section if the court gives leave.
(5) The tribunal of fact must return a
special verdict that a person is not guilty of an offence because of mental
impairment if and only if it is satisfied that the person is not criminally
responsible for the offence only because of a mental impairment.
(6) A person cannot rely on a mental
impairment to deny voluntariness or the existence of a fault element but may
rely on this section to deny criminal responsibility.
(7) If the tribunal of fact is satisfied that
a person carried out conduct as a result of a delusion caused by a mental
impairment, the delusion cannot otherwise be relied on as a defence.
(8) In this section:
mental impairment includes senility,
intellectual disability, mental illness, brain damage and severe personality
disorder.
(9) The reference in subsection (8) to mental
illness is a reference to an underlying pathological infirmity of the mind,
whether of long or short duration and whether permanent or temporary, but does
not include a condition that results from the reaction of a healthy mind to
extraordinary external stimuli. However, such a condition may be evidence of a
mental illness if it involves some abnormality and is prone to recur.
Division 8—Intoxication
8.1
Definition—self‑induced intoxication
For the purposes of this Division,
intoxication is self‑induced unless it came about:
(a) involuntarily; or
(b) as a result of fraud, sudden or
extraordinary emergency, accident, reasonable mistake, duress or force.
8.2
Intoxication (offences involving basic intent)
(1) Evidence of self‑induced
intoxication cannot be considered in determining whether a fault element of
basic intent existed.
(2) A fault element of basic intent is a
fault element of intention for a physical element that consists only of
conduct.
Note: A fault element of intention with respect to a
circumstance or with respect to a result is not a fault element of basic
intent.
(3) This section does not prevent evidence of
self‑induced intoxication being taken into consideration in determining
whether conduct was accidental.
(4) This section does not prevent evidence of
self‑induced intoxication being taken into consideration in determining
whether a person had a mistaken belief about facts if the person had considered
whether or not the facts existed.
(5) A person may be regarded as having
considered whether or not facts existed if:
(a) he or she had considered, on a
previous occasion, whether those facts existed in circumstances surrounding
that occasion; and
(b) he or she honestly and reasonably
believed that the circumstances surrounding the present occasion were the same,
or substantially the same, as those surrounding the previous occasion.
8.3
Intoxication (negligence as fault element)
(1) If negligence is a fault element for a
particular physical element of an offence, in determining whether that fault
element existed in relation to a person who is intoxicated, regard must be had
to the standard of a reasonable person who is not intoxicated.
(2) However, if intoxication is not self‑induced,
regard must be had to the standard of a reasonable person intoxicated to the
same extent as the person concerned.
8.4
Intoxication (relevance to defences)
(1) If any part of a defence is based on
actual knowledge or belief, evidence of intoxication may be considered in
determining whether that knowledge or belief existed.
(2) If any part of a defence is based on
reasonable belief, in determining whether that reasonable belief existed,
regard must be had to the standard of a reasonable person who is not
intoxicated.
(3) If a person’s intoxication is not self‑induced,
in determining whether any part of a defence based on reasonable belief exists,
regard must be had to the standard of a reasonable person intoxicated to the
same extent as the person concerned.
(4) If, in relation to an offence:
(a) each physical element has a fault
element of basic intent; and
(b) any part of a defence is based on
actual knowledge or belief;
evidence of self‑induced intoxication cannot be
considered in determining whether that knowledge or belief existed.
(5) A fault element of basic intent is a
fault element of intention for a physical element that consists only of
conduct.
Note: A fault element of intention with respect to a
circumstance or with respect to a result is not a fault element of basic
intent.
8.5
Involuntary intoxication
A person is not criminally responsible
for an offence if the person’s conduct constituting the offence was as a result
of intoxication that was not self‑induced.
Division 9—Circumstances involving mistake or ignorance
9.1
Mistake or ignorance of fact (fault elements other than negligence)
(1) A person is not criminally responsible
for an offence that has a physical element for which there is a fault element
other than negligence if:
(a) at the time of the conduct
constituting the physical element, the person is under a mistaken belief about,
or is ignorant of, facts; and
(b) the existence of that mistaken
belief or ignorance negates any fault element applying to that physical
element.
(2) In determining whether a person was under
a mistaken belief about, or was ignorant of, facts, the tribunal of fact may
consider whether the mistaken belief or ignorance was reasonable in the
circumstances.
9.2
Mistake of fact (strict liability)
(1) A person is not criminally responsible
for an offence that has a physical element for which there is no fault element
if:
(a) at or before the time of the
conduct constituting the physical element, the person considered whether or not
facts existed, and is under a mistaken but reasonable belief about those facts;
and
(b) had those facts existed, the
conduct would not have constituted an offence.
(2) A person may be regarded as having
considered whether or not facts existed if:
(a) he or she had considered, on a
previous occasion, whether those facts existed in the circumstances surrounding
that occasion; and
(b) he or she honestly and reasonably
believed that the circumstances surrounding the present occasion were the same,
or substantially the same, as those surrounding the previous occasion.
Note: Section 6.2 prevents this section
applying in situations of absolute liability.
9.3
Mistake or ignorance of statute law
(1) A person can be criminally responsible
for an offence even if, at the time of the conduct constituting the offence, he
or she is mistaken about, or ignorant of, the existence or content of an Act
that directly or indirectly creates the offence or directly or indirectly
affects the scope or operation of the offence.
(2) Subsection (1) does not apply, and
the person is not criminally responsible for the offence in those
circumstances, if the Act is expressly to the contrary effect.
9.4
Mistake or ignorance of subordinate legislation
(1) A person can be criminally responsible
for an offence even if, at the time of the conduct constituting the offence, he
or she is mistaken about, or ignorant of, the existence or content of the
subordinate legislation that directly or indirectly creates the offence or
directly or indirectly affects the scope or operation of the offence.
(2) Subsection (1) does not apply, and
the person is not criminally responsible for the offence in those
circumstances, if:
(a) the subordinate legislation is
expressly to the contrary effect; or
(c) at the time of the conduct, the
subordinate legislation:
(i) has not been made
available to the public (by means of the Register under the Legislative
Instruments Act 2003 or otherwise); and
(ii) has not otherwise been
made available to persons likely to be affected by it in such a way that the
person would have become aware of its contents by exercising due diligence.
(3) In this
section:
available includes available by sale.
subordinate legislation means an instrument
of a legislative character made directly or indirectly under an Act, or in
force directly or indirectly under an Act.
9.5
Claim of right
(1) A person is not criminally responsible
for an offence that has a physical element relating to property if:
(a) at the time of the conduct
constituting the offence, the person is under a mistaken belief about a
proprietary or possessory right; and
(b) the existence of that right
would negate a fault element for any physical element of the offence.
(2) A person is not criminally responsible
for any other offence arising necessarily out of the exercise of the
proprietary or possessory right that he or she mistakenly believes to exist.
(3) This section does not negate criminal
responsibility for an offence relating to the use of force against a person.
Division 10—Circumstances involving external factors
10.1
Intervening conduct or event
A person is not criminally responsible
for an offence that has a physical element to which absolute liability or
strict liability applies if:
(a) the physical element is brought
about by another person over whom the person has no control or by a non‑human
act or event over which the person has no control; and
(b) the person could not reasonably
be expected to guard against the bringing about of that physical element.
10.2
Duress
(1) A person is not criminally responsible
for an offence if he or she carries out the conduct constituting the offence
under duress.
(2) A person carries out conduct under duress
if and only if he or she reasonably believes that:
(a) a threat has been made that will
be carried out unless an offence is committed; and
(b) there is no reasonable way that the
threat can be rendered ineffective; and
(c) the conduct is a reasonable
response to the threat.
(3) This section does not apply if the threat
is made by or on behalf of a person with whom the person under duress is
voluntarily associating for the purpose of carrying out conduct of the kind
actually carried out.
10.3
Sudden or extraordinary emergency
(1) A person is not criminally responsible
for an offence if he or she carries out the conduct constituting the offence in
response to circumstances of sudden or extraordinary emergency.
(2) This section applies if and only if the
person carrying out the conduct reasonably believes that:
(a) circumstances of sudden or
extraordinary emergency exist; and
(b) committing the offence is the only
reasonable way to deal with the emergency; and
(c) the conduct is a reasonable
response to the emergency.
10.4
Self‑defence
(1) A person is not criminally responsible
for an offence if he or she carries out the conduct constituting the offence in
self‑defence.
(2) A person carries out conduct in self‑defence
if and only if he or she believes the conduct is necessary:
(a) to defend himself or herself or
another person; or
(b) to prevent or terminate the
unlawful imprisonment of himself or herself or another person; or
(c) to protect property from unlawful
appropriation, destruction, damage or interference; or
(d) to prevent criminal trespass to
any land or premises; or
(e) to remove from any land or
premises a person who is committing criminal trespass;
and the conduct is a reasonable response in the
circumstances as he or she perceives them.
(3) This section does not apply if the person
uses force that involves the intentional infliction of death or really serious
injury:
(a) to protect property; or
(b) to prevent criminal trespass; or
(c) to remove a person who is
committing criminal trespass.
(4) This section does not apply if:
(a) the person is responding to lawful
conduct; and
(b) he or she knew that the conduct
was lawful.
However, conduct is not lawful merely because the person
carrying it out is not criminally responsible for it.
10.5
Lawful authority
A person is not criminally responsible
for an offence if the conduct constituting the offence is justified or excused
by or under a law.
Part 2.4—Extensions of criminal responsibility
Division 11
11.1
Attempt
(1) A person who attempts to commit an
offence is guilty of the offence of attempting to commit that offence and is
punishable as if the offence attempted had been committed.
(2) For the person to be guilty, the person’s
conduct must be more than merely preparatory to the commission of the offence.
The question whether conduct is more than merely preparatory to the commission
of the offence is one of fact.
(3) For the offence of attempting to commit
an offence, intention and knowledge are fault elements in relation to each
physical element of the offence attempted.
Note: Under section 3.2, only one of the fault
elements of intention or knowledge would need to be established in respect of
each physical element of the offence attempted.
(3A) Subsection (3) has effect subject to subsection (6A).
(4) A person may be found guilty even if:
(a) committing the offence attempted
is impossible; or
(b) the person actually committed the
offence attempted.
(5) A person who is found guilty of
attempting to commit an offence cannot be subsequently charged with the
completed offence.
(6) Any defences, procedures, limitations or
qualifying provisions that apply to an offence apply also to the offence of
attempting to commit that offence.
(6A) Any special liability provisions that apply
to an offence apply also to the offence of attempting to commit that offence.
(7) It is not an offence to attempt to commit
an offence against section 11.2 (complicity and common purpose), section 11.5
(conspiracy to commit an offence) or section 135.4 (conspiracy to
defraud).
11.2
Complicity and common purpose
(1) A person who aids, abets, counsels or
procures the commission of an offence by another person is taken to have
committed that offence and is punishable accordingly.
(2) For the person to be guilty:
(a) the person’s conduct must have in
fact aided, abetted, counselled or procured the commission of the offence by
the other person; and
(b) the offence must have been
committed by the other person.
(3) For the person to be guilty, the person
must have intended that:
(a) his or her conduct would aid,
abet, counsel or procure the commission of any offence (including its fault
elements) of the type the other person committed; or
(b) his or her conduct would aid,
abet, counsel or procure the commission of an offence and have been reckless
about the commission of the offence (including its fault elements) that the
other person in fact committed.
(3A) Subsection (3) has effect subject to subsection (6).
(4) A person cannot be found guilty of
aiding, abetting, counselling or procuring the commission of an offence if,
before the offence was committed, the person:
(a) terminated his or her involvement;
and
(b) took all reasonable steps to
prevent the commission of the offence.
(5) A person may be found guilty of aiding,
abetting, counselling or procuring the commission of an offence even if the
principal offender has not been prosecuted or has not been found guilty.
(6) Any special liability provisions that
apply to an offence apply also to the offence of aiding, abetting, counselling
or procuring the commission of that offence.
(7) If the trier of fact is satisfied beyond
reasonable doubt that a person either:
(a) is guilty of a particular offence
otherwise than because of the operation of subsection (1); or
(b) is guilty of that offence because
of the operation of subsection (1);
but is not able to determine which, the trier of fact may
nonetheless find the person guilty of that offence.
11.3
Innocent agency
A person who:
(a) has, in relation to each
physical element of an offence, a fault element applicable to that physical
element; and
(b) procures conduct of another
person that (whether or not together with conduct of the procurer) would have
constituted an offence on the part of the procurer if the procurer had engaged
in it;
is taken to have committed that offence and is
punishable accordingly.
11.4
Incitement
(1) A person who urges the commission of
an offence is guilty of the offence of incitement.
(2) For the person to be guilty, the person
must intend that the offence incited be committed.
(2A) Subsection (2) has effect subject to subsection (4A).
(3) A person may be found guilty even if
committing the offence incited is impossible.
(4) Any defences, procedures, limitations or
qualifying provisions that apply to an offence apply also to the offence of
incitement in respect of that offence.
(4A) Any special liability provisions that apply
to an offence apply also to the offence of incitement in respect of that
offence.
(5) It is not an offence to incite the
commission of an offence against section 11.1 (attempt), this section or
section 11.5 (conspiracy).
Penalty:
(a) if the offence incited is punishable
by life imprisonment—imprisonment for 10 years; or
(b) if the offence incited is
punishable by imprisonment for 14 years or more, but is not punishable by life
imprisonment—imprisonment for 7 years; or
(c) if the offence incited is
punishable by imprisonment for 10 years or more, but is not punishable by
imprisonment for 14 years or more—imprisonment for 5 years; or
(d) if the offence is otherwise
punishable by imprisonment—imprisonment for 3 years or for the maximum term of
imprisonment for the offence incited, whichever is the lesser; or
(e) if the offence incited is not
punishable by imprisonment—the number of penalty units equal to the maximum
number of penalty units applicable to the offence incited.
Note: Under section 4D
of the Crimes Act 1914, these penalties are only maximum penalties.
Subsection 4B(2) of that Act allows a court to impose an appropriate fine
instead of, or in addition to, a term of imprisonment. If a body corporate is
convicted of the offence, subsection 4B(3) of that Act allows a court to impose
a fine of an amount not greater than 5 times the maximum fine that the court
could impose on an individual convicted of the same offence. Penalty units are
defined in section 4AA of that Act.
11.5
Conspiracy
(1) A person who conspires with another
person to commit an offence punishable by imprisonment for more than 12 months,
or by a fine of 200 penalty units or more, is guilty of the offence of
conspiracy to commit that offence and is punishable as if the offence to which
the conspiracy relates had been committed.
Note: Penalty units are defined in section 4AA
of the Crimes Act 1914.
(2) For the person to be guilty:
(a) the person must have entered into
an agreement with one or more other persons; and
(b) the person and at least one other
party to the agreement must have intended that an offence would be committed
pursuant to the agreement; and
(c) the person or at least one other
party to the agreement must have committed an overt act pursuant to the
agreement.
(2A) Subsection (2) has effect subject to subsection (7A).
(3) A person may be found guilty of
conspiracy to commit an offence even if:
(a) committing the offence is
impossible; or
(b) the only other party to the
agreement is a body corporate; or
(c) each other party to the agreement
is at least one of the following:
(i) a person who is not
criminally responsible;
(ii) a person for whose
benefit or protection the offence exists; or
(d) subject to paragraph (4)(a),
all other parties to the agreement have been acquitted of the conspiracy.
(4) A person
cannot be found guilty of conspiracy to commit an offence if:
(a) all other parties to the agreement
have been acquitted of the conspiracy and a finding of guilt would be
inconsistent with their acquittal; or
(b) he or she is a person for whose
benefit or protection the offence exists.
(5) A person cannot be found guilty of
conspiracy to commit an offence if, before the commission of an overt act
pursuant to the agreement, the person:
(a) withdrew from the agreement; and
(b) took all reasonable steps to
prevent the commission of the offence.
(6) A court may dismiss a charge of
conspiracy if it thinks that the interests of justice require it to do so.
(7) Any defences, procedures, limitations or
qualifying provisions that apply to an offence apply also to the offence of
conspiracy to commit that offence.
(7A) Any special liability provisions that apply
to an offence apply also to the offence of conspiracy to commit that offence.
(8) Proceedings for an offence of conspiracy
must not be commenced without the consent of the Director of Public
Prosecutions. However, a person may be arrested for, charged with, or remanded
in custody or on bail in connection with, an offence of conspiracy before the
necessary consent has been given.
11.6
References in Acts to offences
(1) A reference in a law of the Commonwealth
to an offence against a law of the Commonwealth (including this Code) includes
a reference to an offence against section 11.1 (attempt), 11.4
(incitement) or 11.5 (conspiracy) of this Code that relates to such an offence.
(2) A
reference in a law of the Commonwealth (including this Code) to a particular
offence includes a reference to an offence against section 11.1 (attempt),
11.4 (incitement) or 11.5 (conspiracy) of this Code that relates to that
particular offence.
(3) Subsection (1) or (2) does not apply
if a law of the Commonwealth is expressly or impliedly to the contrary effect.
(4) In particular, an express reference in a
law of the Commonwealth to:
(a) an offence against, under or
created by the Crimes Act 1914; or
(b) an offence against, under or
created by a particular provision of the Crimes Act 1914; or
(c) an offence arising out of the
first‑mentioned law or another law of the Commonwealth; or
(d) an offence arising out of a
particular provision; or
(e) an offence against, under or
created by the Taxation Administration Act 1953;
does not mean that the first‑mentioned law is
impliedly to the contrary effect.
Note: Sections 11.2 (complicity and common
purpose) and 11.3 (innocent agency) of this Code operate as extensions of
principal offences and are therefore not referred to in this section.
Part 2.5—Corporate criminal responsibility
Division 12
12.1
General principles
(1) This Code applies to bodies corporate
in the same way as it applies to individuals. It so applies with such
modifications as are set out in this Part, and with such other modifications as
are made necessary by the fact that criminal liability is being imposed on
bodies corporate rather than individuals.
(2) A body corporate may be found guilty
of any offence, including one punishable by imprisonment.
Note: Section 4B of the Crimes Act 1914
enables a fine to be imposed for offences that only specify imprisonment as a
penalty.
12.2
Physical elements
If a physical element of an offence is
committed by an employee, agent or officer of a body corporate acting within
the actual or apparent scope of his or her employment, or within his or her
actual or apparent authority, the physical element must also be attributed to
the body corporate.
12.3
Fault elements other than negligence
(1) If intention, knowledge or recklessness
is a fault element in relation to a physical element of an offence, that fault
element must be attributed to a body corporate that expressly, tacitly or
impliedly authorised or permitted the commission of the offence.
(2) The means by which such an authorisation
or permission may be established include:
(a) proving that the body corporate’s
board of directors intentionally, knowingly or recklessly carried out the
relevant conduct, or expressly, tacitly or impliedly authorised or permitted
the commission of the offence; or
(b) proving that a high managerial
agent of the body corporate intentionally, knowingly or recklessly engaged in
the relevant conduct, or expressly, tacitly or impliedly authorised or
permitted the commission of the offence; or
(c) proving that a corporate culture
existed within the body corporate that directed, encouraged, tolerated or led
to non‑compliance with the relevant provision; or
(d) proving that the body corporate
failed to create and maintain a corporate culture that required compliance with
the relevant provision.
(3) Paragraph (2)(b) does not apply if
the body corporate proves that it exercised due diligence to prevent the
conduct, or the authorisation or permission.
(4) Factors relevant to the application of paragraph (2)(c)
or (d) include:
(a) whether authority to commit an
offence of the same or a similar character had been given by a high managerial
agent of the body corporate; and
(b) whether the employee, agent or
officer of the body corporate who committed the offence believed on reasonable
grounds, or entertained a reasonable expectation, that a high managerial agent
of the body corporate would have authorised or permitted the commission of the
offence.
(5) If recklessness is not a fault element in
relation to a physical element of an offence, subsection (2) does not
enable the fault element to be proved by proving that the board of directors,
or a high managerial agent, of the body corporate recklessly engaged in the
conduct or recklessly authorised or permitted the commission of the offence.
(6) In this section:
board of directors means the body (by
whatever name called) exercising the executive authority of the body corporate.
corporate culture means an attitude, policy,
rule, course of conduct or practice existing within the body corporate
generally or in the part of the body corporate in which the relevant activities
takes place.
high managerial agent means an employee,
agent or officer of the body corporate with duties of such responsibility that
his or her conduct may fairly be assumed to represent the body corporate’s
policy.
12.4
Negligence
(1) The test of negligence for a body
corporate is that set out in section 5.5.
(2) If:
(a) negligence is a fault element in
relation to a physical element of an offence; and
(b) no individual employee, agent or
officer of the body corporate has that fault element;
that fault element may exist on the part of the body
corporate if the body corporate’s conduct is negligent when viewed as a whole
(that is, by aggregating the conduct of any number of its employees, agents or
officers).
(3) Negligence may be evidenced by the fact
that the prohibited conduct was substantially attributable to:
(a) inadequate corporate management,
control or supervision of the conduct of one or more of its employees, agents
or officers; or
(b) failure to provide adequate
systems for conveying relevant information to relevant persons in the body
corporate.
12.5
Mistake of fact (strict liability)
(1) A body corporate can only rely on section 9.2
(mistake of fact (strict liability)) in respect of conduct that would, apart
from this section, constitute an offence on its part if:
(a) the employee, agent or officer of
the body corporate who carried out the conduct was under a mistaken but
reasonable belief about facts that, had they existed, would have meant that the
conduct would not have constituted an offence; and
(b) the body corporate proves that it
exercised due diligence to prevent the conduct.
(2) A failure to exercise due diligence may
be evidenced by the fact that the prohibited conduct was substantially
attributable to:
(a) inadequate corporate management,
control or supervision of the conduct of one or more of its employees, agents
or officers; or
(b) failure to provide adequate
systems for conveying relevant information to relevant persons in the body
corporate.
12.6
Intervening conduct or event
A body corporate cannot rely on section 10.1
(intervening conduct or event) in respect of a physical element of an offence
brought about by another person if the other person is an employee, agent or
officer of the body corporate.
Part 2.6—Proof of criminal
responsibility
Division 13
13.1
Legal burden of proof—prosecution
(1) The prosecution bears a legal burden
of proving every element of an offence relevant to the guilt of the person
charged.
Note: See section 3.2 on what elements are
relevant to a person’s guilt.
(2) The prosecution also bears a legal
burden of disproving any matter in relation to which the defendant has
discharged an evidential burden of proof imposed on the defendant.
(3) In this Code:
legal burden, in relation to a matter, means
the burden of proving the existence of the matter.
13.2
Standard of proof—prosecution
(1) A legal burden of proof on the
prosecution must be discharged beyond reasonable doubt.
(2) Subsection (1) does not apply if the
law creating the offence specifies a different standard of proof.
13.3
Evidential burden of proof—defence
(1) Subject to section 13.4, a burden
of proof that a law imposes on a defendant is an evidential burden only.
(2) A defendant who wishes to deny criminal
responsibility by relying on a provision of Part 2.3 (other than section 7.3)
bears an evidential burden in relation to that matter.
(3) A defendant who wishes to rely on any
exception, exemption, excuse, qualification or justification provided by the
law creating an offence bears an evidential burden in relation to that matter.
The exception, exemption, excuse, qualification or justification need not
accompany the description of the offence.
(4) The defendant no longer bears the
evidential burden in relation to a matter if evidence sufficient to discharge
the burden is adduced by the prosecution or by the court.
(5) The question whether an evidential burden
has been discharged is one of law.
(6) In this Code:
evidential burden, in relation to a matter,
means the burden of adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist.
13.4
Legal burden of proof—defence
A burden of proof that a law imposes
on the defendant is a legal burden if and only if the law expressly:
(a) specifies that the burden of
proof in relation to the matter in question is a legal burden; or
(b) requires the defendant to prove
the matter; or
(c) creates a presumption that the
matter exists unless the contrary is proved.
13.5 Standard
of proof—defence
A legal burden of proof on the
defendant must be discharged on the balance of probabilities.
13.6
Use of averments
A law that allows the prosecution to
make an averment is taken not to allow the prosecution:
(a) to aver any fault element of an
offence; or
(b) to make an averment in prosecuting
for an offence that is directly punishable by imprisonment.
Part 2.7—Geographical jurisdiction
Division 14—Standard geographical jurisdiction
14.1
Standard geographical jurisdiction
(1) This section may apply to a particular
offence in either of the following ways:
(a) unless the contrary intention
appears, this section applies to the following offences:
(i) a primary offence,
where the provision creating the offence commences at or after the commencement
of this section;
(ii) an ancillary offence,
to the extent to which it relates to a primary offence covered by subparagraph (i);
(b) if a law of the Commonwealth
provides that this section applies to a particular offence—this section applies
to that offence.
Note: In the case of paragraph (b), the
expression offence is given an extended meaning by subsection
11.2(1), section 11.3 and subsection 11.6(1).
(2) If this section applies to a particular
offence, a person does not commit the offence unless:
(a) the conduct constituting the
alleged offence occurs:
(i) wholly or partly in Australia;
or
(ii) wholly or partly on
board an Australian aircraft or an Australian ship; or
(b) the conduct constituting the
alleged offence occurs wholly outside Australia and a result of the conduct
occurs:
(i) wholly or partly in Australia;
or
(ii) wholly or partly on
board an Australian aircraft or an Australian ship; or
(c) all of the following conditions
are satisfied:
(i) the alleged offence is
an ancillary offence;
(ii) the conduct
constituting the alleged offence occurs wholly outside Australia;
(iii) the conduct
constituting the primary offence to which the ancillary offence relates, or a
result of that conduct, occurs, or is intended by the person to occur, wholly
or partly in Australia or wholly or partly on board an Australian aircraft or
an Australian ship.
Defence—primary offence
(3) If this section applies to a particular
offence, a person is not guilty of the offence if:
(aa) the alleged offence is a primary
offence; and
(a) the conduct constituting the
alleged offence occurs wholly in a foreign country, but not on board an
Australian aircraft or an Australian ship; and
(b) there is not in force in:
(i) the foreign country
where the conduct constituting the alleged offence occurs; or
(ii) the part of the
foreign country where the conduct constituting the alleged offence occurs;
a law of that foreign country,
or a law of that part of that foreign country, that creates an offence that
corresponds to the first‑mentioned offence.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (3). See subsection 13.3(3).
(4) For the purposes of the application of
subsection 13.3(3) to an offence, subsection (3) of this section is taken
to be an exception provided by the law creating the offence.
Defence—ancillary offence
(5) If this section applies to a particular
offence, a person is not guilty of the offence if:
(a) the alleged offence is an
ancillary offence; and
(b) the conduct constituting the
alleged offence occurs wholly in a foreign country, but not on board an
Australian aircraft or an Australian ship; and
(c) the conduct constituting the
primary offence to which the ancillary offence relates, or a result of that
conduct, occurs, or is intended by the person to occur, wholly in a foreign
country, but not on board an Australian aircraft or an Australian ship; and
(d) there is not in force in:
(i) the foreign country
where the conduct constituting the primary offence to which the ancillary
offence relates, or a result of that conduct, occurs, or is intended by the
person to occur; or
(ii) the part of the
foreign country where the conduct constituting the primary offence to which the
ancillary offence relates, or a result of that conduct, occurs, or is intended
by the person to occur;
a law of that foreign country,
or a law of that part of that foreign country, that creates an offence that
corresponds to the primary offence.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (5). See subsection 13.3(3).
(6) For the purposes of the application of
subsection 13.3(3) to an offence, subsection (5) of this section is taken
to be an exception provided by the law creating the offence.
Division 15—Extended geographical jurisdiction
15.1
Extended geographical jurisdiction—category A
(1) If a law of the Commonwealth provides
that this section applies to a particular offence, a person does not commit the
offence unless:
(a) the conduct constituting the
alleged offence occurs:
(i) wholly or partly in Australia;
or
(ii) wholly or partly on
board an Australian aircraft or an Australian ship; or
(b) the conduct constituting the
alleged offence occurs wholly outside Australia and a result of the conduct
occurs:
(i) wholly or partly in Australia;
or
(ii) wholly or partly on
board an Australian aircraft or an Australian ship; or
(c) the conduct constituting the
alleged offence occurs wholly outside Australia and:
(i) at the time of the
alleged offence, the person is an Australian citizen; or
(ii) at the time of the
alleged offence, the person is a body corporate incorporated by or under a law
of the Commonwealth or of a State or Territory; or
(d) all of the following conditions
are satisfied:
(i) the alleged offence is
an ancillary offence;
(ii) the conduct
constituting the alleged offence occurs wholly outside Australia;
(iii) the conduct
constituting the primary offence to which the ancillary offence relates, or a
result of that conduct, occurs, or is intended by the person to occur, wholly
or partly in Australia or wholly or partly on board an Australian aircraft or
an Australian ship.
Note: The expression offence is given
an extended meaning by subsection 11.2(1), section 11.3 and subsection
11.6(1).
Defence—primary offence
(2) If a law of the Commonwealth provides
that this section applies to a particular offence, a person is not guilty of
the offence if:
(aa) the alleged offence is a primary
offence; and
(a) the conduct constituting the
alleged offence occurs wholly in a foreign country, but not on board an
Australian aircraft or an Australian ship; and
(b) the person is neither:
(i) an Australian citizen;
nor
(ii) a body corporate
incorporated by or under a law of the Commonwealth or of a State or Territory;
and
(c) there is not in force in:
(i) the foreign country
where the conduct constituting the alleged offence occurs; or
(ii) the part of the
foreign country where the conduct constituting the alleged offence occurs;
a law of that foreign country,
or a law of that part of that foreign country, that creates an offence that
corresponds to the first‑mentioned offence.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (2). See subsection 13.3(3).
(3) For the purposes of the application of
subsection 13.3(3) to an offence, subsection (2) of this section is taken
to be an exception provided by the law creating the offence.
Defence—ancillary offence
(4) If a law of the Commonwealth provides
that this section applies to a particular offence, a person is not guilty of
the offence if:
(a) the alleged offence is an
ancillary offence; and
(b) the conduct constituting the
alleged offence occurs wholly in a foreign country, but not on board an
Australian aircraft or an Australian ship; and
(c) the conduct constituting the
primary offence to which the ancillary offence relates, or a result of that
conduct, occurs, or is intended by the person to occur, wholly in a foreign
country, but not on board an Australian aircraft or an Australian ship; and
(d) the person is neither:
(i) an Australian citizen;
nor
(ii) a body corporate
incorporated by or under a law of the Commonwealth or of a State or Territory;
and
(e) there is not in force in:
(i) the foreign country
where the conduct constituting the primary offence to which the ancillary
offence relates, or a result of that conduct, occurs, or is intended by the
person to occur; or
(ii) the part of the
foreign country where the conduct constituting the primary offence to which the
ancillary offence relates, or a result of that conduct, occurs, or is intended
by the person to occur;
a law of that foreign country,
or a law of that part of that foreign country, that creates an offence that
corresponds to the primary offence.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (4). See subsection 13.3(3).
(5) For the purposes of the application of
subsection 13.3(3) to an offence, subsection (4) of this section is taken
to be an exception provided by the law creating the offence.
15.2
Extended geographical jurisdiction—category B
(1) If a law of the Commonwealth provides
that this section applies to a particular offence, a person does not commit the
offence unless:
(a) the conduct constituting the
alleged offence occurs:
(i) wholly or partly in Australia;
or
(ii) wholly or partly on
board an Australian aircraft or an Australian ship; or
(b) the conduct constituting the
alleged offence occurs wholly outside Australia and a result of the conduct
occurs:
(i) wholly or partly in Australia;
or
(ii) wholly or partly on
board an Australian aircraft or an Australian ship; or
(c) the conduct constituting the
alleged offence occurs wholly outside Australia and:
(i) at the time of the
alleged offence, the person is an Australian citizen; or
(ii) at the time of the
alleged offence, the person is a resident of Australia; or
(iii) at the time of the
alleged offence, the person is a body corporate incorporated by or under a law
of the Commonwealth or of a State or Territory; or
(d) all of the following conditions
are satisfied:
(i) the alleged offence is
an ancillary offence;
(ii) the conduct
constituting the alleged offence occurs wholly outside Australia;
(iii) the conduct
constituting the primary offence to which the ancillary offence relates, or a
result of that conduct, occurs, or is intended by the person to occur, wholly
or partly in Australia or wholly or partly on board an Australian aircraft or
an Australian ship.
Note: The expression offence is given
an extended meaning by subsection 11.2(1), section 11.3 and subsection
11.6(1).
Defence—primary offence
(2) If a law of the Commonwealth provides
that this section applies to a particular offence, a person is not guilty of
the offence if:
(aa) the alleged offence is a primary
offence; and
(a) the conduct constituting the
alleged offence occurs wholly in a foreign country, but not on board an
Australian aircraft or an Australian ship; and
(b) the person is neither:
(i) an Australian citizen;
nor
(ii) a body corporate
incorporated by or under a law of the Commonwealth or of a State or Territory;
and
(c) there is not in force in:
(i) the foreign country
where the conduct constituting the alleged offence occurs; or
(ii) the part of the
foreign country where the conduct constituting the alleged offence occurs;
a law of that foreign country,
or a law of that part of that foreign country, that creates an offence that
corresponds to the first‑mentioned offence.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (2). See subsection 13.3(3).
(3) For the purposes of the application of
subsection 13.3(3) to an offence, subsection (2) of this section is taken
to be an exception provided by the law creating the offence.
Defence—ancillary offence
(4) If a law of the Commonwealth provides
that this section applies to a particular offence, a person is not guilty of
the offence if:
(a) the alleged offence is an
ancillary offence; and
(b) the conduct constituting the
alleged offence occurs wholly in a foreign country, but not on board an
Australian aircraft or an Australian ship; and
(c) the conduct constituting the
primary offence to which the ancillary offence relates, or a result of that
conduct, occurs, or is intended by the person to occur, wholly in a foreign
country, but not on board an Australian aircraft or an Australian ship; and
(d) the person is neither:
(i) an Australian citizen;
nor
(ii) a body corporate incorporated
by or under a law of the Commonwealth or of a State or Territory; and
(e) there is not in force in:
(i) the foreign country
where the conduct constituting the primary offence to which the ancillary
offence relates, or a result of that conduct, occurs, or is intended by the
person to occur; or
(ii) the part of the
foreign country where the conduct constituting the primary offence to which the
ancillary offence relates, or a result of that conduct, occurs, or is intended
by the person to occur;
a law of that foreign country,
or a law of that part of that foreign country, that creates an offence that
corresponds to the primary offence.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (4). See subsection 13.3(3).
(5) For the purposes of the application of
subsection 13.3(3) to an offence, subsection (4) of this section is taken
to be an exception provided by the law creating the offence.
15.3
Extended geographical jurisdiction—category C
(1) If a law of the Commonwealth provides
that this section applies to a particular offence, the offence applies:
(a) whether or not the conduct
constituting the alleged offence occurs in Australia; and
(b) whether or not a result of the
conduct constituting the alleged offence occurs in Australia.
Note: The expression offence is given
an extended meaning by subsection 11.2(1), section 11.3 and subsection
11.6(1).
Defence—primary offence
(2) If a law of the Commonwealth provides
that this section applies to a particular offence, a person is not guilty of
the offence if:
(aa) the alleged offence is a primary
offence; and
(a) the conduct constituting the
alleged offence occurs wholly in a foreign country, but not on board an
Australian aircraft or an Australian ship; and
(b) the person is neither:
(i) an Australian citizen;
nor
(ii) a body corporate
incorporated by or under a law of the Commonwealth or of a State or Territory;
and
(c) there is not in force in:
(i) the foreign country
where the conduct constituting the alleged offence occurs; or
(ii) the part of the
foreign country where the conduct constituting the alleged offence occurs;
a law of that foreign country,
or that part of that foreign country, that creates an offence that corresponds
to the first‑mentioned offence.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (2). See subsection 13.3(3).
(3) For the purposes of the application of
subsection 13.3(3) to an offence, subsection (2) of this section is taken
to be an exception provided by the law creating the offence.
Defence—ancillary offence
(4) If a law of the Commonwealth provides
that this section applies to a particular offence, a person is not guilty of
the offence if:
(a) the alleged offence is an
ancillary offence; and
(b) the conduct constituting the
alleged offence occurs wholly in a foreign country, but not on board an
Australian aircraft or an Australian ship; and
(c) the conduct constituting the
primary offence to which the ancillary offence relates, or a result of that
conduct, occurs, or is intended by the person to occur, wholly in a foreign
country, but not on board an Australian aircraft or an Australian ship; and
(d) the person is neither:
(i) an Australian citizen;
nor
(ii) a body corporate
incorporated by or under a law of the Commonwealth or of a State or Territory;
and
(e) there is not in force in:
(i) the foreign country
where the conduct constituting the primary offence to which the ancillary
offence relates, or a result of that conduct, occurs, or is intended by the
person to occur; or
(ii) the part of the
foreign country where the conduct constituting the primary offence to which the
ancillary offence relates, or a result of that conduct, occurs, or is intended
by the person to occur;
a law of that foreign country,
or a law of that part of that foreign country, that creates an offence that
corresponds to the primary offence.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (4). See subsection 13.3(3).
(5) For the purposes of the application of
subsection 13.3(3) to an offence, subsection (4) of this section is taken
to be an exception provided by the law creating the offence.
15.4
Extended geographical jurisdiction—category D
If a law of the Commonwealth provides
that this section applies to a particular offence, the offence applies:
(a) whether or not the conduct
constituting the alleged offence occurs in Australia; and
(b) whether or not a result of the
conduct constituting the alleged offence occurs in Australia.
Note: The expression offence is given
an extended meaning by subsection 11.2(1), section 11.3 and subsection
11.6(1).
Division 16—Miscellaneous
16.1
Attorney‑General’s consent required for prosecution if alleged conduct
occurs wholly in a foreign country in certain circumstances
(1) Proceedings for an offence must not be
commenced without the Attorney‑General’s written consent if:
(a) section 14.1, 15.1, 15.2,
15.3 or 15.4 applies to the offence; and
(b) the conduct constituting the alleged
offence occurs wholly in a foreign country; and
(c) at the time of the alleged
offence, the person alleged to have committed the offence is neither:
(i) an Australian citizen;
nor
(ii) a body corporate
incorporated by or under a law of the Commonwealth or of a State or Territory.
(2) However, a person may be arrested for,
charged with, or remanded in custody or released on bail in connection with an
offence before the necessary consent has been given.
16.2
When conduct taken to occur partly in Australia
Sending things
(1) For the purposes of this Part, if a
person sends a thing, or causes a thing to be sent:
(a) from a point outside Australia to
a point in Australia; or
(b) from a point in Australia to a
point outside Australia;
that conduct is taken to have occurred partly in Australia.
Sending electronic communications
(2) For the purposes of this Part, if a
person sends, or causes to be sent, an electronic communication:
(a) from a point outside Australia to
a point in Australia; or
(b) from a point in Australia to a
point outside Australia;
that conduct is taken to have occurred partly in Australia.
Point
(3) For the purposes of this section, point
includes a mobile or potentially mobile point, whether on land, underground, in
the atmosphere, underwater, at sea or anywhere else.
16.3
Meaning of Australia
(1) For the purposes of the application of
this Part to a particular primary offence, Australia has the same
meaning it would have if it were used in a geographical sense in the provision
creating the primary offence.
(2) For the purposes of the application of
this Part to a particular ancillary offence, Australia has the
same meaning it would have if it were used in a geographical sense in the
provision creating the primary offence to which the ancillary offence relates.
(3) For the purposes of this Part, if a
provision creating an offence extends to an external Territory, it is to be
assumed that if the expression Australia were used in a
geographical sense in that provision, that expression would include that
external Territory.
(4) This section does not affect the meaning
of the expressions Australian aircraft, Australian citizen
or Australian ship.
16.4
Result of conduct
A reference in this Part to a result
of conduct constituting an offence is a reference to a result that is a
physical element of the offence (within the meaning of subsection 4.1(1)).
Chapter 4—The integrity and
security of the international community and foreign governments
Division 70—Bribery of foreign public officials
70.1
Definitions
In this
Division:
benefit includes any advantage and is not
limited to property.
business advantage means an advantage in the
conduct of business.
control, in relation to a company, body or
association, includes control as a result of, or by means of, trusts,
agreements, arrangements, understandings and practices, whether or not having
legal or equitable force and whether or not based on legal or equitable rights.
duty, in relation to a foreign public
official, means any authority, duty, function or power that:
(a) is conferred on the official; or
(b) that the official holds himself or
herself out as having.
foreign government body means:
(a) the government of a foreign
country or of part of a foreign country; or
(b) an authority of the government of
a foreign country; or
(c) an authority of the government of
part of a foreign country; or
(d) a foreign local government body or
foreign regional government body; or
(e) a foreign public enterprise.
foreign public
enterprise means a company or any other body or association where:
(a) in the case of a company—one of
the following applies:
(i) the government of a
foreign country or of part of a foreign country holds more than 50% of the
issued share capital of the company;
(ii) the government of a
foreign country or of part of a foreign country holds more than 50% of the
voting power in the company;
(iii) the government of a
foreign country or of part of a foreign country is in a position to appoint
more than 50% of the company’s board of directors;
(iv) the directors (however
described) of the company are accustomed or under an obligation (whether formal
or informal) to act in accordance with the directions, instructions or wishes
of the government of a foreign country or of part of a foreign country;
(v) the government of a
foreign country or of part of a foreign country is in a position to exercise
control over the company; and
(b) in the case of any other body or
association—either of the following applies:
(i) the members of the
executive committee (however described) of the body or association are
accustomed or under an obligation (whether formal or informal) to act in
accordance with the directions, instructions or wishes of the government of a
foreign country or of part of a foreign country;
(ii) the government of a
foreign country or of part of a foreign country is in a position to exercise
control over the body or association; and
(c) the company, body or association:
(i) enjoys special legal
rights or a special legal status under a law of a foreign country or of part of
a foreign country; or
(ii) enjoys
special benefits or privileges under a law of a foreign country or of part of a
foreign country;
because of the relationship of
the company, body or association with the government of the foreign country or
of the part of the foreign country, as the case may be.
foreign public
official means:
(a) an employee or official of a
foreign government body; or
(b) an individual who performs work
for a foreign government body under a contract; or
(c) an individual who holds or
performs the duties of an appointment, office or position under a law of a
foreign country or of part of a foreign country; or
(d) an individual who holds or
performs the duties of an appointment, office or position created by custom or
convention of a foreign country or of part of a foreign country; or
(e) an individual who is otherwise in
the service of a foreign government body (including service as a member of a
military force or police force); or
(f) a member of the executive,
judiciary or magistracy of a foreign country or of part of a foreign country;
or
(g) an employee of a public
international organisation; or
(h) an individual who performs work
for a public international organisation under a contract; or
(i) an individual who holds or
performs the duties of an office or position in a public international
organisation; or
(j) an individual who is otherwise in
the service of a public international organisation; or
(k) a member or officer of the
legislature of a foreign country or of part of a foreign country; or
(l) an individual who:
(i) is an authorised
intermediary of a foreign public official covered by any of the above
paragraphs; or
(ii) holds himself or
herself out to be the authorised intermediary of a foreign public official
covered by any of the above paragraphs.
public international
organisation means:
(a) an organisation:
(i) of which 2 or more
countries, or the governments of 2 or more countries, are members; or
(ii) that is constituted by
persons representing 2 or more countries, or representing the governments of 2
or more countries; or
(b) an organisation established by, or
a group of organisations constituted by:
(i) organisations of which
2 or more countries, or the governments of 2 or more countries, are members; or
(ii) organisations that are
constituted by the representatives of 2 or more countries, or the governments
of 2 or more countries; or
(c) an organisation that is:
(i) an organ of, or office
within, an organisation described in paragraph (a) or (b); or
(ii) a commission, council
or other body established by an organisation so described or such an organ; or
(iii) a committee, or
subcommittee of a committee, of an organisation described in paragraph (a)
or (b), or of such an organ, council or body.
share includes stock.
70.2
Bribing a foreign public official
(1) A person is guilty of an offence if:
(a) the person:
(i) provides a benefit to
another person; or
(ii) causes a benefit to be
provided to another person; or
(iii) offers to provide, or
promises to provide, a benefit to another person; or
(iv) causes an offer of the
provision of a benefit, or a promise of the provision of a benefit, to be made
to another person; and
(b) the benefit is not legitimately
due to the other person; and
(c) the first‑mentioned person
does so with the intention of influencing a foreign public official (who may be
the other person) in the exercise of the official’s duties as a foreign public
official in order to:
(i) obtain or retain
business; or
(ii) obtain
or retain a business advantage that is not legitimately due to the recipient,
or intended recipient, of the business advantage (who may be the first‑mentioned
person).
Penalty: Imprisonment for 10
years.
Note 1: For defences, see sections 70.3 and 70.4.
Note 2: Section 4B of the Crimes Act 1914
allows a court to impose a fine instead of imprisonment or in addition to
imprisonment.
Benefit that is not legitimately due
(2) For the purposes of this section, in
working out if a benefit is not legitimately due to a person in a
particular situation, disregard the following:
(a) the fact that the benefit may be
customary, or perceived to be customary, in the situation;
(b) the value of the benefit;
(c) any official tolerance of the
benefit.
Business advantage that is not legitimately due
(3) For the purposes of this section, in
working out if a business advantage is not legitimately due to a
person in a particular situation, disregard the following:
(a) the fact that the business
advantage may be customary, or perceived to be customary, in the situation;
(b) the value of the business
advantage;
(c) any official tolerance of the
business advantage.
70.3
Defence—conduct lawful in foreign public official’s country
(1) A person is not guilty of an offence
against section 70.2 in the cases set out in the following table:
|
Defence of lawful conduct
|
|
Item
|
In a case where the person’s conduct occurred in
relation to this kind of foreign public official...
|
and if it were assumed that the person’s conduct had
occurred wholly...
|
the person would not have been guilty of an offence
against...
|
|
1
|
an employee or official of a foreign government body
|
in the place where the central administration of the body
is located
|
a law in force in that place
|
|
2
|
an individual who performs work for a foreign government
body under a contract
|
in the place where the central administration of the body
is located
|
a law in force in that place
|
|
3
|
an individual who holds or performs the duties of an
appointment, office or position under a law of a foreign country or of part
of a foreign country
|
in the foreign country or in the part of the foreign
country, as the case may be
|
a law in force in the foreign country or in the part of
the foreign country, as the case may be
|
|
4
|
an individual who holds or performs the duties of an
appointment, office or position created by custom or convention of a foreign
country or of part of a foreign country
|
in the foreign country or in the part of the foreign
country, as the case may be
|
a law in force in the foreign country or in the part of
the foreign country, as the case may be
|
|
5
|
an individual who is otherwise in the service of a foreign
government body (including service as a member of a military force or police force)
|
in the place where the central administration of the body
is located
|
a law in force in that place
|
|
6
|
a member of the executive, judiciary or magistracy of a
foreign country or of part of a foreign country
|
in the foreign country or in the part of the foreign
country, as the case may be
|
a law in force in the foreign country or in the part of
the foreign country, as the case may be
|
|
7
|
an employee of a public international organisation
|
in the place where the headquarters of the organisation is
located
|
a law in force in that place
|
|
8
|
an individual who performs work for a public international
organisation under a contract
|
in the place where the headquarters of the organisation is
located
|
a law in force in that place
|
|
9
|
an individual who holds or performs the duties of a public
office or position in a public international organisation
|
in the place where the headquarters of the organisation is
located
|
a law in force in that place
|
|
10
|
an individual who is otherwise in the service of a public
international organisation
|
in the place where the headquarters of the organisation is
located
|
a law in force in that place
|
|
11
|
a member or officer of the legislature of a foreign
country or of part of a foreign country
|
in the foreign country or in the part of the foreign country,
as the case may be
|
a law in force in the foreign country or in the part of
the foreign country, as the case may be
|
Note: A defendant bears an evidential burden in
relation to the matter in subsection (1). See subsection 13.3(3).
(2) A person is not guilty of an offence
against section 70.2 if:
(a) the person’s conduct occurred in
relation to a foreign public official covered by paragraph (l) of the
definition of foreign public official in section 70.1 (which
deals with intermediaries of foreign public officials covered by other
paragraphs of that definition); and
(b) assuming that the first‑mentioned
person’s conduct had occurred instead in relation to:
(i) the other foreign
public official of whom the first‑mentioned foreign public official was an
authorised intermediary; or
(ii) the other foreign
public official in relation to whom the first‑mentioned foreign public
official held himself or herself out to be an authorised intermediary;
subsection (1) would have
applied in relation to the first‑mentioned person.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2). See subsection 13.3(3).
(3) To avoid doubt, if:
(a) a person’s conduct occurred in
relation to a foreign public official covered by 2 or more paragraphs of the
definition of foreign public official in section 70.1; and
(b) at least one of the corresponding
items in subsection (1) is applicable to the conduct of the first‑mentioned
person;
subsection (1) applies to the conduct of the first‑mentioned
person.
70.4
Defence—facilitation payments
(1) A person is not guilty of an offence
against section 70.2 if:
(a) the value of the benefit was of a
minor nature; and
(b) the person’s conduct was engaged
in for the sole or dominant purpose of expediting or securing the performance
of a routine government action of a minor nature; and
(c) as soon as practicable after the
conduct occurred, the person made a record of the conduct that complies with subsection (3);
and
(d) any of the following subparagraphs
applies:
(i) the person has
retained that record at all relevant times;
(ii) that record has been
lost or destroyed because of the actions of another person over whom the first‑mentioned
person had no control, or because of a non‑human act or event over which
the first‑mentioned person had no control, and the first‑mentioned
person could not reasonably be expected to have guarded against the bringing
about of that loss or that destruction;
(iii) a
prosecution for the offence is instituted more than 7 years after the conduct
occurred.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (1). See subsection 13.3(3).
Routine government action
(2) For the purposes of this section, a routine
government action is an action of a foreign public official that:
(a) is ordinarily and commonly
performed by the official; and
(b) is covered by any of the following
subparagraphs:
(i) granting a permit,
licence or other official document that qualifies a person to do business in a
foreign country or in a part of a foreign country;
(ii) processing government
papers such as a visa or work permit;
(iii) providing police
protection or mail collection or delivery;
(iv) scheduling inspections
associated with contract performance or related to the transit of goods;
(v) providing
telecommunications services, power or water;
(vi) loading and unloading
cargo;
(vii) protecting perishable
products, or commodities, from deterioration;
(viii) any other action of a
similar nature; and
(c) does not involve a decision about:
(i) whether to award new
business; or
(ii) whether to continue
existing business with a particular person; or
(iii) the terms of new
business or existing business; and
(d) does not involve encouraging a
decision about:
(i) whether to award new
business; or
(ii) whether to continue
existing business with a particular person; or
(iii) the terms of new
business or existing business.
Content of records
(3) A record of particular conduct engaged in
by a person complies with this subsection if the record sets out:
(a) the value of the benefit
concerned; and
(b) the date on which the conduct
occurred; and
(c) the identity of the foreign public
official in relation to whom the conduct occurred; and
(d) if that foreign public official is
not the other person mentioned in paragraph 70.2(1)(a)—the identity of that
other person; and
(e) particulars of the routine
government action that was sought to be expedited or secured by the conduct;
and
(f) the person’s signature or some
other means of verifying the person’s identity.
70.5
Territorial and nationality requirements
(1) A person does not commit an offence
against section 70.2 unless:
(a) the conduct constituting the
alleged offence occurs:
(i) wholly or partly in Australia;
or
(ii) wholly or partly on
board an Australian aircraft or an Australian ship; or
(b) the conduct constituting the
alleged offence occurs wholly outside Australia and:
(i) at the time of the
alleged offence, the person is an Australian citizen; or
(ii) at the time of the
alleged offence, the person is a resident of Australia; or
(iii) at the time of the
alleged offence, the person is a body corporate incorporated by or under a law
of the Commonwealth or of a State or Territory.
Note: The expression offence against section 70.2
is given an extended meaning by subsections 11.2(1) and 11.6(2).
(2) Proceedings
for an offence against section 70.2 must not be commenced without the
Attorney‑General’s written consent if:
(a) the conduct constituting the
alleged offence occurs wholly outside Australia; and
(b) at the time of the alleged
offence, the person alleged to have committed the offence is:
(i) a resident of Australia;
and
(ii) not an Australian
citizen.
(3) However, a person may be arrested for,
charged with, or remanded in custody or released on bail in connection with an
offence against section 70.2 before the necessary consent has been given.
70.6
Saving of other laws
This Division is not intended to exclude
or limit the operation of any other law of the Commonwealth or any law of a
State or Territory.
Division 71—Offences against United Nations and associated personnel
71.1
Purpose
The purpose of this Division is to
protect United Nations and associated personnel and give effect to the
Convention on the Safety of United Nations and Associated Personnel.
71.2
Murder of a UN or associated person
(1) A person is guilty of an offence if:
(a) the person’s conduct causes the
death of another person; and
(b) that other person is a UN or associated
person; and
(c) the UN or associated person is
engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person
intends to cause, or is reckless as to causing, the death of the UN or
associated person or any other person by the conduct.
Maximum penalty: Imprisonment for life.
Note: Section 71.23 defines UN
enforcement action, UN operation and UN or
associated person.
(2) Strict liability applies to paragraphs (1)(b)
and (c).
71.3
Manslaughter of a UN or associated person
(1) A person is guilty of an offence if:
(a) the person’s conduct causes the
death of another person; and
(b) that other person is a UN or
associated person; and
(c) the UN or associated person is
engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person
intends to cause, or is reckless as to causing, serious harm to the UN or
associated person or any other person by the conduct.
Maximum penalty: Imprisonment for 25 years.
Note: Section 71.23 defines UN
enforcement action, UN operation and UN or
associated person.
(2) Strict liability applies to paragraphs (1)(b)
and (c).
71.4
Intentionally causing serious harm to a UN or associated person
(1) A person is guilty of an offence if:
(a) the person’s conduct causes
serious harm to another person; and
(b) that other person is a UN or
associated person; and
(c) the UN or associated person is
engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person
intends to cause serious harm to the UN or associated person or any other
person by the conduct.
Maximum penalty: Imprisonment for 20 years.
Maximum penalty (aggravated offence): Imprisonment for 25
years.
Note 1: Section 71.23 defines UN enforcement
action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated
offence.
(2) Strict liability applies to paragraphs (1)(b)
and (c).
71.5
Recklessly causing serious harm to a UN or associated person
(1) A person is guilty of an offence if:
(a) the person’s conduct causes
serious harm to another person; and
(b) that other person is a UN or
associated person; and
(c) the UN or associated person is
engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person is
reckless as to causing serious harm to the UN or associated person or any other
person by the conduct.
Maximum penalty: Imprisonment for 15 years.
Maximum penalty (aggravated offence): Imprisonment for 19
years.
Note 1: Section 71.23 defines UN enforcement
action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated
offence.
(2) Strict liability applies to paragraphs (1)(b)
and (c).
71.6
Intentionally causing harm to a UN or associated person
(1) A person is guilty of an offence if:
(a) the person’s conduct causes harm
to another person without the consent of that person; and
(b) that other person is a UN or
associated person; and
(c) the UN or associated person is
engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person
intends to cause harm to the UN or associated person or any other person by the
conduct.
Maximum penalty: Imprisonment for 10 years.
Maximum penalty (aggravated offence): Imprisonment for 13
years.
Note 1: Section 71.23 defines UN enforcement
action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated
offence.
(2) Strict liability applies to paragraphs (1)(b)
and (c).
71.7
Recklessly causing harm to a UN or associated person
(1) A person is guilty of an offence if:
(a) the person’s conduct causes harm
to another person without the consent of that person; and
(b) that other person is a UN or
associated person; and
(c) the UN or associated person is
engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person
is reckless as to causing harm to the UN or associated person or any other
person by the conduct.
Maximum penalty: Imprisonment for 7 years.
Maximum penalty (aggravated offence): Imprisonment for 9
years.
Note 1: Section 71.23 defines UN enforcement
action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated
offence.
(2) Strict liability applies to paragraphs (1)(b)
and (c).
71.8
Unlawful sexual penetration
(1) A person is guilty of an offence if:
(a) the person sexually penetrates
another person without the consent of that person; and
(b) that other person is a UN or
associated person; and
(c) the UN or associated person is
engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person
knows about, or is reckless as to, the lack of consent.
Maximum penalty: Imprisonment for 15 years.
Maximum penalty (aggravated offence): Imprisonment for 20
years.
Note 1: Section 71.23 defines UN enforcement
action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated
offence.
(2) Strict liability applies to paragraphs (1)(b)
and (c).
(3) In this section:
sexually penetrate means:
(a) penetrate (to any extent) the
genitalia or anus of a person by any part of the body of another person or by
any object manipulated by that other person; or
(b) penetrate (to any extent) the
mouth of a person by the penis of another person; or
(c) continue to sexually penetrate as
defined in paragraph (a) or (b).
(4) In this section, being reckless
as to a lack of consent to sexual penetration includes not giving any thought
to whether or not the person is consenting to sexual penetration.
(5) In this section, the genitalia or others
parts of the body of a person include surgically constructed genitalia or other
parts of the body of the person.
71.9
Kidnapping a UN or associated person
(1) A person is guilty of an offence if:
(a) the person takes or detains
another person without his or her consent; and
(b) that other person is a UN or
associated person; and
(c) the UN or associated person is
engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person
takes or detains the UN or associated person with the intention of:
(i) holding him or her to
ransom or as a hostage; or
(ii) taking or sending him
or her out of the country; or
(iii) committing a serious
offence against him or her or another person.
Maximum penalty: Imprisonment for 15 years.
Maximum penalty (aggravated offence): Imprisonment for 19
years.
Note 1: Section 71.23 defines UN enforcement
action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated
offence.
(2) Strict liability applies to paragraphs (1)(b)
and (c).
(3) In this section, serious offence means
an offence under a law of the Commonwealth, a State or Territory or a foreign
law the maximum penalty for which is death, or imprisonment for not less than
12 months.
71.10
Unlawful detention of UN or associated person
(1) A person is guilty of an offence if:
(a) the person takes or detains
another person without that other person’s consent; and
(b) that other person is a UN or
associated person; and
(c) the UN or associated person is engaged
in a UN operation that is not a UN enforcement action.
Maximum penalty: Imprisonment for 5 years.
Maximum penalty (aggravated offence): Imprisonment for 6
years.
Note 1: Section 71.23 defines UN enforcement
action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated
offence.
(2) Strict liability applies to paragraphs (1)(b)
and (c).
71.11
Intentionally causing damage to UN or associated person’s property etc.
(1) A person is guilty of an offence if:
(a) the person’s conduct causes damage
to official premises, private accommodation or a means of transportation (the property);
and
(b) the property is occupied or used
by a UN or associated person; and
(c) the conduct gives rise to a danger
of serious harm to a person; and
(d) that person is the UN or
associated person referred to in paragraph (b); and
(e) the UN or associated person is
engaged in a UN operation that is not a UN enforcement action; and
(f) the first‑mentioned person
intends to cause the damage to the property; and
(g) the first‑mentioned person
is reckless as to the danger to the person referred to in paragraph (c).
Maximum penalty: Imprisonment for 10 years.
Note: Section 71.23 defines UN
enforcement action, UN operation and UN or
associated person.
(2) Strict liability applies to paragraphs (1)(b),
(d) and (e).
71.12
Threatening to commit other offences
A person is guilty of an offence if the
person:
(a) threatens to commit an offence
(the threatened offence) under any of sections 71.2 to 71.11;
and
(b) intends to compel any other person
to do or omit to do an act by making the threat.
Maximum penalty:
(a) if the threatened offence is the
offence under section 71.2 (murder of a UN or associated
person)—imprisonment for 10 years; or
(b) if the threatened offence is the
offence under section 71.3, 71.4, 71.5, 71.8 or 71.9 (manslaughter of,
causing serious harm to, kidnapping, or sexually penetrating, a UN or
associated person)—imprisonment for 7 years; or
(c) if the threatened offence is the offence
under section 71.6 or 71.11 (causing harm to, or damaging the property
etc. of, a UN or associated person)—imprisonment for 5 years; or
(d) if the threatened offence is the
offence under section 71.7 or 71.10 (recklessly causing harm to, or unlawful
detention of, a UN or associated person)—imprisonment for 3 years.
Note: Section 71.23 defines UN or
associated person.
71.13
Aggravated offences
(1) For the purposes of this Division, an
offence against section 71.4, 71.5, 71.6, 71.7, 71.8, 71.9 or 71.10 is an aggravated
offence if:
(a) the offence was committed during
torture; or
(b) the offence was committed by the
use or threatened use of an offensive weapon; or
(c) the offence was committed against
a person in an abuse of authority.
(2) If the prosecution intends to prove an
aggravated offence, the charge must allege the relevant aggravated offence.
(3) In order to prove an aggravated offence,
the prosecution must prove that the defendant intended to commit, or was
reckless as to committing, the matters referred to in paragraph (1)(a),
(b) or (c).
(4) In this section:
offensive weapon includes:
(a) an article made or adapted for use
for causing injury to, or incapacitating, a person; or
(b) an article where the person who
has the article intends, or threatens to use, the article to cause injury to,
or to incapacitate, another person.
torture means the deliberate and systematic
infliction of severe pain over a period of time.
71.14
Defence—activities involving serious harm
A person is not criminally responsible
for an offence against section 71.4 or 71.5 if the conduct causing serious
harm to another person is engaged in by the first‑mentioned person:
(a) for the purpose of benefiting the
other person or in pursuance of a socially acceptable function or activity; and
(b) having regard to the purpose,
function or activity, the conduct was reasonable.
Note 1: If a person causes less than serious harm to
another person, the prosecution is obliged to prove that the harm was caused
without the consent of the person harmed (see for example section 71.6).
Note 2: A defendant bears an evidential burden in
relation to the matter in this section, see subsection 13.3(3).
71.15
Defence—medical or hygienic procedures
A person is not criminally responsible
for an offence against section 71.8 in respect of any sexual penetration
carried out in the course of a procedure in good faith for medical or hygienic
purposes.
Note: A defendant bears an evidential burden in
relation to the matter in this section, see subsection 13.3(3).
71.16
Jurisdictional requirement
(1) A person commits an offence under this
Division only if:
(a) the conduct constituting the
alleged offence occurs:
(i) wholly or partly in Australia;
or
(ii) wholly or partly on
board an Australian aircraft or an Australian ship; or
(b) the conduct constituting the
alleged offence occurs wholly outside Australia and:
(i) at the time of the
alleged offence, the person is an Australian citizen; or
(ii) at the time of the
alleged offence, the person is a body corporate incorporated by or under a law
of the Commonwealth or of a State or Territory; or
(iii) at the time of the
alleged offence, the person is a stateless person whose habitual residence is
in Australia; or
(iv) the conduct is subject
to the jurisdiction of another State Party to the Convention established in
accordance with paragraph 1 or 2 of article 10 and the person enters Australia;
or
(c) the alleged offence is committed
against an Australian citizen; or
(d) by engaging in the conduct
constituting the alleged offence, the person intends to compel a legislative,
executive or judicial institution of the Commonwealth, a State or a Territory
to do or omit to do an act.
(2) In this
section:
Australian aircraft means:
(a) an aircraft registered, or
required to be registered, under the Civil Aviation Regulations as an
Australian aircraft; or
(b) an aircraft (other than a defence
aircraft) that is owned by, or in the possession or control of, a Commonwealth
entity; or
(c) a defence aircraft.
Australian ship means:
(a) a ship registered, or required to
be registered, under the Shipping Registration Act 1981; or
(b) an unregistered ship that has
Australian nationality; or
(c) a defence ship.
defence aircraft means an aircraft of any
part of the Australian Defence Force, and includes an aircraft that is being
commanded or piloted by a member of that Force in the course of his or her
duties as such a member.
defence ship means a ship of any part of the
Australian Defence Force, and includes a ship that is being operated or
commanded by a member of that Force in the course of his or her duties as such
a member.
71.17
Exclusion of this Division if State/Territory laws provide for corresponding
offences
(1) A State or Territory court does not have
jurisdiction to determine a charge of an offence under this Division if
the conduct constituting the offence also constitutes an offence (the State
offence) against the law of that State or Territory.
(2) If:
(a) a prosecution is brought against a
person under this Division; and
(b) a court finds that there is a
corresponding State offence;
then this section does not prevent the person from being
prosecuted for the State offence.
71.18
Double jeopardy
If a person has been convicted or acquitted
of an offence in respect of conduct under the law of a foreign country, the
person cannot be convicted of an offence under this Division in respect of that
conduct.
71.19
Saving of other laws
This Division is not intended to exclude
or limit the operation of any other law of the Commonwealth or of a State or
Territory.
71.20
Bringing proceedings under this Division
(1) Proceedings for an offence under this
Division must not be commenced without the Attorney‑General’s written
consent.
(2) However, a person may be arrested,
charged, remanded in custody, or released on bail, in connection with an
offence under this Division before the necessary consent has been given.
71.21
Ministerial certificates relating to proceedings
(1) The Minister for Foreign Affairs may
issue a certificate stating any of the following matters:
(a) the Convention entered into force
for Australia on a specified day;
(b) the Convention remains in force
for Australia or any other State Party on a specified day;
(c) a matter relevant to the
establishment of jurisdiction by a State Party under paragraph 1 or 2 of
article 10 of the Convention;
(d) a matter relevant to whether a
person is or was a UN or associated person;
(e) a matter relevant to whether an
operation is or was a UN operation.
(2) The
Minister for Immigration and Multicultural Affairs may issue a certificate
stating that:
(a) a person is or was an Australian
citizen at a particular time; or
(b) a person is or was a stateless
person whose habitual residence is or was in Australia.
(3) In any proceedings, a certificate under
this section is prima facie evidence of the matters in the certificate.
71.22
Jurisdiction of State courts preserved
For the purposes of section 38 of
the Judiciary Act 1903, a matter arising under this Act, including a
question of interpretation of the Convention, is taken not to be a matter
arising directly under a treaty.
71.23
Definitions
(1) In this
Division:
associated personnel means:
(a) persons assigned by a government,
or an intergovernmental organisation, with the agreement of the competent organ
of the United Nations; or
(b) persons engaged by the Secretary‑General
of the United Nations, a specialised agency or the International Atomic Energy
Agency; or
(c) persons deployed by a humanitarian
non‑governmental organisation or agency under an agreement with the
Secretary‑General of the United Nations, a specialised agency or the
International Atomic Energy Agency;
to carry out activities in support of the fulfilment of
the mandate of a UN operation.
Convention means the Convention on the Safety
of United Nations and Associated Personnel, done at New York on 9 December 1994.
Note: The text of the Convention is set out in
Australian Treaty Series 1995 No. 1. In 2000 this was available in the
Australian Treaties Library of the Department of Foreign Affairs and Trade,
accessible on the Internet through that Department’s world‑wide web site.
UN enforcement action means a UN operation:
(a) that is authorised by the Security
Council as an enforcement action under Chapter VII of the Charter of the United
Nations; and
(b) in which any of the UN or
associated personnel are engaged as combatants against organised armed forces;
and
(c) to which the law of international
armed conflict applies.
UN operation means an operation established
by the competent organ of the United Nations in accordance with the Charter of
the United Nations and conducted under United Nations authority and control if:
(a) the operation is for the purpose
of maintaining or restoring international peace and security; or
(b) the Security Council or the
General Assembly has declared, for the purposes of the Convention, that there
exists an exceptional risk to the safety of the personnel engaged in the
operation.
UN or associated person means a person who is
a member of any UN personnel or associated personnel.
UN personnel means:
(a) persons engaged or deployed by the
Secretary‑General of the United Nations as members of the military,
police or civilian components of a UN operation; or
(b) any other officials or experts on
mission of the United Nations, its specialised agencies or the International
Atomic Energy Agency who are present in an official capacity in the area where
a UN operation is being conducted.
(2) In this Division, a person’s conduct causes
death or harm if it substantially contributes to the death or harm.
Division 72—International terrorist activities using explosive or lethal
devices
72.1
Purpose
The purpose of this Division is to
create offences relating to international terrorist activities using explosive
or lethal devices and give effect to the International Convention
for the Suppression of Terrorist Bombings, done at New York on 15 December 1997.
Note: The text of the Convention is available in the
Australian Treaties Library of the Department of Foreign Affairs and Trade,
accessible on the Internet through that Department’s world‑wide web site.
72.2
ADF members not liable for prosecution
Nothing in this Division makes a member
of the Australian Defence Force acting in connection with the defence or
security of Australia liable to be prosecuted for an offence.
72.3
Offences
(1) A person commits an offence if:
(a) the person intentionally delivers,
places, discharges or detonates a device; and
(b) the device is an explosive or
other lethal device and the person is reckless as to that fact; and
(c) the device is delivered, placed,
discharged, or detonated, to, in, into or against:
(i) a place of public use;
or
(ii) a government facility;
or
(iii) a public
transportation system; or
(iv) an infrastructure
facility; and
(d) the person intends to cause death
or serious harm.
Penalty: Imprisonment for life.
(2) A person
commits an offence if:
(a) the person intentionally delivers,
places, discharges or detonates a device; and
(b) the device is an explosive or
other lethal device and the person is reckless as to that fact; and
(c) the device is delivered, placed,
discharged, or detonated, to, in, into or against:
(i) a place of public use;
or
(ii) a government facility;
or
(iii) a public
transportation system; or
(iv) an infrastructure
facility; and
(d) the person intends to cause
extensive destruction to the place, facility or system; and
(e) the person is reckless as to
whether that intended destruction results or is likely to result in major
economic loss.
Penalty: Imprisonment for life.
(3) Strict liability applies to paragraphs (1)(c)
and (2)(c).
72.4
Jurisdictional requirement
(1) A person commits an offence under this
Division only if one or more of the following paragraphs applies and the
circumstances relating to the alleged offence are not exclusively internal (see
subsection (2)):
(a) the conduct constituting the
alleged offence occurs:
(i) wholly or partly in Australia;
or
(ii) wholly or partly on
board an Australian ship or an Australian aircraft;
(b) at the time of the alleged
offence, the person is an Australian citizen;
(c) at the time of the alleged
offence, the person is a stateless person whose habitual residence is in Australia;
(d) the conduct is subject to the
jurisdiction of another State Party to the Convention established in accordance
with paragraph 1 or 2 of Article 6 of the Convention and the person is in Australia;
(e) the alleged offence is committed
against a government facility of the Commonwealth, or of a State or Territory,
that is located outside Australia;
(f) the alleged offence is committed
against:
(i) an Australian citizen;
or
(ii) a body corporate
incorporated by or under a law of the Commonwealth or of a State or Territory;
(g) by engaging in the conduct
constituting the alleged offence, the person intends to compel a legislative,
executive or judicial institution of the Commonwealth, a State or a Territory
to do or omit to do an act.
(2) The circumstances relating to the alleged
offence are exclusively internal if:
(a) the conduct constituting the
alleged offence occurs wholly within Australia; and
(b) the alleged offender is an
Australian citizen; and
(c) all of the persons against whom
the offence is committed are Australian citizens or bodies corporate
incorporated by or under a law of the Commonwealth or of a State or Territory;
and
(d) the alleged offender is in Australia;
and
(e) no other State Party to the
Convention has a basis under paragraph 1 or 2 of Article 6 of the Convention
for exercising jurisdiction in relation to the conduct.
72.5
Saving of other laws
This Division is not intended to exclude
or limit the operation of any other law of the Commonwealth or of a State or
Territory.
72.6
Double jeopardy and foreign offences
If a person has been convicted or
acquitted of an offence in respect of conduct under the law of a foreign
country, the person cannot be convicted of an offence under this Division in
respect of that conduct.
72.7
Bringing proceedings under this Division
(1) Proceedings for an offence under this
Division must not be commenced without the Attorney‑General’s written
consent.
(2) However, a person may be arrested,
charged, remanded in custody, or released on bail, in connection with an
offence under this Division before the necessary consent has been given.
(3) In determining whether to bring
proceedings for an offence under this Division, the Attorney‑General must
have regard to the terms of the Convention, including paragraph 2 of Article
19.
(4) In determining whether to bring
proceedings for an offence under this Division, the Attorney‑General must
also have regard to:
(a) whether the conduct constituting
the offence also gives rise to an offence under a law of a State or Territory;
and
(b) whether a prosecution relating to
the conduct under the State or Territory law has been or will be commenced.
72.8
Ministerial certificates relating to proceedings
(1) The Minister administering the Charter
of the United Nations Act 1945 may issue a certificate stating any of
the following matters:
(a) that the Convention entered into
force for Australia on a specified day;
(b) that the Convention remains in
force for Australia or any other State Party on a specified day;
(c) a matter relevant to the
establishment of jurisdiction by a State Party under paragraph 1 or 2 of
Article 6 of the Convention.
(2) The Minister administering the Australian
Citizenship Act 1948 may issue a certificate stating that:
(a) a person is or was an Australian
citizen at a particular time; or
(b) a person is or was a stateless
person whose habitual residence is or was in Australia at a particular time.
(3) In any proceedings, a certificate under
this section is prima facie evidence of the matters in the certificate.
72.9
Jurisdiction of State courts preserved
For the purposes of section 38 of
the Judiciary Act 1903, a matter arising under this Division, including
a question of interpretation of the Convention, is taken not to be a matter
arising directly under a treaty.
72.10
Definitions
In this Division:
Convention means the Convention referred to
in section 72.1.
explosive or other lethal device has the same
meaning as in the Convention.
government facility has the same meaning as State
or government facility has in the Convention.
infrastructure facility has the same meaning
as in the Convention.
place of public use has the same meaning as
in the Convention.
public transportation system has the same
meaning as in the Convention.
Division 73—People smuggling and related offences
Subdivision A—People smuggling
offences
73.1
Offence of people smuggling
(1) A person (the first person)
is guilty of an offence if:
(a) the first person organises or
facilitates the entry of another person (the other person) into a
foreign country (whether or not via Australia); and
(b) the entry of the other person into
the foreign country does not comply with the requirements under that country’s
law for entry into the country; and
(c) the other person is not a citizen
or permanent resident of the foreign country; and
(d) the first person organises or
facilitates the entry:
(i) having obtained
(whether directly or indirectly) a benefit to do so; or
(ii) with the intention of
obtaining (whether directly or indirectly) a benefit.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or
both.
(2) Absolute liability applies to the paragraph (1)(c)
element of the offence.
(3) For the purposes of this Code, an offence
against subsection (1) is to be known as the offence of people smuggling.
73.2
Aggravated offence of people smuggling (exploitation etc.)
(1) A person (the first person)
is guilty of an offence if the first person commits the offence of people
smuggling in relation to another person (the victim) and any of
the following applies:
(a) the first person commits the
offence intending that the victim will be exploited after entry into the
foreign country (whether by the first person or another);
(b) in committing the offence, the
first person subjects the victim to cruel, inhuman or degrading treatment;
(c) in committing the offence, the
first person’s conduct:
(i) gives rise to a danger
of death or serious harm to the victim; and
(ii) the first person is
reckless as to the danger of death or serious harm to the victim that arises
from the conduct.
Penalty: Imprisonment for 20 years or 2,000 penalty units, or
both.
(3) In this section:
forced labour means the condition of a person
who provides labour or services (other than sexual services) and who, because
of the use of force or threats:
(a) is not free to cease providing
labour or services; or
(b) is not free to leave the place or
area where the person provides labour or services.
sexual servitude has the same meaning as in
Division 270.
slavery has the same meaning as in Division 270.
threat means:
(a) a threat of force; or
(b) a threat to cause a person’s
deportation; or
(c) a threat of any other detrimental
action unless there are reasonable grounds for the threat of that action in
connection with the provision of labour or services by a person.
73.3
Aggravated offence of people smuggling (at least 5 people)
(1) A person (the first person)
is guilty of an offence if:
(a) the first person organises or facilitates
the entry of a group of at least 5 persons (the other persons)
into a foreign country (whether or not via Australia); and
(b) the entry of at least 5 of the
other persons into the foreign country does not comply with the requirements
under that country’s law for entry into that country; and
(c) at least 5 of the other persons
whose entry into the foreign country is covered by paragraph (b) are not
citizens or permanent residents of the foreign country; and
(d) the first person organises or
facilitates the entry:
(i) having obtained
(whether directly or indirectly) a benefit to do so; or
(ii) with the intention of
obtaining (whether directly or indirectly) a benefit.
Penalty: Imprisonment for 20 years or 2,000 penalty units, or
both.
(2) Absolute liability applies to the paragraph (1)(c)
element of the offence.
(3) If, on a trial for an offence against subsection (1),
the trier of fact is not satisfied that the defendant is guilty of that
offence, but is satisfied beyond reasonable doubt that the defendant is guilty
of an offence against subsection 73.1(1), the trier of fact may find the
defendant not guilty of an offence against subsection (1) but guilty of an
offence against subsection 73.1(1), so long as the defendant has been accorded
procedural fairness in relation to that finding of guilt.
73.4
Jurisdictional requirement
A person commits an offence against this
Subdivision only if:
(a) both:
(i) the person is an
Australian citizen or a resident of Australia; and
(ii) the conduct constituting
the alleged offence occurs wholly outside Australia; or
(b) both:
(i) the conduct
constituting the alleged offence occurs wholly or partly in Australia; and
(ii) a result of the
conduct occurs, or is intended by the person to occur, outside Australia.
73.5
Attorney‑General’s consent required
(1) Proceedings for an offence against this
Subdivision must not be commenced without the Attorney‑General’s written
consent.
(2) However, a person may be arrested,
charged, remanded in custody or released on bail in connection with an offence
against this Subdivision before the necessary consent has been given.
Subdivision B—Document offences
related to people smuggling and unlawful entry into foreign countries
73.6
Meaning of travel or identity document
(1) For the purposes of this Subdivision, a
document is a travel or identity document if it is:
(a) a travel document; or
(b) an identity document.
73.7
Meaning of false travel or identity document
(1) For the purposes of this Subdivision, a
travel or identity document is a false travel or identity document if,
and only if:
(a) the document, or any part of the
document:
(i) purports to have been
made in the form in which it is made by a person who did not make it in that
form; or
(ii) purports
to have been made in the form in which it is made on the authority of a person
who did not authorise its making in that form; or
(b) the document, or any part of the
document:
(i) purports to have been
made in the terms in which it is made by a person who did not make it in those
terms; or
(ii) purports to have been
made in the terms in which it is made on the authority of a person who did not
authorise its making in those terms; or
(c) the document, or any part of the
document:
(i) purports to have been altered in any respect
by a person who did not alter it in that respect; or
(ii) purports to have been
altered in any respect on the authority of a person who did not authorise its
alteration in that respect; or
(d) the document, or any part of the
document:
(i) purports
to have been made or altered by a person who did not exist; or
(ii) purports to have been
made or altered on the authority of a person who did not exist; or
(e) the document, or any part of the
document, purports to have been made or altered on a date on which, at a time
at which, at a place at which, or otherwise in circumstances in which, it was
not made or altered.
(2) For the purposes of this Subdivision, a
person is taken to make a false travel or identity document if
the person alters a document so as to make it a false travel or identity
document (whether or not it was already a false travel or identity document
before the alteration).
(3) This section has effect as if a document
that purports to be a true copy of another document were the original document.
73.8
Making, providing or possessing a false travel or identity document
A person (the first person)
is guilty of an offence if:
(a) the first person makes, provides
or possesses a false travel or identity document; and
(b) the first person intends that the
document will be used to facilitate the entry of another person (the other
person) into a foreign country, where the entry of the other person
into the foreign country would not comply with the requirements under that country’s
law for entry into the country; and
(c) the first person made, provided or
possessed the document:
(i) having obtained
(whether directly or indirectly) a benefit to do so; or
(ii) with the intention of
obtaining (whether directly or indirectly) a benefit.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or
both.
73.9
Providing or possessing a travel or identity document issued or altered
dishonestly or as a result of threats
(1) A person (the first person)
is guilty of an offence if:
(a) the first person provides or
possesses a travel or identity document; and
(b) the first person knows that:
(i) the issue of the
travel or identity document; or
(ii) an alteration of the
travel or identity document;
has been obtained dishonestly or
by threats; and
(c) the first person intends that the
document will be used to facilitate the entry of another person (the other
person) into a foreign country, where the entry of the other person
into the foreign country would not comply with the requirements under that
country’s law for entry into the country; and
(d) the first person provided or
possessed the document:
(i) having obtained
(whether directly or indirectly) a benefit to do so; or
(ii) with the intention of
obtaining (whether directly or indirectly) a benefit.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or
both.
(2) For the purposes of subsection (1),
a threat may be:
(a) express or implied; or
(b) conditional or unconditional.
(3) For the purposes of subsection (1), dishonest
means:
(a) dishonest according to the
standards of ordinary people; and
(b) known by the defendant to be
dishonest according to the standards of ordinary people.
(4) In a prosecution for an offence against
this section, the determination of dishonesty is a matter for the trier of
fact.
73.10
Providing or possessing a travel or identity document to be used by a person
who is not the rightful user
A person (the first person)
is guilty of an offence if:
(a) the first person provides or
possesses a travel or identity document; and
(b) the first person intends that the
document will be used to facilitate the entry of another person (the other
person) into a foreign country, where the entry of the other person
into the foreign country would not comply with the requirements under that
country’s law for entry into the country; and
(c) the first person knows that the
other person is not the person to whom the document applies; and
(d) the first person provided or
possessed the document:
(i) having obtained
(whether directly or indirectly) a benefit to do so; or
(ii) with the intention of
obtaining (whether directly or indirectly) a benefit.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or
both.
73.11
Taking possession of or destroying another person’s travel or identity document
A person (the first person)
is guilty of an offence if:
(a) the first person takes possession
of, or destroys, a travel or identity document that applies to another person
(the other person); and
(b) the first person does so intending
to conceal the other person’s identity or nationality; and
(c) at the time of doing so, the first
person intends to organise or facilitate the entry of the other person into a
foreign country:
(i) having obtained, or
with the intention of obtaining, whether directly or indirectly, a benefit to
organise or facilitate that entry; and
(ii) where the entry of the
other person into the foreign country would not comply with the requirements
under that country’s law for entry into the country.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or
both.
73.12
Jurisdictional requirement
Section 15.2 (extended geographical
jurisdiction—category B) applies to an offence against this Subdivision.
Chapter 5—The security of the Commonwealth
Part 5.1—Treason and sedition
Division 80—Treason and sedition
80.1A
Definition of organisation
In this Division:
organisation means:
(a) a body corporate; or
(b) an unincorporated body;
whether or not the body is based outside Australia,
consists of persons who are not Australian citizens, or is part of a larger
organisation.
80.1
Treason
(1) A person commits an offence, called
treason, if the person:
(a) causes the death of the Sovereign,
the heir apparent of the Sovereign, the consort of the Sovereign, the Governor‑General
or the Prime Minister; or
(b) causes harm to the Sovereign, the
Governor‑General or the Prime Minister resulting in the death of the
Sovereign, the Governor‑General or the Prime Minister; or
(c) causes harm to the Sovereign, the
Governor‑General or the Prime Minister, or imprisons or restrains the
Sovereign, the Governor‑General or the Prime Minister; or
(d) levies war, or does any act
preparatory to levying war, against the Commonwealth; or
(e) engages in conduct that assists by
any means whatever, with intent to assist, an enemy:
(i) at war with the
Commonwealth, whether or not the existence of a state of war has been declared;
and
(ii) specified by
Proclamation made for the purpose of this paragraph to be an enemy at war with
the Commonwealth; or
(f) engages in conduct that assists
by any means whatever, with intent to assist:
(i) another country; or
(ii) an organisation;
that is engaged in armed
hostilities against the Australian Defence Force; or
(g) instigates a person who is not an
Australian citizen to make an armed invasion of the Commonwealth or a Territory
of the Commonwealth; or
(h) forms an intention to do any act
referred to in a preceding paragraph and manifests that intention by an overt
act.
Penalty: Imprisonment for life.
(1A) Paragraphs (1)(e)
and (f) do not apply to engagement in conduct by way of, or for the purposes
of, the provision of aid of a humanitarian nature.
Note 1 A defendant
bears an evidential burden in relation to the matter in subsection (1A).
See subsection 13.3(3).
Note 2: There is a defence in section 80.3 for
acts done in good faith.
(1B) Paragraph (1)(h)
does not apply to formation of an intention to engage in conduct that:
(a) is
referred to in paragraph (1)(e) or (f); and
(b) is
by way of, or for the purposes of, the provision of aid of a humanitarian
nature.
Note: A
defendant bears an evidential burden in relation to the matter in subsection (1B).
See subsection 13.3(3).
(2) A person commits an offence if the person:
(a) receives or assists another person
who, to his or her knowledge, has committed treason with the intention of
allowing him or her to escape punishment or apprehension; or
(b) knowing that another person
intends to commit treason, does not inform a constable of it within a
reasonable time or use other reasonable endeavours to prevent the commission of
the offence.
Penalty: Imprisonment for life.
(5) On the trial of a person charged with
treason on the ground that he or she formed an intention to do an act referred
to in paragraph (1)(a), (b), (c), (d), (e), (f) or (g) and manifested that
intention by an overt act, evidence of the overt act is not to be admitted
unless the overt act is alleged in the indictment.
(8) In this section:
constable means a member or special member of
the Australian Federal Police or a member of the police force or police service
of a State or Territory.
80.2
Sedition
Urging the overthrow of the Constitution or Government
(1) A person commits an offence if the person
urges another person to overthrow by force or violence:
(a) the Constitution; or
(b) the Government of the
Commonwealth, a State or a Territory; or
(c) the lawful authority of the
Government of the Commonwealth.
Penalty: Imprisonment for 7 years.
(2) Recklessness applies to the element of
the offence under subsection (1) that it is:
(a) the Constitution; or
(b) the Government of the
Commonwealth, a State or a Territory; or
(c) the lawful authority of the
Government of the Commonwealth;
that the first‑mentioned person urges the other
person to overthrow.
Urging interference in Parliamentary elections
(3) A person commits an offence if the person
urges another person to interfere by force or violence with lawful processes
for an election of a member or members of a House of the Parliament.
Penalty: Imprisonment for 7 years.
(4) Recklessness applies to the element of
the offence under subsection (3) that it is lawful processes for an
election of a member or members of a House of the Parliament that the first‑mentioned
person urges the other person to interfere with.
Urging violence within the community
(5) A person commits an offence if:
(a) the person urges a group or groups
(whether distinguished by race, religion, nationality or political opinion) to use
force or violence against another group or other groups (as so distinguished);
and
(b) the use of the force or violence
would threaten the peace, order and good government of the Commonwealth.
Penalty: Imprisonment for 7 years.
(6) Recklessness applies to the element of
the offence under subsection (5) that it is a group or groups that are
distinguished by race, religion, nationality or political opinion that the
first‑mentioned person urges the other person to use force or violence
against.
Urging a person to assist the enemy
(7) A person commits an offence if:
(a) the person urges another person to
engage in conduct; and
(b) the first‑mentioned person
intends the conduct to assist an organisation or country; and
(c) the organisation or country is:
(i) at war with the
Commonwealth, whether or not the existence of a state of war has been declared;
and
(ii) specified by
Proclamation made for the purpose of paragraph 80.1(1)(e) to be an enemy at war
with the Commonwealth.
Penalty: Imprisonment for 7 years.
Urging a person to assist those engaged in armed
hostilities
(8) A person
commits an offence if:
(a) the person urges another person to
engage in conduct; and
(b) the first‑mentioned person
intends the conduct to assist an organisation or country; and
(c) the organisation or country is
engaged in armed hostilities against the Australian Defence Force.
Penalty: Imprisonment for 7 years.
Defence
(9) Subsections (7) and (8) do not apply
to engagement in conduct by way of, or for the purposes of, the provision of
aid of a humanitarian nature.
Note 1: A defendant bears an evidential burden in
relation to the matter in subsection (9). See subsection 13.3(3).
Note 2: There is a defence in section 80.3 for
acts done in good faith.
80.3
Defence for acts done in good faith
(1) Sections 80.1 and 80.2 do not apply
to a person who:
(a) tries in good faith to show that
any of the following persons are mistaken in any of his or her counsels,
policies or actions:
(i) the Sovereign;
(ii) the Governor‑General;
(iii) the Governor of a
State;
(iv) the Administrator of a
Territory;
(v) an adviser of any of
the above;
(vi) a person responsible
for the government of another country; or
(b) points out in good faith errors or
defects in the following, with a view to reforming those errors or defects:
(i) the Government of the
Commonwealth, a State or a Territory;
(ii) the Constitution;
(iii) legislation of the
Commonwealth, a State, a Territory or another country;
(iv) the administration of
justice of or in the Commonwealth, a State, a Territory or another country; or
(c) urges in good faith another person
to attempt to lawfully procure a change to any matter established by law,
policy or practice in the Commonwealth, a State, a Territory or another
country; or
(d) points out in good faith any
matters that are producing, or have a tendency to produce, feelings of ill‑will
or hostility between different groups, in order to bring about the removal of
those matters; or
(e) does anything in good faith in
connection with an industrial dispute or an industrial matter; or
(f) publishes in good faith a report
or commentary about a matter of public interest.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (1). See subsection 13.3(3).
(2) In considering a defence under
subsection (1), the Court may have regard to any relevant matter,
including whether the acts were done:
(a) for a purpose intended to be
prejudicial to the safety or defence of the Commonwealth; or
(b) with the intention of assisting an
enemy:
(i) at war with the
Commonwealth; and
(ii) specified by
Proclamation made for the purpose of paragraph 80.1(1)(e) to be an enemy at war
with the Commonwealth; or
(c) with the intention of assisting
another country, or an organisation, that is engaged in armed hostilities
against the Australian Defence Force; or
(d) with the intention of assisting a
proclaimed enemy of a proclaimed country (within the meaning of subsection
24AA(4) of the Crimes Act 1914); or
(e) with the intention of assisting
persons specified in paragraphs 24AA(2)(a) and (b) of the Crimes Act 1914;
or
(f) with the intention of causing
violence or creating public disorder or a public disturbance.
80.4
Extended geographical jurisdiction for offences
Section 15.4 (extended geographical
jurisdiction—category D) applies to an offence against this Division.
80.5
Attorney‑General’s consent required
(1) Proceedings for an offence against this
Division must not be commenced without the Attorney‑General’s written
consent.
(2) Despite subsection (1):
(a) a person may be arrested for an
offence against this Division; or
(b) a warrant for the arrest of a
person for such an offence may be issued and executed;
and the person may be charged, and may be remanded in custody
or on bail, but:
(c) no further proceedings may be
taken until that consent has been obtained; and
(d) the person must be discharged if
proceedings are not continued within a reasonable time.
80.6
Division not intended to exclude State or Territory law
It is the intention of the Parliament
that this Division is not to apply to the exclusion of a law of a State or a
Territory to the extent that the law is capable of operating concurrently with
this Division.
Part 5.2—Offences relating to espionage and similar activities
Division 90—Preliminary
90.1
Definitions
(1) In this Part:
article includes any thing, substance or
material.
information means information of any kind,
whether true or false and whether in a material form or not, and includes:
(a) an opinion; and
(b) a report of a conversation.
intelligence or security agency has the
meaning given by section 85ZL of the Crimes Act 1914.
Record, in relation to information, means a
record of information in any form, including but not limited to, a document,
paper, database, software system or other article or system containing
information or from which information can be derived.
security or defence of a country includes the
operations, capabilities and technologies of, and methods and sources used by,
the country’s intelligence or security agencies.
sketch includes a representation of a place
or thing.
the Commonwealth includes the Territories.
(2) In this Part, unless the contrary
intention appears:
(a) expressions referring to
obtaining, recording, using, having in possession, communicating or retaining
include obtaining, recording, using, having in possession, communicating or
retaining in whole or in part, and whether the thing or information itself, or
only the substance, effect or description of the thing or information, is
obtained, recorded, used, possessed, communicated or retained; and
(b) a reference to a sketch, document
or article or to information is to be read as including a reference to a copy
of, a part of or a copy of a part of a sketch, document or article or
information.
(3) For the purposes of this Part, a place
that is occupied by, or a thing that is under the control of, the Commonwealth
is taken to belong to the Commonwealth.
(4) This Part applies to and in relation to a
document or article regardless of who made it and what information it contains.
Division 91—Offences relating to espionage and similar activities
91.1
Espionage and similar activities
(1) A person commits an offence if:
(a) the person communicates, or makes
available:
(i) information concerning
the Commonwealth’s security or defence; or
(ii) information concerning
the security or defence of another country, being information that the person
acquired (whether directly or indirectly) from the Commonwealth; and
(b) the person does so intending to
prejudice the Commonwealth’s security or defence; and
(c) the person’s act results in, or is
likely to result in, the information being communicated or made available to
another country or a foreign organisation, or to a person acting on behalf of
such a country or organisation.
Penalty: Imprisonment for 25 years.
(2) A person commits an offence if:
(a) the person communicates, or makes
available:
(i) information concerning
the Commonwealth’s security or defence; or
(ii) information concerning
the security or defence of another country, being information that the person
acquired (whether directly or indirectly) from the Commonwealth; and
(b) the person does so:
(i) without lawful
authority; and
(ii) intending to give an
advantage to another country’s security or defence; and
(c) the person’s act results in, or is
likely to result in, the information being communicated or made available to
another country or a foreign organisation, or to a person acting on behalf of
such a country or organisation.
Penalty: Imprisonment for 25 years.
(3) A person commits an offence if:
(a) the person makes, obtains or
copies a record (in any form) of:
(i) information concerning
the Commonwealth’s security or defence; or
(ii) information concerning
the security or defence of another country, being information that the person
acquired (whether directly or indirectly) from the Commonwealth; and
(b) the person does so:
(i) intending that the
record will, or may, be delivered to another country or a foreign organisation,
or to a person acting on behalf of such a country or organisation; and
(ii) intending to prejudice
the Commonwealth’s security or defence.
Penalty: Imprisonment for 25 years.
(4) A person commits an offence if:
(a) the person makes, obtains or
copies a record (in any form) of:
(i) information concerning
the Commonwealth’s security or defence; or
(ii) information concerning
the security or defence of another country, being information that the person
acquired (whether directly or indirectly) from the Commonwealth; and
(b) the person does so:
(i) without lawful
authority; and
(ii) intending that the
record will, or may, be delivered to another country or a foreign organisation,
or to a person acting on behalf of such a country or organisation; and
(iii) intending to give an
advantage to another country’s security or defence.
Penalty: Imprisonment for 25 years.
(5) For the purposes of subparagraphs (3)(b)(i)
and (4)(b)(ii), the person concerned does not need to have a particular
country, foreign organisation or person in mind at the time when the person
makes, obtains or copies the record.
(6) A person charged with an offence under
this section may only be remanded on bail by a judge of the Supreme Court of a
State or Territory. This subsection has effect despite anything in section 93.1.
Note: Section 93.1 deals with how a prosecution
is instituted.
(7) Section 15.4 of the Criminal Code
(extended geographical jurisdiction—category D) applies to offences under this
section.
91.2
Defence—information lawfully available
(1) It is a defence to a prosecution of an
offence against subsection 91.1(1) or (2) that the information the person
communicates or makes available is information that has already been communicated
or made available to the public with the authority of the Commonwealth.
(2) It is a defence to a prosecution of an
offence against subsection 91.1(3) or (4) that the record of information the
person makes, obtains or copies is a record of information that has already
been communicated or made available to the public with the authority of the
Commonwealth.
Note: A defendant bears an evidential burden in
relation to the matters in subsections (1) and (2). See subsection
13.3(3).
Division 93—Prosecutions and hearings
93.1
Institution of prosecution
(1) A prosecution under this Part may be
instituted only by, or with the consent of, the Attorney‑General or a
person acting under the Attorney‑General’s direction.
(2) However:
(a) a person charged with an offence
against this Part may be arrested, or a warrant for his or her arrest may be
issued and executed; and
(b) such a person may be remanded in
custody or on bail;
even if the consent of the Attorney‑General or a
person acting under his or her direction has not been obtained, but no further
proceedings are to be taken until that consent has been obtained.
(3) Nothing in this section prevents the
discharging of the accused if proceedings are not continued within a reasonable
time.
93.2
Hearing in camera etc.
(1) This section applies to a hearing of an
application or other proceedings before a federal court, a court exercising
federal jurisdiction or a court of a Territory, whether under this Act or
otherwise.
(2) At any time before or during the hearing,
the judge or magistrate, or other person presiding or competent to preside over
the proceedings, may, if satisfied that it is in the interest of the security
or defence of the Commonwealth:
(a) order that some or all of the
members of the public be excluded during the whole or a part of the hearing; or
(b) order that no report of the whole
or a specified part of, or relating to, the application or proceedings be
published; or
(c) make such order and give such
directions as he or she thinks necessary for ensuring that no person, without
the approval of the court, has access (whether before, during or after the
hearing) to any affidavit, exhibit, information or other document used in the
application or the proceedings that is on the file in the court or in the
records of the court.
(3) A person
commits an offence if the person contravenes an order made or direction given
under this section.
Penalty: Imprisonment for 5 years.
Division 94—Forfeiture
94.1
Forfeiture of articles etc.
A sketch, article, record or document
which is made, obtained, recorded, retained, forged, possessed or otherwise
dealt with in contravention of this Part is forfeited to the Commonwealth.
Part 5.3—Terrorism
Division 100—Preliminary
100.1
Definitions
(1) In this Part:
AFP member means:
(a) a member of the Australian Federal
Police (within the meaning of the Australian Federal Police Act 1979);
or
(b) a special member of the Australian
Federal Police (within the meaning of that Act).
Commonwealth place has the same meaning as in
the Commonwealth Places (Application of Laws) Act 1970.
confirmed control order means an order made
under section 104.16.
constitutional corporation means a
corporation to which paragraph 51(xx) of the Constitution applies.
continued preventative detention order means
an order made under section 105.12.
control order means an interim control order
or a confirmed control order.
corresponding State preventative detention law
means a law of a State or Territory that is, or particular provisions of a law
of a State or Territory that are, declared by the regulations to correspond to
Division 105 of this Act.
express amendment of the provisions of this
Part or Chapter 2 means the direct amendment of the provisions (whether by
the insertion, omission, repeal, substitution or relocation of words or
matter).
frisk search means:
(a) a search of a person conducted by
quickly running the hands over the person’s outer garments; and
(b) an examination of anything worn or
carried by the person that is conveniently and voluntarily removed by the
person.
funds means:
(a) property and assets of every kind,
whether tangible or intangible, movable or immovable, however acquired; and
(b) legal documents or instruments in
any form, including electronic or digital, evidencing title to, or interest in,
such property or assets, including, but not limited to, bank credits,
travellers cheques, bank cheques, money orders, shares, securities, bonds, debt
instruments, drafts and letters of credit.
identification material, in relation to a
person, means prints of the person’s hands, fingers, feet or toes, recordings
of the person’s voice, samples of the person’s handwriting or photographs
(including video recordings) of the person, but does not include tape
recordings made for the purposes of section 23U or 23V of the Crimes
Act 1914.
initial preventative detention order means an
order made under section 105.8.
interim control order means an order made
under section 104.4, 104.7 or 104.9.
issuing authority:
(a) for initial preventative detention
orders—means a senior AFP member; and
(b) for continued preventative
detention orders—means a person appointed under section 105.2.
issuing court means:
(a) the Federal Court of Australia; or
(b) the Family Court of Australia; or
(c) the Federal Magistrates Court.
Judge means a Judge of a court created by the
Parliament.
lawyer means a person enrolled as a legal
practitioner of a federal court or the Supreme Court of a State or Territory.
listed terrorist organisation means an
organisation that is specified by the regulations for the purposes of
paragraph (b) of the definition of terrorist organisation in
section 102.1.
ordinary search means a search of a person or
of articles in the possession of a person that may include:
(a) requiring the person to remove his
or her overcoat, coat or jacket and any gloves, shoes or hat; and
(b) an examination of those items.
organisation means a body corporate or an
unincorporated body, whether or not the body:
(a) is based outside Australia; or
(b) consists of persons who are not
Australian citizens; or
(c) is part of a larger organisation.
police officer means:
(a) an AFP member; or
(b) a member (however described) of a
police force of a State or Territory.
prescribed authority has the same meaning as
in Division 3 of Part III of the Australian Security Intelligence
Organisation Act 1979.
preventative detention order means an order
under section 105.8 or 105.12.
prohibited contact order means an order made
under section 105.15 or 105.16.
referring State has the meaning given by section 100.2.
seizable item means anything that:
(a) would present a danger to a
person; or
(b) could be used to assist a person
to escape from lawful custody; or
(c) could be used to contact another
person or to operate a device remotely.
senior AFP member means:
(a) the Commissioner of the Australian
Federal Police; or
(b) a Deputy Commissioner of the
Australian Federal Police; or
(c) an AFP member of, or above, the
rank of Superintendent.
superior court means:
(a) the High Court; or
(b) the Federal Court of Australia; or
(c) the Family Court of Australia or
of a State; or
(d) the Supreme Court of a State or
Territory; or
(e) the District Court (or equivalent)
of a State or Territory.
terrorist act means an action or threat of action where:
(a) the
action falls within subsection (2) and does not fall within subsection (3);
and
(b) the
action is done or the threat is made with the intention of advancing a
political, religious or ideological cause; and
(c) the action is done or the threat
is made with the intention of:
(i) coercing,
or influencing by intimidation, the
government of the Commonwealth or a State, Territory or foreign country, or of
part of a State, Territory or foreign country; or
(ii) intimidating the
public or a section of the public.
tracking device means any electronic device
capable of being used to determine or monitor the location of a person or an
object or the status of an object.
(2) Action falls within this subsection if
it:
(a) causes serious harm that is
physical harm to a person; or
(b) causes serious damage to property;
or
(c) causes
a person’s death; or
(d) endangers a person’s life, other
than the life of the person taking the action; or
(e) creates a serious risk to the
health or safety of the public or a section of the public; or
(f) seriously interferes with,
seriously disrupts, or destroys, an electronic system including, but not
limited to:
(i) an information system;
or
(ii) a telecommunications
system; or
(iii) a financial system; or
(iv) a system used for the
delivery of essential government services; or
(v) a system used for, or
by, an essential public utility; or
(vi) a system used for, or
by, a transport system.
(3) Action
falls within this subsection if it:
(a) is
advocacy, protest, dissent or industrial action; and
(b) is
not intended:
(i) to
cause serious harm that is physical harm to a person; or
(ii) to
cause a person’s death; or
(iii) to
endanger the life of a person, other than the person taking the action; or
(iv) to
create a serious risk to the health or safety of the public or a section of the
public.
(4) In this
Division:
(a) a reference to any person or
property is a reference to any person or property wherever situated, within or outside
Australia; and
(b) a reference to the public includes
a reference to the public of a country other than Australia.
100.2
Referring States
(1) A State is a referring State
if the Parliament of the State has referred the matters covered by subsections (2)
and (3) to the Parliament of the Commonwealth for the purposes of paragraph
51(xxxvii) of the Constitution:
(a) if and to the extent that the
matters are not otherwise included in the legislative powers of the Parliament
of the Commonwealth (otherwise than by a reference under paragraph 51(xxxvii)
of the Constitution); and
(b) if and to the extent that the
matters are included in the legislative powers of the Parliament of the State.
This subsection has
effect subject to subsection (5).
(2) This subsection covers the matters to
which the referred provisions relate to the extent of making laws with respect
to those matters by including the referred provisions in this Code.
(3) This subsection covers the matter of
terrorist acts, and of actions relating to terrorist acts, to the extent of
making laws with respect to that matter by making express amendment of this
Part or Chapter 2.
(4) A State is a referring State even
if a law of the State provides that the reference to the Commonwealth Parliament
of either or both of the matters covered by subsections (2) and (3) is to
terminate in particular circumstances.
(5) A
State ceases to be a referring State if a reference by the State of either or
both of the matters covered by subsections (2) and (3) terminate.
(6) In this section:
referred provisions means the provisions of
Part 5.3 of this Code as inserted by the Criminal Code Amendment
(Terrorism) Act 2002, to the extent to which they deal with matters that
are included in the legislative powers of the Parliaments of the States.
100.3
Constitutional basis for the operation of this Part
Operation in a referring State
(1) The operation of this Part in a referring
State is based on:
(a) the legislative powers that the
Commonwealth Parliament has under section 51 of the Constitution (other
than paragraph 51(xxxvii)); and
(b) the legislative powers that the
Commonwealth Parliament has in respect of matters to which this Part relates
because those matters are referred to it by the Parliament of the referring
State under paragraph 51(xxxvii) of the Constitution.
Note: The State reference fully supplements the
Commonwealth Parliament’s other powers by referring the matters to the
Commonwealth Parliament to the extent to which they are not otherwise included
in the legislative powers of the Commonwealth Parliament.
Operation in a non‑referring State
(2) The operation of this Part in a State
that is not a referring State is based on the legislative powers that the
Commonwealth Parliament has under section 51 of the Constitution (other
than paragraph 51(xxxvii)).
Note: Subsection 100.4(5) identifies particular
powers that are being relied on.
Operation in a Territory
(3) The operation of this Part in the Northern
Territory, the Australian Capital Territory or an external Territory is based
on:
(a) the legislative powers that the
Commonwealth Parliament has under section 122 of the Constitution to make
laws for the government of that Territory; and
(b) the legislative powers that the
Commonwealth Parliament has under section 51 of the Constitution (other
than paragraph 51(xxxvii)).
Despite subsection 22(3) of the Acts Interpretation Act
1901, this Part as applying in those Territories is a law of the
Commonwealth.
Operation outside Australia
(4) The operation of this Part outside Australia
and the external Territories is based on:
(a) the legislative powers that the
Commonwealth Parliament has under paragraph 51(xxix) of the Constitution; and
(b) the other legislative powers that
the Commonwealth Parliament has under section 51 of the Constitution
(other than paragraph 51(xxxvii)).
100.4 Application of provisions
Part generally applies to all terrorist acts and
preliminary acts
(1) Subject to subsection (4), this Part
applies to the following conduct:
(a) all actions or threats of action
that constitute terrorist acts (no matter where the action occurs, the threat
is made or the action, if carried out, would occur);
(b) all actions (preliminary
acts) that relate to terrorist acts but do not themselves constitute
terrorist acts (no matter where the preliminary acts occur and no matter where
the terrorist acts to which they relate occur or would occur).
Note: See the following provisions:
(a) subsection 101.1(2);
(b) subsection 101.2(4);
(c) subsection 101.4(4);
(d) subsection 101.5(4);
(e) subsection 101.6(3);
(f) section 102.9.
Operation in
relation to terrorist acts and preliminary acts occurring in a State that is
not a referring State
(2) Subsections (4)
and (5) apply to conduct if the conduct is itself a terrorist act and:
(a) the
terrorist act consists of an action and the action occurs in a State that is
not a referring State; or
(b) the
terrorist act consists of a threat of action and the threat is made in a State
that is not a referring State.
(3) Subsections (4)
and (5) also apply to conduct if the conduct is a preliminary act that occurs
in a State that is not a referring State and:
(a) the
terrorist act to which the preliminary act relates consists of an action and
the action occurs, or would occur, in a State that is not a referring State; or
(b) the
terrorist act to which the preliminary act relates consists of a threat of
action and the threat is made, or would be made, in a State that is not a
referring State.
(4) Notwithstanding
any other provision in this Part, this Part applies to the conduct only to the
extent to which the Parliament has power to legislate in relation to:
(a) if
the conduct is itself a terrorist act—the action or threat of action that
constitutes the terrorist act; or
(b) if
the conduct is a preliminary act—the action or threat of action that
constitutes the terrorist act to which the preliminary act relates.
(5) Without limiting the generality of subsection (4),
this Part applies to the action or threat
of action if:
(a) the action affects, or if carried
out would affect, the interests of:
(i) the Commonwealth; or
(ii) an authority of the
Commonwealth; or
(iii) a constitutional
corporation; or
(b) the threat is made to:
(i) the Commonwealth; or
(ii) an authority of the
Commonwealth; or
(iii) a constitutional
corporation; or
(c) the action is carried out by, or
the threat is made by, a constitutional corporation; or
(d) the action takes place, or if
carried out would take place, in a Commonwealth place; or
(e) the threat is made in a
Commonwealth place; or
(f) the action involves, or if
carried out would involve, the use of a postal service or other like service;
or
(g) the threat is made using a postal
or other like service; or
(h) the action involves, or if carried
out would involve, the use of an electronic communication; or
(i) the threat is made using an
electronic communication; or
(j) the action disrupts, or if
carried out would disrupt, trade or commerce:
(i) between Australia and
places outside Australia; or
(ii) among the States; or
(iii) within a Territory,
between a State and a Territory or between 2 Territories; or
(k) the action disrupts, or if carried
out would disrupt:
(i) banking (other than
State banking not extending beyond the limits of the State concerned); or
(ii) insurance (other than
State insurance not extending beyond the limits of the State concerned); or
(l) the action is, or if carried out
would be, an action in relation to which the Commonwealth is obliged to create
an offence under international law; or
(m) the threat is one in relation to
which the Commonwealth is obliged to create an offence under international law.
(6) To avoid doubt, subsections (2) and
(3) apply to a State that is not a referring State at a particular time even if
no State is a referring State at that time.
100.5
Application of Acts Interpretation Act 1901
(1) The Acts Interpretation Act 1901,
as in force on the day on which Schedule 1 to the Criminal Code
Amendment (Terrorism) Act 2003 commences, applies to this Part.
(2) Amendments of the Acts Interpretation
Act 1901 made after that day do not apply to this Part.
100.6
Concurrent operation intended
(1) This Part is not intended to exclude or
limit the concurrent operation of any law of a State or Territory.
(2) Without limiting subsection (1),
this Part is not intended to exclude or limit the concurrent operation of a law
of a State or Territory that makes:
(a) an act or omission that is an
offence against a provision of this Part; or
(b) a similar act or omission;
an offence against the law of the State or Territory.
(3) Subsection (2) applies even if the
law of the State or Territory does any one or more of the following:
(a) provides for a penalty for the
offence that differs from the penalty provided for in this Part;
(b) provides for a fault element in
relation to the offence that differs from the fault elements applicable to the
offence under this Part;
(c) provides for a defence in relation
to the offence that differs from the defences applicable to the offence under
this Part.
(4) If:
(a) an act or omission of a person is
an offence under this Part and is also an offence under the law of a State or
Territory; and
(b) the person has been punished for
the offence under the law of the State or Territory;
the person is not liable to be punished for the offence
under this Part.
100.7
Regulations may modify operation of this Part to deal with interaction between
this Part and State and Territory laws
(1) The
regulations may modify the operation of this Part so that:
(a) provisions of this Part do not
apply to a matter that is dealt with by a law of a State or Territory specified
in the regulations; or
(b) no inconsistency arises between
the operation of a provision of this Part and the operation of a State or
Territory law specified in the regulations.
(2) Without limiting subsection (1),
regulations made for the purposes of that subsection may provide that the
provision of this Part does not apply to:
(a) a person specified in the regulations;
or
(b) a body specified in the
regulations; or
(c) circumstances specified in the
regulations; or
(d) a person or body specified in the
regulations in the circumstances specified in the regulations.
(3) In this section:
matter includes act, omission, body, person
or thing.
100.8
Approval for changes to or affecting this Part
(1) This section applies to:
(a) an express amendment of this Part
(including this section); and
(b) an express amendment of Chapter 2
that applies only to this Part (whether or not it is expressed to apply only to
this Part).
(2) An express amendment to which this
section applies is not to be made unless the amendment is approved by:
(a) a majority of the group consisting
of the States, the Australian Capital Territory and the Northern Territory; and
(b) at least 4 States.
Division 101—Terrorism
101.1
Terrorist acts
(1) A person commits an offence if the person
engages in a terrorist act.
Penalty: Imprisonment for life.
(2) Section 15.4 (extended geographical
jurisdiction—category D) applies to an offence against subsection (1).
101.2 Providing or receiving training connected with
terrorist acts
(1) A person
commits an offence if:
(a) the person provides or receives
training; and
(b) the training is connected with
preparation for, the engagement of a person in, or assistance in a terrorist
act; and
(c) the person mentioned in paragraph (a)
knows of the connection described in paragraph (b).
Penalty: Imprisonment for 25 years.
(2) A person commits an offence if:
(a) the person provides or receives
training; and
(b) the training is connected with
preparation for, the engagement of a person in, or assistance in a terrorist
act; and
(c) the person mentioned in paragraph (a)
is reckless as to the existence of the connection described in paragraph (b).
Penalty: Imprisonment for 15 years.
(3) A person commits an offence under this
section even if:
(a) a terrorist act does not occur; or
(b) the training is not connected with
preparation for, the engagement of a person in, or assistance in a specific
terrorist act; or
(c) the training is connected with
preparation for, the engagement of a person in, or assistance in more than one
terrorist act.
(4) Section 15.4 (extended geographical
jurisdiction—category D) applies to an offence against this section.
(5) If, in a prosecution for an offence (the prosecuted
offence) against a subsection of this section, the trier of fact is not
satisfied that the defendant is guilty of the offence, but is satisfied beyond
reasonable doubt that the defendant is guilty of an offence (the alternative
offence) against another subsection of this section, the trier of fact
may find the defendant not guilty of the prosecuted offence but guilty of the
alternative offence, so long as the defendant has been accorded procedural
fairness in relation to that finding of guilt.
101.4
Possessing things connected with terrorist acts
(1) A person commits an offence if:
(a) the person possesses a thing; and
(b) the thing is connected with preparation
for, the engagement of a person in, or assistance in a terrorist act; and
(c) the person mentioned in paragraph (a)
knows of the connection described in paragraph (b).
Penalty: Imprisonment for 15 years.
(2) A person commits an offence if:
(a) the person possesses a thing; and
(b) the thing is connected with
preparation for, the engagement of a person in, or assistance in a terrorist
act; and
(c) the person mentioned in paragraph (a)
is reckless as to the existence of the connection described in paragraph (b).
Penalty: Imprisonment for 10 years.
(3) A person commits an offence under subsection (1)
or (2) even if:
(a) a terrorist act does not occur; or
(b) the thing is not connected with
preparation for, the engagement of a person in, or assistance in a specific
terrorist act; or
(c) the thing is connected with
preparation for, the engagement of a person in, or assistance in more than one
terrorist act.
(4) Section 15.4 (extended geographical
jurisdiction—category D) applies to an offence against this section.
(5) Subsections (1)
and (2) do not apply if the possession of the thing was not intended to
facilitate preparation for, the engagement of a person in, or assistance in a
terrorist act.
Note: A
defendant bears an evidential burden in relation to the matter in subsection (5)
(see subsection 13.3(3)).
(6) If, in a prosecution for an offence (the prosecuted
offence) against a subsection of this section, the trier of fact is not
satisfied that the defendant is guilty of the offence, but is satisfied beyond
reasonable doubt that the defendant is guilty of an offence (the alternative
offence) against another subsection of this section, the trier of fact
may find the defendant not guilty of the prosecuted offence but guilty of the
alternative offence, so long as the defendant has been accorded procedural
fairness in relation to that finding of guilt.
101.5
Collecting or making documents likely to facilitate terrorist acts
(1) A person commits an offence if:
(a) the person collects or makes a document;
and
(b) the document is connected with
preparation for, the engagement of a person in, or assistance in a terrorist
act; and
(c) the person mentioned in paragraph (a)
knows of the connection described in paragraph (b).
Penalty: Imprisonment for 15
years.
(2) A person commits an offence if:
(a) the person collects or makes a
document; and
(b) the document is connected with
preparation for, the engagement of a person in, or assistance in a terrorist
act; and
(c) the person mentioned in paragraph (a)
is reckless as to the existence of the connection described in paragraph (b).
Penalty: Imprisonment for 10 years.
(3) A person commits an offence under subsection (1)
or (2) even if:
(a) a terrorist act does not occur; or
(b) the document is not connected with
preparation for, the engagement of a person in, or assistance in a specific
terrorist act; or
(c) the document is connected with
preparation for, the engagement of a person in, or assistance in more than one
terrorist act.
(4) Section 15.4 (extended geographical
jurisdiction—category D) applies to an offence against this section.
(5) Subsections (1)
and (2) do not apply if the collection or making of the document was not
intended to facilitate preparation for, the engagement of a person in, or
assistance in a terrorist act.
Note: A
defendant bears an evidential burden in relation to the matter in subsection (5)
(see subsection 13.3(3)).
(6) If, in a
prosecution for an offence (the prosecuted offence) against a
subsection of this section, the trier of fact is not satisfied that the
defendant is guilty of the offence, but is satisfied beyond reasonable doubt
that the defendant is guilty of an offence (the alternative offence)
against another subsection of this section, the trier of fact may find the
defendant not guilty of the prosecuted offence but guilty of the alternative
offence, so long as the defendant has been accorded procedural fairness in
relation to that finding of guilt.
101.6
Other acts done in preparation for, or planning, terrorist acts
(1) A person commits an offence if the person
does any act in preparation for, or planning, a terrorist act.
Penalty: Imprisonment for life.
(2) A person commits an offence under subsection (1)
even if:
(a) a terrorist act does not occur; or
(b) the person’s act is not done in
preparation for, or planning, a specific terrorist act; or
(c) the person’s act is done in
preparation for, or planning, more than one terrorist act.
(3) Section 15.4 (extended geographical
jurisdiction—category D) applies to an offence against subsection (1).
Division 102—Terrorist
organisations
Subdivision A—Definitions
102.1
Definitions
(1) In this Division:
advocate has the meaning given by
subsection (1A).
associate: a person associates with another
person if the person meets or communicates with the other person.
close family member of a person means:
(a) the person’s spouse, de facto
spouse or same‑sex partner; or
(b) a parent, step‑parent or
grandparent of the person; or
(c) a child, step‑child or
grandchild of the person; or
(d) a brother, sister, step‑brother
or step‑sister of the person; or
(e) a guardian or carer of the person.
member of an organisation includes:
(a) a person who is an informal member
of the organisation; and
(b) a person who has taken steps to
become a member of the organisation; and
(c) in the case of an organisation
that is a body corporate—a director or an officer of the body corporate.
recruit includes induce, incite and encourage.
terrorist
organisation means:
(a) an
organisation that is directly or indirectly engaged in, preparing,
planning, assisting in or fostering the doing of a terrorist act (whether or
not a terrorist act occurs); or
(b) an
organisation that is specified by the regulations for the purposes of this paragraph (see
subsections (2), (3) and (4)).
Definition of advocates
(1A) In this Division, an organisation advocates
the doing of a terrorist act if:
(a) the organisation directly or
indirectly counsels or urges the doing of a terrorist act; or
(b) the organisation directly or
indirectly provides instruction on the doing of a terrorist act; or
(c) the organisation directly praises
the doing of a terrorist act in circumstances where there is a risk that such
praise might have the effect of leading a person (regardless of his or her age
or any mental impairment (within the meaning of section 7.3) that the
person might suffer) to engage in a terrorist act.
Terrorist organisation regulations
(2) Before the Governor‑General makes a
regulation specifying an organisation for the purposes of paragraph (b) of
the definition of terrorist organisation in this section, the
Minister must be satisfied on reasonable grounds that the organisation:
(a) is directly or indirectly engaged
in, preparing, planning, assisting in or fostering the doing of a terrorist act
(whether or not a terrorist act has occurred or will occur); or
(b) advocates the doing of a terrorist
act (whether or not a terrorist act has occurred or will occur).
(2A) Before the Governor‑General makes a
regulation specifying an organisation for the purposes of paragraph (b) of
the definition of terrorist organisation in this section, the
Minister must arrange for the Leader of the Opposition in the House of
Representatives to be briefed in relation to the proposed regulation.
(3) Regulations
for the purposes of paragraph (b) of the definition of terrorist
organisation in this section cease to have effect on the second
anniversary of the day on which they take effect. To avoid doubt, this
subsection does not prevent:
(a) the
repeal of those regulations; or
(b) the
cessation of effect of those regulations under subsection (4); or
(c) the
making of new regulations the same in substance as those regulations (whether
the new regulations are made or take effect before or after those regulations
cease to have effect because of this subsection).
(4) If:
(a) an
organisation is specified by regulations made for the purposes of paragraph (b)
of the definition of terrorist organisation in this section; and
(b) the Minister ceases to be
satisfied of either of the following (as the case requires):
(i) that the organisation
is directly or indirectly engaged in, preparing, planning, assisting in or
fostering the doing of a terrorist act (whether or not a terrorist act has occurred
or will occur);
(ii) that the organisation
advocates the doing of a terrorist act (whether or not a terrorist act has
occurred or will occur);
the Minister must, by written notice published in the Gazette, make a
declaration to the effect that the Minister has ceased to be so satisfied. The
regulations, to the extent to which they specify the organisation, cease to have effect when the declaration is made.
(5) To avoid doubt, subsection (4) does
not prevent the organisation from being subsequently specified by regulations
made for the purposes of paragraph (b)
of the definition of terrorist organisation in this section if
the Minister becomes satisfied as mentioned in subsection (2).
(6) If, under subsection (3) or (4), a
regulation ceases to have effect, section 15 of the Legislative
Instruments Act 2003 applies as if the regulation had been repealed.
(17) If:
(a) an organisation (the listed
organisation) is specified in regulations made for the purposes of paragraph (b)
of the definition of terrorist organisation in this section; and
(b) an individual or an organisation
(which may be the listed organisation) makes an application (the de‑listing
application) to the Minister for a declaration under subsection (4)
in relation to the listed organisation; and
(c) the de‑listing application
is made on the grounds that there is no basis for the Minister to be satisfied
that the listed organisation:
(i) is directly or
indirectly engaged in, preparing, planning, assisting in or fostering the doing
of a terrorist act (whether or not a terrorist act has occurred or will occur);
or
(ii) advocates the doing of
a terrorist act (whether or not a terrorist act has occurred or will occur);
as the case requires;
the Minister must consider the de‑listing application.
(18) Subsection (17) does not limit the
matters that may be considered by the Minister for the purposes of subsection (4).
102.1A
Reviews by Parliamentary Joint Committee on ASIO, ASIS and DSD
Review of listing regulation
(1) If a regulation made after the
commencement of this section specifies an organisation for the purposes of paragraph (b)
of the definition of terrorist organisation in section 102.1,
the Parliamentary Joint Committee on ASIO, ASIS and DSD may:
(a) review the regulation as soon as
possible after the making of the regulation; and
(b) report the Committee’s comments
and recommendations to each House of the Parliament before the end of the
applicable disallowance period for that House.
Review of listing provisions
(2) The Parliamentary Joint Committee on
ASIO, ASIS and DSD has the following functions:
(a) to review, as soon as possible
after the third anniversary of the commencement of this section, the operation,
effectiveness and implications of subsections 102.1(2), (2A), (4), (5), (6),
(17) and (18) as in force after the commencement of this section;
(b) to report the Committee’s comments
and recommendations to each House of the Parliament and to the Minister.
Review of listing regulation—extension of applicable
disallowance period
(3) If the Committee’s report on a review of
a regulation is tabled in a House of the Parliament:
(a) during the applicable disallowance
period for that House; and
(b) on or after the eighth sitting day
of the applicable disallowance period;
then whichever of the following provisions is applicable:
(c) subsections 48(4), (5) and (5A)
and section 48B of the Acts Interpretation Act 1901;
(d) Part 5 of the Legislative
Instruments Act 2003;
have or has effect, in relation to that regulation and that
House, as if each period of 15 sitting days referred to in those provisions
were extended in accordance with the table:
|
Extension of applicable
disallowance period
|
|
Item
|
If the Committee’s
report is tabled in that House...
|
extend the period of 15
sitting days by...
|
|
1
|
on the fifteenth sitting day of the applicable
disallowance period
|
8 sitting days of that House
|
|
2
|
on the fourteenth sitting day of the applicable
disallowance period
|
7 sitting days of that House
|
|
3
|
on the thirteenth sitting day of the applicable
disallowance period
|
6 sitting days of that House
|
|
4
|
on the twelfth sitting day of the applicable disallowance
period
|
5 sitting days of that House
|
|
5
|
on the eleventh sitting day of the applicable disallowance
period
|
4 sitting days of that House
|
|
6
|
on the tenth sitting day of the applicable disallowance
period
|
3 sitting days of that House
|
|
7
|
on the ninth sitting day of the applicable disallowance
period
|
2 sitting days of that House
|
|
8
|
on the eighth sitting day of the applicable disallowance
period
|
1 sitting day of that House
|
Applicable disallowance period
(4) For the purposes of the application of
this section to a regulation, the applicable disallowance
period for a House of the Parliament means the period of 15 sitting
days of that House after the regulation, or a copy of the regulation, was laid
before that House in accordance with whichever of the following provisions was
applicable:
(a) paragraph 48(1)(c) of the Acts
Interpretation Act 1901;
(b) section 38 of the Legislative
Instruments Act 2003.
Subdivision B—Offences
102.2 Directing the activities of a terrorist
organisation
(1) A person commits an offence if:
(a) the person intentionally directs
the activities of an organisation; and
(b) the organisation is a terrorist
organisation; and
(c) the person knows the organisation
is a terrorist organisation.
Penalty: Imprisonment for 25 years.
(2) A person commits an offence if:
(a) the person intentionally directs
the activities of an organisation; and
(b) the organisation is a terrorist organisation;
and
(c) the person is reckless as to
whether the organisation is a terrorist organisation.
Penalty: Imprisonment for 15 years.
102.3
Membership of a terrorist organisation
(1) A person commits an offence if:
(a) the person intentionally is a
member of an organisation; and
(b) the organisation is a terrorist
organisation; and
(c) the person knows the organisation
is a terrorist organisation.
Penalty: Imprisonment for 10 years.
(2) Subsection (1) does not apply if the
person proves that he or she took all reasonable steps to cease to be a member
of the organisation as soon as practicable after the person knew that the
organisation was a terrorist organisation.
Note: A defendant bears a legal burden in relation
to the matter in subsection (2) (see section 13.4).
102.4
Recruiting for a terrorist organisation
(1) A person commits an offence if:
(a) the person intentionally recruits
a person to join, or participate in the activities of, an organisation; and
(b) the organisation is a terrorist
organisation; and
(c) the first‑mentioned person
knows the organisation is a terrorist organisation.
Penalty: Imprisonment for 25 years.
(2) A person commits an offence if:
(a) the person intentionally recruits
a person to join, or participate in the activities of, an organisation; and
(b) the organisation is a terrorist
organisation; and
(c) the first‑mentioned person
is reckless as to whether the organisation is a terrorist organisation.
Penalty: Imprisonment for 15 years.
102.5
Training a terrorist organisation or receiving training from a terrorist
organisation
(1) A person commits an offence if:
(a) the person intentionally provides
training to, or intentionally receives training from, an organisation; and
(b) the organisation is a terrorist organisation;
and
(c) the person is reckless as to
whether the organisation is a terrorist organisation.
Penalty: Imprisonment for 25 years.
(2) A person
commits an offence if:
(a) the person intentionally provides
training to, or intentionally receives training from, an organisation; and
(b) the organisation is a terrorist
organisation that is covered by paragraph (b) of the definition of terrorist
organisation in subsection 102.1(1).
Penalty: Imprisonment for 25 years.
(3) Subject to subsection (4), strict
liability applies to paragraph (2)(b).
(4) Subsection (2) does not apply unless
the person is reckless as to the circumstance mentioned in paragraph (2)(b).
Note: A defendant bears an evidential burden in
relation to the matter in subsection (4) (see subsection 13.3(3)).
102.6
Getting funds to, from or for a terrorist organisation
(1) A person commits an offence if:
(a) the person intentionally:
(i) receives funds from,
or makes funds available to, an organisation (whether directly or indirectly);
or
(ii) collects funds for, or
on behalf of, an organisation (whether directly or indirectly); and
(b) the organisation is a terrorist
organisation; and
(c) the person knows the organisation
is a terrorist organisation.
Penalty: Imprisonment for 25 years.
(2) A person commits an offence if:
(a) the person intentionally:
(i) receives funds from,
or makes funds available to, an organisation (whether directly or indirectly);
or
(ii) collects funds for, or
on behalf of, an organisation (whether directly or indirectly); and
(b) the organisation is a terrorist
organisation; and
(c) the person is reckless as to
whether the organisation is a terrorist organisation.
Penalty: Imprisonment for 15 years.
(3) Subsections (1) and (2) do not apply
to the person’s receipt of funds from the organisation if the person proves
that he or she received the funds solely for the purpose of the provision of:
(a) legal representation for a person
in proceedings relating to this Division; or
(b) assistance to the organisation for
it to comply with a law of the Commonwealth or a State or Territory.
Note: A defendant bears a legal burden in relation
to the matter in subsection (3) (see section 13.4).
102.7
Providing support to a terrorist organisation
(1) A person commits an offence if:
(a) the person intentionally provides
to an organisation support or resources that would help the organisation engage
in an activity described in paragraph (a) of the definition of terrorist
organisation in this Division; and
(b) the organisation is a terrorist
organisation; and
(c) the person knows the organisation
is a terrorist organisation.
Penalty: Imprisonment for 25 years.
(2) A person
commits an offence if:
(a) the person intentionally provides
to an organisation support or resources that would help the organisation engage
in an activity described in paragraph (a) of the definition of terrorist
organisation in this Division; and
(b) the organisation is a terrorist
organisation; and
(c) the person is reckless as to
whether the organisation is a terrorist organisation.
Penalty: Imprisonment for 15 years.
102.8
Associating with terrorist organisations
(1) A person commits an offence if:
(a) on 2 or more occasions:
(i) the person
intentionally associates with another person who is a member of, or a person
who promotes or directs the activities of, an organisation; and
(ii) the person knows that
the organisation is a terrorist organisation; and
(iii) the association
provides support to the organisation; and
(iv) the person intends that
the support assist the organisation to expand or to continue to exist; and
(v) the person knows that
the other person is a member of, or a person who promotes or directs the
activities of, the organisation; and
(b) the organisation is a terrorist
organisation because of paragraph (b) of the definition of terrorist
organisation in this Division (whether or not the organisation is a
terrorist organisation because of paragraph (a) of that definition also).
Penalty: Imprisonment for 3 years.
(2) A person commits an offence if:
(a) the person has previously been
convicted of an offence against subsection (1); and
(b) the person intentionally
associates with another person who is a member of, or a person who promotes or
directs the activities of, an organisation; and
(c) the person knows that the
organisation is a terrorist organisation; and
(d) the association provides support
to the organisation; and
(e) the person intends that the
support assist the organisation to expand or to continue to exist; and
(f) the person knows that the other
person is a member of, or a person who promotes or directs the activities of,
the organisation; and
(g) the organisation is a terrorist
organisation because of paragraph (b) of the definition of terrorist
organisation in this Division (whether or not the organisation is a
terrorist organisation because of paragraph (a) of that definition also).
Penalty: Imprisonment for 3 years.
(3) Strict liability applies to paragraphs (1)(b)
and (2)(g).
(4) This section does not apply if:
(a) the association is with a close
family member and relates only to a matter that could reasonably be regarded
(taking into account the person’s cultural background) as a matter of family or
domestic concern; or
(b) the association is in a place
being used for public religious worship and takes place in the course of
practising a religion; or
(c) the association is only for the
purpose of providing aid of a humanitarian nature; or
(d) the association is only for the
purpose of providing legal advice or legal representation in connection with:
(i) criminal proceedings
or proceedings related to criminal proceedings (including possible criminal
proceedings in the future); or
(ii) proceedings relating
to whether the organisation in question is a terrorist organisation; or
(iii) a decision made or
proposed to be made under Division 3 of Part III of the Australian
Security Intelligence Organisation Act 1979, or proceedings relating to
such a decision or proposed decision; or
(iv) a listing or proposed
listing under section 15 of the Charter of the United Nations Act 1945
or an application or proposed application to revoke such a listing, or
proceedings relating to such a listing or application or proposed listing or
application; or
(v) proceedings conducted
by a military commission of the United States of America established under a
Military Order of 13 November 2001 made by the President of the United
States of America and entitled “Detention, Treatment, and Trial of Certain Non‑Citizens
in the War Against Terrorism”; or
(vi) proceedings for a
review of a decision relating to a passport or other travel document or to a
failure to issue such a passport or other travel document (including a passport
or other travel document that was, or would have been, issued by or on behalf
of the government of a foreign country).
Note: A defendant bears an evidential burden in
relation to the matters in subsection (4). See subsection 13.3(3).
(5) This section does not apply unless the
person is reckless as to the circumstance mentioned in paragraph (1)(b)
and (2)(g) (as the case requires).
Note: A defendant bears an evidential burden in
relation to the matter in subsection (5). See subsection 13.3(3).
(6) This section does not apply to the extent
(if any) that it would infringe any constitutional doctrine of implied freedom
of political communication.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (6). See subsection 13.3(3).
(7) A person who is convicted of an offence under
subsection (1) in relation to the person’s conduct on 2 or more occasions
is not liable to be punished for an offence under subsection (1) for other
conduct of the person that takes place:
(a) at the same time as that conduct;
or
(b) within 7 days before or after any
of those occasions.
Subdivision C—General provisions
relating to offences
102.9
Extended geographical jurisdiction for offences
Section 15.4 (extended geographical
jurisdiction—category D) applies to an offence against this Division.
102.10
Alternative verdicts
(1) This section applies if, in a prosecution
for an offence (the prosecuted offence) against a subsection of a
section of this Division, the trier of fact is not satisfied that the defendant
is guilty of the offence, but is satisfied beyond reasonable doubt that the
defendant is guilty of an offence (the alternative offence)
against another subsection of that section.
(2) The trier of fact may find the defendant
not guilty of the prosecuted offence but guilty of the alternative offence, so
long as the defendant has been accorded procedural fairness in relation to that
finding of guilt.
Division 103—Financing
terrorism
103.1
Financing terrorism
(1) A person commits an offence if:
(a) the person provides or collects
funds; and
(b) the person is reckless as to
whether the funds will be used to facilitate or engage in a terrorist act.
Penalty: Imprisonment for life.
Note: Intention
is the fault element for the conduct described in paragraph (1)(a). See
subsection 5.6(1).
(2) A person commits an offence under subsection (1)
even if:
(a) a terrorist act does not occur; or
(b) the funds will not be used to
facilitate or engage in a specific terrorist act; or
(c) the funds will be used to
facilitate or engage in more than one terrorist act.
103.2
Financing a terrorist
(1) A person commits an offence if:
(a) the person intentionally:
(i) makes funds available
to another person (whether directly or indirectly); or
(ii) collects funds for, or
on behalf of, another person (whether directly or indirectly); and
(b) the first‑mentioned person
is reckless as to whether the other person will use the funds to facilitate or
engage in a terrorist act.
Penalty: Imprisonment for life.
(2) A person commits an offence under
subsection (1) even if:
(a) a terrorist act does not occur; or
(b) the funds will not be used to
facilitate or engage in a specific terrorist act; or
(c) the funds will be used to
facilitate or engage in more than one terrorist act.
103.3
Extended geographical jurisdiction for offences
Section 15.4 (extended geographical
jurisdiction—category D) applies to an offence against this Division.
Division 104—Control
orders
Subdivision A—Object of this Division
104.1
Object of this Division
The object of this Division is to allow
obligations, prohibitions and restrictions to be imposed on a person by a
control order for the purpose of protecting the public from a terrorist act.
Subdivision B—Making an interim
control order
104.2
Attorney‑General’s consent to request an interim control order
(1) A senior AFP member must not request an
interim control order in relation to a person without the Attorney‑General’s
written consent.
Note: However, in urgent circumstances, a senior AFP
member may request an interim control order without first obtaining the
Attorney‑General’s consent (see Subdivision C).
(2) A senior AFP member may only seek the
Attorney‑General’s written consent to request an interim control order in
relation to a person if the member:
(a) considers on reasonable grounds
that the order in the terms to be requested would substantially assist in
preventing a terrorist act; or
(b) suspects on reasonable grounds
that the person has provided training to, or received training from, a listed
terrorist organisation.
(3) In seeking the Attorney‑General’s
consent, the member must give the Attorney‑General a draft request that
includes:
(a) a draft of the interim control
order to be requested; and
(b) the following:
(i) a statement of the
facts relating to why the order should be made;
(ii) if the member is aware
of any facts relating to why the order should not be made—a statement of those
facts; and
(c) the following:
(i) an explanation as to
why each of the obligations, prohibitions and restrictions should be imposed on
the person;
(ii) if the member is aware
of any facts relating to why any of those obligations, prohibitions or
restrictions should not be imposed on the person—a statement of those facts;
and
(d) the following:
(i) the outcomes and
particulars of all previous requests for interim control orders (including the
outcomes of the hearings to confirm the orders) in relation to the person;
(ii) the outcomes and
particulars of all previous applications for variations of control orders made
in relation to the person;
(iii) the outcomes of all
previous applications for revocations of control orders made in relation to the
person;
(iv) the outcomes and
particulars of all previous applications for preventative detention orders in
relation to the person;
(v) information (if any)
that the member has about any periods for which the person has been detained
under an order made under a corresponding State preventative detention law; and
(e) information (if any) that the
member has about the person’s age; and
(f) a summary of the grounds on which
the order should be made.
Note 1: An interim control order cannot be requested in
relation to a person who is under 16 years of age (see section 104.28).
Note 2: The member might commit an offence if the draft
request is false or misleading (see sections 137.1 and 137.2).
(3A) To avoid doubt, paragraph (3)(f) does
not require any information to be included in the summary if disclosure of that
information is likely to prejudice national security (within the meaning of the
National Security Information (Criminal and Civil Proceedings) Act 2004).
(4) The Attorney‑General’s consent may
be made subject to changes being made to the draft request (including the draft
of the interim control order to be requested).
(5) To
avoid doubt, a senior AFP member may seek the Attorney‑General’s consent
to request an interim control order in relation to a person, even if such a
request has previously been made in relation to the person.
104.3
Requesting the court to make an interim control order
If the Attorney‑General consents
to the request under section 104.2, the
senior AFP member may request the interim control order by giving an issuing court:
(a) a request:
(i) that is the same as
the draft request, except for the changes (if any) required by the Attorney‑General;
and
(ii) the information in
which is sworn or affirmed by the member; and
(b) a copy of the Attorney‑General’s
consent.
Note: The member might commit an offence if the
request is false or misleading (see sections 137.1 and 137.2).
104.4
Making an interim control order
(1) The issuing court may make an order under
this section in relation to the person, but only if:
(a) the senior AFP member has
requested it in accordance with section 104.3; and
(b) the court has received and
considered such further information (if any) as the court requires; and
(c) the court is satisfied on the
balance of probabilities:
(i) that making the order
would substantially assist in preventing a terrorist act; or
(ii) that the person has
provided training to, or received training from, a listed terrorist
organisation; and
(d) the court is satisfied on the
balance of probabilities that each of the obligations, prohibitions and
restrictions to be imposed on the person by the order is reasonably necessary,
and reasonably appropriate and adapted, for the purpose of protecting the
public from a terrorist act.
(2) In determining whether each of the
obligations, prohibitions and restrictions to be imposed on the person by the
order is reasonably necessary, and reasonably appropriate and adapted, the
court must take into account the impact of the obligation, prohibition or
restriction on the person’s circumstances (including the person’s financial and
personal circumstances).
(3) The court need not include in the order
an obligation, prohibition or restriction that was sought by the senior AFP
member if the court is not satisfied as mentioned in paragraph (1)(d) in
respect of that obligation, prohibition or restriction.
104.5
Terms of an interim control order
(1) If the issuing court makes the interim
control order, the order must:
(a) state that the court is satisfied
of the matters mentioned in paragraphs 104.4(1)(c) and (d); and
(b) specify the name of the person to
whom the order relates; and
(c) specify all of the obligations,
prohibitions and restrictions mentioned in subsection (3) that are to be
imposed on the person by the order; and
(d) state that the order does not
begin to be in force until it is served personally on the person; and
(e) specify a day on which the person
may attend the court for the court to:
(i) confirm (with or
without variation) the interim control order; or
(ii) declare the interim
control order to be void; or
(iii) revoke the interim
control order; and
(f) specify the period during which
the confirmed control order is to be in force, which must not end more than 12
months after the day on which the interim control order is made; and
(g) state that the person’s lawyer may
attend a specified place in order to obtain a copy of the interim control
order; and
(h) set out a summary of the grounds
on which the order is made.
Note 1: An interim control order made in relation to a
person must be served on the person at least 48 hours before the day specified
as mentioned in paragraph (1)(e) (see section 104.12).
Note 2: A confirmed control order that is made in
relation to a 16‑ to 18‑year‑old must not end more than 3
months after the day on which the interim control order is made (see
section 104.28).
(1A) The day specified for the purposes of
paragraph (1)(e) must be as soon as practicable, but at least 72 hours,
after the order is made.
(2) Paragraph (1)(f) does not prevent
the making of successive control orders in relation to the same person.
(2A) To avoid doubt, paragraph (1)(h) does
not require any information to be included in the summary if disclosure of that
information is likely to prejudice national security (within the meaning of the
National Security Information (Criminal and Civil Proceedings) Act 2004).
Obligations, prohibitions and restrictions
(3) The obligations, prohibitions and
restrictions that the court may impose on the person by the order are the
following:
(a) a prohibition or restriction on
the person being at specified areas or places;
(b) a prohibition or restriction on
the person leaving Australia;
(c) a requirement that the person
remain at specified premises between specified times each day, or on specified
days;
(d) a requirement that the person wear
a tracking device;
(e) a prohibition or restriction on
the person communicating or associating with specified individuals;
(f) a prohibition or restriction on
the person accessing or using specified forms of telecommunication or other
technology (including the Internet);
(g) a prohibition or restriction on
the person possessing or using specified articles or substances;
(h) a prohibition or restriction on
the person carrying out specified activities (including in respect of his or
her work or occupation);
(i) a requirement that the person
report to specified persons at specified times and places;
(j) a requirement that the person
allow himself or herself to be photographed;
(k) a requirement that the person
allow impressions of his or her fingerprints to be taken;
(l) a requirement that the person
participate in specified counselling or education.
Note: Restrictions apply to the use of photographs
or impressions of fingerprints taken as mentioned in paragraphs (3)(j) and
(k) (see section 104.22).
Communicating and associating
(4) Subsection 102.8(4) applies to
paragraph (3)(e) and the person’s communication or association in the same
way as that subsection applies to section 102.8 and a person’s
association.
(5) This section does not affect the person’s
right to contact, communicate or associate with the person’s lawyer unless the
person’s lawyer is a specified individual as mentioned in
paragraph (3)(e). If the person’s lawyer is so specified, the person may
contact, communicate or associate with any other lawyer who is not so
specified.
Counselling and education
(6) A person is required to participate in
specified counselling or education as mentioned in paragraph (3)(l) only
if the person agrees, at the time of the counselling or education, to
participate in the counselling or education.
Subdivision C—Making an urgent
interim control order
104.6
Requesting an urgent interim control order by electronic means
(1) A senior AFP member may request, by
telephone, fax, email or other electronic means, an issuing court to make an interim
control order in relation to a person if:
(a) the member considers it necessary
to use such means because of urgent circumstances; and
(b) the member either considers or
suspects the matters mentioned in subsection 104.2(2) on reasonable grounds.
(2) The Attorney‑General’s consent
under section 104.2 is not required before the request is made.
Note: However, if the Attorney‑General’s
consent is not obtained before the member makes the request, the Attorney‑General’s
consent must be obtained within 4 hours of the member making the request (see
section 104.10).
(3) The issuing court may require
communication by voice to the extent that is practicable in the circumstances.
(4) The request must include the following:
(a) all that is required under subsection
104.2(3) in respect of an ordinary request for an interim control order
(including, if the Attorney‑General’s consent has been obtained before
making the request, the changes (if any) required by the Attorney‑General);
(b) an explanation as to why the
making of the interim control order is urgent;
(c) if the Attorney‑General’s
consent has been obtained before making the request—a copy of the Attorney‑General’s
consent.
Note: The member might commit an offence if the
request is false or misleading (see sections 137.1 and 137.2).
(5) The information and the explanation
included in the request must be sworn or affirmed by the member, but do not
have to be sworn or affirmed before the request is made.
Note: Subsection 104.7(5) requires the information
and the explanation to be sworn or affirmed within 24 hours.
104.7
Making an urgent interim control order by electronic means
(1) Before making an order in response to a
request under section 104.6, the issuing court must:
(a) consider the information and the
explanation included in the request; and
(b) receive and consider such further
information (if any) as the court requires.
(2) If the issuing court is satisfied that an
order should be made urgently, the court may complete the same form of order
that would be made under sections 104.4 and 104.5.
Procedure after urgent interim control order is made
(3) If the issuing court makes the order, the
court must inform the senior AFP member, by telephone, fax, email or other
electronic means, of:
(a) the terms of the order; and
(b) the day on which, and the time at
which, it was completed.
(4) The member must then complete a form of
order in terms substantially corresponding to those given by the issuing court,
stating on the form:
(a) the name of the court; and
(b) the day on which, and the time at
which, the order was completed.
(5) Within 24 hours of being informed under
subsection (3), the member must give or transmit the following to the
issuing court:
(a) the form of order completed by the
member;
(b) if the information and the
explanation included in the request were not already sworn or affirmed—that
information and explanation duly sworn or affirmed;
(c) if the Attorney‑General’s
consent was not obtained before making the request—a copy of the Attorney‑General’s
consent.
(6) The issuing court must attach to the
documents provided under subsection (5) the form of order the court has
completed.
104.8
Requesting an urgent interim control order in person
(1) A senior AFP member may request, in
person, an issuing court to make an interim control order in relation to a
person without first obtaining the Attorney‑General’s consent under
section 104.2 if:
(a) the member considers it necessary
to request the order without the consent because of urgent circumstances; and
(b) the member either considers or
suspects the matters mentioned in subsection 104.2(2) on reasonable grounds.
Note: The Attorney‑General’s consent must be
obtained within 4 hours of making the request (see section 104.10).
(2) The request must include the following:
(a) all that is required under
subsection 104.2(3) in respect of an ordinary request for an interim control
order (including information that is sworn or affirmed by the member);
(b) an explanation that is sworn or
affirmed as to why the making of the interim control order without first
obtaining the Attorney‑General’s consent is urgent.
Note: The member might commit an offence if the
request is false or misleading (see sections 137.1 and 137.2).
104.9
Making an urgent interim control order in person
(1) Before making an order in response to a
request under section 104.8, the issuing court must:
(a) consider the information and the
explanation included in the request; and
(b) receive and consider such further
information (if any) as the court requires.
(2) If the issuing court is satisfied that an
order should be made urgently, the court may make the same order that would be
made under sections 104.4 and 104.5.
(3) Within 24 hours of the order being made
under subsection (2), the member must:
(a) give or transmit a copy of the
order to the issuing court; and
(b) either:
(i) give or transmit a
copy of the Attorney‑General’s consent to request the order to the court;
or
(ii) notify the court in
writing that the Attorney‑General’s consent was not obtained.
Note: Section 104.10 deals with the Attorney‑General’s
consent.
104.10
Obtaining the Attorney‑General’s consent within 4 hours
(1) If the Attorney‑General’s consent
to request an interim control order was not first sought before making a
request under section 104.6 or 104.8, the senior AFP member who made the
request must, in accordance with subsection 104.2(3), seek that consent within
4 hours of making the request.
(2) In any case, if the Attorney‑General:
(a) refuses his or her consent to
request the order; or
(b) has not given his or her consent
to request the order;
within 4 hours of the request being made, the order
immediately ceases to be in force.
Note: However, the senior AFP member can vary the request
and seek the Attorney‑General’s consent to request a new interim control
order in relation to the person (see subsection 104.2(5)).
(3) If the order ceases to be in force under
subsection (2), the senior AFP member must, as soon as practicable:
(a) notify the court that the order
has ceased to be in force; and
(b) if the order has been served on
the person in relation to whom it was made:
(i) annotate the order to
indicate that it has ceased to be in force; and
(ii) cause the annotated
order to be served personally on the person.
104.11
Court to assume that exercise of power not authorised by urgent interim control
order
If:
(a) it is material, in any
proceedings, for a court to be satisfied that an interim control order was duly
made under section 104.7; and
(b) the form of order completed by the
relevant issuing court is not produced in evidence;
the first‑mentioned court is to assume, unless the
contrary is proved, that the order was not duly made.
Subdivision D—Confirming an interim
control order
104.12
Service, explanation and notification of an interim control order
Service and explanation of an interim control order
(1) As soon as practicable after an interim
control order is made in relation to a person, and at least 48 hours before the
day specified as mentioned in paragraph 104.5(1)(e), an AFP member:
(a) must serve the order personally on
the person; and
(b) must inform the person of the
following:
(i) the effect of the
order;
(ii) the period for which
the order (if confirmed) is in force;
(iii) the effect of
sections 104.12A, 104.13, 104.14, 104.18 and 104.27 (and
section 104.22 if appropriate); and
(c) must ensure that the person
understands the information provided under paragraph (b) (taking into
account the person’s age, language skills, mental capacity and any other
relevant factor).
(3) Paragraphs (1)(b) and (c) do not
apply if the actions of the person in relation to whom the interim control
order has been made make it impracticable for the AFP member to comply with those
paragraphs.
(4) A failure to comply with
paragraph (1)(c) does not make the control order ineffective to any
extent.
Queensland public interest monitor to be given copy of
interim control order
(5) If:
(a) the person in relation to whom the
interim control order is made is a resident of Queensland; or
(b) the issuing court that made the
interim control order did so in Queensland;
an AFP member must give to the Queensland public interest
monitor a copy of the order.
104.12A
Election to confirm control order
(1) At least 48 hours before the day
specified in an interim control order as mentioned in paragraph 104.5(1)(e),
the senior AFP member who requested the order must:
(a) elect whether to confirm the order
on the specified day; and
(b) give a written notification to the
issuing court that made the order of the member’s election.
(2) If the senior AFP member elects to
confirm the order, an AFP member must:
(a) serve personally on the person in
relation to whom the order is made:
(i) a copy of the
notification; and
(ii) a copy of the
documents mentioned in paragraphs 104.2(3)(b) and (c); and
(iii) any other details
required to enable the person to understand and respond to the substance of the
facts, matters and circumstances which will form the basis of the confirmation
of the order; and
(b) if the person is a resident of Queensland,
or the court made the order in Queensland—give the Queensland public interest
monitor a copy of the documents mentioned in paragraph (a).
(3) To avoid doubt, subsection (2) does
not require any information to be served or given if disclosure of that
information is likely:
(a) to prejudice national security
(within the meaning of the National Security Information (Criminal and Civil
Proceedings) Act 2004); or
(b) to
be protected by public interest immunity; or
(c) to
put at risk ongoing operations by law enforcement agencies or intelligence
agencies; or
(d) to
put at risk the safety of the community, law enforcement officers or
intelligence officers.
The fact that information of a kind mentioned in this
subsection is not required to be disclosed does not imply that such information
is required to be disclosed in other provisions of this Part that relate to the
disclosure of information.
(4) If the senior AFP member elects not to
confirm the order, and the order has already been served on the person, then:
(a) the order immediately ceases to be
in force; and
(b) an AFP member must:
(i) annotate the order to
indicate that it has ceased to be in force; and
(ii) cause the annotated
order and a copy of the notification to be served personally on the person; and
(iii) if the person is a
resident of Queensland, or the court made the order in Queensland—give the Queensland
public interest monitor a copy of the annotated order and the notification.
104.13
Lawyer may request a copy of an interim control order
(1) A lawyer of the person in relation to
whom an interim control order is made may attend the place specified in the
order as mentioned in paragraph 104.5(1)(g) in order to obtain a copy of the
order.
(2) This section does not:
(a) require more than one person to
give the lawyer a copy of the order; or
(b) entitle the lawyer to request, be
given a copy of, or see, a document other than the order.
104.14
Confirming an interim control order
Who may adduce evidence or make submissions
(1) If an election has been made to confirm
an interim control order, then, on the day specified as mentioned in paragraph
104.5(1)(e), the following persons may adduce evidence (including by calling
witnesses or producing material), or make submissions, to the issuing court in
relation to the confirmation of the order:
(a) the senior AFP member who
requested the interim control order;
(b) one or more other AFP members;
(c) the person in relation to whom the
interim control order is made;
(d) one or more representatives of the
person;
(e) if:
(i) the person is a
resident of Queensland; or
(ii) the court made the
interim control order in Queensland;
the Queensland public interest
monitor (unless the monitor is already a representative of the person).
(2) Subsection (1) does not otherwise
limit the power of the court to control proceedings in relation to the
confirmation of an interim control order.
(3) Before taking action under this section,
the court must consider:
(a) the original request for the
interim control order; and
(b) any evidence adduced, and any
submissions made, under subsection (1) in respect of the order.
Failure of person or representative etc. to attend
(4) The court may confirm the order without variation if:
(a) none of the following persons
attend the court on the specified day:
(i) the person in relation
to whom the order is made;
(ii) a representative of
the person;
(iii) if the person is a
resident of Queensland, or the court made the order in Queensland—the Queensland
public interest monitor; and
(b) the court is satisfied on the
balance of probabilities that the order was properly served on the person in
relation to whom the order is made.
Attendance of person or representative etc.
(5) The court may take the action mentioned
in subsection (6) or (7) if any of the following persons attend the court
on the specified day:
(a) the person in relation to whom the
order is made;
(b) a representative of the person;
(c) if the person is a resident of Queensland,
or the court made the order in Queensland—the Queensland public interest
monitor.
(6) The court may declare, in writing, the
order to be void if the court is satisfied that, at the time of making the
order, there were no grounds on which to make the order.
(7) Otherwise, the court may:
(a) revoke the order if, at the time
of confirming the order, the court is not satisfied as mentioned in paragraph
104.4(1)(c); or
(b) confirm and vary the order by
removing one or more obligations, prohibitions or restrictions if, at the time
of confirming the order, the court is satisfied as mentioned in paragraph
104.4(1)(c) but is not satisfied as mentioned in paragraph 104.4(1)(d); or
(c) confirm the order without
variation if, at the time of confirming the order, the court is satisfied as
mentioned in paragraphs 104.4(1)(c) and (d).
Note: If the court confirms the interim control
order, the court must make a new order under section 104.16.
104.15
When a declaration, or a revocation, variation or confirmation of a control
order, is in force
(1) If the court declares the interim control
order to be void under section 104.14, the order is taken never to have
been in force.
(2) If the court revokes the interim control
order under section 104.14, the order ceases to be in force when the court
revokes the order.
(3) If the court confirms the interim control
order (with or without variation) under section 104.14 then:
(a) the interim control order ceases to
be in force; and
(b) the confirmed control order begins
to be in force;
when the court makes a corresponding order under
section 104.16.
104.16
Terms of a confirmed control order
(1) If the issuing court confirms the interim
control order under section 104.14, the court must make a corresponding
order that:
(a) states that the court is satisfied
of the matters mentioned in paragraphs 104.4(1)(c) and (d); and
(b) specifies the name of the person
to whom the order relates; and
(c) specifies all of the obligations,
prohibitions and restrictions mentioned in subsection 104.5(3) that are to be
imposed on the person by the order; and
(d) specifies the period during which
the order is to be in force, which must not end more than 12 months after the
day on which the interim control order was made; and
(e) states that the person’s lawyer
may attend a specified place in order to obtain a copy of the confirmed control
order.
Note: A confirmed control order that is made in
relation to a 16‑ to 18‑year‑old must not end more than 3
months after the day on which the interim control order was made (see
section 104.28).
(2) Paragraph (1)(d) does not prevent
the making of successive control orders in relation to the same person.
104.17
Service of a declaration, or a revocation, variation or confirmation of a
control order
As soon as practicable after an interim
control order is declared to be void, revoked or confirmed (with or without
variation) under section 104.14, an AFP member must serve the declaration,
the revocation or the confirmed control order personally on the person.
Subdivision E—Rights in respect of a
control order
104.18
Application by the person for a revocation or variation of a control order
(1) A person in relation to whom a confirmed
control order is made may apply to an issuing court for the court to revoke or
vary the order under section 104.20.
(2) The person may make the application at
any time after the order is served on the person.
(3) The person must give written notice of
both the application and the grounds on which the revocation or variation is
sought to the following persons:
(a) the Commissioner of the Australian
Federal Police;
(b) if:
(i) the person in relation
to whom the order is made is a resident of Queensland; or
(ii) the court will hear
the application in Queensland;
the Queensland public interest
monitor.
(4) The following persons may adduce
additional evidence (including by calling witnesses or producing material), or
make additional submissions, to the court in relation to the application to
revoke or vary the order:
(a) the Commissioner;
(b) one or more other AFP members;
(c) the person in relation to whom the
order is made;
(d) one or more representatives of the
person;
(e) if paragraph (3)(b)
applies—the Queensland public interest monitor (unless the monitor is a
representative of the person).
(5) Subsection (4) does not otherwise
limit the power of the court to control proceedings in relation to an
application to revoke or vary a confirmed control order.
104.19
Application by the AFP Commissioner for a revocation or variation of a control
order
(1) While a confirmed control order is in
force, the Commissioner of the Australian Federal Police must cause an
application to be made to an issuing court:
(a) to revoke the order, under
section 104.20, if the Commissioner is satisfied that the grounds on which
the order was confirmed have ceased to exist; and
(b) to vary the order, under that
section, by removing one or more obligations, prohibitions or restrictions, if
the Commissioner is satisfied that those obligations, prohibitions or
restrictions should no longer be imposed on the person.
(2) The Commissioner must cause written
notice of both the application and the grounds on which the revocation or variation
is sought to be given to the following persons:
(a) the person in relation to whom the
order is made;
(b) if:
(i) the person in relation
to whom the order is made is a resident of Queensland; or
(ii) the court will hear
the application in Queensland;
the Queensland public interest
monitor.
(3) The following persons may adduce
additional evidence (including by calling witnesses or producing material), or
make additional submissions, to the court in relation to the application to
revoke or vary the order:
(a) the Commissioner;
(b) one or more other AFP members;
(c) the person in relation to whom the
order is made;
(d) one or more representatives of the
person;
(e) if paragraph (2)(b)
applies—the Queensland public interest monitor (unless the monitor is a
representative of the person).
(4) Subsection (3) does not otherwise
limit the power of the court to control proceedings in relation to an
application to revoke or vary a confirmed control order.
104.20
Revocation or variation of a control order
(1) If an application is made under
section 104.18 or 104.19 in respect of a confirmed control order, the
court may:
(a) revoke the order if, at the time
of considering the application, the court is not satisfied as mentioned in
paragraph 104.4(1)(c); or
(b) vary the order by removing one or
more obligations, prohibitions or restrictions if, at the time of considering
the application, the court is satisfied as mentioned in paragraph 104.4(1)(c)
but is not satisfied as mentioned in paragraph 104.4(1)(d); or
(c) dismiss the application if, at the
time of considering the application, the court is satisfied as mentioned in
paragraphs 104.4(1)(c) and (d).
(2) A revocation or variation begins to be in
force when the court revokes or varies the order.
(3) An AFP member must serve the revocation
or variation personally on the person as soon as practicable after a confirmed
control order is revoked or varied.
104.21
Lawyer may request a copy of a control order
(1) If a control order is confirmed or varied
under section 104.14, 104.20 or 104.24, a lawyer of the person in relation
to whom the control order is made may attend the place specified in the order
as mentioned in paragraph 104.16(1)(e) or 104.25(d) in order to obtain a copy
of the order.
(2) This section does not:
(a) require more than one person to
give the lawyer a copy of the order; or
(b) entitle the lawyer to request, be
given a copy of, or see, a document other than the order.
104.22
Treatment of photographs and impressions of fingerprints
(1) A photograph, or an impression of
fingerprints, taken as mentioned in paragraph 104.5(3)(j) or (k) must only be
used for the purpose of ensuring compliance with the relevant control order.
(2) If:
(a) a period of 12 months elapses
after the control order ceases to be in force; and
(b) proceedings in respect of the
control order have not been brought,
or have been brought and discontinued or completed, within that period;
the photograph or the impression must be destroyed as soon
as practicable after the end of that period.
(3) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct contravenes
subsection (1).
Penalty: Imprisonment for 2 years.
Subdivision F—Adding obligations,
prohibitions or restrictions to a control order
104.23
Application by the AFP Commissioner for addition of obligations, prohibitions
or restrictions
(1) The Commissioner of the Australian
Federal Police may cause an application to be made to an issuing court to vary,
under section 104.24, a confirmed control order, by adding one or more
obligations, prohibitions or restrictions mentioned in subsection 104.5(3) to
the order, if the Commissioner considers on reasonable grounds that the varied
control order in the terms to be sought would substantially assist in
preventing a terrorist act.
(2) The Commissioner must cause the court to
be given:
(a) a copy of the additional
obligations, prohibitions and restrictions to be imposed on the person by the
order; and
(b) the following:
(i) an explanation as to
why each of those obligations, prohibitions and restrictions should be imposed
on the person; and
(ii) if the Commissioner is
aware of any facts relating to why any of those obligations, prohibitions or
restrictions should not be imposed on the person—a statement of those facts;
and
(c) the outcomes and particulars of
all previous applications under this section for variations of the order; and
(d) information (if any) that the
Commissioner has about the person’s age.
Note 1: A control order cannot be made in relation to a
person who is under 16 years of age (see section 104.28).
Note 2: An offence might be committed if the
application is false or misleading (see sections 137.1 and 137.2).
(3) The Commissioner must cause:
(a) written notice of the application
and the grounds on which the variation is sought; and
(b) a copy of the documents mentioned
in paragraph (2)(b); and
(c) any other details required to
enable the person in relation to whom the order is made to understand and
respond to the substance of the facts, matters and circumstances which will
form the basis of the variation of the order;
to be given to the following persons:
(d) the person in relation to whom the
order is made;
(e) if the person is a resident of Queensland,
or the court will hear the application in Queensland—the Queensland public
interest monitor.
(3A) To avoid doubt, subsection (3) does
not require any information to be given if disclosure of that information is
likely:
(a) to prejudice national security
(within the meaning of the National Security Information (Criminal and Civil
Proceedings) Act 2004); or
(b) to
be protected by public interest immunity; or
(c) to
put at risk ongoing operations by law enforcement agencies or intelligence
agencies; or
(d) to
put at risk the safety of the community, law enforcement officers or
intelligence officers.
The fact that information of a kind mentioned in this
subsection is not required to be disclosed does not imply that such information
is required to be disclosed in other provisions of this Part that relate to the
disclosure of information.
(4) The following persons may adduce
additional evidence (including by calling witnesses or producing material), or
make additional submissions, to the court in relation to the application to
vary the order:
(a) the Commissioner;
(b) one or more other AFP members;
(c) the person in relation to whom the
order is made;
(d) one or more representatives of the
person;
(e) if paragraph (3)(b)
applies—the Queensland public interest monitor (unless the monitor is a
representative of the person).
(5) Subsection (4) does not otherwise
limit the power of the court to control proceedings in relation to an
application to vary a confirmed control order.
104.24
Varying a control order
(1) If an application is made under
section 104.23, the issuing court may vary the control order, but only if:
(a) an application has been made in
accordance with section 104.23; and
(b) the court is satisfied on the
balance of probabilities that each of the additional obligations, prohibitions
and restrictions to be imposed on the person by the order is reasonably
necessary, and reasonably appropriate and adapted, for the purpose of
protecting the public from a terrorist act.
(2) In determining whether each of the
additional obligations, prohibitions and restrictions to be imposed on the
person by the order is reasonably necessary, and reasonably appropriate and
adapted, the court must take into account the impact of the obligation,
prohibition or restriction on the person’s circumstances (including the
person’s financial and personal circumstances).
(3) The court need not include in the order
an obligation, prohibition or restriction that was sought if the court is not
satisfied as mentioned in paragraph (1)(b) in respect of that obligation,
prohibition or restriction.
104.25
Terms of a varied control order
If the issuing court varies the control
order under section 104.24, the following must be included in the order:
(a) a statement that the court is satisfied
of the matter mentioned in paragraph 104.24(1)(b); and
(b) the additional obligations,
prohibitions and restrictions that are to be imposed on the person by the
varied order; and
(c) a statement that the variation of
the order does not begin to be in force until the varied order is served
personally on the person; and
(d) a statement that the person’s
lawyer may attend a specified place in order to obtain a copy of the varied
order.
104.26
Service and explanation of a varied control order
(1) As soon as practicable after a control
order is varied under section 104.24, an AFP member:
(a) must serve the varied order
personally on the person; and
(b) must inform the person that the
order has been varied to impose additional obligations, prohibitions and
restrictions; and
(c) must inform the person of the
following:
(i) the effect of the
additional obligations, prohibitions and restrictions;
(ii) the effect of
sections 104.18, 104.21 and 104.27 (and section 104.22 if
appropriate); and
(d) must ensure that the person
understands the information provided under paragraph (c) (taking into
account the person’s age, language skills, mental capacity and any other
relevant factor).
(3) Paragraphs (1)(c) and (d) do not
apply if the actions of the person in relation to whom the interim control
order has been made make it impracticable for the AFP member to comply with
those paragraphs.
(4) A failure to comply with
paragraph (1)(d) does not make the control order ineffective to any
extent.
Subdivision G—Contravening a control
order
104.27
Offence for contravening a control order
A person commits an offence if:
(a) a control order is in force in
relation to the person; and
(b) the person contravenes the order.
Penalty: Imprisonment for 5 years.
Subdivision H—Miscellaneous
104.28
Special rules for young people
Rule for persons under 16
(1) A control order cannot be requested, made
or confirmed in relation to a person who is under 16 years of age.
Rule for persons who are at least 16 but under 18
(2) If an issuing court is satisfied that a
person in relation to whom an interim control order is being made or confirmed
is at least 16 but under 18, the period during which the confirmed control
order is to be in force must not end more than 3 months after the day on which
the interim control order is made by the court.
(3) Subsection (2) does not prevent the
making of successive control orders in relation to the same person.
104.28A
Interlocutory proceedings
(1) Proceedings in relation to a request
under section 104.3, 104.6 or 104.8 to make an interim control order are
taken to be interlocutory proceedings for all purposes (including for the
purpose of section 75 of the Evidence Act 1995).
(2) The following proceedings are taken not
to be interlocutory proceedings for any purpose (including for the purpose of
section 75 of the Evidence Act 1995):
(a) proceedings in relation to the
confirmation under section 104.14 of an interim control order;
(b) proceedings in relation to an
application under section 104.18, 104.19 or 104.23 to revoke or vary a
confirmed control order.
104.29
Reporting requirements
(1) The Attorney‑General must, as soon
as practicable after each 30 June, cause to be prepared a report about the
operation of this Division during the year ended on that 30 June.
(2) Without limiting subsection (1), a
report relating to a year must include the following matters:
(a) the number of interim control
orders made under:
(i) section 104.4;
and
(ii) section 104.7;
and
(iii) section 104.9;
(aa) the number of interim control
orders in respect of which an election was made under section 104.12A not
to confirm the order;
(b) the number of control orders
confirmed under section 104.14;
(c) the number of control orders
declared to be void under section 104.14;
(d) the number of control orders
revoked under sections 104.14 and 104.20;
(e) the number of control orders
varied under sections 104.14, 104.20 and 104.24;
(f) particulars of:
(i) any complaints made or
referred to the Commonwealth Ombudsman that related to control orders; and
(ii) any information given
under section 40SA of the Australian Federal Police Act 1979 that
related to control orders and raised an AFP conduct or practices issue (within
the meaning of that Act).
(3) The Attorney‑General must cause
copies of the report to be laid before each House of the Parliament within 15
sitting days of that House after the report is completed.
104.30
Requirement to notify Attorney‑General of declarations, revocations or
variations
The Commissioner must cause:
(a) the Attorney‑General to be
notified in writing if:
(i) a control order is
declared to be void under section 104.14; or
(ii) a control order is
revoked under section 104.14 or 104.20; or
(iii) a control order is
varied under section 104.14, 104.20 or 104.24; and
(b) the Attorney‑General to be
given a copy of the varied order (if appropriate).
104.31
Queensland public interest monitor functions and powers not affected
This Division does not affect a function
or power that the Queensland public interest monitor, or a Queensland deputy
public interest monitor, has under a law of Queensland.
104.32
Sunset provision
(1) A control order that is in force at the
end of 10 years after the day on which this Division commences ceases to be in
force at that time.
(2) A control order cannot be requested, made
or confirmed after the end of 10 years after the day on which this Division
commences.
Division 105—Preventative
detention orders
Subdivision A—Preliminary
105.1
Object
The object of this Division is to allow
a person to be taken into custody and detained for a short period of time in
order to:
(a) prevent an imminent terrorist act
occurring; or
(b) preserve evidence of, or relating
to, a recent terrorist act.
Note: Section 105.42 provides that, while a
person is being detained under a preventative detention order, the person may
only be questioned for very limited purposes.
105.2
Issuing authorities for continued preventative detention orders
(1) The Minister may, by writing, appoint as
an issuing authority for continued preventative detention orders:
(a) a person who is a judge of a State
or Territory Supreme Court; or
(b) a person who is a Judge; or
(c) a person who is a Federal
Magistrate; or
(d) a person who:
(i) has served as a judge
in one or more superior courts for a period of 5 years; and
(ii) no longer holds a
commission as a judge of a superior court; or
(e) a person who:
(i) holds an appointment
to the Administrative Appeals Tribunal as President or Deputy President; and
(ii) is enrolled as a legal
practitioner of a federal court or of the Supreme Court of a State or
Territory; and
(iii) has been enrolled for
at least 5 years.
(2) The Minister must not appoint a person
unless:
(a) the person has, by writing,
consented to being appointed; and
(b) the consent is in force.
105.3
Police officer detaining person under a preventative detention order
If:
(a) a number of police officers are
detaining, or involved in the detention of, a person under a preventative
detention order at a particular time; and
(b) an obligation is expressed in this
Division to be imposed on the police officer detaining the person;
the obligation is imposed at that time on:
(c) if those police officers include
only one AFP member—that AFP member; or
(d) if those police officers include 2
or more AFP members—the most senior of those AFP members; or
(e) if those police officers do not
include an AFP member—the most senior of those police officers.
Note: See also paragraph 105.27(2)(c).
Subdivision B—Preventative detention
orders
105.4
Basis for applying for, and making, preventative detention orders
(1) An AFP member may apply for a
preventative detention order in relation to a person only if the AFP member
meets the requirements of subsection (4) or (6).
(2) An issuing authority may make a
preventative detention order in relation to a person only if the issuing
authority meets the requirements of subsection (4) or (6).
Note: For the definition of issuing authority,
see subsection 100.1(1) and section 105.2.
(3) The person in relation to whom the
preventative detention order is applied for, or made, is the subject
for the purposes of this section.
(4) A person meets the requirements of this
subsection if the person is satisfied that:
(a) there are reasonable grounds to
suspect that the subject:
(i) will engage in a
terrorist act; or
(ii) possesses a thing that
is connected with the preparation for, or the engagement of a person in, a
terrorist act; or
(iii) has done an act in preparation
for, or planning, a terrorist act; and
(b) making the order would
substantially assist in preventing a terrorist act occurring; and
(c) detaining the subject for the
period for which the person is to be detained under the order is reasonably necessary
for the purpose referred to in paragraph (b).
(5) A terrorist act referred to in
subsection (4):
(a) must be one that is imminent; and
(b) must be one that is expected to
occur, in any event, at some time in the next 14 days.
(6) A person meets the requirements of this
subsection if the person is satisfied that:
(a) a terrorist act has occurred
within the last 28 days; and
(b) it is necessary to detain the
subject to preserve evidence of, or relating to, the terrorist act; and
(c) detaining the subject for the
period for which the person is to be detained under the order is reasonably
necessary for the purpose referred to in paragraph (b).
(7) An issuing authority may refuse to make a
preventative detention order unless the AFP member applying for the order gives
the issuing authority any further information that the issuing authority
requests concerning the grounds on which the order is sought.
105.5
No preventative detention order in relation to person under 16 years of age
(1) A preventative detention order cannot be
applied for, or made, in relation to a person who is under 16 years of age.
Note: See also section 105.39 and subsections
105.43(4) to (9) and (11) for the special rules for people who are under 18
years of age.
(2) If:
(a) a person is being detained under a
preventative detention order or a purported preventative detention order; and
(b) the police officer who is
detaining the person is satisfied on reasonable grounds that the person is
under 16 years of age;
the police officer must:
(c) if the police officer is an AFP
member—release the person, as soon as practicable, from detention under the
order or purported order; or
(d) if the police officer is not an
AFP member—inform a senior AFP member, as soon as practicable, of the police
officer’s reasons for being satisfied that the person is under 16 years of age.
(3) If:
(a) a senior AFP member is informed by
a police officer under paragraph (2)(d); and
(b) the senior AFP member is satisfied
on reasonable grounds that the person being detained is under 16 years of age;
the senior AFP member must arrange to have the person
released, as soon as practicable, from detention under the order or purported
order.
105.5A
Special assistance for person with inadequate knowledge of English language or
disability
If the police officer who is detaining a
person under a preventative detention order has reasonable grounds to believe
that the person is unable, because of inadequate knowledge of the English
language or a disability, to communicate with reasonable fluency in that
language:
(a) the police officer has an
obligation under subsection 105.31(3) to arrange for the assistance of an
interpreter in informing the person about:
(i) the effect of the
order or any extension, or further extension, of the order; and
(ii) the person’s rights in
relation to the order; and
(b) the police officer has an
obligation under subsection 105.37(3A) to give the person reasonable assistance
to:
(i) choose a lawyer to act
for the person in relation to the order; and
(ii) contact the lawyer.
105.6
Restrictions on multiple preventative detention orders
Preventative detention orders under this Division
(1) If:
(a) an initial preventative detention
order is made in relation to a person on the basis of assisting in preventing a
terrorist act occurring within a particular period; and
(b) the person is taken into custody
under the order;
another initial preventative detention order cannot be
applied for, or made, in relation to the person on the basis of assisting in
preventing the same terrorist act occurring within that period.
Note: It will be possible to apply for, and make,
another initial preventative detention order in relation to the person on the
basis of preserving evidence of, or relating to, the terrorist act if it
occurs.
(2) If:
(a) an initial preventative detention
order is made in relation to a person on the basis of assisting in preventing a
terrorist act occurring within a particular period; and
(b) the person is taken into custody under
the order;
another initial preventative detention order cannot be
applied for, or made, in relation to the person on the basis of assisting in
preventing a different terrorist act occurring within that period unless the
application, or the order, is based on information that became available to be
put before an issuing authority only after the initial preventative detention
order referred to in paragraph (a) was made.
(3) If:
(a) an initial preventative detention
order is made in relation to a person on the basis of preserving evidence of,
or relating to, a terrorist act; and
(b) the person is taken into custody
under the order;
another initial preventative detention order cannot be
applied for, or made, in relation to the person on the basis of preserving
evidence of, or relating to, the same terrorist act.
Detention orders under corresponding State preventative
detention laws
(4) If:
(a) an order for a person’s detention
is made under a corresponding State preventative detention law on the basis of
assisting in preventing a terrorist act occurring within a particular period;
and
(b) the person is taken into custody
under that order;
an initial preventative detention order cannot be applied
for, or made, under this Division in relation to the person on the basis of
assisting in preventing the same terrorist act occurring within that period.
(5) If:
(a) an order for a person’s detention
is made under a corresponding State preventative detention law on the basis of
assisting in preventing a terrorist act occurring within a particular period;
and
(b) the person is taken into custody
under that order;
an initial preventative detention order cannot be applied
for, or made, under this Division in relation to the person on the basis of
assisting in preventing a different terrorist act occurring within that period
unless the application, or the order, is based on information that became
available to be put before an issuing authority only after the order referred
to in paragraph (a) was made.
(6) If:
(a) an order for a person’s detention
is made under a corresponding State preventative detention law on the basis of
preserving evidence of, or relating to, a terrorist act; and
(b) the person is taken into custody
under that order;
an initial preventative detention order cannot be applied
for, or made, under this Division in relation to the person on the basis of
preserving evidence of, or relating to, the same terrorist act.
105.7
Application for initial preventative detention order
(1) An AFP member may apply to an issuing
authority for an initial preventative detention order in relation to a person.
Note 1: Senior AFP members are issuing authorities for
initial preventative detention orders (see the definition of issuing
authority in subsection 100.1(1)).
Note 2: For the definition of senior AFP member,
see subsection 100.1(1).
(2) The application must:
(a) be made in writing; and
(b) set out the facts and other
grounds on which the AFP member considers that the order should be made; and
(c) specify the period for which the
person is to be detained under the order and set out the facts and other
grounds on which the AFP member considers that the person should be detained
for that period; and
(d) set out the information (if any)
that the applicant has about the person’s age; and
(e) set out the following:
(i) the outcomes and
particulars of all previous applications for preventative detention orders in
relation to the person;
(ii) the outcomes and
particulars of all previous requests for interim control orders (including the
outcomes of the hearings to confirm the orders) in relation to the person;
(iii) the outcomes and
particulars of all previous applications for variations of control orders made
in relation to the person;
(iv) the outcomes of all
previous applications for revocations of control orders made in relation to the
person; and
(f) set out the information (if any)
that the applicant has about any periods for which the person has been detained
under an order made under a corresponding State preventative detention law; and
(g) set out a summary of the grounds
on which the AFP member considers that the order should be made.
Note: Sections 137.1 and 137.2 create offences
for providing false or misleading information or documents.
(2A) To avoid doubt, paragraph (2)(g) does
not require any information to be included in the summary if disclosure of that
information is likely to prejudice national security (within the meaning of the
National Security Information (Criminal and Civil Proceedings) Act 2004).
(3) If:
(a) an initial preventative detention
order is made in relation to a person on the basis of assisting in preventing a
terrorist act occurring within a particular period; and
(b) the person is taken into custody
under the order; and
(c) an application is made for another
initial preventative detention order in relation to the person on the basis of
assisting in preventing a different terrorist act occurring within that period;
the application must also identify the information on which
the application is based that became available to be put before an issuing
authority only after the initial preventative detention order referred to in
paragraph (a) was made.
Note: See subsection 105.6(2).
(4) If:
(a) an order for a person’s detention
is made under a corresponding State preventative detention law on the basis of
assisting in preventing a terrorist act occurring within a particular period;
and
(b) the person is taken into custody
under that order; and
(c) an application is made for an
initial preventative detention order in relation to the person on the basis of
assisting in preventing a different terrorist act occurring within that period;
the application must also identify the information on
which the application is based that became available to be put before an
issuing authority only after the order referred to in paragraph (a) was
made.
Note: See subsection 105.6(5).
105.8
Senior AFP member may make initial preventative detention order
(1) On application by an AFP member, an issuing
authority may make an initial preventative detention order under this section
in relation to a person.
Note 1: Senior AFP members are issuing authorities for
initial preventative detention orders (see the definition of issuing
authority in subsection 100.1(1)).
Note 2: For the definition of senior AFP member,
see subsection 100.1(1).
(2) Subsection (1) has effect subject to
sections 105.4, 105.5 and 105.6.
(3) An initial preventative detention order
under this section is an order that the person specified in the order may be:
(a) taken into custody; and
(b) detained during the period that:
(i) starts when the person
is first taken into custody under the order; and
(ii) ends a specified
period of time after the person is first taken into custody under the order.
(4) The order must be in writing.
(5) The period of time specified in the order
under subparagraph (3)(b)(ii) must not exceed 24 hours.
(6) An initial preventative detention order
under this section must set out:
(a) the name of the person in relation
to whom it is made; and
(b) the period during which the person
may be detained under the order; and
(c) the date on which, and the time at
which, the order is made; and
(d) the date and time after which the
person may not be taken into custody under the order; and
(e) a summary of the grounds on which
the order is made.
Note: Paragraph (d)—see subsection 105.9(2).
(6A) To avoid doubt, paragraph (6)(e) does
not require any information to be included in the summary if disclosure of that
information is likely to prejudice national security (within the meaning of the
National Security Information (Criminal and Civil Proceedings) Act 2004).
(7) If the person in relation to whom the
order is made is:
(a) under 18 years of age; or
(b) incapable of managing his or her
affairs;
the order may provide that the period each day for which
the person is entitled to have contact with another person under subsection
105.39(2) is the period of more than 2 hours that is specified in the order.
(8) The senior AFP member nominated under
subsection 105.19(5) in relation to the initial preventative detention order
must:
(a) notify the Commonwealth Ombudsman
in writing of the making of the order; and
(b) give the Commonwealth Ombudsman a
copy of the order; and
(c) if the person in relation to whom
the order is made is taken into custody under the order—notify the Commonwealth
Ombudsman in writing that the person has been taken into custody under the
order.
105.9
Duration of initial preventative detention order
(1) An initial preventative detention order
in relation to a person starts to have effect when it is made.
Note: The order comes into force when it is made and
authorises the person to be taken into custody (see paragraph 105.8(3)(a)). The
period for which the person may then be detained under the order only starts to
run when the person is first taken into custody under the order (see
subparagraph 105.8(3)(b)(i)).
(2) An initial preventative detention order
in relation to a person ceases to have effect at the end of the period of 48
hours after the order is made if the person has not been taken into custody
under the order within that period.
(3) If the person is taken into custody under
the order within 48 hours after the order is made, the order ceases to have
effect when whichever of the following first occurs:
(a) the end of:
(i) the period specified
in the order as the period during which the person may be detained under the
order; or
(ii) if that period is
extended or further extended under section 105.10—that period as extended
or further extended;
(b) the revocation of the order under
section 105.17.
Note 1: The order does not cease to have effect merely
because the person is released from detention under the order.
Note 2: An AFP member may apply under
section 105.11 for a continued preventative detention order in relation to
the person to allow the person to continue to be detained for up to 48 hours
after the person is first taken into custody under the initial preventative
detention order.
105.10
Extension of initial preventative detention order
(1) If:
(a) an initial preventative detention
order is made in relation to a person; and
(b) the order is in force in relation
to the person;
an AFP member may apply to an issuing authority for
initial preventative detention orders for an extension, or a further extension,
of the period for which the order is to be in force in relation to the person.
(2) The application must:
(a) be made in writing; and
(b) set out the facts and other
grounds on which the AFP member considers that the extension, or further
extension, is reasonably necessary for the purpose for which the order was
made; and
(c) set out the outcomes and
particulars of all previous applications for extensions, or further extensions,
of the order.
Note: Paragraph (b)—see subsections 105.4(4)
and (6) for the purpose for which a preventative detention order may be made.
(3) The issuing authority may extend, or
further extend, the period for which the order is to be in force in relation to
the person if the issuing authority is satisfied that detaining the person
under the order for the period as extended, or further extended, is reasonably
necessary for the purpose for which the order was made.
(4) The extension, or further extension, must
be made in writing.
(5) The period as extended, or further
extended, must end no later than 24 hours after the person is first taken into
custody under the order.
105.10A
Notice of application for continued preventative detention order
An AFP member who proposes to apply for
a continued preventative detention order in relation to a person under
section 105.11 must, before applying for the order:
(a) notify the person of the proposed
application; and
(b) inform the person that, when the
proposed application is made, any material that the person gives the AFP member
in relation to the proposed application will be put before the issuing
authority for continued preventative detention orders to whom the application
is made.
Note: The AFP member who applies for the order must
put the material before the issuing authority—see subsection 105.11(5).
105.11
Application for continued preventative detention order
(1) If an initial preventative detention
order is in force in relation to a person in relation to a terrorist act, an
AFP member may apply to an issuing authority in relation to continued
preventative detention orders for a continued preventative detention order in
relation to the person in relation to the terrorist act.
Note: Certain judges, Federal Magistrates, AAT
members and retired judges are issuing authorities for continued preventative
detention orders (see the definition of issuing authority in
subsection 100.1(1) and section 105.2).
(2) The application must:
(a) be made in writing; and
(b) set out the facts and other
grounds on which the AFP member considers that the order should be made; and
(c) specify the period for which the
person is to continue to be detained under the order and set out the facts and
other grounds on which the AFP member considers that the person should continue
to be detained for that period; and
(d) set out the information (if any)
that the applicant has about the person’s age; and
(e) set out the following:
(i) the outcomes and
particulars of all previous applications for preventative detention orders in
relation to the person;
(ii) the outcomes and
particulars of all previous requests for interim control orders (including the
outcomes of the hearings to confirm the orders) in relation to the person;
(iii) the outcomes and
particulars of all previous applications for variations of control orders made
in relation to the person;
(iv) the outcomes of all
previous applications for revocations of control orders made in relation to the
person; and
(f) set out the information (if any)
that the applicant has about any periods for which the person has been detained
under an order made under a corresponding State preventative detention law; and
(g) set out a summary of the grounds
on which the AFP member considers that the order should be made.
Note: Sections 137.1 and 137.2 create offences
for providing false or misleading information or documents.
(3) Subparagraph (2)(e)(i) does not
require the application to set out details in relation to the application that
was made for the initial preventative detention order in relation to which the
continued preventative detention order is sought.
(3A) To avoid doubt, paragraph (2)(g) does
not require any information to be included in the summary if disclosure of that
information is likely to prejudice national security (within the meaning of the
National Security Information (Criminal and Civil Proceedings) Act 2004).
(4) The information in the application must
be sworn or affirmed by the AFP member.
(5) The AFP member applying for the continued
preventative detention order in relation to the person must put before the
issuing authority to whom the application is made any material in relation to
the application that the person has given the AFP member.
105.12
Judge, Federal Magistrate, AAT member or retired judge may make continued
preventative detention order
(1) On application by an AFP member, an
issuing authority may make a continued preventative detention order under this
section in relation to a person if:
(a) an initial preventative detention
order is in force in relation to the person; and
(b) the person has been taken into
custody under the order (whether or not the person is being detained under the
order).
Note: Certain judges, Federal Magistrates, AAT
members and retired judges are issuing authorities for continued preventative
detention orders (see the definition of issuing authority in
subsection 100.1(1) and section 105.2).
(2) Subsection (1) has effect subject to
sections 105.4, 105.5 and 105.6. Section 105.4 requires the issuing
authority to consider afresh the merits of making the order and to be
satisfied, after taking into account relevant information (including any
information that has become available since the initial preventative detention
order was made), of the matters referred to in subsection 105.4(4) or (6)
before making the order.
(3) A continued preventative detention order
under this section is an order that the person specified in the order may be
detained during a further period that:
(a) starts at the end of the period
during which the person may be detained under the initial preventative
detention order; and
(b) ends a specified period of time
after the person is first taken into custody under the initial preventative
detention order.
(4) The order must be in writing.
(5) The period of time specified under
paragraph (3)(b) must not exceed 48 hours.
(6) A continued preventative detention order
under this section must set out:
(a) the name of the person in relation
to whom it is made; and
(b) the further period during which
the person may be detained under the order; and
(c) the date on which, and the time at
which, the order is made; and
(d) a summary of the grounds on which
the order is made.
(6A) To avoid doubt, paragraph (6)(d) does
not require any information to be included in the summary if disclosure of that
information is likely to prejudice national security (within the meaning of the
National Security Information (Criminal and Civil Proceedings) Act 2004).
(7) If the person in relation to whom the
order is made is:
(a) under 18 years of age; or
(b) incapable of managing his or her
affairs;
the order may provide that the period each day for which
the person is entitled to have contact with another person under subsection 105.39(2)
is the period of more than 2 hours that is specified in the order.
(8) The senior AFP member nominated under
subsection 105.19(5) in relation to the continued preventative detention order
must:
(a) notify the Commonwealth Ombudsman
in writing of the making of the order; and
(b) give the Commonwealth Ombudsman a
copy of the order.
105.13
Duration of continued preventative detention order
(1) A continued preventative detention order
in relation to a person starts to have effect when it is made.
Note: The order comes into force when it is made.
The period for which the person may be detained under the order, however, only
starts to run when the period during which the person may be detained under the
initial preventative detention order ends (see paragraph 105.12(3)(a)).
(2) A continued preventative detention order
in relation to a person ceases to have effect when whichever of the following
first occurs:
(a) the end of:
(i) the period specified
in the order as the further period during which the person may be detained; or
(ii) if that period is
extended or further extended under section 105.14—that period as extended
or further extended;
(b) the revocation of the order under
section 105.17.
Note: The order does not cease to have effect merely
because the person is released from detention under the order.
105.14
Extension of continued preventative detention order
(1) If:
(a) an initial preventative detention
order is made in relation to a person; and
(b) a continued preventative detention
order is made in relation to the person in relation to that initial
preventative detention order; and
(c) the continued preventative
detention order is in force in relation to the person;
an AFP member may apply to an issuing authority for
continued preventative detention orders for an extension, or a further
extension, of the period for which the continued preventative detention order
is to be in force in relation to the person.
(2) The application must:
(a) be made in writing; and
(b) set out the facts and other
grounds on which the AFP member considers that the extension, or further
extension, is reasonably necessary for the purpose for which the order was
made; and
(c) set out the outcomes and
particulars of all previous applications for extensions, or further extensions,
of the continued preventative detention order.
Note: Paragraph (b)—see subsections 105.4(4)
and (6) for the purpose for which a preventative detention order may be made.
(3) The information in the application must
be sworn or affirmed by the AFP member.
(4) The issuing authority may extend, or
further extend, the period for which the continued preventative detention order
is to be in force in relation to the person if the issuing authority is
satisfied that detaining the person under the order for the period as extended,
or further extended, is reasonably necessary for the purpose for which the
order was made.
(5) The extension, or further extension, must
be made in writing.
(6) The period as extended, or further
extended, must end no later than 48 hours after the person is first taken into
custody under the initial preventative detention order.
105.14A
Basis for applying for, and making, prohibited contact order
(1) An AFP member may apply for a prohibited
contact order in relation to a person only if the AFP member meets the
requirements of subsection (4).
(2) An issuing authority for initial
preventative detention orders, or continued preventative detention orders, may
make a prohibited contact order in relation to a person’s detention under a
preventative detention order only if the issuing authority meets the
requirements of subsection (4).
(3) The person in relation to whose detention
the prohibited contact order is applied for, or made, is the subject
for the purposes of this section.
(4) A person meets the requirements of this
subsection if the person is satisfied that making the prohibited contact order
is reasonably necessary:
(a) to avoid a risk to action being
taken to prevent a terrorist act occurring; or
(b) to prevent serious harm to a
person; or
(c) to preserve evidence of, or
relating to, a terrorist act; or
(d) to prevent interference with the
gathering of information about:
(i) a terrorist act; or
(ii) the preparation for,
or the planning of, a terrorist act; or
(e) to avoid a risk to:
(i) the arrest of a person
who is suspected of having committed an offence against this Part; or
(ii) the taking into
custody of a person in relation to whom a preventative detention order is in
force, or in relation to whom a preventative detention order is likely to be
made; or
(iii) the service on a
person of a control order.
(5) An issuing authority may refuse to make a
prohibited contact order unless the AFP member applying for the order gives the
issuing authority any further information that the issuing authority requests
concerning the grounds on which the order is sought.
105.15
Prohibited contact order (person in relation to whom preventative detention
order is being sought)
(1) An AFP member who applies to an issuing
authority for a preventative detention order in relation to a person (the subject)
may also apply for a prohibited contact order under this section in relation to
the subject’s detention under the preventative detention order.
(2) The application must set out:
(a) the terms of the order sought; and
(b) the facts and other grounds on
which the AFP member considers that the order should be made.
(3) If a continued preventative detention
order is being applied for, the information in the application for the
prohibited contact order must be sworn or affirmed by the AFP member.
(4) If the issuing authority makes the
preventative detention order, the issuing authority may make a prohibited
contact order under this section that the subject is not, while being detained
under the preventative detention order, to contact the person specified in the
prohibited contact order.
Note: Section 105.14A sets out the basis on
which the order may be made.
(5) The prohibited contact order must be in
writing.
(6) The senior AFP member nominated under
subsection 105.19(5) in relation to the preventative detention order must:
(a) notify the Commonwealth Ombudsman
in writing of the making of the prohibited contact order; and
(b) give the Commonwealth Ombudsman a
copy of the prohibited contact order.
105.16
Prohibited contact order (person in relation to whom preventative detention
order is already in force)
(1) If a preventative detention order is in
force in relation to a person (the subject), an AFP member may
apply to an issuing authority for preventative detention orders of that kind
for a prohibited contact order under this section in relation to the subject’s
detention under the preventative detention order.
(2) The application must set out:
(a) the terms of the order sought; and
(b) the facts and other grounds on
which the AFP member considers that the order should be made.
(3) If the preventative detention order is a
continued preventative detention order, the information in the application for
the prohibited contact order must be sworn or affirmed by the AFP member.
(4) The issuing authority may make a
prohibited contact order under this section that the subject is not, while
being detained under the preventative detention order, to contact the person
specified in the prohibited contact order.
Note: Section 105.14A sets out the basis on
which the order may be made.
(5) The prohibited contact order must be in
writing.
(6) The senior AFP member nominated under
subsection 105.19(5) in relation to the preventative detention order must:
(a) notify the Commonwealth Ombudsman
in writing of the making of the prohibited contact order; and
(b) give the Commonwealth Ombudsman a
copy of the prohibited contact order.
105.17
Revocation of preventative detention order or prohibited contact order
Preventative detention order
(1) If:
(a) a preventative detention order is
in force in relation to a person; and
(b) the police officer who is
detaining the person under the order is satisfied that the grounds on which the
order was made have ceased to exist;
the police officer must:
(c) if the police officer is an AFP
member—apply to an issuing authority for preventative detention orders of that
kind for the revocation of the order; or
(d) if the police officer is not an AFP
member—inform a senior AFP member of the police officer’s reasons for being
satisfied that the grounds on which the order was made have ceased to exist.
(2) If:
(a) a senior AFP member is informed by
a police officer under paragraph (1)(d); and
(b) the senior AFP member is satisfied
that the grounds on which the preventative detention order was made have ceased
to exist;
the senior AFP member must apply to an issuing authority
for preventative detention orders of that kind for the revocation of the order.
(3) If:
(a) a preventative detention order is
in force in relation to a person; and
(b) an issuing authority for
preventative detention orders of that kind is satisfied, on application by an
AFP member, that the grounds on which the order was made have ceased to exist;
the issuing authority must revoke the order.
Prohibited contact order
(4) If:
(a) a prohibited contact order is in
force in relation to a person’s detention under a preventative detention order;
and
(b) the police officer who is detaining
the person under the preventative detention order is satisfied that the grounds
on which the prohibited contact order was made have ceased to exist;
the police officer must:
(c) if the police officer is an AFP
member—apply to an issuing authority for preventative detention orders of that
kind for the revocation of the prohibited contact order; or
(d) if the police officer is not an
AFP member—inform a senior AFP member of the police officer’s reasons for being
satisfied that the grounds on which the prohibited contact order was made have
ceased to exist.
(5) If:
(a) a senior AFP member is informed by
a police officer under paragraph (4)(d); and
(b) the senior AFP member is satisfied
that the grounds on which the prohibited contact order was made in relation to
the person’s detention under the preventative detention order have ceased to
exist;
the senior AFP member must apply to an issuing authority
for preventative detention orders of that kind for the revocation of the
prohibited contact order.
(6) If:
(a) a prohibited contact order is in
force in relation to a person’s detention under a preventative detention order;
and
(b) an issuing authority for
preventative detention orders of that kind is satisfied, on application by an
AFP member, that the grounds on which the prohibited contact order was made
have ceased to exist;
the issuing authority must revoke the prohibited contact
order.
Detainee’s right to make representations about
revocation of preventative detention order
(7) A person being detained under a
preventative detention order may make representations to the senior AFP member
nominated under subsection 105.19(5) in relation to the order with a view to
having the order revoked.
105.18 Status of person making continued preventative
detention order
(1) An issuing authority who makes:
(a) a continued preventative detention
order; or
(b) a prohibited contact order in
relation to a person’s detention under a continued preventative detention
order;
has, in the performance of his or her duties under this
Subdivision, the same protection and immunity as a Justice of the High Court.
(2) A function of:
(a) making or revoking a continued
preventative detention order; or
(b) extending, or further extending,
the period for which a continued preventative detention order is to be in
force; or
(c) making or revoking a prohibited
contact order in relation to a person’s detention under a continued
preventative detention order;
that is conferred on a judge, a Federal Magistrate or a
member of the Administrative Appeals Tribunal is conferred on the judge,
Federal Magistrate or member of the Administrative Appeals Tribunal in a
personal capacity and not as a court or a member of a court.
Subdivision C—Carrying out
preventative detention orders
105.19
Power to detain person under preventative detention order
General powers given by preventative detention order
(1) While a preventative detention order is
in force in relation to a person:
(a) any police officer may take the
person into custody; and
(b) any police officer may detain the
person.
(2) A police officer, in taking a person into
custody under and in detaining a person under a preventative detention order,
has the same powers and obligations as the police officer would have if the
police officer were arresting the person, or detaining the person, for an
offence.
(3) In subsection (2):
offence means:
(a) if the police officer is an AFP
member—an offence against a law of the Commonwealth; or
(b) if the police officer is not an
AFP member—an offence against a law of the State or Territory of whose police
force the police officer is a member.
(4) Subsection (2) does not apply to the
extent to which particular powers, and the obligations associated with those
powers, are provided for in this Subdivision or Subdivision D or E.
Nominated senior AFP member
(5) If a preventative detention order is made
in relation to person, the Commissioner of the Australian Federal Police must
nominate a senior AFP member (the nominated senior AFP member) to
oversee the exercise of powers under, and the performance of obligations in
relation to, the preventative detention order.
(6) The nominated senior AFP member must be
someone who was not involved in the making of the application for the
preventative detention order.
(7) The nominated senior AFP member must:
(a) oversee the exercise of powers
under, and the performance of obligations in relation to, the preventative
detention order; and
(b) without limiting
paragraph (a), ensure that the provisions of section 105.17 (which
deals with revocation of preventative detention orders and prohibited contact
orders) are complied with in relation to the preventative detention order; and
(c) receive and consider any
representations that are made under subsection (8).
(8) The following persons:
(a) the person being detained under
the preventative detention order;
(b) a lawyer acting for that person in
relation to the preventative detention order;
(c) a person with whom that person has
contact under subsection 105.39(2);
are entitled to make representations to the nominated
senior AFP member in relation to:
(d) the exercise of powers under, and
the performance of obligations in relation to, the preventative detention
order; and
(e) without limiting
paragraph (a), compliance with the provisions of section 105.17
(which deals with revocation of preventative detention orders and prohibited
contact orders) in relation to the preventative detention order; and
(f) the person’s treatment in
connection with the person’s detention under the preventative detention order.
(9) The Commissioner of the Australian
Federal Police may, in writing, delegate to a senior AFP member the
Commissioner’s powers under subsection (5).
105.20
Endorsement of order with date and time person taken into custody
As soon as practicable after a person is
first taken into custody under an initial preventative detention order, the
police officer who is detaining the person under the order must endorse on the
order the date on which, and time at which, the person is first taken into
custody under the order.
105.21
Requirement to provide name etc.
(1) If a police officer believes on
reasonable grounds that a person whose name or address is, or whose name and
address are, unknown to the police officer may be able to assist the police
officer in executing a preventative detention order, the police officer may
request the person to provide his or her name or address, or name and address,
to the police officer.
(2) If a police officer:
(a) makes a request of a person under
subsection (1); and
(b) informs the person of the reason
for the request; and
(c) if the police officer is not in
uniform—shows the person evidence that the police officer is a police officer;
and
(d) complies with subsection (4)
if the person makes a request under that subsection;
the person must not:
(e) refuse or fail to comply with the
request; or
(f) give a name or address that is
false in a material particular.
Penalty: 20 penalty units.
(3) Subsection (2) does not apply if the
person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (3) (see subsection 13.3(3)).
(4) If a police officer who makes a request
of a person under subsection (1) is requested by the person to provide to
the person any of the following:
(a) his or her name;
(b) the address of his or her place of
duty;
(c) his or her identification number
if he or she has an identification number;
(d) his or her rank if he or she does
not have an identification number;
the police officer must not:
(e) refuse or fail to comply with the
request; or
(f) give
a name, address, number or rank that is false in a material particular.
Penalty: 5 penalty units.
105.22
Power to enter premises
(1) Subject to subsection (2), if:
(a) a preventative detention order is
in force in relation to a person; and
(b) a police officer believes on
reasonable grounds that the person is on any premises;
the police officer may enter the premises, using such
force as is necessary and reasonable in the circumstances and with such
assistance from other police officers as is necessary, at any time of the day
or night for the purpose of searching the premises for the person or taking the
person into custody.
(2) A police officer must not enter a
dwelling house under subsection (1) at any time during the period
commencing at 9 pm on a day and ending at 6 am on the following day unless the
police officer believes on reasonable grounds that:
(a) it would not be practicable to
take the person into custody, either at the dwelling house or elsewhere, at
another time; or
(b) it is necessary to do so in order
to prevent the concealment, loss or destruction of evidence of, or relating to,
a terrorist act.
(3) In subsection (2):
dwelling house includes a conveyance, and a
room in a hotel, motel, boarding house or club, in which people ordinarily
retire for the night.
105.23
Power to conduct a frisk search
A police
officer who takes a person into custody under a preventative detention order,
or who is present when the person is taken into custody, may, if the police
officer suspects on reasonable grounds that it is prudent to do so in order to
ascertain whether the person is carrying any seizable items:
(a) conduct a frisk search of the
person at, or soon after, the time when the person is taken into custody; and
(b) seize any seizable items found as
a result of the search.
105.24
Power to conduct an ordinary search
A police officer who takes a person into
custody under a preventative detention order, or who is present when the person
is taken into custody, may, if the police officer suspects on reasonable
grounds that the person is carrying:
(a) evidence of, or relating to, a
terrorist act; or
(b) a seizable item;
conduct an ordinary search of the person at, or soon
after, the time when the person is taken into custody, and seize any such thing
found as a result of the search.
105.25
Warrant under Division 3 of Part III of the Australian Security
Intelligence Organisation Act 1979
(1) This section applies if:
(a) a person is being detained under a
preventative detention order; and
(b) a warrant under Division 3 of
Part III of the Australian Security Intelligence Organisation Act 1979
is in force in relation to the person; and
(c) a copy of the warrant is given to
the police officer who is detaining the person under the preventative detention
order.
(2) The police officer must take such steps
as are necessary to ensure that the person may be dealt with in accordance with
the warrant.
(3) Without limiting subsection (2), the
police officer may, under section 105.26, release the person from
detention under the preventative detention order so that the person may be
dealt with in accordance with the warrant.
Note: If the police officer is not an AFP member,
the police officer will need to obtain the approval of a senior AFP member
before releasing the person from detention (see subsection 105.26(2)).
(4) To avoid doubt, the fact that the person
is released from detention under the preventative detention order so that the
person may be:
(a) questioned before a prescribed
authority under the warrant; or
(b) detained under the warrant in
connection with that questioning;
does not extend the period for which the preventative
detention order remains in force in relation to the person.
Note: See paragraph 105.26(7)(a).
105.26
Release of person from preventative detention
(1) The police officer who is detaining a
person under a preventative detention order may release the person from
detention under the order.
Note: A person may be released, for example, so that
the person may be arrested and otherwise dealt with under the provisions of
Division 4 of Part IAA, and Part IC, of the Crimes Act 1914.
(2) If the police officer detaining the
person under the order is not an AFP member:
(a) the police officer must not
release the person from detention without the approval of a senior AFP member;
and
(b) the senior AFP member must approve
the person’s release if the person is being released so that the person may be
dealt with in accordance with a warrant under Division 3 of Part III
of the Australian Security Intelligence Organisation Act 1979.
(3) The police officer who releases the
person from detention under the preventative detention order must give the
person a written statement that the person is being released from that
detention. The statement must be signed by the police officer.
(4) Subsection (3) does not apply if the
police officer releases the person from detention so that the person may be dealt
with:
(a) in accordance with a warrant under
Division 3 of Part III of the Australian Security Intelligence
Organisation Act 1979; or
(b) under the provisions of
Division 4 of Part IAA, and Part IC, of the Crimes Act 1914.
(5) To avoid doubt, a person may be taken to
have been released from detention under a preventative detention order even if:
(a) the person is informed that he or
she is being released from detention under the order; and
(b) the person is taken into custody
on some other basis immediately after the person is informed that he or she is
being released from detention under the order.
(6) To avoid doubt, a person is taken not to
be detained under a preventative detention order during a period during which
the person is released from detention under the order.
Note: During this period, the provisions of this
Division that apply to a person who is being detained under a preventative
detention order (for example, section 105.34 which deals with the people
the person may contact) do not apply to the person.
(7) To avoid doubt:
(a) the release of the person under
subsection (1) from detention under the preventative detention order does
not extend the period for which the preventative detention order remains in
force; and
(b) a person released under
subsection (1) from detention under a preventative detention order may
again be taken into custody and detained under the order at any time while the
order remains in force in relation to the person.
Note: Paragraph (a)—this means that the time
for which the person may be detained under the order continues to run while the
person is released.
105.27
Arrangement for detainee to be held in State or Territory prison or remand
centre
(1) A senior AFP member may arrange for a
person (the subject) who is being detained under a preventative
detention order to be detained under the order at a prison or remand centre of
a State or Territory.
(2) If an arrangement is made under
subsection (1):
(a) the preventative detention order
is taken to authorise the person in charge of the prison or remand centre to
detain the subject at the prison or remand centre while the order is in force
in relation to the subject; and
(b) section 105.33 applies in
relation to the subject’s detention under the order at the prison or remand
centre as if:
(i) the person in charge
of that prison or remand centre; or
(ii) any other person
involved in the subject’s detention at that prison or remand centre;
were a person exercising
authority under the order or implementing or enforcing the order; and
(c) the senior AFP member who makes
the arrangement is taken, while the subject is detained at the prison or remand
centre, to be the AFP member detaining the subject for the purposes of
Subdivisions D and E of this Division.
(3) The arrangement under subsection (1)
may include provision for the Commonwealth meeting the expenses of the
subject’s detention at the prison or remand centre.
Subdivision D—Informing person
detained about preventative detention order
105.28
Effect of initial preventative detention order to be explained to person
detained
(1) As soon as practicable after a person is
first taken into custody under an initial preventative detention order, the
police officer who is detaining the person under the order must inform the
person of the matters covered by subsection (2).
Note 1: A contravention of this subsection may be an
offence under section 105.45.
Note 2: A contravention of this subsection does not
affect the lawfulness of the person’s detention under the order (see subsection
105.31(5)).
(2) The matters covered by this subsection
are:
(a) the fact that the preventative
detention order has been made in relation to the person; and
(b) the period during which the person
may be detained under the order; and
(c) the restrictions that apply to the
people the person may contact while the person is being detained under the
order; and
(d) the fact that an application may
be made under section 105.11 for an order that the person continue to be
detained for a further period; and
(da) the person’s entitlement under
subsection 105.17(7) to make representations to the senior AFP member nominated
under subsection 105.19(5) in relation to the order with a view to having the
order revoked; and
(e) any right the person has to make a
complaint to the Commonwealth Ombudsman under the Ombudsman Act 1976 in
relation to:
(i) the application for,
or the making of, the preventative detention order; or
(ii) the treatment of the
person by an AFP member in connection with the person’s detention under the
order; and
(ea) any right the person has to give
information under section 40SA of the Australian Federal Police Act
1979 in relation to:
(i) the application for,
or the making of, the preventative detention order; or
(ii) the treatment of the
person by an AFP member in connection with the person’s detention under the
order; and
(f) any right the person has to
complain to an officer or authority of a State or Territory in relation to the
treatment of the person by a member of the police force of that State or
Territory in connection with the person’s detention under the order; and
(g) the
fact that the person may seek from a federal court a remedy relating to:
(i) the
order; or
(ii) the
treatment of the person in connection with the person’s detention under the
order; and
(h) the person’s entitlement under
section 105.37 to contact a lawyer; and
(i) the name and work telephone
number of the senior AFP member who has been nominated under subsection
105.19(5) to oversee the exercise of powers under, and the performance of
obligations in relation to, the order.
Note: Paragraph (g)—see section 105.51.
(2A) Without limiting paragraph (2)(c), the
police officer detaining the person under the order must inform the person
under that paragraph about the persons that he or she may contact under
section 105.35 or 105.39.
(3) Paragraph (2)(c) does not require
the police officer to inform the person being detained of:
(a) the fact that a prohibited contact
order has been made in relation to the person’s detention; or
(b) the name of a person specified in
a prohibited contact order that has been made in relation to the person’s
detention.
105.29
Effect of continued preventative detention order to be explained to person
detained
(1) As soon as practicable after a continued
preventative detention order (the continued order) is made in
relation to a person, the police officer who is detaining the person must
inform the person of the matters covered by subsection (2).
Note 1: A contravention of this subsection may be an
offence under section 105.45.
Note 2: A contravention of this subsection does not
affect the lawfulness of the person’s detention under the order (see subsection
105.31(5)).
(2) The
matters covered by this subsection are:
(a) the fact that the continued order
has been made in relation to the person; and
(b) the further period during which
the person may continue to be detained under the continued order; and
(c) the restrictions that apply to the
people the person may contact while the person is being detained under the
continued order; and
(ca) the person’s entitlement under
subsection 105.17(7) to make representations to the senior AFP member nominated
under subsection 105.19(5) in relation to the order with a view to having the
order revoked; and
(d) any right the person has to make a
complaint to the Commonwealth Ombudsman under the Ombudsman Act 1976 in
relation to:
(i) the application for
the continued order; or
(ii) the treatment of the
person by an AFP member in connection with the person’s detention under the
continued order; and
(da) any right the person has to give
information under section 40SA of the Australian Federal Police Act
1979 in relation to:
(i) the application for
the continued order; or
(ii) the treatment of the
person by an AFP member in connection with the person’s detention under the
continued order; and
(e) any right the person has to
complain to an officer or authority of a State or Territory about the treatment
of the person by a member of the police force of that State or Territory in
connection with the person’s detention under the continued order; and
(f) the
fact that the person may seek from a federal court a remedy relating to:
(i) the
continued order; or
(ii) the
treatment of the person in connection with the person’s detention under the
continued order; and
(g) the person’s entitlement under
section 105.37 to contact a lawyer; and
(h) the name and work telephone number
of the senior AFP member who has been nominated under subsection 105.19(5) to
oversee the exercise of powers under, and the performance of obligations in
relation to, the continued order.
Note: Paragraph (f)—see section 105.51.
(2A) Without limiting paragraph (2)(c), the
police officer detaining the person under the order must inform the person
under that paragraph about the persons that he or she may contact under
section 105.35 or 105.39.
(3) Paragraph (2)(c) does not require
the police officer to inform the person being detained of:
(a) the fact that a prohibited contact
order has been made in relation to the person’s detention; or
(b) the name of a person specified in
a prohibited contact order that has been made in relation to the person’s
detention.
105.30
Person being detained to be informed of extension of preventative detention
order
If a preventative detention order is
extended, or further extended, under section 105.10 or 105.14, the police
officer detaining the person under the order must inform the person of the
extension, or further extension, as soon as practicable after the extension, or
further extension, is made.
Note 1: A contravention of this subsection may be an
offence under section 105.45.
Note 2: A contravention of this subsection does not
affect the lawfulness of the person’s detention under the order (see subsection
105.31(5)).
105.31
Compliance with obligations to inform
(1) Subsection 105.28(1) or 105.29(1) or
section 105.30 does not apply if the actions of the person being detained
under the preventative detention order make it impracticable for the police
officer to comply with that subsection.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (1) (see subsection 13.3(3)).
(2) The police officer detaining the person
under the preventative detention order complies with subsection 105.28(1) or
105.29(1) if the police officer informs the person in substance of the matters
covered by subsection 105.28(2) or 105.29(2) (even if this is not done in
language of a precise or technical nature).
(3) The police officer who is detaining the
person under the preventative detention order must arrange for the assistance
of an interpreter in complying with subsection 105.28(1) or 105.29(1) or
section 105.30 if the police officer has reasonable grounds to believe that
the person is unable, because of inadequate knowledge of the English language
or a disability, to communicate with reasonable fluency in that language.
(4) Without limiting subsection (3), the
assistance of the interpreter may be provided by telephone.
(5) The lawfulness of a person’s detention
under a preventative detention order is not affected by a failure to comply
with subsection 105.28(1) or 105.29(1), section 105.30 or
subsection (3) of this section.
105.32
Copy of preventative detention order
(1) As soon as practicable after a person is
first taken into custody under an initial preventative detention order, the
police officer who is detaining the person under the order must give the person
a copy of the order.
(3) Despite subsection 105.19(2), a police
officer does not need to have a copy of the order with him or her, or to
produce a copy of the order to the person being taken into custody, when the
police officer takes the person into custody.
(4) As soon as practicable after a continued
preventative detention order is made in relation to a person in relation to
whom an initial preventative detention order is in force, the police officer
who is detaining the person under the initial preventative detention order, or
the continued preventative detention order, must give the person a copy of the
continued preventative detention order.
(5) As soon as practicable after a
preventative detention order is extended, or further extended, under
section 105.10 or 105.14, the police officer who is detaining the person
under the preventative detention order must give the person a copy of the
extension or further extension.
(6) A person who is being detained under a
preventative detention order may request a police officer who is detaining the
person to arrange for a copy of:
(a) the order; or
(c) any extension or further extension
of the order under section 105.10 or 105.14;
to be given to a lawyer acting for the person in relation
to the order.
Note 1: Section 105.37 deals with the person’s
right to contact a lawyer and the obligation of the police officer detaining
the person to give the person assistance to choose a lawyer.
Note 2: Section 105.40 prevents the person from
contacting a lawyer who is specified in a prohibited contact order.
(7) The police officer must make arrangements
for a copy of the order, or the extension or further extension, to be given to
the lawyer as soon as practicable after the request is made.
(8) Without limiting subsection (7), the
copy of the order, or the extension, may be faxed or emailed to the lawyer.
(9) To avoid doubt, subsection (7) does
not entitle the lawyer to be given a copy of, or see, a document other than the
order, or the extension or further extension.
(10) Nothing in this section requires a copy of
a prohibited contact order to be given to a person.
(11) The police officer who gives:
(a) the person being detained under an
initial preventative detention order; or
(b) a lawyer acting for the person;
a copy of the initial preventative detention order under
this section must endorse on the copy the date on which, and time at which, the
person was first taken into custody under the order.
(12) The lawfulness of a person’s detention
under a preventative detention order is not affected by a failure to comply with
subsection (1), (4), (5), (7) or (11).
Subdivision E—Treatment of person
detained
105.33
Humane treatment of person being detained
A person being taken into custody, or
being detained, under a preventative detention order:
(a) must be treated with humanity and
with respect for human dignity; and
(b) must not be subjected to cruel,
inhuman or degrading treatment;
by anyone exercising authority under the order or
implementing or enforcing the order.
Note: A contravention of this section may be an offence
under section 105.45.
105.33A
Detention of persons under 18
(1) Subject to subsection (2), the
police officer detaining a person who is under 18 years of age under a
preventative detention order must ensure that the person is not detained
together with persons who are 18 years of age or older.
Note: A contravention of this subsection may be an
offence under section 105.45.
(2) Subsection (1) does not apply if a
senior AFP member approves the person being detained together with persons who
are 18 years of age or older.
(3) The senior AFP member may give an
approval under subsection (2) only if there are exceptional circumstances
justifying the giving of the approval.
(4) An approval under subsection (2)
must:
(a) be given in writing; and
(b) set out the exceptional
circumstances that justify the giving of the approval.
105.34
Restriction on contact with other people
Except as provided by
sections 105.35, 105.36, 105.37 and 105.39, while a person is being
detained under a preventative detention order, the person:
(a) is not entitled to contact another
person; and
(b) may be prevented from contacting
another person.
Note 1: This section will not apply to the person if
the person is released from detention under the order (even though the order may
still be in force in relation to the person).
Note 2: A person’s entitlement to contact other people
under sections 105.35, 105.37 and 105.39 may be subject to a prohibited
contact order made under section 105.15 or 105.16 (see
section 105.40).
105.35
Contacting family members etc.
(1) The person being detained is entitled to
contact:
(a) one of his or her family members;
and
(b) if he or she:
(i) lives with another
person and that other person is not a family member of the person being
detained; or
(ii) lives with other
people and those other people are not family members of the person being
detained;
that other person or one of
those other people; and
(c) if he or she is employed—his or
her employer; and
(d) if he or she employs people in a
business—one of the people he or she employs in that business; and
(e) if he or she engages in a business
together with another person or other people—that other person or one of those
other people; and
(f) if the police officer detaining
the person being detained agrees to the person contacting another person—that
person;
by telephone, fax or email but solely for the purposes of
letting the person contacted know that the person being detained is safe but is
not able to be contacted for the time being.
(2) To avoid doubt, the person being detained
is not entitled, under subsection (1), to disclose:
(a) the fact that a preventative
detention order has been made in relation to the person; or
(b) the fact that the person is being
detained; or
(c) the period for which the person is
being detained.
(3) In this section:
family member of a person means:
(a) the person’s spouse, de facto
spouse or same‑sex partner; or
(b) a parent, step‑parent or
grandparent of the person; or
(c) a child, step‑child or
grandchild of the person; or
(d) a brother, sister, step‑brother
or step‑sister of the person; or
(e) a guardian or carer of the person.
105.36
Contacting Ombudsman etc.
(1) The person being detained is entitled to
contact:
(a) the Commonwealth Ombudsman in accordance
with subsections 7(3) to (5) of the Ombudsman Act 1976; or
(b) a person referred to in subsection
40SA(1) of the Australian Federal Police Act 1979 in accordance with
section 40SB of that Act.
Note 1: Subsections 7(3) to (5) of the Ombudsman Act
1976 provide for the manner in which a person who is in custody may make a
complaint to the Commonwealth Ombudsman under that Act.
Note 2: Section 40SB of the Australian Federal
Police Act 1979 provides for the manner in which a person who is in custody
may give information under section 40SA of that Act.
(2) If the person being detained has the
right, under a law of a State or Territory, to complain to an officer or
authority of the State or Territory about the treatment of the person by a
member of the police force of that State or Territory in connection with the
person’s detention under the order, the person is entitled to contact that
officer or authority to make a complaint in accordance with that law.
105.37
Contacting lawyer
(1) The person being detained is entitled to
contact a lawyer but solely for the purpose of:
(a) obtaining advice from the lawyer
about the person’s legal rights in relation to:
(i) the preventative
detention order; or
(ii) the treatment of the
person in connection with the person’s detention under the order; or
(b) arranging for the lawyer to act
for the person in relation to, and instructing the lawyer in relation to,
proceedings in a federal court for a remedy relating to:
(i) the preventative
detention order; or
(ii) the treatment of the
person in connection with the person’s detention under the order; or
(c) arranging for the lawyer to act
for the person in relation to, and instructing the lawyer in relation to, a
complaint to the Commonwealth Ombudsman under the Ombudsman Act 1976 in
relation to:
(i) the application for,
or the making of, the preventative detention order; or
(ii) the treatment of the
person by an AFP member in connection with the person’s detention under the
order; or
(ca) arranging for the lawyer to act
for the person in relation to, and instructing the lawyer in relation to, the
giving of information under section 40SA of the Australian Federal
Police Act 1979 in relation to:
(i) the application for,
or the making of, the preventative detention order; or
(ii) the treatment of the
person by an AFP member in connection with the person’s detention under the
order; or
(d) arranging for the lawyer to act
for the person in relation to, and instructing the lawyer in relation to, a
complaint to an officer or authority of a State or Territory about the
treatment of the person by a member of the police force of that State or
Territory in connection with the person’s detention under the order; or
(e) arranging for the lawyer to act
for the person in relation to an appearance, or hearing, before a court that is
to take place while the person is being detained under the order.
(2) The form of contact that the person being
detained is entitled to have with a lawyer under subsection (1) includes:
(a) being visited by the lawyer; and
(b) communicating with the lawyer by
telephone, fax or email.
(3) If:
(a) the person being detained asks to
be allowed to contact a particular lawyer under subsection (1); and
(b) either:
(i) the person is not
entitled to contact that lawyer because of section 105.40 (prohibited
contact order); or
(ii) the person is not able
to contact that lawyer;
the police officer who is detaining the person must give
the person reasonable assistance to choose another lawyer for the person to
contact under subsection (1).
(3A) If the police officer who is detaining a
person under a preventative detention order has reasonable grounds to believe
that:
(a) the person is unable, because of
inadequate knowledge of the English language, or a disability, to communicate
with reasonable fluency in that language; and
(b) the person may have difficulties
in choosing or contacting a lawyer because of that inability;
the police officer must give the person reasonable
assistance (including, if appropriate, by arranging for the assistance of an
interpreter) to choose and contact a lawyer under subsection (1).
(4) In recommending lawyers to the person
being detained as part of giving the person assistance under
subsection (3) or (3A), the police officer who is detaining the person may
give priority to lawyers who have been given a security clearance at an
appropriate level by the Department.
(5) Despite subsection (4) but subject
to section 105.40, the person being detained is entitled under this section
to contact a lawyer who does not have a security clearance of the kind referred
to in subsection (4).
105.38
Monitoring contact under section 105.35 or 105.37
(1) The contact the person being detained has
with another person under section 105.35 or 105.37 may take place only if
it is conducted in such a way that the contact, and the content and meaning of
the communication that takes place during the contact, can be effectively
monitored by a police officer exercising authority under the preventative detention
order.
(2) The contact may take place in a language
other than English only if the content and meaning of the communication that
takes place during the contact can be effectively monitored with the assistance
of an interpreter.
(3) Without limiting subsection (2), the
interpreter referred to in that subsection may be a police officer.
(4) If the person being detained indicates
that he or she wishes the contact to take place in a language other than
English, the police officer who is detaining the person must:
(a) arrange for the services of an
appropriate interpreter to be provided if it is reasonably practicable to do so
during the period during which the person is being detained; and
(b) if it is reasonably practicable to
do so—arrange for those services to be provided as soon as practicable.
(5) Any communication between:
(a) a person who is being detained
under a preventative detention order; and
(b) a lawyer;
for a purpose referred to in paragraph 105.37(1)(a), (b),
(c), (ca), (d) or (e) is not admissible in evidence against the person in any
proceedings in a court.
105.39
Special contact rules for person under 18 or incapable of managing own affairs
(1) This section applies if the person being
detained under a preventative detention order:
(a) is under 18 years of age; or
(b) is incapable of managing his or
her affairs.
(2) The person is entitled, while being
detained under the order, to have contact with:
(a) a parent or guardian of the
person; or
(b) another person who:
(i) is able to represent
the person’s interests; and
(ii) is, as far as
practicable in the circumstances, acceptable to the person and to the police
officer who is detaining the person; and
(iii) is not an AFP member;
and
(iv) is not an AFP employee
(within the meaning of the Australian Federal Police Act 1979); and
(v) is not a member
(however described) of a police force of a State or Territory; and
(vi) is not an officer or
employee of the Australian Security Intelligence Organisation.
(3) To avoid doubt:
(a) if the person being detained (the detainee)
has 2 parents or 2 or more guardians, the detainee is entitled, subject to
section 105.40, to have contact under subsection (2) with each of
those parents or guardians; and
(b) the detainee is entitled to disclose
the following to a person with whom the detainee has contact under
subsection (2):
(i) the fact that a
preventative detention order has been made in relation to the detainee;
(ii) the fact that the
detainee is being detained;
(iii) the period for which
the detainee is being detained.
(4) The form of contact that the person being
detained is entitled to have with another person under subsection (2)
includes:
(a) being visited by that other
person; and
(b) communicating with that other
person by telephone, fax or email.
(5) The period for which the person being
detained is entitled to have contact with another person each day under
subsection (2) is:
(a) 2 hours; or
(b) such longer period as is specified
in the preventative detention order.
Note: Paragraph (b)—see subsections 105.8(7)
and 105.12(7).
(6) Despite subsection (5), the police
officer who is detaining the person may permit the person to have contact with
a person under subsection (2) for a period that is longer than the period
provided for in subsection (5).
(7) The contact that the person being
detained has with another person under subsection (2) must be conducted in
such a way that the content and meaning of any communication that takes place
during the contact can be effectively monitored by a police officer exercising
authority under the preventative detention order.
(8) If the communication that takes place
during the contact takes place in a language other than English, the contact
may continue only if the content and meaning of the communication in that
language can be effectively monitored with the assistance of an interpreter.
(9) Without limiting subsection (8), the
interpreter referred to in that subsection may be a police officer.
(10) If the person being detained indicates
that he or she wishes the communication that takes place during the contact to
take place in a language other than English, the police officer who is
detaining the person must:
(a) arrange for the services of an
appropriate interpreter to be provided if it is reasonably practicable to do so
during the period during which the person is being detained; and
(b) if it is reasonably practicable to
do so—arrange for those services to be provided as soon as practicable.
105.40
Entitlement to contact subject to prohibited contact order
Sections 105.35, 105.37 and 105.39
have effect subject to any prohibited contact order made in relation to the
person’s detention.
105.41
Disclosure offences
Person being detained
(1) A person (the subject)
commits an offence if:
(a) the subject is being detained
under a preventative detention order; and
(b) the subject discloses to another
person:
(i) the fact that a
preventative detention order has been made in relation to the subject; or
(ii) the fact that the
subject is being detained; or
(iii) the period for which
the subject is being detained; and
(c) the disclosure occurs while the
subject is being detained under the order; and
(d) the disclosure is not one that the
subject is entitled to make under section 105.36, 105.37 or 105.39.
Penalty: Imprisonment for 5 years.
Lawyer
(2) A person (the lawyer)
commits an offence if:
(a) a person being detained under a
preventative detention order (the detainee) contacts the lawyer
under section 105.37; and
(b) the lawyer discloses to another
person:
(i) the fact that a
preventative detention order has been made in relation to the detainee; or
(ii) the fact that the
detainee is being detained; or
(iii) the period for which
the detainee is being detained; or
(iv) any information that
the detainee gives the lawyer in the course of the contact; and
(c) the disclosure occurs while the
detainee is being detained under the order; and
(d) the disclosure is not made for the
purposes of:
(i) proceedings in a
federal court for a remedy relating to the preventative detention order or the
treatment of the detainee in connection with the detainee’s detention under the
order; or
(ii) a complaint to the
Commonwealth Ombudsman under the Ombudsman Act 1976 in relation to the
application for, or making of, the preventative detention order or the
treatment of the detainee by an AFP member in connection with the detainee’s
detention under the order; or
(iia) the giving of
information under section 40SA of the Australian Federal Police Act
1979 in relation to the application for, or making of, the preventative
detention order or the treatment of the detainee by an AFP member in connection
with the detainee’s detention under the order; or
(iii) a complaint to an
officer or authority of a State or Territory about the treatment of the
detainee by a member of the police force of that State or Territory in
connection with the detainee’s detention under the order; or
(iv) making representations
to the senior AFP member nominated under subsection 105.19(5) in relation to
the order, or another police officer involved in the detainee’s detention,
about the exercise of powers under the order, the performance of obligations in
relation to the order or the treatment of the detainee in connection with the
detainee’s detention under the order.
Penalty: Imprisonment for 5 years.
Person having special contact with detainee who is
under 18 years of age or incapable of managing own affairs
(3) A person (the parent/guardian)
commits an offence if:
(a) a person being detained under a
preventative detention order (the detainee) has contact with the
parent/guardian under section 105.39; and
(b) the parent/guardian discloses to
another person:
(i) the fact that a
preventative detention order has been made in relation to the detainee; or
(ii) the fact that the
detainee is being detained; or
(iii) the period for which
the detainee is being detained; or
(iv) any information that
the detainee gives the parent/guardian in the course of the contact; and
(c) the other person is not a person
the detainee is entitled to have contact with under section 105.39; and
(d) the disclosure occurs while the
detainee is being detained under the order; and
(e) the disclosure is not made for the
purposes of:
(i) a complaint to the
Commonwealth Ombudsman under the Ombudsman Act 1976 in relation to the
application for, or the making of, the preventative detention order or the
treatment of the detainee by an AFP member in connection with the detainee’s
detention under the order; or
(ia) the giving of
information under section 40SA of the Australian Federal Police Act
1979 in relation to the application for, or the making of, the preventative
detention order or the treatment of the detainee by an AFP member in connection
with the detainee’s detention under the order; or
(ii) a complaint to an
officer or authority of a State or Territory about the treatment of the
detainee by a member of the police force of that State or Territory in
connection with the detainee’s detention under the order; or
(iii) making representations
to the senior AFP member nominated under subsection 105.19(5) in relation to
the order, or another police officer involved in the detainee’s detention,
about the exercise of powers under the order, the performance of obligations in
relation to the order or the treatment of the detainee in connection with the
detainee’s detention under the order.
Penalty: Imprisonment for 5 years.
(4) To avoid doubt, a person does not
contravene subsection (3) merely by letting another person know that the
detainee is safe but is not able to be contacted for the time being.
(4A) A person (the parent/guardian)
commits an offence if:
(a) the parent/guardian is a parent or
guardian of a person who is being detained under a preventative detention order
(the detainee); and
(b) the detainee has contact with the
parent/guardian under section 105.39; and
(c) while the detainee is being
detained under the order, the parent/guardian discloses information of the kind
referred to in paragraph (3)(b) to another parent or guardian of the
detainee (the other parent/guardian); and
(d) when the disclosure is made, the
detainee has not had contact with the other parent/guardian under
section 105.39 while being detained under the order; and
(e) the parent/guardian does not,
before making the disclosure, inform the senior AFP member nominated under
subsection 105.19(5) in relation to the order that the parent/guardian is
proposing to disclose information of that kind to the other parent/guardian.
Penalty: Imprisonment for 5 years.
(4B) If:
(a) a person (the parent/guardian)
is a parent or guardian of a person being detained under a preventative
detention order (the detainee); and
(b) the parent/guardian informs the
senior AFP member nominated under subsection 105.19(5) in relation to the order
that the parent/guardian proposes to disclose information of the kind referred
to in paragraph (3)(b) to another parent or guardian of the detainee (the other
parent/guardian);
that senior AFP member may inform the parent/guardian that
the detainee is not entitled to contact the other parent/guardian under
section 105.39.
Note: The parent/guardian may commit an offence
against subsection (2) if the other parent/guardian is a person the
detainee is not entitled to have contact with under section 105.39 and the
parent/guardian does disclose information of that kind to the other
parent/guardian. This is because of the operation of paragraph (3)(c).
Interpreter assisting in monitoring contact with
detainee
(5) A person (the interpreter)
commits an offence if:
(a) the interpreter is an interpreter
who assists in monitoring the contact that a person being detained under a
preventative detention order (the detainee) has with someone
while the detainee is being detained under the order; and
(b) the interpreter discloses to
another person:
(i) the fact that a
preventative detention order has been made in relation to the detainee; or
(ii) the fact that the
detainee is being detained; or
(iii) the period for which the
detainee is being detained; or
(iv) any information that
interpreter obtains in the course of assisting in the monitoring of that
contact; and
(c) the disclosure occurs while the
detainee is being detained under the order.
Penalty: Imprisonment for 5 years.
Passing on improperly disclosed information
(6) A person
(the disclosure recipient) commits an offence if:
(a) a person (the earlier
discloser) discloses to the disclosure recipient:
(i) the fact that a
preventative detention order has been made in relation to a person; or
(ii) the fact that a person
is being detained under a preventative detention order; or
(iii) the period for which a
person is being detained under a preventative detention order; or
(iv) any information that a
person who is being detained under a preventative detention order communicates
to a person while the person is being detained under the order; and
(b) the disclosure by the earlier
discloser to the disclosure recipient contravenes:
(i) subsection (1),
(2), (3) or (5); or
(ii) this subsection; and
(c) the disclosure recipient discloses
that information to another person; and
(d) the disclosure by the disclosure
recipient occurs while the person referred to in subparagraph (a)(i),
(ii), (iii) or (iv) is being detained under the order.
Penalty: Imprisonment for 5 years.
Police officer or interpreter monitoring contact with
lawyer
(7) A person (the monitor)
commits an offence if:
(a) the monitor is:
(i) a police officer who
monitors; or
(ii) an interpreter who
assists in monitoring;
contact that a person being
detained under a preventative detention order (the detainee) has
with a lawyer under section 105.37 while the detainee is being detained
under the order; and
(b) information is communicated in the
course of that contact; and
(c) the information is communicated
for one of the purposes referred to in subsection 105.37(1); and
(d) the monitor discloses that
information to another person.
Penalty: Imprisonment for 5 years.
Note: See also subsection 105.38(5).
105.42
Questioning of person prohibited while person is detained
(1) A police officer must not question a
person while the person is being detained under a preventative detention order
except for the purposes of:
(a) determining whether the person is
the person specified in the order; or
(b) ensuring the safety and well‑being
of the person being detained; or
(c) allowing the police officer to
comply with a requirement of this Division in relation to the person’s
detention under the order.
Note 1: This subsection will not apply to the person if
the person is released from detention under the order (even though the order
may still be in force in relation to the person).
Note 2: A contravention of this subsection may be an
offence under section 105.45.
(2) An officer or employee of the Australian
Security Intelligence Organisation must not question a person while the person
is being detained under a preventative detention order.
Note 1: This subsection will not apply to the person if
the person is released from detention under the order (even though the order
may still be in force in relation to the person).
Note 2: A contravention of this subsection may be an
offence under section 105.45.
(3) An AFP member, or an officer or employee
of the Australian Security Intelligence Organisation, must not question a
person while the person is being detained under an order made under a
corresponding State preventative detention law.
Note 1: This subsection will not apply to the person if
the person is released from detention under the order (even though the order
may still be in force in relation to the person).
Note 2: A contravention of this subsection may be an
offence under section 105.45.
(4) If a police officer questions a person
while the person is being detained under a preventative detention order, the
police officer who is detaining the person must ensure that:
(a) a video recording is made of the
questioning if it is practicable to do so; or
(b) an audio recording is made of the
questioning if it is not practicable for a video recording to be made of the
questioning.
Note: A contravention of this subsection may be an
offence under section 105.45.
(5) Subsection (4) does not apply if:
(a) the questioning occurs to:
(i) ensure the safety and
well being of the person being detained; or
(ii) determine whether the
person is the person specified in the order; and
(b) complying with subsection (4)
is not practicable because of the seriousness and urgency of the circumstances
in which the questioning occurs.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (5) (see subsection 13.3(3)).
(6) A recording made under
subsection (4) must be kept for the period of 12 months after the
recording is made.
105.43
Taking fingerprints, recordings, samples of handwriting or photographs
(1) A police
officer must not take identification material from a person who is being
detained under a preventative detention order except in accordance with this
section.
Note: A contravention of this subsection may be an
offence under section 105.45.
(2) A police officer who is of the rank of
sergeant or higher may take identification material from the person, or cause
identification material from the person to be taken, if:
(a) the person consents in writing; or
(b) the police officer believes on
reasonable grounds that it is necessary to do so for the purpose of confirming
the person’s identity as the person specified in the order.
(3) A police officer may use such force as is
necessary and reasonable in the circumstances to take identification material
from a person under this section.
(4) Subject to this section, a police officer
must not take identification material (other than hand prints, fingerprints,
foot prints or toe prints) from the person if the person:
(a) is under 18 years of age; or
(b) is incapable of managing his or
her affairs;
unless a Federal Magistrate orders that the material be
taken.
Note: A contravention of this subsection may be an
offence under section 105.45.
(5) In deciding whether to make such an
order, the Federal Magistrate must have regard to:
(a) the age, or any disability, of the
person; and
(b) such other matters as the Federal
Magistrate thinks fit.
(6) The taking of identification material
from a person who:
(a) is under 18 years of age; or
(b) is incapable of managing his or
her affairs;
must be done in the presence of:
(c) a parent or guardian of the
person; or
(d) if a parent or guardian of the
person is not acceptable to the person—another appropriate person.
Note 1: For appropriate person, see
subsection (11).
Note 2: A contravention of this subsection may be an
offence under section 105.45.
(7) Despite this section, identification
material may be taken from a person who is under 18 years of age and is capable
of managing his or her affairs if:
(a) subsections (8) and (9) are
satisfied; or
(b) subsection (8) or (9) is
satisfied (but not both) and a Federal Magistrate orders that the material be
taken.
In deciding whether to make such an order, the Federal
Magistrate must have regard to the matters set out in subsection (5).
(8) This subsection applies if the person
agrees in writing to the taking of the material.
(9) This subsection applies if either:
(a) a parent or guardian of the
person; or
(b) if a parent or guardian is not
acceptable to the person—another appropriate person;
agrees in writing to the taking of the material.
Note: For appropriate person, see
subsection (11).
(10) Despite this section, identification
material may be taken from a person who:
(a) is at least 18 years of age; and
(b) is capable of managing his or her
affairs;
if the person consents in writing.
(11) A reference in this section to an appropriate
person in relation to a person (the subject) who is under
18 years of age, or incapable of managing his or her affairs, is a reference to
a person who:
(a) is capable of representing the
subject’s interests; and
(b) as far as is practicable in the
circumstances, is acceptable to the subject and the police officer who is
detaining the subject; and
(c) is none of the following:
(i) an AFP member;
(ii) an AFP employee
(within the meaning of the Australian Federal Police Act 1979);
(iii) a member (however
described) of a police force of a State or Territory;
(iv) an officer or employee
of the Australian Security Intelligence Organisation.
105.44
Use of identification material
(1) This section applies if identification
material is taken under section 105.43 from a person being detained under
a preventative detention order.
(2) The material may be used only for the
purpose of determining whether the person is the person specified in the order.
Note: A contravention of this subsection may be an
offence under section 105.45.
(3) If:
(a) a period of 12 months elapses
after the identification material is taken; and
(b) proceedings in respect of:
(i) the preventative
detention order; or
(ii) the treatment of the person in connection with the
person’s detention under the order;
have
not been brought, or have been brought and discontinued or completed, within
that period;
the material must be destroyed as soon as practicable
after the end of that period.
105.45 Offences of contravening safeguards
A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct contravenes:
(i) subsection 105.28(1);
or
(ii) subsection 105.29(1);
or
(iii) section 105.30;
or
(iv) section 105.33; or
(iva) subsection 105.33A(1);
or
(v) subsection 105.42(1),
(2), (3) or (4); or
(vi) subsection 105.43(1),
(4) or (6); or
(vii) subsection 105.44(2).
Penalty: Imprisonment for 2 years.
Subdivision F—Miscellaneous
105.46
Nature of functions of Federal Magistrate
(1) A function of making an order conferred
on a Federal Magistrate by section 105.43 is conferred on the Federal Magistrate
in a personal capacity and not as a court or a member of a court.
(2) Without limiting the generality of
subsection (1), an order made by a Federal Magistrate under
section 105.43 has effect only by virtue of this Act and is not to be
taken by implication to be made by a court.
(3) A Federal Magistrate performing a
function of, or connected with, making an order under section 105.43 has
the same protection and immunity as if he or she were performing that function
as, or as a member of, the Federal Magistrates Court.
105.47
Annual report
(1) The Attorney‑General must, as soon
as practicable after each 30 June, cause to be prepared a report about the
operation of this Division during the year ended on that 30 June.
(2) Without limiting subsection (1), a
report relating to a year must include the following matters:
(a) the number of initial preventative
detention orders made under section 105.8 during the year;
(b) the number of continued
preventative detention orders made under section 105.12 during the year;
(c) whether a person was taken into
custody under each of those orders and, if so, how long the person was detained
for;
(d) particulars of:
(i) any complaints made or
referred to the Commonwealth Ombudsman during the year that related to the
detention of a person under a preventative detention order; and
(ii) any information given
under section 40SA of the Australian Federal Police Act 1979 during
the year that related to the detention of a person under a preventative
detention order and raised an AFP conduct or practices issue (within the
meaning of that Act);
(e) the number of prohibited contact
orders made under sections 105.15 and 105.16 during the year;
(f) the number of preventative
detention orders, and the number of prohibited contact orders, that a court has
found not to have been validly made or that the Administrative Appeals Tribunal
has declared to be void.
(3) The Attorney‑General must cause
copies of the report to be laid before each House of the Parliament within 15 sitting
days of that House after the report is completed.
105.48
Certain functions and powers not affected
This Division does not affect:
(a) a function or power of the
Commonwealth Ombudsman under the Ombudsman Act 1976; or
(b) a function or power of a person
under Part V of the Australian Federal Police Act 1979.
105.49
Queensland public interest monitor functions and powers not affected
This Division does not affect a function
or power that the Queensland public interest monitor, or a Queensland deputy
public interest monitor, has under a law of Queensland.
105.50
Law relating to legal professional privilege not affected
To avoid doubt, this Division does not
affect the law relating to legal professional privilege.
105.51
Legal proceedings in relation to preventative detention orders
(1) Subject to subsections (2) and (4),
proceedings may be brought in a court for a remedy in relation to:
(a) a preventative detention order; or
(b) the treatment of a person in
connection with the person’s detention under a preventative detention order.
(2) A court of a State or Territory does not
have jurisdiction in proceedings for a remedy if:
(a) the remedy relates to:
(i) a
preventative detention order; or
(ii) the
treatment of a person in connection with the person’s detention under a
preventative detention order; and
(b) the
proceedings are commenced while the order is in force.
(3) Subsection (2) has effect despite
any other law of the Commonwealth (whether passed or made before or after the
commencement of this section).
(4) An application cannot be made under the Administrative
Decisions (Judicial Review) Act 1977 in relation to a decision made under
this Division.
Note: See paragraph (dac) of Schedule 1 to
the Administrative Decisions (Judicial Review) Act 1977.
(5) An application may be made to the
Administrative Appeals Tribunal for review of:
(a) a decision by an issuing authority
under section 105.8 or 105.12 to make a preventative detention order; or
(b) a decision by an issuing authority
in relation to a preventative detention order to extend or further extend the
period for which the order is in force in relation to a person.
The application cannot be made while the order is in
force.
(6) The power of the Administrative Appeals
Tribunal to review a decision referred to in subsection (5) may be
exercised by the Tribunal only in the Security Appeals Division of the
Tribunal.
(7) The Administrative Appeals Tribunal may:
(a) declare a decision referred to in
subsection (5) in relation to a preventative detention order in relation
to a person to be void if the Tribunal would have set the decision aside if an
application for review of the decision had been able to be made to the Tribunal
while the order was in force; and
(b) determine that the Commonwealth
should compensate the person in relation to the person’s detention under the
order if the Tribunal declares the decision to be void under
paragraph (a).
(8) If the Administrative Appeals Tribunal
makes a determination under paragraph (7)(b), the Commonwealth is liable
to pay the compensation determined by the Tribunal.
(9) The provisions of the Administrative
Appeals Tribunal Act 1975 apply in relation to an application to the
Administrative Appeals Tribunal for review of a decision referred to in
subsection (5) with the modifications specified in the regulations made
under this Act.
105.52
Review by State and Territory courts
(1) This
section applies if:
(a) a person is detained under a
preventative detention order (the Commonwealth order) that is
made on the basis of:
(i) assisting in
preventing a terrorist act occurring within a period; or
(ii) preserving evidence
of, or relating to, a terrorist act; and
(b) the person is detained under an
order (the State order) that is made under a corresponding State
preventative detention law on the basis of:
(i) assisting in
preventing the same terrorist act, or a different terrorist act, occurring
within that period; or
(ii) preserving evidence
of, or relating to, the same terrorist act; and
(c) the person brings proceedings
before a court of a State or Territory in relation to:
(i) the application for,
or the making of, the State order; or
(ii) the person’s treatment
in connection with the person’s detention under the State order.
(2) The court may:
(a) review the application for, or the
making of, the Commonwealth order, or the person’s treatment in connection with
the person’s detention under the Commonwealth order, on the same grounds as
those on which the court may review the application for, or the making of, the
State order, or the person’s treatment in connection with the person’s
detention under the State order; and
(b) grant the same remedies in
relation to the application for, or the making of, the Commonwealth order, or
the person’s treatment in connection with the person’s detention under the
Commonwealth order, as those the court can grant in relation to the application
for, or the making of, the State order, or the person’s treatment in connection
with the person’s detention under the State order.
(3) If:
(a) the
person applies to the court for:
(i) review of the
application for, or the making of, the Commonwealth order or the person’s
treatment in connection with the person’s detention under the Commonwealth
order; or
(ii) a remedy in relation
to the application for, or the making of, the Commonwealth order or the
person’s treatment in connection with the person’s detention under the
Commonwealth order; and
(b) the person applies to the court
for an order under this subsection;
the court may order the Commissioner of the Australian
Federal Police to give the court, and the parties to the proceedings, the
information that was put before the person who issued the Commonwealth order
when the application for the Commonwealth order was made.
(4) Subsection (3) does not require
information to be given to the court, or the parties to the proceedings, if the
disclosure of the information is likely to prejudice national security (within
the meaning of the National Security Information (Criminal and Civil
Proceedings) Act 2004).
(5) This section has effect:
(a) without limiting subsection
105.51(1); and
(b) subject to subsection 105.51(2).
(6) Nothing in this section affects the
operation of the National Security Information (Criminal and Civil
Proceedings) Act 2004 in relation to the proceedings.
105.53
Sunset provision
(1) A preventative detention order, or a
prohibited contact order, that is in force at the end of 10 years after the day
on which this Division commences ceases to be in force at that time.
(2) A preventative detention order, and a
prohibited contact order, cannot be applied for, or made, after the end of 10
years after the day on which this Division commences.
Division 106—Transitional
provisions
106.1 Saving—regulations
originally made for the purposes of paragraph (c) of the definition of terrorist
organisation
(1) If:
(a) regulations were made before
commencement for the purposes of paragraph (c) of the definition of terrorist
organisation in subsection 102.1(1), as in force before commencement;
and
(b) the regulations were in force
immediately before commencement;
the regulations have effect, after commencement, as if
they had been made for the purposes of paragraph (b) of the definition of terrorist
organisation in subsection 102.1(1), as in force after commencement.
(2) In this section, commencement
means the commencement of this section.
106.2
Saving—regulations made for the purposes of paragraph (a) of the
definition of terrorist organisation
(1) If:
(a) regulations were made before
commencement for the purposes of paragraph (a) of the definition of terrorist
organisation in subsection 102.1(1), as in force before
commencement; and
(b) the regulations were in force
immediately before commencement;
the regulations continue to have effect, after
commencement, as if they had been made for the purposes of that paragraph, as
in force after commencement.
(2) In this section, commencement means
the commencement of this section.
106.3
Application provision
The amendments to this Code made by
Schedule 1 to the Anti‑Terrorism Act 2005 apply to offences
committed:
(a) before the commencement of this
section (but not before the commencement of the particular section of the Code
being amended); and
(b) after the commencement of this
section.
Part 5.4—Harming Australians
Division 115—Harming Australians
115.1
Murder of an Australian citizen or a resident of Australia
(1) A person is guilty of an offence if:
(a) the person engages in conduct
outside Australia; and
(b) the conduct causes the death of
another person; and
(c) the other person is an Australian
citizen or a resident of Australia; and
(d) the first‑mentioned person
intends to cause, or is reckless as to causing, the death of the Australian citizen
or resident of Australia or any other person by the conduct.
Penalty: Imprisonment for life.
(2) Absolute liability applies to paragraph (1)(c).
115.2
Manslaughter of an Australian citizen or a resident of Australia
(1) A person is guilty of an offence if:
(a) the person engages in conduct
outside Australia; and
(b) the conduct causes the death of
another person; and
(c) the other person is an Australian
citizen or a resident of Australia; and
(d) the first‑mentioned person
intends that the conduct will cause serious harm, or is reckless as to a risk
that the conduct will cause serious harm, to the Australian citizen or resident
of Australia or any other person.
Penalty: Imprisonment for 25 years.
(2) Absolute liability applies to paragraphs (1)(b)
and (c).
115.3
Intentionally causing serious harm to an Australian citizen or a resident of Australia
(1) A person is guilty of an offence if:
(a) the person engages in conduct
outside Australia; and
(b) the conduct causes serious harm to
another person; and
(c) the other person is an Australian
citizen or a resident of Australia; and
(d) the first‑mentioned person
intends to cause serious harm to the Australian citizen or resident of Australia
or any other person by the conduct.
Penalty: Imprisonment for 20 years.
(2) Absolute liability applies to paragraph (1)(c).
115.4
Recklessly causing serious harm to an Australian citizen or a resident of Australia
(1) A person is guilty of an offence if:
(a) the person engages in conduct
outside Australia; and
(b) the conduct causes serious harm to
another person; and
(c) the other person is an Australian
citizen or a resident of Australia; and
(d) the first‑mentioned person
is reckless as to causing serious harm to the Australian citizen or resident of
Australia or any other person by the conduct.
Penalty: Imprisonment for 15 years.
(2) Absolute liability applies to paragraph (1)(c).
115.5
Saving of other laws
This Division is not intended to exclude
or limit the operation of any other law of the Commonwealth or of a State or
Territory.
115.6
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.
115.7
Ministerial certificates relating to proceedings
(1) A Minister who administers one or more of
the following Acts:
(a) the Australian Citizenship Act
1948;
(b) the Migration Act 1958;
(c) the Australian Passports Act
2005;
may issue a certificate stating that a person is or was an
Australian citizen or a resident of Australia at a particular time.
(2) In any proceedings, a certificate under
this section is prima facie evidence of the matters in the certificate.
115.8
Geographical jurisdiction
Each offence against this Division
applies:
(a) whether or not a result of the
conduct constituting the alleged offence occurs in Australia; and
(b) if the alleged offence is an
ancillary offence and the conduct to which the ancillary offence relates occurs
outside Australia—whether or not the conduct constituting the ancillary offence
occurs in Australia.
115.9
Meaning of causes death or harm
In this Division, a person’s conduct causes
death or harm if it substantially contributes to the death or harm.
Chapter 7—The proper administration of Government
Part 7.1—Preliminary
Division 130—Preliminary
130.1
Definitions
In this Chapter:
duty:
(a) in relation to a person who is a
Commonwealth public official—means any authority, duty, function or power that:
(i) is conferred on the
person as a Commonwealth public official; or
(ii) the person holds
himself or herself out as having as a Commonwealth public official; and
(b) in relation to a person who is a
public official—means any authority, duty, function or power that:
(i) is conferred on the
person as a public official; or
(ii) the person holds
himself or herself out as having as a public official.
gain means:
(a) a gain in property, whether
temporary or permanent; or
(b) a gain by way of the supply of
services;
and includes keeping what one has.
loss means a loss in property, whether
temporary or permanent, and includes not getting what one might get.
obtaining includes:
(a) obtaining for another person; and
(b) inducing a third person to do
something that results in another person obtaining.
property includes:
(a) real property; and
(b) personal property; and
(c) money; and
(d) a thing in action or other
intangible property; and
(e) electricity; and
(f) a wild creature that is:
(i) tamed; or
(ii) ordinarily kept in
captivity; or
(iii) reduced (or in the
course of being reduced) into the possession of a person.
services includes any rights (including
rights in relation to, and interests in, real or personal property), benefits,
privileges or facilities, but does not include rights or benefits being the
supply of goods.
supply includes:
(a) in relation to goods—supply
(including re‑supply) by way of sale, exchange, lease, hire or hire‑purchase;
and
(b) in relation to services—provide,
grant or confer.
Note: The expression person includes a
Commonwealth entity. This is the combined effect of paragraph 22(1)(a) of the Acts
Interpretation Act 1901 (which provides that person includes
a body politic or corporate), and the definition of person in the
Dictionary.
130.2
When property belongs to a person
(1) For the purposes of this Chapter,
property belongs to a person if, and only if:
(a) the person has possession or
control of the property; or
(b) the person has a proprietary right
or interest in the property, other than an equitable interest arising only
from:
(i) an agreement to
transfer an interest; or
(ii) an agreement to grant
an interest; or
(iii) a constructive trust.
(2) Subsection (1) has effect subject to
subsections 134.1(9) and (10) (which deal with money transfers).
130.3
Dishonesty
For the
purposes of this Chapter, 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.
Note: The following provisions affect the meaning of
dishonesty:
(a) section 131.2 (theft);
(b) section 134.1 (obtaining property by
deception).
130.4
Determination of dishonesty to be a matter for the trier of fact
In a prosecution for an offence against
this Chapter, the determination of dishonesty is a matter for the trier of
fact.
Part 7.2—Theft and other property offences
Division 131—Theft
131.1
Theft
(1) A person is guilty of an offence if:
(a) the person dishonestly
appropriates property belonging to another with the intention of permanently
depriving the other of the property; and
(b) the property belongs to a
Commonwealth entity.
Penalty: Imprisonment for 10 years.
(2) For the purposes of this Code, an offence
against subsection (1) is to be known as the offence of theft.
(3) Absolute liability applies to the paragraph (1)(b)
element of the offence of theft.
(4) Section 15.4 (extended geographical
jurisdiction—category D) applies to an offence against subsection (1).
Note: For alternative verdicts, see sections 132.1
and 134.1.
131.2
Special rules about the meaning of dishonesty
(1) For the purposes of this Division, a
person’s appropriation of property belonging to another is taken not to be
dishonest if the person appropriates the property in the belief that the person
to whom the property belongs cannot be discovered by taking reasonable steps.
(2) However, the rule in subsection (1)
does not apply if the person appropriating the property held it as trustee or
personal representative.
(3) For the purposes of this Division, a
person’s appropriation of property belonging to another may be dishonest even
if the person or another person is willing to pay for the property.
131.3
Appropriation of property
(1) For the purposes of this Division, any
assumption of the rights of an owner to ownership, possession or control of
property, without the consent of the person to whom it belongs, amounts to an
appropriation of the property. This includes, in a case where a person has come
by property (innocently or not) without committing theft, any later such
assumption of rights without consent by keeping or dealing with it as owner.
(2) For the purposes of this Division, if
property, or a right or interest in property, is, or purports to be,
transferred or given to a person acting in good faith, a later assumption by
the person of rights which the person had believed himself or herself to be
acquiring does not, because of any defect in the transferor’s title, amount to
an appropriation of the property.
131.4
Theft of land or things forming part of land
(1) For the purposes of this Division, a person
cannot commit theft of land, except in the following cases:
(a) the case where the person
appropriates anything forming part of the land by severing it or causing it to
be severed;
(b) the case where:
(i) the person is a
trustee or personal representative, or is authorised (by power of attorney, as
liquidator of a company or otherwise) to sell or dispose of land belonging to
another; and
(ii) the person
appropriates the land, or anything forming part of it, by dealing with it in
breach of the confidence reposed in the person.
(2) For the purposes of this section, land
does not include incorporeal hereditaments.
131.5
Trust property
(1) For the purposes of this Division, if
property is subject to a trust, the persons to whom the property belongs include
any person who has a right to enforce the trust.
(2) Accordingly, for the purposes of this
Division, an intention to defeat the trust is an intention to deprive any such
person of the property.
131.6
Obligation to deal with property in a particular way
For the purposes of this Division, if:
(a) a person receives property from or
on account of another; and
(b) the person is under a legal
obligation to the other to retain and deal with that property or its proceeds
in a particular way;
the property or proceeds belong (as against the person) to
the other.
131.7
Property obtained because of fundamental mistake
(1) For the purposes of this Division, if:
(a) a person gets property by
another’s fundamental mistake; and
(b) the person is under a legal
obligation to make restoration (in whole or in part) of the property, its
proceeds or value;
then, to the extent of that obligation, the property or
proceeds belongs (as against the person) to the person entitled to restoration.
(2) For the purposes of this Division, an
intention not to make restoration is:
(a) an intention to permanently
deprive the person so entitled of the property or proceeds; and
(b) an appropriation of the property
or proceeds without the consent of the person entitled to restoration.
(3) For the purposes of this section, a fundamental
mistake is:
(a) a mistake about the identity of
the person getting the property; or
(b) a mistake as to the essential
nature of the property; or
(c) a mistake about the amount of any
money if the person getting the money is aware of the mistake at the time of
getting the money.
(4) In this
section:
money includes anything that is equivalent to
money. For this purpose, cheques, negotiable instruments and electronic funds
transfers are taken to be equivalent to money.
131.8
Property of a corporation sole
For the purposes of this Division,
property of a corporation sole belongs to the corporation despite a vacancy in
the corporation.
131.9
Property belonging to 2 or more persons
If property belongs to 2 or more
persons, a reference in this Division (other than paragraph 131.1(1)(b)) to the
person to whom the property belongs is a reference to all of those persons.
131.10
Intention of permanently depriving a person of property
(1) For the purposes of this Division, if:
(a) a person appropriates property
belonging to another without meaning the other permanently to lose the thing
itself; and
(b) the person’s intention is to treat
the thing as the person’s own to dispose of regardless of the other’s rights;
the person has the intention of permanently depriving the
other of it.
(2) For the purposes of this section, a
borrowing or lending of a thing amounts to treating the thing as the borrower’s
or lender’s own to dispose of regardless of another’s rights if, and only if,
the borrowing or lending is for a period and in circumstances making it
equivalent to an outright taking or disposal.
(3) For the purposes of this section, if:
(a) a person has possession or control
(lawfully or not) of property belonging to another; and
(b) the person parts with the property
under a condition as to its return that the person may not be able to perform;
and
(c) the parting is done for purposes
of the person’s own and without the other’s authority;
the parting is taken to amount to treating the property as
the person’s own to dispose of regardless of the other’s rights.
Note: See also paragraph 131.7(2)(a).
131.11
General deficiency
(1) For the purposes of this Division, a
person may be convicted of theft of all or any part of a general deficiency in
money even though the deficiency is made up of any number of particular sums of
money that were appropriated over a period of time.
(2) For the purposes of this Division, a
person may be convicted of theft of all or any part of a general deficiency in
property other than money even though the deficiency is made up of any number
of particular items of property that were appropriated over a period of time.
Division 132—Other property offences
132.1
Receiving
(1) A person is guilty of an offence if the
person dishonestly receives stolen property, knowing or believing the property
to be stolen.
Penalty: Imprisonment for 10 years.
(2) For the purposes of this Code, an offence
against subsection (1) is to be known as the offence of receiving.
(2A) In a prosecution for an offence against subsection (1),
it is not necessary to prove that the defendant knew or believed that the
property belonged to a Commonwealth entity.
Stolen property
(3) For the purposes of this section,
property is stolen property if, and only if:
(a) it is original stolen property (as
defined by subsection (5)); or
(aa) it is previously received property
(as defined by subsection (5A)); or
(b) it is tainted property (as defined
by subsection (7)).
This subsection has effect subject to subsections (4)
and (6).
(4) For the purposes of this section, stolen
property does not include land obtained in the course of an offence
against section 134.1.
Original stolen property
(5) For the purposes of this section, original
stolen property is:
(a) property, or a part of property,
that:
(i) was appropriated in
the course of theft (whether or not the property, or the part of the property,
is in the state it was in when it was so appropriated); and
(ii) is in the possession
or custody of the person who so appropriated the property; or
(b) property, or a part of property,
that:
(i) was
obtained in the course of an offence against section 134.1 (whether or not
the property, or the part of the property, is in the state it was in when it
was so obtained); and
(ii) is in the possession
or custody of the person who so obtained the property or the person for whom
the property was so obtained.
Previously received property
(5A) For the purposes of this section, previously
received property is property that:
(a) was received in the course of an
offence against subsection (1); and
(b) is in the possession or custody of
the person who received the property in the course of that offence.
(6) For the purposes of this section,
property ceases to be original stolen property or previously received property:
(a) after the property is restored:
(i) to the person from
whom it was appropriated or obtained; or
(ii) to other lawful
possession or custody; or
(b) after:
(i) the person from whom
the property was appropriated or obtained ceases to have any right to
restitution in respect of the property; or
(ii) a person claiming
through the person from whom the property was appropriated or obtained ceases
to have any right to restitution in respect of the property.
Tainted property
(7) For the purposes of this section, tainted
property is property that:
(a) is (in whole or in part) the
proceeds of sale of, or property exchanged for:
(i) original stolen
property; or
(ii) previously received
property; and
(b) if subparagraph (a)(i)
applies—is in the possession or custody of:
(i) if the original stolen
property was appropriated in the course of theft—the person who so appropriated
the original stolen property; or
(ii) if the original stolen
property was obtained in the course of an offence against section 134.1—the
person who so obtained the property or the person for whom the property was so
obtained; and
(c) if subparagraph (a)(ii)
applies—is in the possession or custody of the person who received the
previously received property in the course of an offence against subsection (1).
Money transfers
(8) For the purposes of this section, if, as
a result of the application of subsection 134.1(9) or (10), an amount credited
to an account held by a person is property obtained in the course of an offence
against section 134.1:
(a) while the whole or any part of the
amount remains credited to the account, the property is taken to be in the
possession of the person; and
(b) if the person fails to take such
steps as are reasonable in the circumstances to secure that the credit is
cancelled—the person is taken to have received the property; and
(c) subsection (6) of this
section does not apply to the property.
Note: Subsections 134.1(9) and (10) deal with money
transfers.
Alternative verdicts
(9) If, in a prosecution for an offence of
theft or an offence against section 134.1, the trier of fact is not
satisfied that the defendant is guilty of the offence, but is satisfied beyond
reasonable doubt that the defendant is guilty of an offence of receiving, the
trier of fact may find the defendant not guilty of the offence of theft or the
section 134.1 offence but guilty of the offence of receiving, so long as
the defendant has been accorded procedural fairness in relation to that finding
of guilt.
(10) If, in a prosecution for an offence of
receiving, the trier of fact is not satisfied that the defendant is guilty of
the offence, but is satisfied beyond reasonable doubt that the defendant is
guilty of an offence of theft or an offence against section 134.1, the
trier of fact may find the defendant not guilty of the offence of receiving but
guilty of the offence of theft or the section 134.1 offence, so long as
the defendant has been accorded procedural fairness in relation to that finding
of guilt.
Receiving property stolen before commencement
(11) For the purposes of this section:
(a) it is to be assumed that sections 131.1
and 134.1 had been in force at all times before the commencement of this
section; and
(b) property that was appropriated or
obtained at a time before the commencement of this section does not become original
stolen property unless the property was appropriated or obtained in
circumstances that (apart from paragraph (a)) amounted to an offence
against a law of the Commonwealth in force at that time.
Obtaining
(12) The definition of obtaining
in section 130.1 does not apply to this section.
Note: See subsection 134.1(3).
Definition
(13) In this section:
account has the same meaning as in section 133.1.
132.2
Robbery
(1) A person is guilty of an offence if the
person commits theft and:
(a) immediately before committing
theft, the person:
(i) uses force on another
person; or
(ii) threatens to use force
then and there on another person;
with intent to commit theft or
to escape from the scene; or
(b) at the time of committing theft,
or immediately after committing theft, the person:
(i) uses force on another
person; or
(ii) threatens to use force
then and there on another person;
with intent to commit theft or
to escape from the scene.
Penalty: Imprisonment for 15 years.
(2) For the purposes of this Code, an offence
against subsection (1) is to be known as the offence of robbery.
Note: Theft means an offence against
section 131.1. Under section 131.1, an element of the offence of
theft is that the property belongs to a Commonwealth entity.
(3) In a prosecution for an offence against subsection (1),
it is not necessary to prove that the defendant knew that the property belonged
to a Commonwealth entity.
132.3
Aggravated robbery
(1) A person is guilty of an offence if the
person:
(a) commits a robbery in company with
one or more other persons; or
(b) commits a robbery and, at the time
of the robbery, has an offensive weapon with him or her.
Penalty: Imprisonment for 20 years.
(2) For the purposes of this Code, an offence
against subsection (1) is to be known as the offence of aggravated
robbery.
Note: Robbery means an offence against
section 132.2. Under section 132.2, an element of the offence of
robbery is that the defendant commits theft. Theft means an
offence against section 131.1. Under section 131.1, an element of the
offence of theft is that the property belongs to a Commonwealth entity.
(2A) In a prosecution for an offence against subsection (1),
it is not necessary to prove that the defendant knew that the property belonged
to a Commonwealth entity.
(3) 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.
132.4
Burglary
(1) A person is guilty of an offence if:
(a) the person enters, or remains in,
a building, as a trespasser, with intent to commit theft of a particular item
of property in the building; and
(b) the property belongs to a
Commonwealth entity.
Penalty: Imprisonment for 13 years.
(2) For the purposes of this Code, an offence
against subsection (1) is to be known as the offence of burglary.
(2A) In a prosecution for an offence against subsection (1),
it is not necessary to prove that the defendant knew that the property belonged
to a Commonwealth entity.
(3) A person is guilty of an offence if:
(a) the person enters, or remains in,
a building, as a trespasser, with intent to commit an offence in the building
that involves causing harm to another person or damage to property; and
(aa) the offence referred to in paragraph (a)
is an offence against a law of the Commonwealth; and
(b) the offence referred to in paragraph (a)
is punishable by imprisonment for life or for a term of 5 years or more.
Penalty: Imprisonment for 13 years.
(3A) In a prosecution for an offence against subsection (3),
it is not necessary to prove that the defendant knew that the offence referred
to in paragraph (3)(a) is an offence against a law of the Commonwealth.
(4) In a prosecution for an offence against subsection (3),
it is not necessary to prove that the defendant knew that the offence referred
to in paragraph (3)(a) is punishable by imprisonment for life or for a
term of 5 years or more.
(5) For the purposes of this Code, an offence
against subsection (3) is also to be known as the offence of burglary.
(6) A person is guilty of an offence if:
(a) the person enters, or remains in,
a building, as a trespasser, with intent to commit an offence in the building
that involves causing harm to another person or damage to property; and
(aa) the offence referred to in paragraph (a)
is an offence against a law of the Commonwealth, a State or a Territory; and
(b) the offence referred to in paragraph (a)
is punishable by imprisonment for life or for a term of 5 years or more; and
(c) the building is owned or occupied
by a Commonwealth entity.
Penalty: Imprisonment for 13 years.
(6A) In a prosecution for an offence against subsection (6),
it is not necessary to prove that the defendant knew that the offence referred
to in paragraph (6)(a) is an offence against a law of the Commonwealth, a
State or a Territory.
(7) In a prosecution for an offence against subsection (6),
it is not necessary to prove that the defendant knew that the offence referred
to in paragraph (6)(a) is punishable by imprisonment for life or for a
term of 5 years or more.
(8) Absolute liability applies to the paragraph (6)(c)
element of the offence.
(9) For the purposes of this Code, an offence
against subsection (6) is also to be known as the offence of burglary.
(10) For the purposes of this section, a person
is taken not to be a trespasser:
(a) merely because the person is
permitted to enter, or remain in, a building for a purpose that is not the
person’s intended purpose; or
(b) if the person is permitted to
enter, or remain in, a building as a result of fraud, misrepresentation or
another person’s mistake.
(12) In this
section:
building includes:
(a) a part of a building; or
(b) a mobile home or a caravan; or
(c) a structure (whether or not
movable), a vehicle, or a vessel, that is used, designed or adapted for
residential purposes.
132.5
Aggravated burglary
(1) A person is guilty of an offence if the
person:
(a) commits a burglary in company with
one or more other persons; or
(b) commits a burglary, and at the
time of the burglary, has an offensive weapon with him or her.
Penalty: Imprisonment for 17 years.
(2) For the purposes of this Code, an offence
against subsection (1) is to be known as the offence of aggravated
burglary.
(3) In a prosecution for an offence against subsection (1)
in relation to the offence of burglary created by subsection 132.4(1), it is
not necessary to prove that the defendant knew that the property concerned
belonged to a Commonwealth entity.
(4) In a prosecution for an offence against subsection (1)
in relation to the offence of burglary created by subsection 132.4(3), it is
not necessary to prove that:
(a) the defendant knew that the
offence referred to in paragraph 132.4(3)(a) is an offence against a law of the
Commonwealth; or
(b) the defendant knew that the
offence referred to in paragraph 132.4(3)(a) is punishable by imprisonment for
life or for a term of 5 years or more.
(5) In a prosecution for an offence against subsection (1)
in relation to the offence of burglary created by subsection 132.4(6), it is
not necessary to prove that:
(a) the defendant knew that the
offence referred to in paragraph 132.4(6)(a) is an offence against a law of the
Commonwealth, a State or a Territory; or
(b) the defendant knew that the
offence referred to in paragraph 132.4(6)(a) is punishable by imprisonment for
life or for a term of 5 years or more; or
(c) the defendant knew that the
building was owned or occupied by a Commonwealth entity.
(6) 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.
132.6
Making off without payment
(1) A person is guilty of an offence if:
(a) the person, knowing that immediate
payment for any goods or services supplied by another person is required or
expected from him or her, dishonestly makes off:
(i) without having paid;
and
(ii) with intent to avoid
payment of the amount due; and
(b) the other person is a Commonwealth
entity.
Penalty: Imprisonment for 2 years.
(2) Absolute liability applies to the paragraph (1)(b)
element of the offence.
(3) For the purposes of this section, immediate
payment includes payment at the time of collecting goods in respect of
which a service has been provided.
132.7
Going equipped for theft or a property offence
(1) A person is guilty of an offence if the
person, when not at home, has with him or her any article with intent to use it
in the course of, or in connection with, theft or a property offence.
Penalty: Imprisonment for 3 years.
(2) In a prosecution for an offence against subsection (1)
in relation to:
(a) theft; or
(b) robbery; or
(c) aggravated robbery; or
(d) the offence of burglary created by
subsection 132.4(1); or
(e) the offence of aggravated burglary
that relates to the offence of burglary created by subsection 132.4(1); or
(f) an offence against section 134.1;
it is not necessary to prove that the defendant knew that
the property concerned belonged to a Commonwealth entity.
(3) In a prosecution for an offence against subsection (1)
in relation to:
(a) the offence of burglary created by
subsection 132.4(3); or
(b) the offence of aggravated burglary
that relates to the offence of burglary created by subsection 132.4(3);
it is not necessary to prove that:
(c) the defendant knew that the
offence referred to in paragraph 132.4(3)(a) is an offence against a law of the
Commonwealth; or
(d) the defendant knew that the
offence referred to in paragraph 132.4(3)(a) is punishable by imprisonment for
life or for a term of 5 years or more.
(4) In a prosecution for an offence against subsection (1)
in relation to:
(a) the offence of burglary created by
subsection 132.4(6); or
(b) the offence of aggravated burglary
that relates to the offence of burglary created by subsection 132.4(6);
it is not necessary to prove that:
(c) the defendant knew that the
offence referred to in paragraph 132.4(6)(a) is an offence against a law of the
Commonwealth, a State or a Territory; or
(d) the defendant knew that the
offence referred to in paragraph 132.4(6)(a) is punishable by imprisonment for
life or for a term of 5 years or more; or
(e) the defendant knew that the
building was owned or occupied by a Commonwealth entity.
(5) In this section:
property offence means:
(a) robbery; or
(b) aggravated robbery; or
(c) burglary; or
(d) aggravated burglary; or
(e) an offence against subsection
132.8(1); or
(f) an offence against section 134.1.
Note: It is an element of the offence of theft, and
of each property offence, that the property belongs to a Commonwealth entity.
132.8
Dishonest taking or retention of property
Taking
(1) A person is guilty of an offence if the
person:
(a) on a particular occasion,
dishonestly takes one or more items of property belonging to a Commonwealth
entity, where:
(i) the value or total
value of the property is $500 or more; or
(ii) the absence of the
property from the possession, custody or control of the person who would
otherwise have had possession, custody or control would be likely to cause
substantial disruption to activities carried on by or on behalf of a
Commonwealth entity; and
(b) does not have consent to do so
from the person who has authority to give consent.
Penalty: Imprisonment for 2 years.
Retention
(2) A person
is guilty of an offence if the person:
(a) on a particular occasion, takes
one or more items of property belonging to a Commonwealth entity; and
(b) dishonestly retains any or all of
those items; and
(c) does not have consent to the
retention from the person who has authority to give consent; and
(d) either:
(i) at the time of the
taking of the property, the value or total value of the property was $500 or
more; or
(ii) the absence of the
property from the possession, custody or control of the person who would
otherwise have had possession, custody or control is likely to cause
substantial disruption to activities carried on by or on behalf of a
Commonwealth entity.
Penalty: Imprisonment for 2 years.
132.9
Geographical jurisdiction
Section 15.4 (extended geographical
jurisdiction—category D) applies to each offence against this Division.
Part 7.3—Fraudulent conduct
Division 133—Preliminary
133.1
Definitions
In this Part:
account means an account (including a loan
account, a credit card account or a similar account) with a bank or other
financial institution.
deception means an intentional or reckless
deception, whether by words or other conduct, and whether as to fact or as to
law, and includes:
(a) a deception as to the intentions
of the person using the deception or any other person; and
(b) conduct by a person that causes a
computer, a machine or an electronic device to make a response that the person
is not authorised to cause it to do.
Division 134—Obtaining property or a financial advantage by deception
134.1
Obtaining property by deception
(1) A person is guilty of an offence if:
(a) the person, by a deception,
dishonestly obtains property belonging to another with the intention of
permanently depriving the other of the property; and
(b) the property belongs to a
Commonwealth entity.
Penalty: Imprisonment for 10 years.
(2) Absolute liability applies to the paragraph (1)(b)
element of the offence.
Obtaining property
(3) For the purposes of this section (and for
the purposes of the application of section 132.1 to this section), a
person (the first person) is taken to have obtained
property if, and only if:
(a) the first person obtains
ownership, possession or control of it for himself or herself or for another
person; or
(b) the first person enables
ownership, possession or control of it to be retained by himself or herself; or
(c) the first person induces a third
person to pass ownership, possession or control of it to another person; or
(d) the first person induces a third
person to enable another person to retain ownership, possession or control of
it; or
(e) subsection (9) or (10)
applies.
(4) The definition of obtaining in
section 130.1 does not apply for the purposes of this section (or for the
purposes of the application of section 132.1 to this section).
(5) For the purposes of this section, a
person’s obtaining of property belonging to another may be dishonest even if
the person or another person is willing to pay for the property.
Intention of permanently depriving a person of property
(6) For the purposes of this section, if:
(a) a person obtains property
belonging to another without meaning the other permanently to lose the thing
itself; and
(b) the person’s intention is to treat
the thing as the person’s own to dispose of regardless of the other’s rights;
the person has the intention of permanently depriving the
other of it.
(7) For the purposes of subsection (6),
a borrowing or lending of a thing amounts to treating the thing as the
borrower’s or lender’s own to dispose of regardless of another’s rights if, and
only if, the borrowing or lending is for a period and in circumstances making
it equivalent to an outright taking or disposal.
(8) For the purposes of subsection (6),
if:
(a) a person has possession or control
(lawfully or not) of property belonging to another; and
(b) the person parts with the property
under a condition as to its return that the person may not be able to perform;
and
(c) the parting is done for purposes
of the person’s own and without the other’s authority;
the parting is taken to amount to treating the property as
the person’s own to dispose of regardless of the other’s rights.
Money transfers
(9) For the purposes of this section (and for
the purposes of the application of section 132.1 to this section), if a
person (the first person) causes an amount to be transferred from
an account held by another person (the second person) to an
account held by the first person:
(a) the amount is taken to have been
property that belonged to the second person; and
(b) the first person is taken to have
obtained the property for himself or herself with the intention of permanently
depriving the second person of the property.
(10) For the
purposes of this section (and for the purposes of the application of section 132.1
to this section), if a person (the first person) causes an amount
to be transferred from an account held by another person (the second
person) to an account held by a third person:
(a) the amount is taken to have been
property that belonged to the second person; and
(b) the first person is taken to have
obtained the property for the third person with the intention of permanently
depriving the second person of the property.
(11) For the purposes of this section (and for
the purposes of the application of section 132.1 to this section), if:
(a) a credit is made to an account
(the credited account); and
(b) a debit is made to another account
(the debited account); and
(c) either:
(i) the credit results
from the debit; or
(ii) the debit results from
the credit;
the amount of the credit is taken to be transferred from
the debited account to the credited account.
(12) For the purposes of this section (and for
the purposes of the application of section 132.1 to this section), a
person is taken to cause an amount to be transferred from an account if the
person induces another person to transfer the amount from the account (whether
or not the other person is the holder of the account).
General deficiency
(13) A person may be convicted of an offence
against this section involving all or any part of a general deficiency in money
even though the deficiency is made up of any number of particular sums of money
that were obtained over a period of time.
(14) A person may be convicted of an offence
against this section involving all or any part of a general deficiency in
property other than money even though the deficiency is made up of any number
of particular items of property that were obtained over a period of time.
Alternative verdicts
(15) If, in a prosecution for an offence of
theft, the trier of fact is not satisfied that the defendant is guilty of the
offence, but is satisfied beyond reasonable doubt that the defendant is guilty
of an offence against this section, the trier of fact may find the defendant
not guilty of the offence of theft but guilty of the offence against this
section, so long as the defendant has been accorded procedural fairness in
relation to that finding of guilt.
(16) If, in a prosecution for an offence
against this section, the trier of fact is not satisfied that the defendant is
guilty of the offence, but is satisfied beyond reasonable doubt that the
defendant is guilty of an offence of theft, the trier of fact may find the
defendant not guilty of the offence against this section but guilty of the
offence of theft, so long as the defendant has been accorded procedural
fairness in relation to that finding of guilt.
134.2
Obtaining a financial advantage by deception
(1) A person is guilty of an offence if:
(a) the person, by a deception,
dishonestly obtains a financial advantage from another person; and
(b) the other person is a Commonwealth
entity.
Penalty: Imprisonment for 10 years.
(2) Absolute liability applies to the paragraph (1)(b)
element of the offence.
134.3
Geographical jurisdiction
Section 15.4 (extended geographical
jurisdiction—category D) applies to each offence against this Division.
Division 135—Other offences involving fraudulent conduct
135.1
General dishonesty
Obtaining a gain
(1) A person is guilty of an offence if:
(a) the person does anything with the
intention of dishonestly obtaining a gain from another person; and
(b) the other person is a Commonwealth
entity.
Penalty: Imprisonment for 5 years.
(2) In a prosecution for an offence against subsection (1),
it is not necessary to prove that the defendant knew that the other person was
a Commonwealth entity.
Causing a loss
(3) A person is guilty of an offence if:
(a) the person does anything with the
intention of dishonestly causing a loss to another person; and
(b) the other person is a Commonwealth
entity.
Penalty: Imprisonment for 5 years.
(4) In a prosecution for an offence against subsection (3),
it is not necessary to prove that the defendant knew that the other person was
a Commonwealth entity.
(5) A person is guilty of an offence if:
(a) the person dishonestly causes a
loss, or dishonestly causes a risk of loss, to another person; and
(b) the first‑mentioned person
knows or believes that the loss will occur or that there is a substantial risk
of the loss occurring; and
(c) the other person is a Commonwealth
entity.
Penalty: Imprisonment for 5 years.
(6) Absolute liability applies to the paragraph (5)(c)
element of the offence.
Influencing a Commonwealth public official
(7) A person is guilty of an offence if:
(a) the person does anything with the
intention of dishonestly influencing a public official in the exercise of the
official’s duties as a public official; and
(b) the public official is a
Commonwealth public official; and
(c) the duties are duties as a
Commonwealth public official.
Penalty: Imprisonment for 5 years.
(8) In a prosecution for an offence against subsection (7),
it is not necessary to prove that the defendant knew:
(a) that the official was a
Commonwealth public official; or
(b) that the duties were duties as a
Commonwealth public official.
135.2
Obtaining financial advantage
(1) A person is guilty of an offence if:
(a) the person engages in conduct; and
(aa) as a result of that conduct, the
person obtains a financial advantage for himself or herself from another
person; and
(ab) the person knows or believes that
he or she is not eligible to receive that financial advantage; and
(b) the other person is a Commonwealth
entity.
Penalty: Imprisonment for 12 months.
(1A) Absolute liability applies to the paragraph (1)(b)
element of the offence.
(2) A person is guilty of an offence if:
(a) the person engages in conduct; and
(aa) as a result of that conduct, the
person obtains a financial advantage for another person from a third person;
and
(ab) the person knows or believes that
the other person is not eligible to receive that financial advantage; and
(b) the third person is a Commonwealth
entity.
Penalty: Imprisonment for 12 months.
(2A) Absolute liability applies to the paragraph (2)(b)
element of the offence.
(3) For the purposes of subsection (2),
a person is taken to have obtained a financial advantage for another person
from a Commonwealth entity if the first‑mentioned person induces the
Commonwealth entity to do something that results in the other person obtaining
the financial advantage.
(4) The definition of obtaining
in section 130.1 does not apply to this section.
135.4
Conspiracy to defraud
Obtaining a gain
(1) A person is guilty of an offence if:
(a) the person conspires with another
person with the intention of dishonestly obtaining a gain from a third person;
and
(b) the third person is a Commonwealth
entity.
Penalty: Imprisonment for 10 years.
(2) In a prosecution for an offence against subsection (1),
it is not necessary to prove that the defendant knew that the third person was
a Commonwealth entity.
Causing a loss
(3) A person is guilty of an offence if:
(a) the person conspires with another
person with the intention of dishonestly causing a loss to a third person; and
(b) the third person is a Commonwealth
entity.
Penalty: Imprisonment for 10 years.
(4) In a prosecution for an offence against subsection (3),
it is not necessary to prove that the defendant knew that the third person was
a Commonwealth entity.
(5) A person is guilty of an offence if:
(a) the person conspires with another
person to dishonestly cause a loss, or to dishonestly cause a risk of loss, to
a third person; and
(b) the first‑mentioned person
knows or believes that the loss will occur or that there is a substantial risk
of the loss occurring; and
(c) the third person is a Commonwealth
entity.
Penalty: Imprisonment for 10 years.
(6) In a prosecution for an offence against subsection (5),
it is not necessary to prove that the defendant knew that the third person was
a Commonwealth entity.
Influencing a Commonwealth public official
(7) A person is guilty of an offence if:
(a) the person conspires with another
person with the intention of dishonestly influencing a public official in the
exercise of the official’s duties as a public official; and
(b) the public official is a Commonwealth
public official; and
(c) the duties are duties as a
Commonwealth public official.
Penalty: Imprisonment for 10 years.
(8) In a prosecution for an offence against subsection (7),
it is not necessary to prove that the defendant knew:
(a) that the official was a
Commonwealth public official; or
(b) that the duties were duties as a
Commonwealth public official.
General provisions
(9) For a person to be guilty of an offence
against this section:
(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 to do the thing 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.
(10) A person may be found guilty of an offence
against this section even if:
(a) obtaining the gain, causing the
loss, causing the risk of loss, or influencing the Commonwealth public
official, as the case may be, is impossible; or
(b) the only other party to the
agreement is a body corporate; or
(c) each other party to the agreement
is a person who is not criminally responsible; or
(d) subject to subsection (11),
all other parties to the agreement have been acquitted of the offence.
(11) A person cannot be found guilty of an
offence against this section if:
(a) all other parties to the agreement
have been acquitted of such an offence; and
(b) a finding of guilt would be
inconsistent with their acquittal.
(12) A person cannot be found guilty of an
offence against this section 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 doing of the thing.
(13) A court may dismiss a charge of an offence
against this section if the court thinks that the interests of justice require
the court to do so.
(14) Proceedings for an offence against this
section must not be commenced without the consent of the Director of Public
Prosecutions. However, before the necessary consent has been given, a person
may be:
(a) arrested for an offence against
this section; or
(b) charged with an offence against
this section; or
(c) remanded in custody or released on
bail in connection with an offence against this section.
135.5
Geographical jurisdiction
Section 15.4 (extended geographical
jurisdiction—category D) applies to each offence against this Division.
Part 7.4—False or misleading
statements
Division 136—False or misleading statements in applications
136.1
False or misleading statements in applications
Knowledge
(1) A person is guilty of an offence if:
(a) the person makes a statement
(whether orally, in a document or in any other way); and
(b) the person does so knowing that
the statement:
(i) is false or
misleading; or
(ii) omits any matter or
thing without which the statement is misleading; and
(c) the statement is made in, or in
connection with:
(i) an application for a
licence, permit or authority; or
(ii) an application for
registration; or
(iii) an application or
claim for a benefit; and
(d) any of the following subparagraphs
applies:
(i) the statement is made
to a Commonwealth entity;
(ii) the statement is made
to a person who is exercising powers or performing functions under, or in
connection with, a law of the Commonwealth;
(iii) the statement is made
in compliance or purported compliance with a law of the Commonwealth.
Penalty: Imprisonment for 12 months.
(1A) Absolute liability applies to each of the subparagraph (1)(d)(i),
(ii) and (iii) elements of the offence.
(2) Subsection (1) does not apply as a
result of subparagraph (1)(b)(i) if the statement is not false or
misleading in a material particular.
Note: A defendant bears an evidential burden in relation
to the matter in subsection (2). See subsection 13.3(3).
(3) Subsection (1) does not apply as a
result of subparagraph (1)(b)(ii) if the statement did not omit any matter
or thing without which the statement is misleading in a material particular.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (3). See subsection 13.3(3).
Recklessness
(4) A person is guilty of an offence if:
(a) the person makes a statement
(whether orally, in a document or in any other way); and
(b) the person does so reckless as to
whether the statement:
(i) is false or
misleading; or
(ii) omits any matter or
thing without which the statement is misleading; and
(c) the statement is made in, or in
connection with:
(i) an application for a
licence, permit or authority; or
(ii) an application for
registration; or
(iii) an application or
claim for a benefit; and
(d) any of the following subparagraphs
applies:
(i) the statement is made
to a Commonwealth entity;
(ii) the statement is made
to a person who is exercising powers or performing functions under, or in
connection with, a law of the Commonwealth;
(iii) the statement is made
in compliance or purported compliance with a law of the Commonwealth.
Penalty: Imprisonment for 6 months.
(4A) Absolute liability applies to each of the subparagraph (4)(d)(i),
(ii) and (iii) elements of the offence.
(5) Subsection (4) does not apply as a
result of subparagraph (4)(b)(i) if the statement is not false or
misleading in a material particular.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (5). See subsection 13.3(3).
(6) Subsection (4) does not apply as a
result of subparagraph (4)(b)(ii) if the statement did not omit any matter
or thing without which the statement is misleading in a material particular.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (6). See subsection 13.3(3).
Alternative verdicts
(7) If, in a prosecution for an offence
against subsection (1), the trier of fact is not satisfied that the
defendant is guilty of the offence, but is satisfied beyond reasonable doubt
that the defendant is guilty of an offence against subsection (4), the
trier of fact may find the defendant not guilty of the offence against subsection (1)
but guilty of the offence against subsection (4), so long as the defendant
has been accorded procedural fairness in relation to that finding of guilt.
Geographical jurisdiction
(8) Section 15.4 (extended geographical
jurisdiction—category D) applies to an offence against subsection (1) or
(4).
Definition
(9) In this section:
benefit includes any advantage and is not
limited to property.
Division 137—False or misleading information or documents
137.1
False or misleading information
(1) A person is guilty of an offence if:
(a) the person gives information to
another person; and
(b) the person does so knowing that
the information:
(i) is false or
misleading; or
(ii) omits any matter or
thing without which the information is misleading; and
(c) any of the following subparagraphs
applies:
(i) the information is
given to a Commonwealth entity;
(ii) the information is
given to a person who is exercising powers or performing functions under, or in
connection with, a law of the Commonwealth;
(iii) the information is
given in compliance or purported compliance with a law of the Commonwealth.
Penalty: Imprisonment for 12 months.
(1A) Absolute liability applies to each of the subparagraph (1)(c)(i),
(ii) and (iii) elements of the offence.
(2) Subsection (1) does not apply as a
result of subparagraph (1)(b)(i) if the information is not false or
misleading in a material particular.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2). See subsection 13.3(3).
(3) Subsection (1) does not apply as a
result of subparagraph (1)(b)(ii) if the information did not omit any
matter or thing without which the information is misleading in a material
particular.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (3). See subsection 13.3(3).
(4) Subsection (1) does not apply as a
result of subparagraph (1)(c)(i) if, before the information was given by a
person to the Commonwealth entity, the Commonwealth entity did not take
reasonable steps to inform the person of the existence of the offence against subsection (1).
Note: A defendant bears an evidential burden in
relation to the matter in subsection (4). See subsection 13.3(3).
(5) Subsection (1) does not apply as a
result of subparagraph (1)(c)(ii) if, before the information was given by
a person (the first person) to the person mentioned in that subparagraph (the
second person), the second person did not take reasonable steps
to inform the first person of the existence of the offence against subsection (1).
Note: A defendant bears an evidential burden in
relation to the matter in subsection (5). See subsection 13.3(3).
(6) For the purposes of subsections (4)
and (5), it is sufficient if the following form of words is used:
“Giving false or misleading information is a serious
offence”.
137.2
False or misleading documents
(1) A person is guilty of an offence if:
(a) the person produces a document to
another person; and
(b) the person does so knowing that
the document is false or misleading; and
(c) the document is produced in
compliance or purported compliance with a law of the Commonwealth.
Penalty: Imprisonment for 12 months.
(2) Subsection (1) does not apply if the
document is not false or misleading in a material particular.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2). See subsection 13.3(3).
(3) Subsection (1) does not apply to a
person who produces a document if the document is accompanied by a written
statement signed by the person or, in the case of a body corporate, by a
competent officer of the body corporate:
(a) stating that the document is, to
the knowledge of the first‑mentioned person, false or misleading in a
material particular; and
(b) setting out, or referring to, the
material particular in which the document is, to the knowledge of the first‑mentioned
person, false or misleading.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (3). See subsection 13.3(3).
137.3
Geographical jurisdiction
Section 15.4 (extended geographical
jurisdiction—category D) applies to each offence against this Division.
Part 7.5—Unwarranted demands
Division 138—Preliminary
138.1
Unwarranted demand with menaces
(1) For the purposes of this Part, a person
(the first person) makes an unwarranted demand with menaces
of another person if, and only if:
(a) the first person makes a demand
with menaces of the other person; and
(b) the first person does not believe
that he or she has reasonable grounds for making the demand; and
(c) the first person does not
reasonably believe that the use of the menaces is a proper means of reinforcing
the demand.
(2) This Part applies to a demand whether or
not it is for property.
(3) This Part applies to a demand with
menaces, whether or not the menaces relate to conduct to be engaged in by the
person making the demand.
138.2
Menaces
(1) For the purposes of this Part, menaces
includes:
(a) a threat (whether express or
implied) of conduct that is detrimental or unpleasant to another person; or
(b) a general threat of detrimental or
unpleasant conduct that is implied because of the status, office or position of
the maker of the threat.
Threat against an individual
(2) For the purposes of this Part, a threat
against an individual is taken not to be menaces unless:
(a) both:
(i) the threat would be
likely to cause the individual to act unwillingly; and
(ii) the maker of the
threat is aware of the vulnerability of the individual to the threat; or
(b) the threat would be likely to
cause a person of normal stability and courage to act unwillingly.
Threat against a person who is not an individual
(3) For the purposes of this Part, a threat
against a person who is not an individual is taken not to be menaces
unless:
(a) the threat would ordinarily cause
an unwilling response; or
(b) the threat would be likely to
cause an unwilling response because of a particular vulnerability of which the
maker of the threat is aware.
Division 139—Unwarranted demands
139.1
Unwarranted demands of a Commonwealth public official
A person is guilty of an offence if:
(a) the person makes an unwarranted
demand with menaces of another person; and
(b) the demand or the menaces are
directly or indirectly related to:
(i) the other person’s
capacity as a Commonwealth public official; or
(ii) any influence the
other person has in the other person’s capacity as a Commonwealth public
official; and
(c) the first‑mentioned person
does so with the intention of:
(i) obtaining a gain; or
(ii) causing a loss; or
(iii) influencing the
official in the exercise of the official’s duties as a Commonwealth public
official.
Penalty: Imprisonment for 12 years.
139.2
Unwarranted demands made by a Commonwealth public official
A Commonwealth public official is guilty
of an offence if:
(a) the official makes an unwarranted
demand with menaces of another person; and
(b) the demand or the menaces are
directly or indirectly related to:
(i) the official’s
capacity as a Commonwealth public official; or
(ii) any influence the
official has in the official’s capacity as a Commonwealth public official; and
(c) the official does so with the
intention of:
(i) obtaining a gain; or
(ii) causing a loss; or
(iii) influencing another
Commonwealth public official in the exercise of the other official’s duties as
a Commonwealth public official.
Penalty: Imprisonment for 12 years.
139.3
Geographical jurisdiction
Section 15.3 (extended geographical
jurisdiction—category C) applies to each offence against this Division.
Part 7.6—Bribery and related
offences
Division 140—Preliminary
140.1
Definition
In this Part:
benefit includes any advantage and is not
limited to property.
140.2
Obtaining
(1) For the purposes of this Part, a person
is taken to have obtained a benefit for another person if the first‑mentioned
person induces a third person to do something that results in the other person
obtaining the benefit.
(2) The definition of obtaining
in section 130.1 does not apply to this Part.
Division 141—Bribery
141.1
Bribery of a Commonwealth public official
Giving a bribe
(1) A person is guilty of an offence if:
(a) the person dishonestly:
(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 person does so with the
intention of influencing a public official (who may be the other person) in the
exercise of the official’s duties as a public official; and
(c) the public official is a
Commonwealth public official; and
(d) the duties are duties as a
Commonwealth public official.
Penalty: Imprisonment for 10 years.
(2) In a prosecution for an offence against subsection (1),
it is not necessary to prove that the defendant knew:
(a) that the official was a
Commonwealth public official; or
(b) that the duties were duties as a
Commonwealth public official.
Receiving a bribe
(3) A Commonwealth public official is guilty
of an offence if:
(a) the official dishonestly:
(i) asks for a benefit for
himself, herself or another person; or
(ii) receives or obtains a
benefit for himself, herself or another person; or
(iii) agrees to receive or
obtain a benefit for himself, herself or another person; and
(b) the official does so with the
intention:
(i) that the exercise of
the official’s duties as a Commonwealth public official will be influenced; or
(ii) of inducing, fostering
or sustaining a belief that the exercise of the official’s duties as a
Commonwealth public official will be influenced.
Penalty: Imprisonment for 10 years.
Geographical jurisdiction
(4) Section 15.4 (extended geographical
jurisdiction—category D) applies to an offence against subsection (1) or
(3).
Division 142—Offences relating to bribery
142.1
Corrupting benefits given to, or received by, a Commonwealth public official
Giving a corrupting benefit
(1) A person is guilty of an offence if:
(a) the person dishonestly:
(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 receipt, or expectation of the
receipt, of the benefit would tend to influence a public official (who may be
the other person) in the exercise of the official’s duties as a public
official; and
(c) the public official is a
Commonwealth public official; and
(d) the duties are duties as a
Commonwealth public official.
Penalty: Imprisonment for 5 years.
(2) In a prosecution for an offence against subsection (1),
it is not necessary to prove that the defendant knew:
(a) that the official was a
Commonwealth public official; or
(b) that the duties were duties as a
Commonwealth public official.
Receiving a corrupting benefit
(3) A Commonwealth public official is guilty
of an offence if:
(a) the official dishonestly:
(i) asks for a benefit for
himself, herself or another person; or
(ii) receives or obtains a
benefit for himself, herself or another person; or
(iii) agrees to receive or
obtain a benefit for himself, herself or another person; and
(b) the receipt, or expectation of the
receipt, of the benefit would tend to influence a Commonwealth public official
(who may be the first‑mentioned official) in the exercise of the
official’s duties as a Commonwealth public official.
Penalty: Imprisonment for 5 years.
Benefit in the nature of a reward
(4) For the purposes of subsections (1)
and (3), it is immaterial whether the benefit is in the nature of a reward.
142.2
Abuse of public office
(1) A Commonwealth public official is guilty
of an offence if:
(a) the official:
(i) exercises any
influence that the official has in the official’s capacity as a Commonwealth
public official; or
(ii) engages in any conduct
in the exercise of the official’s duties as a Commonwealth public official; or
(iii) uses any information
that the official has obtained in the official’s capacity as a Commonwealth
public official; and
(b) the official does so with the
intention of:
(i) dishonestly obtaining
a benefit for himself or herself or for another person; or
(ii) dishonestly causing a
detriment to another person.
Penalty: Imprisonment for 5 years.
(2) A person is guilty of an offence if:
(a) the person has ceased to be a
Commonwealth public official in a particular capacity; and
(b) the person uses any information
that the person obtained in that capacity as a Commonwealth public official;
and
(c) the person does so with the
intention of:
(i) dishonestly obtaining
a benefit for himself or herself or for another person; or
(ii) dishonestly causing a
detriment to another person.
Penalty: Imprisonment for 5 years.
(3) Paragraph (2)(a) applies to a
cessation by a person:
(a) whether or not the person
continues to be a Commonwealth public official in some other capacity; and
(b) whether the cessation occurred
before, at or after the commencement of this section.
142.3
Geographical jurisdiction
Section 15.4 (extended geographical
jurisdiction—category D) applies to each offence against this Division.
Part 7.7—Forgery and related
offences
Division 143—Preliminary
143.1
Definitions
(1) In this Part:
document includes:
(a) any paper or other material on
which there is writing; or
(b) any paper or other material on
which there are marks, figures, symbols or perforations that are:
(i) capable of being given
a meaning by persons qualified to interpret them; or
(ii) capable of being
responded to by a computer, a machine or an electronic device; or
(c) any article or material (for
example, a disk or a tape) from which information is capable of being
reproduced with or without the aid of any other article or device.
false Commonwealth document has the meaning
given by section 143.3.
false document has the meaning given by
section 143.2.
information means information, whether in the
form of data, text, sounds, images or in any other form.
(2) The following are examples of things
covered by the definition of document in subsection (1):
(a) a credit card;
(b) a debit card;
(c) a card by means of which property
can be obtained.
143.2
False documents
(1) For the purposes of this Part, a document
is a false 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 Part, a person
is taken to make a false document if the person alters a document
so as to make it a false document (whether or not it was already a false
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.
143.3
False Commonwealth documents
(1) For the
purposes of this Part, a document is a false Commonwealth 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 Commonwealth entity, or a
Commonwealth public official, 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 Commonwealth entity,
or a Commonwealth public official, 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 Commonwealth entity, or a
Commonwealth public official, 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 Commonwealth
entity, or a Commonwealth public official, 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 Commonwealth entity, or a Commonwealth public
official, who did not alter it in that respect; or
(ii) purports to have been
altered in any respect on the authority of a Commonwealth entity, or a
Commonwealth public official, 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 Commonwealth entity, or a Commonwealth public official,
who did not exist; or
(ii) purports to have been
made or altered on the authority of a Commonwealth entity, or a Commonwealth
public official, who did not exist; or
(e) the document, or any part of the
document, purports to have been made or altered by a Commonwealth entity, or a
Commonwealth public official, 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 Part, a person
is taken to make a false Commonwealth document if the person
alters a document so as to make it a false Commonwealth document (whether or
not it was already a false Commonwealth 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.
(4) A reference in this section to a Commonwealth
public official is a reference to a person in the person’s capacity as
a Commonwealth public official.
143.4
Inducing acceptance of false documents
If it is necessary for the purposes of
this Part to prove an intent to induce a person in the person’s capacity as a
public official to accept a false document as genuine, it is not necessary to
prove that the defendant intended so to induce a particular person in the
person’s capacity as a public official.
Division 144—Forgery
144.1
Forgery
(1) A person is guilty of an offence if:
(a) the person makes a false document
with the intention that the person or another will use it:
(i) to dishonestly induce
a third person in the third person’s capacity as a public official to accept it
as genuine; and
(ii) if it is so accepted,
to dishonestly obtain a gain, dishonestly cause a loss, or dishonestly
influence the exercise of a public duty or function; and
(b) the capacity is a capacity as a
Commonwealth public official.
Penalty: Imprisonment for 10 years.
(2) In a prosecution for an offence against subsection (1),
it is not necessary to prove that the defendant knew that the capacity was a
capacity as a Commonwealth public official.
(3) A person is guilty of an offence if:
(a) the person makes a false document
with the intention that the person or another will use it:
(i) to dishonestly cause a
computer, a machine or an electronic device to respond to the document as if
the document were genuine; and
(ii) if it is so responded
to, to dishonestly obtain a gain, dishonestly cause a loss, or dishonestly
influence the exercise of a public duty or function; and
(b) the response is in connection with
the operations of a Commonwealth entity.
Penalty: Imprisonment for 10 years.
(4) In a prosecution for an offence against subsection (3),
it is not necessary to prove that the defendant knew that the response was in
connection with the operations of a Commonwealth entity.
(5) A person
is guilty of an offence if:
(a) the person makes a false document
with the intention that the person or another will use it:
(i) to dishonestly induce
a third person to accept it as genuine; and
(ii) if it is so accepted,
to dishonestly obtain a gain, dishonestly cause a loss, or dishonestly
influence the exercise of a public duty or function; and
(b) the false document is a false
Commonwealth document.
Penalty: Imprisonment for 10 years.
(6) In a prosecution for an offence against subsection (5),
it is not necessary to prove that the defendant knew that the false document
was a false Commonwealth document.
(7) A person is guilty of an offence if:
(a) the person makes a false document
with the intention that the person or another will use it:
(i) to dishonestly cause a
computer, a machine or an electronic device to respond to the document as if
the document were genuine; and
(ii) if it is so responded
to, to dishonestly obtain a gain, dishonestly cause a loss, or dishonestly
influence the exercise of a public duty or function; and
(b) the false document is a false
Commonwealth document.
Penalty: Imprisonment for 10 years.
(8) In a prosecution for an offence against subsection (7),
it is not necessary to prove that the defendant knew that the false document
was a false Commonwealth document.
(9) Section 15.4 (extended geographical
jurisdiction—category D) applies to an offence against subsection (1),
(3), (5) or (7).
Division 145—Offences relating to forgery
145.1
Using forged document
(1) A person is guilty of an offence if:
(a) the person knows that a document
is a false document and uses it with the intention of:
(i) dishonestly inducing
another person in the other person’s capacity as a public official to accept it
as genuine; and
(ii) if it is so accepted,
dishonestly obtaining a gain, dishonestly causing a loss, or dishonestly
influencing the exercise of a public duty or function; and
(b) the capacity is a capacity as a
Commonwealth public official.
Penalty: Imprisonment for 10 years.
(2) In a prosecution for an offence against subsection (1),
it is not necessary to prove that the defendant knew that the capacity was a
capacity as a Commonwealth public official.
(3) A person is guilty of an offence if:
(a) the person knows that a document
is a false document and uses it with the intention of:
(i) dishonestly causing a
computer, a machine or an electronic device to respond to the document as if
the document were genuine; and
(ii) if it is so responded
to, dishonestly obtaining a gain, dishonestly causing a loss, or dishonestly
influencing the exercise of a public duty or function; and
(b) the response is in connection with
the operations of a Commonwealth entity.
Penalty: Imprisonment for 10 years.
(4) In a prosecution for an offence against subsection (3),
it is not necessary to prove that the defendant knew that the response was in
connection with the operations of a Commonwealth entity.
(5) A person is guilty of an offence if:
(a) the person knows that a document
is a false document and uses it with the intention of:
(i) dishonestly inducing
another person to accept it as genuine; and
(ii) if it is so accepted,
dishonestly obtaining a gain, dishonestly causing a loss, or dishonestly
influencing the exercise of a public duty or function; and
(b) the false document is a false
Commonwealth document.
Penalty: Imprisonment for 10 years.
(6) In a prosecution for an offence against subsection (5),
it is not necessary to prove that the defendant knew that the false document
was a false Commonwealth document.
(7) A person is guilty of an offence if:
(a) the person knows that a document
is a false document and uses it with the intention of:
(i) dishonestly causing a
computer, a machine or an electronic device to respond to the document as if
the document were genuine; and
(ii) if it is so responded
to, dishonestly obtaining a gain, dishonestly causing a loss, or dishonestly
influencing the exercise of a public duty or function; and
(b) the false document is a false
Commonwealth document.
Penalty: Imprisonment for 10 years.
(8) In a prosecution for an offence against subsection (7),
it is not necessary to prove that the defendant knew that the false document
was a false Commonwealth document.
145.2
Possession of forged document
(1) A person is guilty of an offence if:
(a) the person knows that a document
is a false document and has it in his or her possession with the intention that
the person or another will use it:
(i) to dishonestly induce
a third person in the third person’s capacity as a public official to accept it
as genuine; and
(ii) if it is so accepted,
to dishonestly obtain a gain, dishonestly cause a loss, or dishonestly
influence the exercise of a public duty or function; and
(b) the capacity is a capacity as a
Commonwealth public official.
Penalty: Imprisonment for 10 years.
(2) In a prosecution for an offence against subsection (1),
it is not necessary to prove that the defendant knew that the capacity was a
capacity as a Commonwealth public official.
(3) A person is guilty of an offence if:
(a) the person knows that a document
is a false document and has it in his or her possession with the intention that
the person or another will use it:
(i) to dishonestly cause a
computer, a machine or an electronic device to respond to the document as if
the document were genuine; and
(ii) if it is so responded
to, to dishonestly obtain a gain, dishonestly cause a loss, or dishonestly
influence the exercise of a public duty or function; and
(b) the response is in connection with
the operations of a Commonwealth entity.
Penalty: Imprisonment for 10 years.
(4) In a prosecution for an offence against subsection (3),
it is not necessary to prove that the defendant knew that the response was in
connection with the operations of a Commonwealth entity.
(5) A person is guilty of an offence if:
(a) the person knows that a document
is a false document and has it in his or her possession with the intention that
the person or another will use it:
(i) to dishonestly induce
a third person to accept it as genuine; and
(ii) if it is so accepted,
to dishonestly obtain a gain, dishonestly cause a loss, or dishonestly
influence the exercise of a public duty or function; and
(b) the false document is a false
Commonwealth document.
Penalty: Imprisonment for 10 years.
(6) In a prosecution for an offence against subsection (5),
it is not necessary to prove that the defendant knew that the false document
was a false Commonwealth document.
(7) A person is guilty of an offence if:
(a) the person knows that a document
is a false document and has it in his or her possession with the intention that
the person or another will use it:
(i) to dishonestly cause a
computer, a machine or an electronic device to respond to the document as if
the document were genuine; and
(ii) if it is so responded
to, to dishonestly obtain a gain, dishonestly cause a loss, or dishonestly
influence the exercise of a public duty or function; and
(b) the false document is a false
Commonwealth document.
Penalty: Imprisonment for 10 years.
(8) In a prosecution for an offence against subsection (7),
it is not necessary to prove that the defendant knew that the false document
was a false Commonwealth document.
145.3
Possession, making or adaptation of devices etc. for making forgeries
(1) A person is guilty of an offence if:
(a) the person knows that a device,
material or other thing is designed or adapted for the making of a false
document (whether or not the device, material or thing is designed or adapted
for another purpose); and
(b) the person has the device,
material or thing in his or her possession with the intention that the person
or another person will use it to commit an offence against section 144.1.
Penalty: Imprisonment for 10 years.
(2) A person is guilty of an offence if:
(a) the person makes or adapts a
device, material or other thing; and
(b) the person knows that the device,
material or other thing is designed or adapted for the making of a false
document (whether or not the device, material or thing is designed or adapted
for another purpose); and
(c) the person makes or adapts the
device, material or thing with the intention that the person or another person
will use it to commit an offence against section 144.1.
Penalty: Imprisonment for 10 years.
(3) A person is guilty of an offence if:
(a) the person knows that a device,
material or other thing is designed or adapted for the making of a false
Commonwealth document (whether or not the device, material or thing is designed
or adapted for another purpose); and
(b) the person has the device,
material or thing in his or her possession; and
(c) the person does not have a
reasonable excuse for having the device, material or thing in his or her
possession.
Penalty: Imprisonment for 2 years.
Note: A defendant bears an evidential burden in
relation to the matter in paragraph (3)(c). See subsection 13.3(3).
(4) A person is guilty of an offence if:
(a) the person makes or adapts a
device, material or other thing; and
(b) the person knows that the device,
material or other thing is designed or adapted for the making of a false
Commonwealth document (whether or not the device, material or thing is designed
or adapted for another purpose).
Penalty: Imprisonment for 2 years.
Note: See also section 10.5 (lawful authority).
145.4
Falsification of documents etc.
(1) A person
is guilty of an offence if:
(a) the person dishonestly damages,
destroys, alters, conceals or falsifies a document; and
(b) the document is:
(i) kept, retained or
issued for the purposes of a law of the Commonwealth; or
(ii) made by a Commonwealth
entity or a person in the capacity of a Commonwealth public official; or
(iii) held by a Commonwealth
entity or a person in the capacity of a Commonwealth public official; and
(c) the first‑mentioned person
does so with the intention of:
(i) obtaining a gain; or
(ii) causing a loss.
Penalty: Imprisonment for 7 years.
(1A) Absolute liability applies to the paragraph (1)(b)
element of the offence.
(2) A person is guilty of an offence if:
(a) the person dishonestly damages, destroys,
alters, conceals or falsifies a document; and
(b) the person does so with the
intention of:
(i) obtaining a gain from
another person; or
(ii) causing a loss to
another person; and
(c) the other person is a Commonwealth
entity.
Penalty: Imprisonment for 7 years.
(3) In a prosecution for an offence against subsection (2),
it is not necessary to prove that the defendant knew that the other person was
a Commonwealth entity.
145.5
Giving information derived from false or misleading documents
(1) A person
is guilty of an offence if:
(a) the person dishonestly gives
information to another person; and
(b) the information was derived,
directly or indirectly, from a document that, to the knowledge of the first‑mentioned
person, is false or misleading in a material particular; and
(c) the document is:
(i) kept, retained or
issued for the purposes of a law of the Commonwealth; or
(ii) made by a Commonwealth
entity or a person in the capacity of a Commonwealth public official; or
(iii) held by a Commonwealth
entity or a person in the capacity of a Commonwealth public official; and
(d) the first‑mentioned person
does so with the intention of:
(i) obtaining a gain; or
(ii) causing a loss.
Penalty: Imprisonment for 7 years.
(1A) Absolute liability applies to the paragraph (1)(c)
element of the offence.
(2) A person is guilty of an offence if:
(a) the person dishonestly gives
information to another person; and
(b) the information was derived,
directly or indirectly, from a document that, to the knowledge of the first‑mentioned
person, is false or misleading in a material particular; and
(c) the first‑mentioned person
does so with the intention of:
(i) obtaining a gain from
another person; or
(ii) causing a loss to
another person; and
(d) the other person is a Commonwealth
entity.
Penalty: Imprisonment for 7 years.
(3) In a prosecution for an offence against subsection (2),
it is not necessary to prove that the defendant knew that the other person was
a Commonwealth entity.
145.6
Geographical jurisdiction
Section 15.4 (extended geographical
jurisdiction—category D) applies to each offence against this Division.
Part 7.8—Causing harm to, and
impersonation and obstruction of, Commonwealth public officials
Division 146—Preliminary
146.1
Definitions
In this Part:
Commonwealth law enforcement officer means a
person who is:
(a) a member or special member of the
Australian Federal Police; or
(aa) the Integrity Commissioner (within
the meaning of the Law Enforcement Integrity Commissioner Act 2006); or
(ab) a staff member of ACLEI (within
the meaning of the Law Enforcement Integrity Commissioner Act 2006); or
(b) a member of the Board of the
Australian Crime Commission established under section 7B of the Australian
Crime Commission Act 2002; or
(ba) an examiner (within the meaning of
that Act); or
(c) a member of the staff of the ACC
(within the meaning of that Act); or
(d) the Chief Executive Officer of
Customs; or
(e) a person employed in the
Australian Customs Service.
fear includes apprehension.
harm means:
(a) physical harm (whether temporary
or permanent); or
(b) harm to a person’s mental health
(whether temporary or permanent);
but does not include being subjected to a force or impact
that is within the limits of what is reasonably acceptable as incidental to:
(c) social interaction; or
(d) life in the community.
harm to a person’s
mental health includes significant psychological harm to the person,
but does not include a reference to ordinary emotional reactions (for example,
distress, grief, fear or anger).
physical harm includes:
(a) unconsciousness; and
(b) pain; and
(c) disfigurement; and
(d) infection with a disease; and
(e) any physical contact with a person
that the person might reasonably object to in the circumstances (whether or not
the person was aware of it at the time).
serious harm means any harm (including the
cumulative effect of more than one harm) that:
(a) endangers, or is likely to
endanger, a person’s life; or
(b) is, or is likely to be,
significant and longstanding.
146.2
Causing harm
For the purposes of this Part, a
person’s conduct is taken to cause harm if it substantially contributes to
harm.
Division 147—Causing harm to Commonwealth public officials
147.1
Causing harm to a Commonwealth public official etc.
Causing harm to a Commonwealth public official
(1) A person (the first person)
is guilty of an offence if:
(a) the first person engages in
conduct; and
(b) the first person’s conduct causes
harm to a public official; and
(c) the first person intends that his
or her conduct cause harm to the official; and
(d) the harm is caused without the
consent of the official; and
(e) the first person engages in his or
her conduct because of:
(i) the official’s status
as a public official; or
(ii) any conduct engaged in
by the official in the official’s capacity as a public official; and
(ea) the public official is a
Commonwealth public official; and
(eb) if subparagraph (e)(i)
applies—the status mentioned in that subparagraph was status as a Commonwealth
public official; and
(ec) if subparagraph (e)(ii)
applies—the conduct mentioned in that subparagraph was engaged in by the
official in the official’s capacity as a Commonwealth public official.
Penalty:
(f) if the official is a Commonwealth
judicial officer or a Commonwealth law enforcement officer—imprisonment for 13
years; or
(g) in any other case—imprisonment for
10 years.
(1A) Absolute liability applies to the paragraphs (1)(ea),
(eb) and (ec) elements of the offence.
(1B) If:
(a) a person is charged with an
offence against subsection (1); and
(b) the public official concerned is a
Commonwealth judicial officer or a Commonwealth law enforcement officer;
a court of summary jurisdiction may, with the consent of
the defendant and the prosecutor and if the court is satisfied that it is
proper to do so, determine the charge summarily.
(1C) If a court of summary jurisdiction convicts
a person of an offence against subsection (1) in accordance with subsection (1B),
the penalty that the court may impose is a sentence of imprisonment not
exceeding 2 years or a fine not exceeding 120 penalty units, or both.
Causing harm to a former Governor‑General, former
Minister or former Parliamentary Secretary
(2) A person (the first person)
is guilty of an offence if:
(a) the first person engages in
conduct; and
(b) the first person’s conduct causes
harm to another person; and
(c) the other person is a former
Governor‑General, a former Minister or a former Parliamentary Secretary;
and
(d) the first person intends that his
or her conduct cause harm to the other person; and
(e) the harm is caused without the
consent of the other person; and
(f) the first person engages in his
or her conduct because of:
(i) the other person’s
status as a former Governor‑General, former Minister or former
Parliamentary Secretary; or
(ii) any conduct engaged in
by the other person in the other person’s former capacity as a Governor‑General,
Minister or Parliamentary Secretary.
Penalty: Imprisonment for 10 years.
147.2
Threatening to cause harm to a Commonwealth public official etc.
Threatening to cause serious harm
(1) A person (the first person)
is guilty of an offence if:
(a) the first person makes to another
person (the second person) a threat to cause serious harm to the
second person or to a third person; and
(b) the second person or the third
person is a public official; and
(c) the first person:
(i) intends the second
person to fear that the threat will be carried out; or
(ii) is reckless as to
causing the second person to fear that the threat will be carried out; and
(d) the first person makes the threat
because of:
(i) the official’s status
as a public official; or
(ii) any conduct engaged in
by the official in the official’s capacity as a public official; and
(da) the official is a Commonwealth
public official; and
(db) if subparagraph (d)(i)
applies—the status mentioned in that subparagraph was status as a Commonwealth
public official; and
(dc) if subparagraph (d)(ii)
applies—the conduct mentioned in that subparagraph was engaged in by the
official in the official’s capacity as a Commonwealth public official.
Penalty:
(e) if the official is a Commonwealth
judicial officer or a Commonwealth law enforcement officer—imprisonment for 9
years; or
(f) in any other case—imprisonment
for 7 years.
(1A) Absolute liability applies to the paragraphs (1)(da),
(db) and (dc) elements of the offence.
Threatening to cause harm
(2) A person
(the first person) is guilty of an offence if:
(a) the first person makes to another
person (the second person) a threat to cause harm to the second
person or to a third person; and
(b) the second person or the third
person is a public official; and
(c) the first person:
(i) intends the second
person to fear that the threat will be carried out; or
(ii) is reckless as to
causing the second person to fear that the threat will be carried out; and
(d) the first person makes the threat
because of:
(i) the official’s status
as a public official; or
(ii) any conduct engaged in
by the official in the official’s capacity as a public official; and
(e) the official is a Commonwealth
public official; and
(f) if subparagraph (d)(i)
applies—the status mentioned in that subparagraph was status as a Commonwealth
public official; and
(g) if subparagraph (d)(ii)
applies—the conduct mentioned in that subparagraph was engaged in by the
official in the official’s capacity as a Commonwealth public official.
Penalty: Imprisonment for 2 years
(2A) Absolute liability applies to the paragraphs (2)(e),
(f) and (g) elements of the offence.
Threatening to cause serious harm to a former Governor‑General,
former Minister or former Parliamentary Secretary
(3) A person (the first person)
is guilty of an offence if:
(a) the first person makes to another
person (the second person) a threat to cause serious harm to the
second person or to a third person; and
(b) the second person or the third
person is a former Governor‑General, a former Minister or a former
Parliamentary Secretary; and
(c) the first person:
(i) intends the second
person to fear that the threat will be carried out; or
(ii) is reckless as to
causing the second person to fear that the threat will be carried out; and
(d) the first person makes the threat
because of:
(i) the second or third
person’s status as a former Governor‑General, a former Minister or a
former Parliamentary Secretary; or
(ii) any conduct engaged in
by the second or third person in the second or third person’s former capacity
as a Governor‑General, a Minister or a Parliamentary Secretary.
Penalty: Imprisonment for 7 years.
Threats
(4) For the purposes of this section, a threat
may be:
(a) express or implied; or
(b) conditional or unconditional.
Unnecessary to prove that a threatened person actually
feared harm
(5) In a prosecution for an offence against
this section, it is not necessary to prove that the person threatened actually
feared that the threat would be carried out.
147.3
Geographical jurisdiction
Section 15.3 (extended geographical
jurisdiction—category C) applies to each offence against this Division.
Division 148—Impersonation of Commonwealth public officials
148.1
Impersonation of an official by a non‑official
(1) A person other than a Commonwealth public
official is guilty of an offence if:
(a) on a particular occasion, the
person impersonates another person in that other person’s capacity as a
Commonwealth public official; and
(b) the first‑mentioned person
does so knowing it to be in circumstances when the official is likely to be on
duty; and
(c) the first‑mentioned person
does so with intent to deceive.
Penalty: Imprisonment for 2 years.
(2) A person other than a Commonwealth public
official is guilty of an offence if:
(a) the person falsely represents
himself or herself to be a Commonwealth public official in a particular
capacity; and
(b) the person does so in the course
of doing an act, or attending a place, in the assumed capacity of such an
official.
Penalty: Imprisonment for 2 years.
(2A) For the purposes of subsection (2), it
is immaterial whether that capacity as a Commonwealth public official exists or
is fictitious.
(3) A person other than a Commonwealth public
official is guilty of an offence if:
(a) the person:
(i) impersonates another
person in that other person’s capacity as a Commonwealth public official; or
(ii) falsely represents
himself or herself to be a Commonwealth public official in a particular
capacity; and
(b) the first‑mentioned person
does so with the intention of:
(i) obtaining a gain; or
(ii) causing a loss; or
(iii) influencing the
exercise of a public duty or function; and
(c) if subparagraph (a)(i)
applies—the first‑mentioned person also does so with intent to deceive.
Penalty: Imprisonment for 5 years.
(3A) For the purposes of subparagraph (3)(a)(ii),
it is immaterial whether that capacity as a Commonwealth public official exists
or is fictitious.
(4) The definition of duty in
section 130.1 does not apply to this section.
(5) To avoid doubt, for the purposes of this
section:
(a) impersonation
does not include conduct engaged in solely for satirical purposes; and
(b) false
representation does not include conduct engaged in solely for satirical
purposes.
148.2
Impersonation of an official by another official
(1) A Commonwealth public official is guilty
of an offence if:
(a) on a particular occasion, the
official impersonates another person in that other person’s capacity as a
Commonwealth public official; and
(b) the first‑mentioned official
does so knowing it to be in circumstances when the other official is likely to
be on duty; and
(c) the first‑mentioned official
does so with intent to deceive.
Penalty: Imprisonment for 2 years.
(2) A Commonwealth public official is guilty
of an offence if:
(a) the official falsely represents
himself or herself to be a Commonwealth public official in a particular
capacity; and
(b) the official does so in the course
of doing an act, or attending a place, in the assumed capacity of such an
official.
Penalty: Imprisonment for 2 years.
(2A) For the purposes of subsection (2), it
is immaterial whether that capacity as a Commonwealth public official exists or
is fictitious.
(3) A Commonwealth public official is guilty
of an offence if:
(a) the official:
(i) impersonates another
person in the other person’s capacity as a Commonwealth public official; or
(ii) falsely represents
himself or herself to be a Commonwealth public official in a particular
capacity; and
(b) the first‑mentioned official
does so with the intention of:
(i) obtaining a gain; or
(ii) causing a loss; or
(iii) influencing the
exercise of a public duty or function; and
(c) if subparagraph (a)(i)
applies—the first‑mentioned official also does so with intent to deceive.
Penalty: Imprisonment for 5 years.
(3A) For the purposes of subparagraph (3)(a)(ii),
it is immaterial whether that capacity as a Commonwealth public official exists
or is fictitious.
(4) The definition of duty in
section 130.1 does not apply to this section.
(5) To avoid doubt, for the purposes of this
section:
(a) impersonation
does not include conduct engaged in solely for satirical purposes; and
(b) false
representation does not include conduct engaged in solely for satirical
purposes.
148.3
Geographical jurisdiction
Section 15.3 (extended geographical
jurisdiction—category C) applies to each offence against this Division.
Division 149—Obstruction of Commonwealth public officials
149.1
Obstruction of Commonwealth public officials
(1) A person is guilty of an offence if:
(a) the person knows that another
person is a public official; and
(b) the first‑mentioned person
obstructs, hinders, intimidates or resists the official in the performance of
the official’s functions; and
(c) the official is a Commonwealth
public official; and
(d) the functions are functions as a
Commonwealth public official.
Penalty: Imprisonment for 2 years.
(2) In a prosecution for an offence against subsection (1),
it is not necessary to prove that the defendant knew:
(a) that the official was a
Commonwealth public official; or
(b) that the functions were functions
as a Commonwealth public official.
(3) For the purposes of this section, it is
immaterial whether the defendant was aware that the public official was
performing the official’s functions.
(4) Section 15.3 (extended geographical
jurisdiction—category C) applies to an offence against subsection (1).
(5) The definition of duty in
section 130.1 does not apply to this section.
(6) In this section:
function:
(a) in relation to a person who is a
public official—means any authority, duty, function or power that is conferred
on the person as a public official; or
(b) in relation to a person who is a
Commonwealth public official—means any authority, duty, function or power that
is conferred on the person as a Commonwealth public official.
Part 7.20—Miscellaneous
Division 261—Miscellaneous
261.1
Saving of other laws
This Chapter is not intended to exclude
or limit the operation of any other law of the Commonwealth or any law of a
State or Territory.
261.2
Contempt of court
This Chapter does not limit the power of
a court to punish a contempt of the court.
261.3
Ancillary offences
To avoid doubt, subsection 11.6(2) does
not apply to the following provisions:
(a) subsection 131.1(2) (theft);
(b) subsection 132.1(2) (receiving);
(c) subsection 132.2(2) (robbery);
(d) subsection 132.3(2) (aggravated
robbery);
(e) subsections 132.4(2), (5) and (9)
(burglary);
(f) subsection 132.5(2) (aggravated
burglary);
(g) the definitions of aggravated
burglary, aggravated robbery, burglary, receiving,
robbery and theft in the Dictionary.
Chapter 8—Offences against
humanity and related offences
Division 268—Genocide, crimes against humanity, war crimes and crimes
against the administration of the justice of the International Criminal Court
Subdivision A—Introductory
268.1
Purpose of Division
(1) The purpose of this Division is to create
certain offences that are of international concern and certain related
offences.
(2) It is the Parliament’s intention that the
jurisdiction of the International Criminal Court is to be complementary to the
jurisdiction of Australia with respect to offences in this Division that are
also crimes within the jurisdiction of that Court.
(3) Accordingly, the International
Criminal Court Act 2002 does not affect the primacy of Australia’s right to
exercise its jurisdiction with respect to offences created by this Division
that are also crimes within the jurisdiction of the International Criminal
Court.
268.2
Outline of offences
(1) Subdivision B creates offences each of
which is called genocide.
(2) Subdivision C creates offences each of
which is called a crime against humanity.
(3) Subdivisions D, E, F, G and H create
offences each of which is called a war crime.
(4) Subdivision J creates offences each of
which is called a crime against the administration of the justice of the
International Criminal Court.
Subdivision B—Genocide
268.3
Genocide by killing
A person (the perpetrator)
commits an offence if:
(a) the perpetrator causes the death
of one or more persons; and
(b) the person or persons belong to a
particular national, ethnical, racial or religious group; and
(c) the perpetrator intends to
destroy, in whole or in part, that national, ethnical, racial or religious
group, as such.
Penalty: Imprisonment for life.
268.4
Genocide by causing serious bodily or mental harm
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator causes serious
bodily or mental harm to one or more persons; and
(b) the person or persons belong to a
particular national, ethnical, racial or religious group; and
(c) the perpetrator intends to
destroy, in whole or in part, that national, ethnical, racial or religious
group, as such.
Penalty: Imprisonment for life.
(2) In subsection (1):
causes serious bodily or mental harm
includes, but is not restricted to, commits acts of torture, rape, sexual
violence or inhuman or degrading treatment.
268.5
Genocide by deliberately inflicting conditions of life calculated to bring
about physical destruction
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator inflicts certain
conditions of life upon one or more persons; and
(b) the person or persons belong to a
particular national, ethnical, racial or religious group; and
(c) the perpetrator intends to destroy,
in whole or in part, that national, ethnical, racial or religious group, as
such; and
(d) the conditions of life are
intended to bring about the physical destruction of that group, in whole or in
part.
Penalty: Imprisonment for life.
(2) In subsection (1):
conditions of life includes, but is not
restricted to, intentional deprivation of resources indispensable for survival,
such as deprivation of food or medical services, or systematic expulsion from
homes.
268.6
Genocide by imposing measures intended to prevent births
A person (the perpetrator)
commits an offence if:
(a) the perpetrator imposes certain
measures upon one or more persons; and
(b) the person or persons belong to a
particular national, ethnical, racial or religious group; and
(c) the perpetrator intends to
destroy, in whole or in part, that national, ethnical, racial or religious
group, as such; and
(d) the measures imposed are intended
to prevent births within that group.
Penalty: Imprisonment for life.
268.7
Genocide by forcibly transferring children
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator forcibly transfers
one or more persons; and
(b) the person or persons belong to a
particular national, ethnical, racial or religious group; and
(c) the perpetrator intends to
destroy, in whole or in part, that national, ethnical, racial or religious
group, as such; and
(d) the transfer is from that group to
another national, ethnical, racial or religious group; and
(e) the person or persons are under
the age of 18 years; and
(f) the perpetrator knows that, or is
reckless as to whether, the person or persons are under that age.
Penalty: Imprisonment for life.
(2) In subsection (1):
forcibly transfers one or more persons
includes transfers one or more persons:
(a) by threat of force or coercion
(such as that caused by fear of violence, duress, detention, psychological
oppression or abuse of power) against the person or persons or against another
person; or
(b) by taking advantage of a coercive
environment.
Subdivision C—Crimes against humanity
268.8
Crime against humanity—murder
A person (the perpetrator)
commits an offence if:
(a) the perpetrator causes the death
of one or more persons; and
(b) the perpetrator’s conduct is
committed intentionally or knowingly as part of a widespread or systematic
attack directed against a civilian population.
Penalty: Imprisonment for life.
268.9
Crime against humanity—extermination
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator causes the death
of one or more persons; and
(b) the perpetrator’s conduct
constitutes, or takes place as part of, a mass killing of members of a civilian
population; and
(c) the perpetrator’s conduct is
committed intentionally or knowingly as part of a widespread or systematic
attack directed against a civilian population.
Penalty: Imprisonment for life.
(2) In subsection (1):
causes the death of includes causes death by
intentionally inflicting conditions of life (such as the deprivation of access
to food or medicine) intended to bring about the destruction of part of a
population.
268.10
Crime against humanity—enslavement
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator exercises any or
all of the powers attaching to the right of ownership over one or more persons
(including the exercise of a power in the course of trafficking in persons, in
particular women and children); and
(b) the perpetrator’s conduct is
committed intentionally or knowingly as part of a widespread or systematic attack
directed against a civilian population.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
exercises any or all of the powers attaching to the
right of ownership over a person includes purchases, sells, lends or
barters a person or imposes on a person a similar deprivation of liberty and
also includes exercise a power arising from a debt incurred or contract made by
a person.
268.11
Crime against humanity—deportation or forcible transfer of population
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator forcibly displaces
one or more persons, by expulsion or other coercive acts, from an area in which
the person or persons are lawfully present to another country or location; and
(b) the forcible displacement is
contrary to paragraph 4 of article 12 or article 13 of the Covenant; and
(c) the perpetrator knows of, or is
reckless as to, the factual circumstances that establish the lawfulness of the
presence of the person or persons in the area; and
(d) the perpetrator’s conduct is
committed intentionally or knowingly as part of a widespread or systematic
attack directed against a civilian population.
Penalty: Imprisonment for 17 years.
(2) Strict liability applies to paragraph (1)(b).
(3) In subsection (1):
forcibly displaces one or more persons
includes displaces one or more persons:
(a) by threat of force or coercion
(such as that caused by fear of violence, duress, detention, psychological
oppression or abuse of power) against the person or persons or against another
person; or
(b) by taking advantage of a coercive
environment.
268.12
Crime against humanity—imprisonment or other severe deprivation of physical
liberty
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator imprisons one or
more persons or otherwise severely deprives one or more persons of physical
liberty; and
(b) the perpetrator’s conduct violates
article 9, 14 or 15 of the Covenant; and
(c) the perpetrator’s conduct is
committed intentionally or knowingly as part of a widespread or systematic
attack directed against a civilian population.
Penalty: Imprisonment for 17 years.
(2) Strict liability applies to paragraph (1)(b).
268.13
Crime against humanity—torture
A person (the perpetrator)
commits an offence if:
(a) the perpetrator inflicts severe
physical or mental pain or suffering upon one or more persons who are in the
custody or under the control of the perpetrator; and
(b) the pain or suffering does not
arise only from, and is not inherent in or incidental to, lawful sanctions; and
(c) the perpetrator’s conduct is
committed intentionally or knowingly as part of a widespread or systematic
attack directed against a civilian population.
Penalty: Imprisonment for 25 years.
268.14
Crime against humanity—rape
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator sexually
penetrates another person without the consent of that person; and
(b) the perpetrator knows of, or is
reckless as to, the lack of consent; and
(c) the perpetrator’s conduct is
committed intentionally or knowingly as part of a widespread or systematic
attack directed against a civilian population.
Penalty: Imprisonment for 25 years.
(2) A person (the perpetrator)
commits an offence if:
(a) the perpetrator causes another
person to sexually penetrate the perpetrator without the consent of the other
person; and
(b) the perpetrator knows of, or is
reckless as to, the lack of consent; and
(c) the perpetrator’s conduct is
committed intentionally or knowingly as part of a widespread or systematic
attack directed against a civilian population.
Penalty: Imprisonment for 25 years.
(3) In this
section:
consent means free and voluntary agreement.
The following are examples of circumstances in which a person
does not consent to an act:
(a) the person submits to the act because of force
or the fear of force to the person or to someone else;
(b) the person submits to the act because the
person is unlawfully detained;
(c) the person is asleep or unconscious, or is so
affected by alcohol or another drug as to be incapable of consenting;
(d) the person is incapable of understanding the
essential nature of the act;
(e) the person is mistaken about the essential
nature of the act (for example, the person mistakenly believes that the act is
for medical or hygienic purposes);
(f) the person submits to the act because of
psychological oppression or abuse of power;
(g) the person submits to the act because of the
perpetrator taking advantage of a coercive environment.
(4) 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).
(5) 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.
(6) In this section, the genitalia or other
parts of the body of a person include surgically constructed genitalia or other
parts of the body of the person.
268.15
Crime against humanity—sexual slavery
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator causes another
person to enter into or remain in sexual slavery; and
(b) the perpetrator intends to cause,
or is reckless as to causing, that sexual slavery; and
(c) the perpetrator’s conduct is
committed intentionally or knowingly as part of a widespread or systematic
attack directed against a civilian population.
Penalty: Imprisonment for 25 years.
(2) For the purposes of this section, sexual
slavery is the condition of a person who provides sexual services and
who, because of the use of force or threats:
(a) is not free to cease providing
sexual services; or
(b) is not free to leave the place or
area where the person provides sexual services.
(3) In this section:
sexual service means the use or display of
the body of the person providing the service for the sexual gratification of
others.
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 sexual services by a person.
268.16
Crime against humanity—enforced prostitution
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator causes one or more
persons to engage in one or more acts of a sexual nature without the consent of
the person or persons, including by being reckless as to whether there is
consent; and
(b) the perpetrator intends that he or
she, or another person, will obtain pecuniary or other advantage in exchange
for, or in connection with, the acts of a sexual nature; and
(c) the perpetrator’s conduct is
committed intentionally or knowingly as part of a widespread or systematic
attack directed against a civilian population.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
consent means free and voluntary agreement.
The following are examples of circumstances in which a person
does not consent to an act:
(a) the person submits to the act because of force
or the fear of force to the person or to someone else;
(b) the person submits to the act because the
person is unlawfully detained;
(c) the person is asleep or unconscious, or is so
affected by alcohol or another drug as to be incapable of consenting;
(d) the person is incapable of understanding the
essential nature of the act;
(e) the person is mistaken about the essential
nature of the act (for example, the person mistakenly believes that the act is
for medical or hygienic purposes);
(f) the person submits to the act because of
psychological oppression or abuse of power;
(g) the person submits to the act because of the
perpetrator taking advantage of a coercive environment.
threat of force or coercion includes:
(a) a threat of force or coercion such
as that caused by fear of violence, duress, detention, psychological oppression
or abuse of power; or
(b) taking advantage of a coercive
environment.
(3) In subsection (1), being reckless as
to whether there is consent to one or more acts of a sexual nature includes not
giving any thought to whether or not the person or persons are consenting to
engaging in the act or acts of a sexual nature.
268.17
Crime against humanity—forced pregnancy
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator unlawfully
confines one or more women forcibly made pregnant; and
(b) the perpetrator intends to affect
the ethnic composition of any population or to destroy, wholly or partly, a
national, ethnical, racial or religious group, as such; and
(c) the perpetrator’s conduct is
committed intentionally or knowingly as part of a widespread or systematic
attack directed against a civilian population.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
forcibly made pregnant includes made pregnant
by a consent that was affected by deception or by natural, induced or age‑related
incapacity.
(3) To avoid doubt, this section does not
affect any other law of the Commonwealth or any law of a State or Territory.
268.18
Crime against humanity—enforced sterilisation
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator deprives one or
more persons of biological reproductive capacity; and
(b) the deprivation is not effected by
a birth‑control measure that has a non‑permanent effect in
practice; and
(c) the perpetrator’s conduct is
neither justified by the medical or hospital treatment of the person or persons
nor carried out with the consent of the person or persons; and
(d) the perpetrator’s conduct is
committed intentionally or knowingly as part of a widespread or systematic
attack directed against a civilian population.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
consent does not include consent effected by
deception or by natural, induced or age‑related incapacity.
268.19
Crime against humanity—sexual violence
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator does either of the
following:
(i) commits an act or acts
of a sexual nature against one or more persons;
(ii) causes one or more
persons to engage in an act or acts of a sexual nature;
without the consent of the
person or persons, including by being reckless as to whether there is consent;
and
(b) the perpetrator’s conduct is of a
gravity comparable to the offences referred to in sections 268.14 to
268.18; and
(c) the perpetrator’s conduct is
committed intentionally or knowingly as part of a widespread or systematic
attack directed against a civilian population.
Penalty: Imprisonment for 25 years.
(2) Strict liability applies to paragraph (1)(b).
(3) In subsection (1):
consent means free and voluntary agreement.
The following are examples of circumstances in which a person
does not consent to an act:
(a) the person submits to the act because of force
or the fear of force to the person or to someone else;
(b) the person submits to the act because the
person is unlawfully detained;
(c) the person is asleep or unconscious, or is so
affected by alcohol or another drug as to be incapable of consenting;
(d) the person is incapable of understanding the
essential nature of the act;
(e) the person is mistaken about the essential
nature of the act (for example, the person mistakenly believes that the act is
for medical or hygienic purposes);
(f) the person submits to the act because of
psychological oppression or abuse of power;
(g) the person submits to the act because of the
perpetrator taking advantage of a coercive environment.
threat of force or coercion includes:
(a) a threat of force or coercion such
as that caused by fear of violence, duress, detention, psychological oppression
or abuse of power; or
(b) taking advantage of a coercive
environment.
(4) In subsection (1), being reckless as
to whether there is consent to one or more acts of a sexual nature includes not
giving any thought to whether or not the person is consenting to the act or
acts of a sexual nature.
268.20
Crime against humanity—persecution
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator severely deprives
one or more persons of any of the rights referred to in paragraph (b); and
(b) the rights are those guaranteed in
articles 6, 7, 8 and 9, paragraph 2 of article 14, article 18, paragraph 2 of
article 20, paragraph 2 of article 23 and article 27 of the Covenant; and
(c) the perpetrator targets the person
or persons by reason of the identity of a group or collectivity or targets the
group or collectivity as such; and
(d) the grounds on which the targeting
is based are political, racial, national, ethnic, cultural, religious, gender
or other grounds that are recognised in paragraph 1 of article 2 of the
Covenant; and
(e) the perpetrator’s conduct is
committed in connection with another act that is:
(i) a proscribed inhumane
act; or
(ii) genocide; or
(iii) a war crime; and
(f) the perpetrator’s conduct is
committed intentionally or knowingly as part of a widespread or systematic
attack directed against a civilian population.
Penalty: Imprisonment for 17 years.
(2) Strict liability applies to:
(a) the physical element of the
offence referred to in paragraph (1)(a) that the rights are those referred
to in paragraph (1)(b); and
(b) paragraphs (1)(b) and (d).
268.21
Crime against humanity—enforced disappearance of persons
(1) A person
(the perpetrator) commits an offence if:
(a) the perpetrator arrests, detains
or abducts one or more persons; and
(b) the arrest, detention or abduction
is carried out by, or with the authorisation, support or acquiescence of, the
government of a country or a political organisation; and
(c) the perpetrator intends to remove
the person or persons from the protection of the law for a prolonged period of
time; and
(d) the perpetrator’s conduct is
committed intentionally or knowingly as part of a widespread or systematic
attack directed against a civilian population; and
(e) after the arrest, detention or
abduction, the government or organisation refuses to acknowledge the
deprivation of freedom of, or to give information on the fate or whereabouts
of, the person or persons.
Penalty: Imprisonment for 17 years.
(2) A person (the perpetrator)
commits an offence if:
(a) one or more persons have been
arrested, detained or abducted; and
(b) the arrest, detention or abduction
was carried out by, or with the authorisation, support or acquiescence of, the
government of a country or a political organisation; and
(c) the perpetrator refuses to
acknowledge the deprivation of freedom, or to give information on the fate or
whereabouts, of the person or persons; and
(d) the refusal occurs with the
authorisation, support or acquiescence of the government of the country or the
political organisation; and
(e) the perpetrator knows that, or is
reckless as to whether, the refusal was preceded or accompanied by the
deprivation of freedom; and
(f) the perpetrator intends that the
person or persons be removed from the protection of the law for a prolonged
period of time; and
(g) the arrest, detention or abduction
occurred, and the refusal occurs, as part of a widespread or systematic attack
directed against a civilian population; and
(h) the perpetrator knows that the
refusal is part of, or intends the refusal to be part of, such an attack.
Penalty: Imprisonment for 17 years.
268.22
Crime against humanity—apartheid
A person (the perpetrator)
commits an offence if:
(a) the perpetrator commits against
one or more persons an act that is a proscribed inhumane act (as defined by the
Dictionary) or an act that is of a nature and gravity similar to any such
proscribed inhumane act; and
(b) the perpetrator’s conduct is
committed in the context of an institutionalised regime of systematic oppression
and domination by one racial group over any other racial group or groups; and
(c) the perpetrator knows of, or is
reckless as to, the factual circumstances that establish the character of the
act; and
(d) the perpetrator intends to
maintain the regime by the conduct; and
(e) the perpetrator’s conduct is
committed intentionally or knowingly as part of a widespread or systematic
attack directed against a civilian population.
Penalty: Imprisonment for 17 years.
268.23
Crime against humanity—other inhumane act
A person (the perpetrator)
commits an offence if:
(a) the perpetrator causes great
suffering, or serious injury to body or to mental or physical health, by means
of an inhumane act; and
(b) the act is of a character similar
to another proscribed inhumane act as defined by the Dictionary; and
(c) the perpetrator’s conduct is
committed intentionally or knowingly as part of a widespread or systematic
attack directed against a civilian population.
Penalty: Imprisonment for 25 years.
Subdivision D—War crimes that are
grave breaches of the Geneva Conventions and of Protocol I to the Geneva
Conventions
268.24
War crime—wilful killing
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator causes the death
of one or more persons; and
(b) the person or persons are
protected under one or more of the Geneva Conventions or under Protocol I to
the Geneva Conventions; and
(c) the perpetrator knows of, or is
reckless as to, the factual circumstances that establish that the person or
persons are so protected; and
(d) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for life.
(2) Strict liability applies to paragraph (1)(b).
268.25
War crime—torture
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator inflicts severe
physical or mental pain or suffering upon one or more persons; and
(b) the perpetrator inflicts the pain
or suffering for the purpose of:
(i) obtaining information or
a confession; or
(ii) a punishment,
intimidation or coercion; or
(iii) a reason based on
discrimination of any kind; and
(c) the person or persons are
protected under one or more of the Geneva Conventions or under Protocol I to
the Geneva Conventions; and
(d) the perpetrator knows of, or is
reckless as to, the factual circumstances that establish that the person or
persons are so protected; and
(e) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for 25 years.
(2) Strict liability applies to paragraph (1)(c).
268.26
War crime—inhumane treatment
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator inflicts severe
physical or mental pain or suffering upon one or more persons; and
(b) the person or persons are
protected under one or more of the Geneva Conventions or under Protocol I to
the Geneva Conventions; and
(c) the perpetrator knows of, or is
reckless as to, the factual circumstances that establish that the person or
persons are so protected; and
(d) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for 25 years.
(2) Strict liability applies to paragraph (1)(b).
268.27
War crime—biological experiments
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator subjects one or
more persons to a particular biological experiment; and
(b) the experiment seriously endangers
the physical or mental health or integrity of the person or persons; and
(c) the perpetrator’s conduct is
neither justified by the medical, dental or hospital treatment of the person or
persons nor carried out in the interest or interests of the person or persons;
and
(d) the person or persons are
protected under one or more of the Geneva Conventions or under Protocol I to
the Geneva Conventions; and
(e) the perpetrator knows of, or is
reckless as to, the factual circumstances that establish that the person or
persons are so protected; and
(f) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for 25 years.
(2) Strict liability applies to paragraph (1)(d).
268.28
War crime—wilfully causing great suffering
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator causes great
physical or mental pain or suffering to, or serious injury to body or health
of, one or more persons; and
(b) the person or persons are protected
under one or more of the Geneva Conventions or under Protocol I to the Geneva
Conventions; and
(c) the perpetrator knows of, or is
reckless as to, the factual circumstances that establish that the person or
persons are so protected; and
(d) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for 25 years.
(2) Strict liability applies to paragraph (1)(b).
268.29
War crime—destruction and appropriation of property
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator destroys or
appropriates property; and
(b) the destruction or appropriation
is not justified by military necessity; and
(c) the destruction or appropriation
is extensive and carried out unlawfully and wantonly; and
(d) the property is protected under
one or more of the Geneva Conventions or under Protocol I to the Geneva
Conventions; and
(e) the perpetrator knows of, or is
reckless as to, the factual circumstances that establish that the property is
so protected; and
(f) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for 15 years.
(2) Strict liability applies to paragraph (1)(d).
268.30
War crime—compelling service in hostile forces
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator coerces one or
more persons, by act or threat:
(i) to take part in
military operations against that person’s or those persons’ own country or
forces; or
(ii) otherwise to serve in
the forces of an adverse power; and
(b) the person or persons are
protected under one or more of the Geneva Conventions or under Protocol I to
the Geneva Conventions; and
(c) the perpetrator knows of, or is
reckless as to, the factual circumstances that establish that the person or
persons are so protected; and
(d) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for 10 years.
(2) Strict liability applies to paragraph (1)(b).
268.31
War crime—denying a fair trial
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator deprives one or
more persons of a fair and regular trial by denying to the person any of the
judicial guarantees referred to in paragraph (b); and
(b) the judicial guarantees are those
defined in articles 84, 99 and 105 of the Third Geneva Convention and articles
66 and 71 of the Fourth Geneva Convention; and
(c) the person or persons are protected
under one or more of the Geneva Conventions or under Protocol I to the Geneva
Conventions; and
(d) the perpetrator knows of, or is
reckless as to, the factual circumstances that establish that the person or
persons are so protected; and
(e) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for 10 years.
(2) Strict liability applies to:
(a) the physical element of the
offence referred to in paragraph (1)(a) that the judicial guarantees are
those referred to in paragraph (1)(b); and
(b) paragraphs (1)(b) and (c).
268.32
War crime—unlawful deportation or transfer
(1) A person
(the perpetrator) commits an offence if:
(a) the perpetrator unlawfully deports
or transfers one or more persons to another country or to another location; and
(b) the person or persons are
protected under one or more of the Geneva Conventions or under Protocol I to
the Geneva Conventions; and
(c) the perpetrator knows of, or is
reckless as to, the factual circumstances that establish that the person or
persons are so protected; and
(d) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for 17 years.
(2) Strict liability applies to paragraph (1)(b).
268.33
War crime—unlawful confinement
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator unlawfully
confines or continues to confine one or more persons to a certain location; and
(b) the person or persons are
protected under one or more of the Geneva Conventions or under Protocol I to
the Geneva Conventions; and
(c) the perpetrator knows of, or is
reckless as to, the factual circumstances that establish that the person or
persons are so protected; and
(d) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for 17 years.
(2) Strict liability applies to paragraph (1)(b).
268.34
War crime—taking hostages
(1) A person
(the perpetrator) commits an offence if:
(a) the perpetrator seizes, detains or
otherwise holds hostage one or more persons; and
(b) the perpetrator threatens to kill,
injure or continue to detain the person or persons; and
(c) the perpetrator intends to compel
the government of a country, an international organisation or a person or group
of persons to act or refrain from acting as an explicit or implicit condition
for either the safety or the release of the person or persons; and
(d) the person or persons are
protected under one or more of the Geneva Conventions or under Protocol I to
the Geneva Conventions; and
(e) the perpetrator knows of, or is
reckless as to, the factual circumstances that establish that the person or
persons are so protected; and
(f) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for 17 years.
(2) Strict liability applies to paragraph (1)(d).
Subdivision E—Other serious war crimes
that are committed in the course of an international armed conflict
268.35
War crime—attacking civilians
A person (the perpetrator)
commits an offence if:
(a) the perpetrator directs an attack;
and
(b) the object of the attack is a
civilian population as such or individual civilians not taking direct part in
hostilities; and
(c) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for life.
268.36
War crime—attacking civilian objects
A person (the perpetrator)
commits an offence if:
(a) the perpetrator directs an attack;
and
(b) the object of the attack is not a
military objective; and
(c) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for 15 years.
268.37
War crime—attacking personnel or objects involved in a humanitarian assistance
or peacekeeping mission
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator directs an attack;
and
(b) the object of the attack is
personnel involved in a humanitarian assistance or peacekeeping mission in
accordance with the Charter of the United Nations; and
(c) the personnel are entitled to the
protection given to civilians under the Geneva Conventions or Protocol I to the
Geneva Conventions; and
(d) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator)
commits an offence if:
(a) the perpetrator directs an attack;
and
(b) the object of the attack is
installations, material, units or vehicles involved in a humanitarian
assistance or peacekeeping mission in accordance with the Charter of the United
Nations; and
(c) the installations, material, units
or vehicles are entitled to the protection given to civilian objects under the
Geneva Conventions or Protocol I to the Geneva Conventions; and
(d) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for 20 years.
(3) Strict liability applies to paragraphs (1)(c)
and (2)(c).
268.38
War crime—excessive incidental death, injury or damage
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator launches an
attack; and
(b) the perpetrator knows that the
attack will cause incidental death or injury to civilians; and
(c) the perpetrator knows that the
death or injury will be of such an extent as to be excessive in relation to the
concrete and direct military advantage anticipated; and
(d) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator)
commits an offence if:
(a) the perpetrator launches an
attack; and
(b) the perpetrator knows that the
attack will cause:
(i) damage to civilian
objects; or
(ii) widespread, long‑term
and severe damage to the natural environment; and
(c) the perpetrator knows that the
damage will be of such an extent as to be excessive in relation to the concrete
and direct military advantage anticipated; and
(d) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty for a contravention of this subsection: Imprisonment
for 20 years.
268.39
War crime—attacking undefended places
A person (the perpetrator)
commits an offence if:
(a) the perpetrator attacks or
bombards one or more towns, villages, dwellings or buildings; and
(b) the towns, villages, dwellings or
buildings are open for unresisted occupation; and
(c) the towns, villages, dwellings or
buildings do not constitute military objectives; and
(d) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for life.
268.40
War crime—killing or injuring a person who is hors de combat
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator kills one or more
persons; and
(b) the person or persons are hors
de combat; and
(c) the perpetrator knows of, or is
reckless as to, the factual circumstances that establish that the person or
persons are hors de combat; and
(d) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator)
commits an offence if:
(a) the perpetrator injures one or
more persons; and
(b) the person or persons are hors
de combat; and
(c) the perpetrator knows of, or is
reckless as to, the factual circumstances that establish that the person or
persons are hors de combat; and
(d) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty for a contravention of this subsection: Imprisonment
for 25 years.
268.41
War crime—improper use of a flag of truce
A person (the perpetrator)
commits an offence if:
(a) the perpetrator uses a flag of
truce; and
(b) the perpetrator uses the flag in
order to feign an intention to negotiate when there is no such intention on the
part of the perpetrator; and
(c) the perpetrator knows of, or is
reckless as to, the illegal nature of such use of the flag; and
(d) the perpetrator’s conduct results
in death or serious personal injury; and
(e) the conduct takes place in the
context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
268.42
War crime—improper use of a flag, insignia or uniform of the adverse party
A person (the perpetrator)
commits an offence if:
(a) the perpetrator uses a flag,
insignia or uniform of the adverse party; and
(b) the perpetrator uses the flag,
insignia or uniform while engaged in an attack or in order to shield, favour,
protect or impede military operations; and
(c) the perpetrator knows of, or is
reckless as to, the illegal nature of such use of the flag, insignia or
uniform; and
(d) the perpetrator’s conduct results
in death or serious personal injury; and
(e) the conduct takes place in the
context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
268.43
War crime—improper use of a flag, insignia or uniform of the United Nations
A person (the perpetrator)
commits an offence if:
(a) the perpetrator uses a flag,
insignia or uniform of the United Nations; and
(b) the perpetrator uses the flag,
insignia or uniform without the authority of the United Nations; and
(c) the perpetrator knows of, or is
reckless as to, the illegal nature of such use of the flag, insignia or
uniform; and
(d) the perpetrator’s conduct results
in death or serious personal injury; and
(e) the conduct takes place in the
context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
268.44
War crime—improper use of the distinctive emblems of the Geneva Conventions
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator uses an emblem;
and
(b) the emblem is one of the
distinctive emblems of the Geneva Conventions; and
(c) the perpetrator uses the emblem
for combatant purposes to invite the confidence of an adversary in order to
lead him or her to believe that the perpetrator is entitled to protection, or
that the adversary is obliged to accord protection to the perpetrator, with
intent to betray that confidence; and
(d) the perpetrator knows of, or is
reckless as to, the illegal nature of such use; and
(e) the perpetrator’s conduct results
in death or serious personal injury; and
(f) the conduct takes place in the
context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
(2) Strict liability applies to paragraph (1)(b).
(3) In this section:
emblem means any emblem, identity card, sign,
signal, insignia or uniform.
268.45
War crime—transfer of population
A person
(the perpetrator) commits an offence if:
(a) the perpetrator:
(i) authorises, organises
or directs, or participates in the authorisation, organisation or direction of,
or participates in, the transfer, directly or indirectly, of parts of the
civilian population of the perpetrator’s own country into territory that the
country occupies; or
(ii) authorises, organises
or directs, or participates in the authorisation, organisation or direction of,
or participates in, the deportation or transfer of all or parts of the
population of territory occupied by the perpetrator’s own country within or
outside that territory; and
(b) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for 17 years.
268.46
War crime—attacking protected objects
A person (the perpetrator)
commits an offence if:
(a) the perpetrator directs an attack;
and
(b) the object of the attack is any
one or more of the following that are not military objectives:
(i) buildings dedicated to
religion, education, art, science or charitable purposes;
(ii) historic monuments;
(iii) hospitals or places
where the sick and wounded are collected; and
(c) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for 20 years.
268.47
War crime—mutilation
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator subjects one or
more persons to mutilation, such as by permanently disfiguring, or permanently
disabling or removing organs or appendages of, the person or persons; and
(b) the perpetrator’s conduct causes
the death of the person or persons; and
(c) the conduct is neither justified
by the medical, dental or hospital treatment of the person or persons nor
carried out in the interest or interests of the person or persons; and
(d) the person or persons are in the
power of an adverse party; and
(e) the conduct takes place in the
context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator)
commits an offence if:
(a) the perpetrator subjects one or
more persons to mutilation, such as by permanently disfiguring, or permanently
disabling or removing organs or appendages of, the person or persons; and
(b) the perpetrator’s conduct
seriously endangers the physical or mental health, or the integrity, of the
person or persons; and
(c) the conduct is neither justified
by the medical, dental or hospital treatment of the person or persons nor
carried out in the interest or interests of the person or persons; and
(d) the person or persons are in the
power of an adverse party; and
(e) the conduct takes place in the
context of, and is associated with, an international armed conflict.
Penalty for a contravention of this subsection: Imprisonment
for 25 years.
268.48
War crime—medical or scientific experiments
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator subjects one or
more persons to a medical or scientific experiment; and
(b) the experiment causes the death of
the person or persons; and
(c) the perpetrator’s conduct is
neither justified by the medical, dental or hospital treatment of the person or
persons nor carried out in the interest or interests of the person or persons;
and
(d) the person or persons are in the
power of an adverse party; and
(e) the conduct takes place in the
context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator)
commits an offence if:
(a) the perpetrator subjects one or
more persons to a medical or scientific experiment; and
(b) the experiment seriously endangers
the physical or mental health, or the integrity, of the person or persons; and
(c) the perpetrator’s conduct is
neither justified by the medical, dental or hospital treatment of the person or
persons nor carried out in the interest or interests of the person or persons;
and
(d) the person or persons are in the
power of an adverse party; and
(e) the conduct takes place in the
context of, and is associated with, an international armed conflict.
Penalty for a contravention of this subsection: Imprisonment
for 25 years.
268.49
War crime—treacherously killing or injuring
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator invites the
confidence or belief of one or more persons that the perpetrator is entitled to
protection, or that the person or persons are obliged to accord protection to
the perpetrator; and
(b) the perpetrator kills the person
or persons; and
(c) the perpetrator makes use of that
confidence or belief in killing the person or persons; and
(d) the person or persons belong to an
adverse party; and
(e) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator)
commits an offence if:
(a) the perpetrator invites the
confidence or belief of one or more persons that the perpetrator is entitled to
protection, or that the person or persons are obliged to accord protection to
the perpetrator; and
(b) the perpetrator injures the person
or persons; and
(c) the perpetrator makes use of that
confidence or belief in injuring the person or persons; and
(d) the person or persons belong to an
adverse party; and
(e) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty for a contravention of this subsection: Imprisonment
for 25 years.
268.50
War crime—denying quarter
A person (the perpetrator)
commits an offence if:
(a) the perpetrator declares or orders
that there are to be no survivors; and
(b) the declaration or order is given
with the intention of threatening an adversary or conducting hostilities on the
basis that there are to be no survivors; and
(c) the perpetrator is in a position
of effective command or control over the subordinate forces to which the
declaration or order is directed; and
(d) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for life.
268.51
War crime—destroying or seizing the enemy’s property
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator destroys or seizes
certain property; and
(b) the property is property of an
adverse party; and
(c) the property is protected from the
destruction or seizure under article 18 of the Third Geneva Convention, article
53 of the Fourth Geneva Convention or article 54 of Protocol I to the Geneva
Conventions; and
(d) the perpetrator knows of, or is
reckless as to, the factual circumstances that establish that the property is
so protected; and
(e) the destruction or seizure is not
justified by military necessity; and
(f) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for 15 years.
(2) Strict liability applies to paragraph (1)(c).
268.52
War crime—depriving nationals of the adverse power of rights or actions
A person (the perpetrator)
commits an offence if:
(a) the perpetrator effects the
abolition, suspension or termination of admissibility in a court of law of
certain rights or actions; and
(b) the abolition, suspension or
termination is directed at the nationals of an adverse party; and
(c) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for 10 years.
268.53
War crime—compelling participation in military operations
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator coerces one or
more persons by act or threat to take part in military operations against that
person’s or those persons’ own country or forces; and
(b) the person or persons are
nationals of an adverse party; and
(c) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for 10 years.
(2) It is not
a defence to a prosecution for an offence against subsection (1) that the
person or persons were in the service of the perpetrator at a time before the
beginning of the international armed conflict.
268.54
War crime—pillaging
A person (the perpetrator)
commits an offence if:
(a) the perpetrator appropriates
certain property; and
(b) the perpetrator intends to deprive
the owner of the property and to appropriate it for private or personal use;
and
(c) the appropriation is without the
consent of the owner; and
(d) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for 15 years.
268.55
War crime—employing poison or poisoned weapons
A person (the perpetrator)
commits an offence if:
(a) the perpetrator employs a
substance or employs a weapon that releases a substance as a result of its
employment; and
(b) the substance is such that it
causes death or serious damage to health in the ordinary course of events
through its toxic properties; and
(c) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for 25 years.
268.56
War crime—employing prohibited gases, liquids, materials or devices
A person (the perpetrator)
commits an offence if:
(a) the perpetrator employs a gas or
other analogous substance or device; and
(b) the gas, substance or device is
such that it causes death or serious damage to health in the ordinary course of
events through its asphyxiating or toxic properties; and
(c) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
268.57
War crime—employing prohibited bullets
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator employs certain
bullets; and
(b) the bullets are such that their
use violates the Hague Declaration because they expand or flatten easily in the
human body; and
(c) the perpetrator knows that, or is
reckless as to whether, the nature of the bullets is such that their employment
will uselessly aggravate suffering or the wounding effect; and
(d) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for 25 years.
(2) Strict liability applies to paragraph (1)(b).
268.58
War crime—outrages upon personal dignity
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator severely
humiliates, degrades or otherwise violates the dignity of one or more persons;
and
(b) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for 17 years.
(2) A person (the perpetrator)
commits an offence if:
(a) the perpetrator severely
humiliates, degrades or otherwise violates the dignity of the body or bodies of
one or more dead persons; and
(b) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for 17 years.
268.59
War crime—rape
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator sexually
penetrates another person without the consent of that person; and
(b) the perpetrator knows about, or is
reckless as to, the lack of consent; and
(c) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for 25 years.
(2) A person (the perpetrator)
commits an offence if:
(a) the perpetrator causes another
person to sexually penetrate the perpetrator without the consent of the other
person; and
(b) the perpetrator knows about, or is
reckless as to, the lack of consent; and
(c) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for 25 years.
(3) In this section:
consent means free and voluntary agreement.
The following are examples of circumstances in which a person
does not consent to an act:
(a) the person submits to the act because of force
or the fear of force to the person or to someone else;
(b) the person submits to the act because the
person is unlawfully detained;
(c) the person is asleep or unconscious, or is so
affected by alcohol or another drug as to be incapable of consenting;
(d) the person is incapable of understanding the
essential nature of the act;
(e) the person is mistaken about the essential
nature of the act (for example, the person mistakenly believes that the act is
for medical or hygienic purposes);
(f) the person submits to the act because of
psychological oppression or abuse of power;
(g) the person submits to the act because of the
perpetrator taking advantage of a coercive environment.
(4) 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).
(5) 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.
(6) In this section, the genitalia or other
parts of the body of a person include surgically constructed genitalia or other
parts of the body of the person.
268.60
War crime—sexual slavery
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator causes another
person to enter into or remain in sexual slavery; and
(b) the perpetrator intends to cause,
or is reckless as to causing, that sexual slavery; and
(c) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for 25 years.
(2) For the purposes of this section, sexual
slavery is the condition of a person who provides sexual services and
who, because of the use of force or threats:
(a) is not free to cease providing
sexual services; or
(b) is not free to leave the place or
area where the person provides sexual services.
(3) In this section:
sexual service means the use or display of
the body of the person providing the service for the sexual gratification of
others.
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 sexual services by a person.
268.61
War crime—enforced prostitution
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator causes one or more
persons to engage in one or more acts of a sexual nature without the consent of
the person or persons, including by being reckless as to whether there is
consent; and
(b) the perpetrator intends that he or
she, or another person, will obtain pecuniary or other advantage in exchange
for, or in connection with, the acts of a sexual nature; and
(c) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
consent means free and voluntary agreement.
The following are examples of circumstances in which a person
does not consent to an act:
(a) the person submits to the act because of force
or the fear of force to the person or to someone else;
(b) the person submits to the act because the
person is unlawfully detained;
(c) the person is asleep or unconscious, or is so
affected by alcohol or another drug as to be incapable of consenting;
(d) the person is incapable of understanding the
essential nature of the act;
(e) the person is mistaken about the essential
nature of the act (for example, the person mistakenly believes that the act is
for medical or hygienic purposes);
(f) the person submits to the act because of
psychological oppression or abuse of power;
(g) the person submits to the act because of the
perpetrator taking advantage of a coercive environment.
threat of force or coercion includes:
(a) a threat of force or coercion such
as that caused by fear of violence, duress, detention, psychological oppression
or abuse of power; or
(b) taking advantage of a coercive
environment.
(3) In subsection (1), being reckless as
to whether there is consent to one or more acts of a sexual nature includes not
giving any thought to whether or not the person is consenting to the act or
acts of a sexual nature.
268.62
War crime—forced pregnancy
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator unlawfully
confines one or more women forcibly made pregnant; and
(b) the perpetrator intends to affect
the ethnic composition of any population or to destroy, wholly or partly, a
national, ethnical, racial or religious group, as such; and
(c) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
forcibly made pregnant includes made pregnant
by a consent that was effected by deception or by natural, induced or age‑related
incapacity.
(3) To avoid doubt, this section does not
affect any other law of the Commonwealth or any law of a State or Territory.
268.63
War crime—enforced sterilisation
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator deprives one or
more persons of biological reproductive capacity; and
(b) the deprivation is not effected by
a birth‑control measure that has a non‑permanent effect in
practice; and
(c) the perpetrator’s conduct is
neither justified by the medical or hospital treatment of the person or persons
nor carried out with the consent of the person or persons; and
(d) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
consent does not include consent effected by
deception or by natural, induced or age‑related incapacity.
268.64
War crime—sexual violence
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator does either of the
following:
(i) commits an act or acts
of a sexual nature against one or more persons;
(ii) causes one or more
persons to engage in an act or acts of a sexual nature;
without the consent of the
person or persons, including by being reckless as to whether there is consent;
and
(b) the perpetrator’s conduct is of a
gravity comparable to the offences referred to in sections 268.59 to
268.63; and
(c) the conduct takes place in the
context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) Strict liability applies to paragraph (1)(b).
(3) In subsection (1):
consent means free and voluntary agreement.
The following are examples of circumstances in which a person
does not consent to an act:
(a) the person submits to the act because of force
or the fear of force to the person or to someone else;
(b) the person submits to the act because the
person is unlawfully detained;
(c) the person is asleep or unconscious, or is so
affected by alcohol or another drug as to be incapable of consenting;
(d) the person is incapable of understanding the
essential nature of the act;
(e) the person is mistaken about the essential
nature of the act (for example, the person mistakenly believes that the act is
for medical or hygienic purposes);
(f) the person submits to the act because of
psychological oppression or abuse of power;
(g) the person submits to the act because of the
perpetrator taking advantage of a coercive environment.
threat of force or coercion includes:
(a) a threat of force or coercion such
as that caused by fear of violence, duress, detention, psychological oppression
or abuse of power; or
(b) taking advantage of a coercive
environment.
(4) In subsection (1), being reckless as
to whether there is consent to one or more acts of a sexual nature includes not
giving any thought to whether or not the person is consenting to the act or
acts of a sexual nature.
268.65
War crime—using protected persons as shields
(1) A person
(the perpetrator) commits an offence if:
(a) the perpetrator uses the presence
of one or more civilians, prisoners of war, military, medical or religious
personnel or persons who are hors de combat; and
(b) the perpetrator intends the
perpetrator’s conduct to render a military objective immune from attack or to
shield, favour or impede military operations; and
(c) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty:
(a) if the conduct results in the
death of any of the persons referred to in paragraph (a)—imprisonment for
life; or
(b) otherwise—imprisonment for 17
years.
(2) In this section:
religious personnel includes non‑confessional,
non‑combatant military personnel carrying out a similar function to
religious personnel.
268.66
War crime—attacking persons or objects using the distinctive emblems of the Geneva
Conventions
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator attacks one or
more persons; and
(b) the person or persons are using,
in conformity with the Geneva Conventions or the Protocols to the Geneva
Conventions, any of the distinctive emblems of the Geneva Conventions; and
(c) the perpetrator intends the
persons so using such an emblem to be the object of the attack; and
(d) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for life.
(2) A person
(the perpetrator) commits an offence if:
(a) the perpetrator attacks one or
more buildings, medical units or transports or other objects; and
(b) the buildings, units or transports
or other objects are using, in conformity with the Geneva Conventions or the
Protocols to the Geneva Conventions, any of the distinctive emblems of the
Geneva Conventions; and
(c) the perpetrator intends the
buildings, units or transports or other objects so using such an emblem to be
the object of the attack; and
(d) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for 20 years.
(3) Strict liability applies to paragraphs (1)(b)
and (2)(b).
268.67
War crime—starvation as a method of warfare
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator uses as a method
of warfare:
(i) any intentional deprivation
of civilians of objects indispensable to their survival; or
(ii) without limiting subparagraph (i)—the
wilful impeding of relief supplies for civilians; and
(b) if subparagraph (a)(ii)
applies—the relief supplies are provided for under the Geneva Conventions; and
(c) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for 25 years.
(2) Strict liability applies to paragraph (1)(b).
268.68
War crime—using, conscripting or enlisting children
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator uses one or more
persons to participate actively in hostilities; and
(b) the person or persons are under
the age of 15 years; and
(c) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for 17 years.
(2) A person (the perpetrator)
commits an offence if:
(a) the perpetrator conscripts one or
more persons into the national armed forces; and
(b) the person or persons are under
the age of 15 years; and
(c) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for 15 years.
(3) A person (the perpetrator)
commits an offence if:
(a) the perpetrator enlists one or
more persons into the national armed forces; and
(b) the person or persons are under
the age of 15 years; and
(c) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty for a contravention of this subsection: Imprisonment
for 10 years.
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
268.69
Definition of religious personnel
In this Subdivision:
religious personnel includes non‑confessional,
non‑combatant military personnel carrying out a similar function to
religious personnel.
268.70
War crime—murder
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator causes the death
of one or more persons; and
(b) the person or persons are not
taking an active part in the hostilities; and
(c) the perpetrator knows of, or is
reckless as to, the factual circumstances establishing that the person or
persons are not taking an active part in the hostilities; and
(d) the perpetrator’s conduct takes
place in the context of, and is associated with, an armed conflict that is not
an international armed conflict.
Penalty: Imprisonment for life.
(2) To avoid doubt, a reference in subsection (1)
to a person or persons who are not taking an active part in the hostilities
includes a reference to:
(a) a person or persons who are
hors de combat; or
(b) civilians, medical personnel or
religious personnel who are not taking an active part in the hostilities.
268.71
War crime—mutilation
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator subjects one or more
persons to mutilation, such as by permanently disfiguring, or permanently
disabling or removing organs or appendages of, the person or persons; and
(b) the perpetrator’s conduct causes
the death of the person or persons; and
(c) the conduct is neither justified
by the medical, dental or hospital treatment of the person or persons nor
carried out in the interest or interests of the person or persons; and
(d) the person or persons are not
taking an active part in the hostilities; and
(e) the perpetrator knows of, or is
reckless as to, the factual circumstances establishing that the person or
persons are not taking an active part in the hostilities; and
(f) the conduct takes place in the
context of, and is associated with, an armed conflict that is not an
international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator)
commits an offence if:
(a) the perpetrator subjects one or
more persons to mutilation, such as by permanently disfiguring, or permanently
disabling or removing organs or appendages of, the person or persons; and
(b) the perpetrator’s conduct
seriously endangers the physical or mental health, or the integrity, of the
person or persons; and
(c) the conduct is neither justified
by the medical, dental or hospital treatment of the person or persons nor
carried out in the interest or interests of the person or persons; and
(d) the person or persons are not
taking an active part in the hostilities; and
(e) the perpetrator knows of, or is
reckless as to, the factual circumstances establishing that the person or
persons are not taking an active part in the hostilities; and
(f) the conduct takes place in the
context of, and is associated with, an armed conflict that is not an
international armed conflict.
Penalty: Imprisonment for 25 years.
(3) To avoid doubt, a reference in subsection (1)
or (2) to a person or persons who are not taking an active part in the
hostilities includes a reference to:
(a) a person or persons who are
hors de combat; or
(b) civilians, medical personnel or
religious personnel who are not taking an active part in the hostilities.
268.72
War crime—cruel treatment
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator inflicts severe
physical or mental pain or suffering upon one or more persons; and
(b) the person or persons are not
taking an active part in the hostilities; and
(c) the perpetrator knows of, or is
reckless as to, the factual circumstances establishing that the person or
persons are not taking an active part in the hostilities; and
(d) the perpetrator’s conduct takes
place in the context of, and is associated with, an armed conflict that is not
an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) To avoid doubt, a reference in subsection (1)
to a person or persons who are not taking an active part in the hostilities
includes a reference to:
(a) a person or persons who are
hors de combat; or
(b) civilians, medical personnel or
religious personnel who are not taking an active part in the hostilities.
268.73
War crime—torture
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator inflicts severe
physical or mental pain or suffering upon one or more persons; and
(b) the perpetrator inflicts the pain
or suffering for the purpose of:
(i) obtaining information
or a confession; or
(ii) a punishment,
intimidation or coercion; or
(iii) a reason based on
discrimination of any kind; and
(c) the person or persons are not
taking an active part in the hostilities; and
(d) the perpetrator knows of, or is
reckless as to, the factual circumstances establishing that the person or
persons are not taking an active part in the hostilities; and
(e) the perpetrator’s conduct takes
place in the context of, and is associated with, an armed conflict that is not
an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) To avoid doubt, a reference in subsection (1)
to a person or persons who are not taking an active part in the hostilities
includes a reference to:
(a) a person or persons who are
hors de combat; or
(b) civilians, medical personnel or
religious personnel who are not taking an active part in the hostilities.
268.74
War crime—outrages upon personal dignity
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator severely
humiliates, degrades or otherwise violates the dignity of one or more persons;
and
(b) the person or persons are not
taking an active part in the hostilities; and
(c) the perpetrator knows of, or is
reckless as to, the factual circumstances establishing that the person or
persons are not taking an active part in the hostilities; and
(d) the perpetrator’s conduct takes
place in the context of, and is associated with, an armed conflict that is not
an international armed conflict.
Penalty: Imprisonment for 17 years.
(2) A person (the perpetrator)
commits an offence if:
(a) the perpetrator severely
humiliates, degrades or otherwise violates the dignity of the body or bodies of
one or more dead persons; and
(b) the dead person or dead persons
were not, before his, her or their death, taking an active part in the
hostilities; and
(c) the perpetrator knows of, or is
reckless as to, the factual circumstances establishing that the dead person or
dead persons were not, before his, her or their death, taking an active part in
the hostilities; and
(d) the perpetrator’s conduct takes
place in the context of, and is associated with, an armed conflict that is not
an international armed conflict.
Penalty: Imprisonment for 17 years.
(3) To avoid doubt, a reference in this
section to a person or persons who are not, or a dead person or dead persons
who were not before his, her or their death, taking an active part in the
hostilities includes a reference to:
(a) a person or persons who:
(i) are hors de combat;
or
(ii) are civilians, medical
personnel or religious personnel who are not taking an active part in the
hostilities; or
(b) a dead person or dead persons who,
before his, her or their death:
(i) were hors de combat;
or
(ii) were civilians,
medical personnel or religious personnel who were not taking an active part in
the hostilities;
as the case may be.
268.75
War crime—taking hostages
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator seizes, detains or
otherwise holds hostage one or more persons; and
(b) the perpetrator threatens to kill,
injure or continue to detain the person or persons; and
(c) the perpetrator intends to compel
the government of a country, an international organisation or a person or group
of persons to act or refrain from acting as an explicit or implicit condition
for either the safety or the release of the person or persons; and
(d) the person or persons are not
taking an active part in the hostilities; and
(e) the perpetrator knows of, or is
reckless as to, the factual circumstances establishing that the person or
persons are not taking an active part in the hostilities; and
(f) the perpetrator’s conduct takes
place in the context of, and is associated with, an armed conflict that is not
an international armed conflict.
Penalty: Imprisonment for 17 years.
(2) To avoid doubt, a reference in subsection (1)
to a person or persons who are not taking an active part in the hostilities
includes a reference to:
(a) a person or persons who are
hors de combat; or
(b) civilians, medical personnel or
religious personnel who are not taking an active part in the hostilities.
268.76
War crime—sentencing or execution without due process
(1) A person
(the perpetrator) commits an offence if:
(a) the perpetrator passes a sentence
on one or more persons; and
(b) the person or persons are not
taking an active part in the hostilities; and
(c) the perpetrator knows of, or is
reckless as to, the factual circumstances establishing that the person or
persons are not taking an active part in the hostilities; and
(d) either of the following applies:
(i) there was no previous
judgment pronounced by a court;
(ii) the court that
rendered judgment did not afford the essential guarantees of independence and
impartiality or other judicial guarantees; and
(e) if the court did not afford other
judicial guarantees—those guarantees are guarantees set out in articles 14, 15
and 16 of the Covenant; and
(f) the perpetrator knows of:
(i) if subparagraph (d)(i)
applies—the absence of a previous judgment; or
(ii) if subparagraph (d)(ii)
applies—the failure to afford the relevant guarantees and the fact that they
are indispensable to a fair trial; and
(g) the perpetrator’s conduct takes
place in the context of, and is associated with, an armed conflict that is not
an international armed conflict.
Penalty: Imprisonment for 10 years.
(2) A person (the perpetrator)
commits an offence if:
(a) the perpetrator executes one or
more persons; and
(b) the person or persons are not
taking an active part in the hostilities; and
(c) the perpetrator knows of, or is
reckless as to, the factual circumstances establishing that the person or
persons are not taking an active part in the hostilities; and
(d) either of the following applies:
(i) there was no previous
judgment pronounced by a court;
(ii) the court that
rendered judgment did not afford the essential guarantees of independence and
impartiality or other judicial guarantees; and
(e) if the court did not afford other
judicial guarantees—those guarantees are guarantees set out in articles 14, 15
and 16 of the Covenant; and
(f) the perpetrator knows of:
(i) if subparagraph (d)(i)
applies—the absence of a previous judgment; or
(ii) if subparagraph (d)(ii)
applies—the failure to afford the relevant guarantees and the fact that they
are indispensable to a fair trial; and
(g) the perpetrator’s conduct takes
place in the context of, and is associated with, an armed conflict that is not
an international armed conflict.
Penalty: Imprisonment for life.
(3) Strict liability applies to paragraphs (1)(e)
and (2)(e).
(4) To avoid doubt, a reference in subsection (1)
or (2) to a person or persons who are not taking an active part in the
hostilities includes a reference to:
(a) a person or persons who are
hors de combat; or
(b) civilians, medical personnel or
religious personnel who are not taking an active part in the hostilities.
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
268.77
War crime—attacking civilians
A person (the perpetrator)
commits an offence if:
(a) the perpetrator directs an attack;
and
(b) the object of the attack is a
civilian population as such or individual civilians not taking direct part in
hostilities; and
(c) the perpetrator’s conduct takes
place in the context of, and is associated with, an armed conflict that is not
an international armed conflict.
Penalty: Imprisonment for life.
268.78
War crime—attacking persons or objects using the distinctive emblems of the Geneva
Conventions
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator attacks one or
more persons; and
(b) the person or persons are using,
in conformity with the Geneva Conventions or the Protocols to the Geneva
Conventions, any of the distinctive emblems of the Geneva Conventions; and
(c) the perpetrator intends the
persons so using such an emblem to be the object of the attack; and
(d) the perpetrator’s conduct takes
place in the context of, and is associated with, an armed conflict that is not
an international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator)
commits an offence if:
(a) the perpetrator attacks one or more
buildings, medical units or transports or other objects; and
(b) the buildings, units or transports
or other objects are using, in conformity with the Geneva Conventions or the
Protocols to the Geneva Conventions, any of the distinctive emblems of the Geneva
Conventions; and
(c) the perpetrator intends the
buildings, units or transports or other objects so using such an emblem to be
the object of the attack; and
(d) the perpetrator’s conduct takes
place in the context of, and is associated with, an armed conflict that is not
an international armed conflict.
Penalty: Imprisonment for 20 years.
(3) Strict liability applies to paragraphs (1)(b)
and (2)(b).
268.79
War crime—attacking personnel or objects involved in a humanitarian assistance
or peacekeeping mission
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator directs an attack;
and
(b) the object of the attack is
personnel involved in a humanitarian assistance or peacekeeping mission in
accordance with the Charter of the United Nations; and
(c) the personnel are entitled to the
protection given to civilians under the Geneva Conventions or Protocol II to
the Geneva Conventions; and
(d) the perpetrator’s conduct takes
place in the context of, and is associated with, an armed conflict that is not
an international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator)
commits an offence if:
(a) the perpetrator directs an attack;
and
(b) the object of the attack is
installations, material, units or vehicles involved in a humanitarian
assistance or peacekeeping mission in accordance with the Charter of the United
Nations; and
(c) the installations, material, units
or vehicles are entitled to the protection given to civilian objects under the
Geneva Conventions and Protocol II to the Geneva Conventions; and
(d) the perpetrator’s conduct takes
place in the context of, and is associated with, an armed conflict that is not
an international armed conflict.
Penalty: Imprisonment for 20 years.
(3) Strict liability applies to paragraphs (1)(c)
and (2)(c).
268.80
War crime—attacking protected objects
A person (the perpetrator)
commits an offence if:
(a) the perpetrator directs an attack;
and
(b) the object of the attack is any
one or more of the following that are not military objectives:
(i) buildings dedicated to
religion, education, art, science or charitable purposes;
(ii) historic monuments;
(iii) hospitals or places
where the sick and wounded are collected; and
(c) the perpetrator’s conduct takes place
in the context of, and is associated with, an armed conflict that is not an
international armed conflict.
Penalty: Imprisonment for 20 years.
268.81
War crime—pillaging
A person (the perpetrator)
commits an offence if:
(a) the perpetrator appropriates
certain property; and
(b) the perpetrator intends to deprive
the owner of the property and to appropriate it for private or personal use;
and
(c) the appropriation is without the
consent of the owner; and
(d) the perpetrator’s conduct takes
place in the context of, and is associated with, an armed conflict that is not
an international armed conflict.
Penalty: Imprisonment for 20 years.
268.82
War crime—rape
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator sexually penetrates
another person without the consent of that person; and
(b) the perpetrator knows of, or is
reckless as to, the lack of consent; and
(c) the perpetrator’s conduct takes
place in the context of, and is associated with, an armed conflict that is not
an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) A person (the perpetrator)
commits an offence if:
(a) the perpetrator causes another
person to sexually penetrate the perpetrator without the consent of the other
person; and
(b) the perpetrator knows of, or is
reckless as to, the lack of consent; and
(c) the perpetrator’s conduct takes
place in the context of, and is associated with, an armed conflict that is not
an international armed conflict.
Penalty: Imprisonment for 25 years.
(3) In this section:
consent means free and voluntary agreement.
The following are examples of circumstances in which a person
does not consent to an act:
(a) the person submits to the act because of force
or the fear of force to the person or to someone else;
(b) the person submits to the act because the
person is unlawfully detained;
(c) the person is asleep or unconscious, or is so
affected by alcohol or another drug as to be incapable of consenting;
(d) the person is incapable of understanding the
essential nature of the act;
(e) the person is mistaken about the essential
nature of the act (for example, the person mistakenly believes that the act is
for medical or hygienic purposes);
(f) the person submits to the act because of
psychological oppression or abuse of power;
(g) the person submits to the act because of the
perpetrator taking advantage of a coercive environment.
(4) 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).
(5) 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.
(6) In this section, the genitalia or other
parts of the body of a person include surgically constructed genitalia or other
parts of the body of the person.
268.83
War crime—sexual slavery
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator causes another
person to enter into or remain in sexual slavery; and
(b) the perpetrator intends to cause,
or is reckless as to causing, that sexual slavery; and
(c) the perpetrator’s conduct takes
place in the context of, and is associated with, an armed conflict that is not
an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) For the purposes of this section, sexual
slavery is the condition of a person who provides sexual services and
who, because of the use of force or threats:
(a) is not free to cease providing
sexual services; or
(b) is not free to leave the place or
area where the person provides sexual services.
(3) In this section:
sexual service means the use or display of
the body of the person providing the service for the sexual gratification of
others.
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 sexual services by a person.
268.84
War crime—enforced prostitution
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator causes one or more
persons to engage in one or more acts of a sexual nature without the consent of
the person or persons, including by being reckless as to whether there is
consent; and
(b) the perpetrator intends that he or
she, or another person, will obtain pecuniary or other advantage in exchange
for, or in connection with, the acts of a sexual nature; and
(c) the perpetrator’s conduct takes
place in the context of, and is associated with, an armed conflict that is not
an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
consent means free and voluntary agreement.
The following are examples of circumstances in which a person
does not consent to an act:
(a) the person submits to the act because of force
or the fear of force to the person or to someone else;
(b) the person submits to the act because the
person is unlawfully detained;
(c) the person is asleep or unconscious, or is so
affected by alcohol or another drug as to be incapable of consenting;
(d) the person is incapable of understanding the
essential nature of the act;
(e) the person is mistaken about the essential
nature of the act (for example, the person mistakenly believes that the act is
for medical or hygienic purposes);
(f) the person submits to the act because of
psychological oppression or abuse of power;
(g) the person submits to the act because of the
perpetrator taking advantage of a coercive environment.
threat of force or coercion includes:
(a) a threat of force or coercion such
as that caused by fear of violence, duress, detention, psychological oppression
or abuse of power; or
(b) taking advantage of a coercive
environment.
(3) In subsection (1), being reckless as
to whether there is consent to one or more acts of a sexual nature includes not
giving any thought to whether or not the person is consenting to the act or
acts of a sexual nature.
268.85
War crime—forced pregnancy
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator unlawfully
confines one or more women forcibly made pregnant; and
(b) the perpetrator intends to affect
the ethnic composition of any population or to destroy, wholly or partly, a
national, ethnical, racial or religious group as such; and
(c) the perpetrator’s conduct takes
place in the context of, and is associated with, an armed conflict that is not
an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
forcibly made pregnant includes made pregnant
by a consent that was affected by deception or by natural, induced or age‑related
incapacity.
(3) To avoid doubt, this section does not
affect any other law of the Commonwealth or any law of a State or Territory.
268.86
War crime—enforced sterilisation
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator deprives one or
more persons of biological reproductive capacity; and
(b) the deprivation is not effected by
a birth‑control measure that has a non‑permanent effect in
practice; and
(c) the perpetrator’s conduct is
neither justified by the medical or hospital treatment of the person or persons
nor carried out with the consent of the person or persons; and
(d) the perpetrator’s conduct takes
place in the context of, and is associated with, an armed conflict that is not
an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
consent does not include consent effected by
deception or by natural, induced or age‑related incapacity.
268.87
War crime—sexual violence
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator does either of the
following:
(i) commits an act or acts
of a sexual nature against one or more persons;
(ii) causes one or more
persons to engage in an act or acts of a sexual nature;
without the consent of the
person or persons, including by being reckless as to whether there is consent;
and
(b) the perpetrator’s conduct is of a
gravity comparable to the offences referred to in sections 268.82 to
268.87; and
(c) the conduct takes place in the
context of, and is associated with, an armed conflict that is not an
international armed conflict.
Penalty: Imprisonment for 25 years.
(2) Strict liability applies to paragraph (1)(b).
(3) In subsection (1):
consent means free and voluntary agreement.
The following are examples of circumstances in which a person
does not consent to an act:
(a) the person submits to the act because of force
or the fear of force to the person or to someone else;
(b) the person submits to the act because the
person is unlawfully detained;
(c) the person is asleep or unconscious, or is so
affected by alcohol or another drug as to be incapable of consenting;
(d) the person is incapable of understanding the
essential nature of the act;
(e) the person is mistaken about the essential
nature of the act (for example, the person mistakenly believes that the act is
for medical or hygienic purposes);
(f) the person submits to the act because of
psychological oppression or abuse of power;
(g) the person submits to the act because of the
perpetrator taking advantage of a coercive environment.
threat of force or coercion includes:
(a) a threat of force or coercion such
as that caused by fear of violence, duress, detention, psychological oppression
or abuse of power, against the person or another person; or
(b) taking advantage of a coercive
environment.
(4) In subsection (1), being reckless as
to whether there is consent to one or more acts of a sexual nature includes not
giving any thought to whether or not the person is consenting to the act or
acts of a sexual nature.
268.88
War crime—using, conscripting or enlisting children
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator uses one or more
persons to participate actively in hostilities; and
(b) the person or persons are under
the age of 15 years; and
(c) the perpetrator knows that, or is
reckless as to whether, the person or persons are under that age; and
(d) the perpetrator’s conduct takes
place in the context of, and is associated with, an armed conflict that is not
an international armed conflict.
Penalty: Imprisonment for 17 years.
(2) A person (the perpetrator)
commits an offence if:
(a) the perpetrator conscripts one or
more persons into an armed force or group; and
(b) the person or persons are under
the age of 15 years; and
(c) the perpetrator knows that, or is
reckless as to whether, the person or persons are under that age; and
(d) the perpetrator’s conduct takes
place in the context of, and is associated with, an armed conflict that is not
an international armed conflict.
Penalty: Imprisonment for 15 years.
(3) A person (the perpetrator)
commits an offence if:
(a) the perpetrator enlists one or
more persons into an armed force or group; and
(b) the person or persons are under
the age of 15 years; and
(c) the perpetrator knows that, or is
reckless as to whether, the person or persons are under that age; and
(d) the perpetrator’s conduct takes
place in the context of, and is associated with, an armed conflict that is not
an international armed conflict.
Penalty for a contravention of this subsection: Imprisonment
for 10 years.
268.89
War crime—displacing civilians
A person (the perpetrator)
commits an offence if:
(a) the perpetrator orders a
displacement of a civilian population; and
(b) the order is not justified by the
security of the civilians involved or by imperative military necessity; and
(c) the perpetrator’s conduct takes
place in the context of, and is associated with, an armed conflict that is not
an international armed conflict.
Penalty: Imprisonment for 17 years.
268.90
War crime—treacherously killing or injuring
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator invites the
confidence or belief of one or more persons that the perpetrator is entitled to
protection, or that the person or persons are obliged to accord protection to
the perpetrator; and
(b) the perpetrator kills the person
or persons; and
(c) the perpetrator makes use of that
confidence or belief in killing the person or persons; and
(d) the person or persons belong to an
adverse party; and
(e) the perpetrator’s conduct takes
place in the context of, and is associated with, an armed conflict that is not
an international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator)
commits an offence if:
(a) the perpetrator invites the
confidence or belief of one or more persons that the perpetrator is entitled to
protection, or that the person or persons are obliged to accord protection to
the perpetrator; and
(b) the perpetrator injures the person
or persons; and
(c) the perpetrator makes use of that
confidence or belief in injuring the person or persons; and
(d) the person or persons belong to an
adverse party; and
(e) the perpetrator’s conduct takes
place in the context of, and is associated with, an armed conflict that is not
an international armed conflict.
Penalty for a contravention of this subsection: Imprisonment
for 25 years.
268.91
War crime—denying quarter
A person (the perpetrator)
commits an offence if:
(a) the perpetrator declares or orders
that there are to be no survivors; and
(b) the declaration or order is given
with the intention of threatening an adversary or conducting hostilities on the
basis that there are to be no survivors; and
(c) the perpetrator is in a position
of effective command or control over the subordinate forces to which the
declaration or order is directed; and
(d) the perpetrator’s conduct takes
place in the context of, and is associated with, an armed conflict that is not
an international armed conflict.
Penalty: Imprisonment for life.
268.92
War crime—mutilation
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator subjects one or
more persons to mutilation, such as by permanently disfiguring, or permanently
disabling or removing organs or appendages of, the person or persons; and
(b) the perpetrator’s conduct causes
the death of the person or persons; and
(c) the conduct is neither justified
by the medical, dental or hospital treatment of the person or persons nor
carried out in the interest or interests of the person or persons; and
(d) the person or persons are in the
power of another party to the conflict; and
(e) the conduct takes place in the
context of, and is associated with, an armed conflict that is not an
international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator)
commits an offence if:
(a) the perpetrator subjects one or
more persons to mutilation, such as by permanently disfiguring, or permanently
disabling or removing organs or appendages of, the person or persons; and
(b) the perpetrator’s conduct
seriously endangers the physical or mental health, or the integrity, of the
person or persons; and
(c) the conduct is neither justified
by the medical, dental or hospital treatment of the person or persons nor
carried out in the interest or interests of the person or persons; and
(d) the person or persons are in the
power of another party to the conflict; and
(e) the conduct takes place in the
context of, and is associated with, an armed conflict that is not an
international armed conflict.
Penalty for a contravention of this subsection: Imprisonment
for 25 years.
268.93
War crime—medical or scientific experiments
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator subjects one or
more persons to a medical or scientific experiment; and
(b) the experiment causes the death of
the person or persons; and
(c) the perpetrator’s conduct is
neither justified by the medical, dental or hospital treatment of the person or
persons nor carried out in the interest or interests of the person or persons;
and
(d) the person or persons are in the
power of another party to the conflict; and
(e) the conduct takes place in the
context of, and is associated with, an armed conflict that is not an
international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator)
commits an offence if:
(a) the perpetrator subjects one or more
persons to a medical or scientific experiment; and
(b) the experiment seriously endangers
the physical or mental health, or the integrity, of the person or persons; and
(c) the perpetrator’s conduct is
neither justified by the medical, dental or hospital treatment of the person or
persons nor carried out in the interest or interests of the person or persons;
and
(d) the person or persons are in the
power of another party to the conflict; and
(e) the conduct takes place in the
context of, and is associated with, an armed conflict that is not an
international armed conflict.
Penalty for a contravention of this subsection: Imprisonment
for 25 years.
268.94
War crime—destroying or seizing an adversary’s property
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator destroys or seizes
certain property; and
(b) the property is property of an
adversary; and
(c) the property is protected from the
destruction or seizure under article 14 of Protocol II to the Geneva
Conventions; and
(d) the perpetrator knows of, or is
reckless as to, the factual circumstances that establish that the property is
so protected; and
(e) the destruction or seizure is not
justified by military necessity; and
(f) the perpetrator’s conduct takes
place in the context of, and is associated with, an armed conflict that is not
an international armed conflict.
Penalty: Imprisonment for 15 years
(2) Strict liability applies to paragraph (1)(c).
Subdivision H—War crimes that are
grave breaches of Protocol I to the Geneva Conventions
268.95
War crime—medical procedure
A person (the perpetrator)
commits an offence if:
(a) the perpetrator subjects one or
more persons to a medical procedure; and
(b) the procedure seriously endangers
the physical or mental health, or the integrity, of the person or persons; and
(c) the perpetrator’s conduct is not
justified by the state of health of the person or persons; and
(d) the perpetrator knows that, or is
reckless as to whether, the conduct is consistent with generally accepted
medical standards that would be applied under similar medical circumstances to
persons who are of the same nationality as the perpetrator and are in no way
deprived of liberty; and
(e) the person or persons are in the
power of, or are interned, detained or otherwise deprived of liberty by, the
country of the perpetrator as a result of an international armed conflict; and
(f) the conduct takes place in the
context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
268.96
War crime—removal of blood, tissue or organs for transplantation
(1) A person (the perpetrator)
commits an offence if:
(a) the perpetrator removes from one
or more persons blood, tissue or organs for transplantation; and
(b) in the case of the removal of
blood—the removal:
(i) is not for
transfusion; or
(ii) is for transfusion
without the consent of the person or persons; and
(c) in the case of the removal of
skin—the removal:
(i) is not for grafting;
or
(ii) is for grafting
without the consent of the person or persons; and
(d) the intent of the removal is non‑therapeutic;
and
(e) the removal is not carried out
under conditions consistent with generally accepted medical standards and
controls designed for the benefit of the person or persons and of the
recipient; and
(f) the person or persons are in the
power of, or are interned, detained or otherwise deprived of liberty by, an
adverse party as a result of an international armed conflict; and
(g) the conduct takes place in the
context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
consent means consent given voluntarily and
without any coercion or inducement.
268.97
War crime—attack against works or installations containing dangerous forces
resulting in excessive loss of life or injury to civilians
A person (the perpetrator)
commits an offence if:
(a) the perpetrator launches an attack
against works or installations containing dangerous forces; and
(b) the attack is such that it will
cause loss of life, injury to civilians, or damage to civilian objects, to such
an extent as to be excessive in relation to the concrete and direct military
advantage anticipated; and
(c) the perpetrator knows that the
attack will cause loss of life, injury to civilians, or damage to civilian
objects, to such an extent; and
(d) the attack results in death or
serious injury to body or health; and
(e) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for life.
268.98
War crime—attacking undefended places or demilitarized zones
A person (the perpetrator)
commits an offence if:
(a) the perpetrator attacks one or
more towns, villages, dwellings, buildings or demilitarized zones; and
(b) the towns, villages, dwellings or
buildings are open for unresisted occupation; and
(c) the attack results in death or
serious injury to body or health; and
(d) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for life.
268.99
War crime—unjustifiable delay in the repatriation of prisoners of war or
civilians
(1) A person
(the perpetrator) commits an offence if:
(a) one or more persons are in the
power of, or are interned, detained or otherwise deprived of liberty by, an
adverse party as a result of an international armed conflict; and
(b) the perpetrator unjustifiably
delays the repatriation of the person or persons to the person’s own country or
the persons’ own countries; and
(c) the delay is in violation of Part IV
of the Third Geneva Convention or Chapter XII of Section IV of Part III of
the Fourth Geneva Convention.
Penalty: Imprisonment for 10 years.
(2) Strict liability applies to paragraph (1)(c).
268.100
War crime—apartheid
A person
(the perpetrator) commits an offence if:
(a) the perpetrator commits against
one or more persons an act that is a proscribed inhumane act or is of a nature
and gravity similar to any proscribed inhumane act; and
(b) the perpetrator knows of, or is
reckless at to, the factual circumstances that establish the character of the
act; and
(c) the perpetrator’s conduct is
committed in the context of an institutionalised regime of systematic
oppression and domination by one racial group over any other racial group or
groups; and
(d) the perpetrator intends to
maintain the regime by the conduct; and
(e) the conduct takes place in the
context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 17 years.
268.101
War crime—attacking protected objects
A person
(the perpetrator) commits an offence if:
(a) the perpetrator directs an attack;
and
(b) the object of the attack is any
one or more of the following that are not used in support of the military
effort and are not located in the immediate proximity of military objectives:
(i) clearly recognised
historic monuments;
(ii) works of art;
(iii) places of worship; and
(c) the monuments, works of art and
places of worship constitute the cultural or spiritual heritage of peoples and
have been given special protection by special arrangement (for example, within
the framework of a competent international organisation); and
(d) the perpetrator’s conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for 20 years.
Subdivision J—Crimes against the
administration of the justice of the International Criminal Court
268.102
Perjury
(1) A person commits the offence of perjury
if:
(a) the person makes a sworn statement
in or for the purposes of a proceeding before the International Criminal Court;
and
(b) the statement is false.
Penalty: Imprisonment for 10 years.
(2) A person who is an interpreter commits
the offence of perjury if:
(a) the person, by a sworn statement,
gives an interpretation of a statement or other thing in or for the purposes of
a proceeding before the International Criminal Court; and
(b) the interpretation is false or
misleading.
Penalty: Imprisonment for 10 years.
268.103
Falsifying evidence
(1) A person commits an offence if the person
makes false evidence with the intention of:
(a) influencing a decision on the
institution of a proceeding before the International Criminal Court; or
(b) influencing the outcome of such a
proceeding.
Penalty: Imprisonment for 7 years.
(2) A person commits an offence if the
person:
(a) uses evidence that is false
evidence and that the person believes is false evidence; and
(b) is reckless as to whether or not
the use of the evidence could:
(i) influence a decision
on the institution of a proceeding before the International Criminal Court; or
(ii) influence the outcome
of such a proceeding.
Penalty: Imprisonment for 7 years.
(3) For the purposes of this section, making
evidence includes altering evidence, but does not include perjury.
268.104
Destroying or concealing evidence
(1) A person commits an offence if the person
destroys or conceals evidence with the intention of:
(a) influencing a decision on the
institution of a proceeding before the International Criminal Court; or
(b) influencing the outcome of such a
proceeding.
Penalty: Imprisonment for 7 years.
(2) For the purposes of this section, destroying
evidence includes making the evidence illegible, indecipherable or otherwise
incapable of being identified.
268.105
Deceiving witnesses
A person commits an offence if the
person deceives another person with the intention that the other person or a
third person will:
(a) give false evidence in a
proceeding before the International Criminal Court; or
(b) withhold true evidence at such a
proceeding.
Penalty: Imprisonment for 5 years.
268.106
Corrupting witnesses or interpreters
(1) A person commits an offence if the person
provides, or offers or promises to provide, a benefit to another person with
the intention that the other person or a third person will:
(a) not attend as a witness at a
proceeding before the International Criminal Court; or
(b) give false evidence at such a proceeding;
or
(c) withhold true evidence at such a
proceeding.
Penalty: Imprisonment for 5 years.
(2) A person commits an offence if the person
asks for, or receives or agrees to receive, a benefit for himself, herself or
another person with the intention that he, she or another person will:
(a) not attend as a witness at a
proceeding before the International Criminal Court; or
(b) give false evidence at such a
proceeding; or
(c) withhold true evidence at such a
proceeding.
Penalty: Imprisonment for 5 years.
(3) A person commits an offence if the person
provides, or offers or promises to provide, a benefit to another person with
the intention that the other person or a third person will:
(a) not attend as an interpreter at a
proceeding before the International Criminal Court; or
(b) give a false or misleading
interpretation as an interpreter at such a proceeding.
Penalty: Imprisonment for 5 years.
268.107
Threatening witnesses or interpreters
(1) A person commits an offence if the person
causes or threatens to cause any detriment to another person with the intention
that the other person or a third person will:
(a) not attend as a witness at a
proceeding before the International Criminal Court; or
(b) give false evidence at such a
proceeding; or
(c) withhold true evidence at such a
proceeding.
Penalty: Imprisonment for 7 years.
(2) A person commits an offence if the person
causes or threatens to cause any detriment to another person with the intention
that the other person or a third person will:
(a) not attend as an interpreter at a
proceeding before the International Criminal Court; or
(b) give a false or misleading
interpretation as an interpreter in such a proceeding.
Penalty: Imprisonment for 7 years.
268.108
Preventing witnesses or interpreters
(1) A person commits an offence if the
person, by his or her conduct, intentionally prevents another person from
attending as a witness or interpreter at a proceeding before the International
Criminal Court.
Penalty: Imprisonment for 5 years.
(2) This section does not apply to conduct
that constitutes an offence against section 268.105, 268.106, 268.107,
268.109 or 268.110.
268.109
Preventing production of things in evidence
A person commits an offence if the
person, by his or her conduct, intentionally prevents another person from
producing in evidence at a proceeding before the International Criminal Court a
thing that is legally required to be produced.
Penalty: Imprisonment for 5 years.
268.110
Reprisals against witnesses
(1) A person commits an offence if the person
causes or threatens to cause any detriment to another person who was a witness
in a proceeding before the International Criminal Court:
(a) because of anything done by the
other person in or for the purposes of the proceeding; and
(b) in the belief that the other
person was a witness who had done that thing.
Penalty: Imprisonment for 5 years.
(2) It is a defence to a prosecution for an
offence against subsection (1) that:
(a) the detriment to the witness was
not (apart from this section) an offence; and
(b) the witness committed perjury in
the proceeding before the International Criminal Court.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (2). See subsection 13.3(3).
(3) In this section:
witness includes:
(a) a person who attends at a
proceeding before the International Criminal Court as a witness but is not
called as a witness; or
(b) an interpreter.
268.111
Reprisals against officials of the International Criminal Court
(1) A person commits an offence if the person
causes or threatens to cause any detriment to another person who is an official
of the International Criminal Court:
(a) because of anything done by the
other person; and
(b) in the belief that the other
person was an official of that Court who had done that thing for the purposes
of a proceeding before that Court.
Penalty: Imprisonment for 5 years.
(2) A person commits an offence if the person
causes or threatens to cause any detriment to another person who is an official
of the International Criminal Court:
(a) because of anything done by a
third person who is an official of that Court; and
(b) in the belief that the third
person was an official of that Court who had done that thing for the purposes
of a proceeding before that Court.
Penalty: Imprisonment for 5 years.
268.112
Perverting the course of justice
(1) A person commits an offence if the
person, by his or her conduct, intentionally perverts the course of justice in
respect of the International Criminal Court.
Penalty: Imprisonment for 5 years.
(2) This section does not apply to conduct
that constitutes the publication of any matter.
(3) In this section:
perverts includes obstructs, prevents or
defeats.
268.113
Receipt of a corrupting benefit by an official of the International Criminal
Court
(1) A person who is an official of the
International Criminal Court commits an offence if:
(a) the person:
(i) asks for a benefit for
himself, herself or another person; or
(ii) receives or obtains a
benefit for himself, herself or another person; or
(iii) agrees to receive or
obtain a benefit for himself, herself or another person; and
(b) the person does so with the
intention that the exercise of the person’s duties as an official of the
International Criminal Court will be influenced.
Penalty: Imprisonment for 10 years.
(2) For the purposes of subsection (1),
it is immaterial whether the benefit is in the nature of a reward.
268.114
Subdivision not to apply to certain conduct
(1) This Subdivision does not apply to a
person in respect of:
(a) conduct that results in a failure
or refusal to issue a certificate under section 22 or 29 of the International
Criminal Court Act 2002; or
(b) a failure or refusal to issue such
a certificate; or
(c) conduct engaged in reliance on the
absence of such a certificate.
(2) In this section:
conduct includes any one or more acts or
omissions.
Subdivision K—Miscellaneous
268.115
Responsibility of commanders and other superiors
(1) The criminal responsibility imposed by
this section is in addition to other grounds of criminal responsibility under
the law in force in Australia for acts or omissions that are offences under
this Division.
(2) A military commander or person
effectively acting as a military commander is criminally responsible for
offences under this Division committed by forces under his or her effective
command and control, or effective authority and control, as the case may be, as
a result of his or her failure to exercise control properly over those forces,
where:
(a) the military commander or person
either knew or, owing to the circumstances at the time, was reckless as to
whether the forces were committing or about to commit such offences; and
(b) the military commander or person
failed to take all necessary and reasonable measures within his or her power to
prevent or repress their commission or to submit the matter to the competent
authorities for investigation and prosecution.
(3) With respect to superior and subordinate
relationships not described in subsection (2), a superior is criminally
responsible for offences against this Division committed by subordinates under
his or her effective authority and control, as a result of his or her failure
to exercise control properly over those subordinates, where:
(a) the superior either knew, or
consciously disregarded information that clearly indicated, that the
subordinates were committing or about to commit such offences; and
(b) the offences concerned activities
that were within the effective responsibility and control of the superior; and
(c) the superior failed to take all
necessary and reasonable measures within his or her power to prevent or repress
their commission or to submit the matter to the competent authorities for
investigation and prosecution.
268.116
Defence of superior orders
(1) The fact that genocide or a crime against
humanity has been committed by a person pursuant to an order of a Government or
of a superior, whether military or civilian, does not relieve the person of
criminal responsibility.
(2) Subject to subsection (3), the fact
that a war crime has been committed by a person pursuant to an order of a
Government or of a superior, whether military or civilian, does not relieve the
person of criminal responsibility.
(3) It is a defence to a war crime that:
(a) the war crime was committed by a
person pursuant to an order of a Government or of a superior, whether military
or civilian; and
(b) the person was under a legal
obligation to obey the order; and
(c) the person did not know that the
order was unlawful; and
(d) the order was not manifestly
unlawful.
Note: A defendant bears an evidential burden in
establishing the elements in subsection (3). See subsection 13.3(3).
268.117
Geographical jurisdiction
(1) Section 15.4 (extended geographical
jurisdiction—Category D) applies to genocide, crimes against humanity and war
crimes.
(2) Section 15.3 (extended geographical
jurisdiction—Category C) applies to crimes against the administration of the
justice of the International Criminal Court.
268.118
Double jeopardy
A person cannot be tried by a federal
court or a court of a State or Territory for an offence under this Division if
the person has already been convicted or acquitted by the International
Criminal Court for an offence constituted by substantially the same conduct as
constituted the offence under this Division.
268.119
Offences related to exercise of jurisdiction of International Criminal Court
(1) A person must not:
(a) intentionally contravene an order
that the International Criminal Court makes while sitting in Australia; or
(b) otherwise intentionally hinder the
International Criminal Court in performing its functions while sitting in
Australia.
Penalty: Imprisonment for 2 years.
(2) In this section:
Australia includes all the external
Territories.
268.120
Saving of other laws
This Division is not intended to exclude
or limit any other law of the Commonwealth or any law of a State or Territory.
268.121
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) An offence against this Division may only
be prosecuted in the name of the Attorney‑General.
(3) 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.
268.122
Attorney‑General’s decisions in relation to consents to be final
(1) Subject to any jurisdiction of the High
Court under the Constitution, a decision by the Attorney‑General to give,
or to refuse to give, a consent under section 268.121:
(a) is final; and
(b) must not be challenged, appealed
against, reviewed, quashed or called in question; and
(c) is not subject to prohibition,
mandamus, injunction, declaration or certiorari.
(2) The reference in subsection (1) to a
decision includes a reference to the following:
(a) a decision to vary, suspend,
cancel or revoke a consent that has been given;
(b) a decision to impose a condition
or restriction in connection with the giving of, or a refusal to give, a
consent or to remove a condition or restriction so imposed;
(c) a decision to do anything
preparatory to the making of a decision to give, or to refuse to give, a consent
or preparatory to the making of a decision referred to in paragraph (a) or
(b), including a decision for the taking of evidence or the holding of an
inquiry or investigation;
(d) a decision doing or refusing to do
anything else in connection with a decision to give, or to refuse to give, a
consent or a decision referred to in paragraph (a), (b) or (c);
(e) a failure or refusal to make a
decision whether or not to give a consent or a decision referred to in a paragraph (a),
(b), (c) or (d).
(3) Any jurisdiction of the High Court
referred to in subsection (1) is exclusive of the jurisdiction of any
other court.
268.123
Legal representation
The provisions of section 12 (other
than subsection 12(2)) of the Geneva Conventions Act 1957 apply
in relation to the trial of a person for an offence against this Division in
the same way as they apply in relation to the trial of a protected prisoner of
war.
268.124
Proof of application of Geneva Conventions or Protocol I to the Geneva
Conventions
If, in proceedings under this Division
in respect of a grave breach of any of the Geneva Conventions or of Protocol I
to the Geneva Conventions, a question arises under:
(a) Article 2 of the Geneva Convention
concerned (which relates to the circumstances in which the Convention applies);
or
(b) Article 1 of that Protocol (which
relates to the circumstances in which the Protocol applies);
a certificate signed by the Minister responsible for
legislation relating to foreign affairs certifying to any matter relevant to
that question is prima facie evidence of the matter so certified.
Division 270—Slavery,
sexual servitude and deceptive recruiting
270.1
Definition of slavery
For the purposes of this Division, slavery
is the condition of a person over whom any or all of the powers attaching to
the right of ownership are exercised, including where such a condition results
from a debt or contract made by the person.
270.2
Slavery is unlawful
Slavery remains unlawful and its
abolition is maintained, despite the repeal by the Criminal Code Amendment
(Slavery and Sexual Servitude) Act 1999 of Imperial Acts relating to
slavery.
270.3
Slavery offences
(1) A person who, whether within or outside Australia,
intentionally:
(a) possesses a slave or exercises
over a slave any of the other powers attaching to the right of ownership; or
(b) engages in slave trading; or
(c) enters into any commercial
transaction involving a slave; or
(d) exercises control or direction
over, or provides finance for:
(i) any act of slave
trading; or
(ii) any commercial
transaction involving a slave;
is guilty of an offence.
Penalty: Imprisonment for 25 years.
(2) A person who:
(a) whether within or outside Australia:
(i) enters into any
commercial transaction involving a slave; or
(ii) exercises control or
direction over, or provides finance for, any commercial transaction involving a
slave; or
(iii) exercises control or
direction over, or provides finance for, any act of slave trading; and
(b) is reckless as to whether the
transaction or act involves a slave, slavery or slave trading;
is guilty of an offence.
Penalty: Imprisonment for 17 years.
(3) In this section:
slave trading includes:
(a) the capture, transport or disposal
of a person with the intention of reducing the person to slavery; or
(b) the purchase or sale of a slave.
(4) A person who engages in any conduct with
the intention of securing the release of a person from slavery is not guilty of
an offence against this section.
(5) The defendant bears a legal burden of
proving the matter mentioned in subsection (4).
270.4
Definition of sexual servitude
(1) For the purposes of this Division, sexual
servitude is the condition of a person who provides sexual services and
who, because of the use of force or threats:
(a) is not free to cease providing
sexual services; or
(b) is not free to leave the place or
area where the person provides sexual services.
(2) In this section:
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 sexual services by a person.
270.5
Jurisdictional requirement
Section 15.2 (extended geographical
jurisdiction—category B) applies to an offence against section 270.6 or
270.7.
270.6
Sexual servitude offences
(1) A person:
(a) whose conduct causes another
person to enter into or remain in sexual servitude; and
(b) who intends to cause, or is
reckless as to causing, that sexual servitude;
is guilty of an offence.
Penalty:
(c) in the case of an aggravated
offence (see section 270.8)—imprisonment for 20 years; or
(d) in any other case—imprisonment for
15 years.
(2) A person:
(a) who conducts any business that
involves the sexual servitude of other persons; and
(b) who knows about, or is reckless as
to, that sexual servitude;
is guilty of an offence.
Penalty:
(c) in the case of an aggravated
offence (see section 270.8)—imprisonment for 20 years; or
(d) in any other case—imprisonment for
15 years.
(3) In this section:
conducting a business includes:
(a) taking any part in the management
of the business; or
(b) exercising control or direction
over the business; or
(c) providing finance for the
business.
270.7
Deceptive recruiting for sexual services
(1) A person who, with the intention of
inducing another person to enter into an engagement to provide sexual services,
deceives that other person about:
(a) the fact that the engagement will
involve the provision of sexual services; or
(aa) the nature of sexual services to
be provided (for example, whether those services will require the person to
have unprotected sex); or
(b) the extent to which the person
will be free to leave the place or area where the person provides sexual
services; or
(c) the extent to which the person
will be free to cease providing sexual services; or
(d) the extent to which the person
will be free to leave his or her place of residence; or
(da) if there is or will be a debt owed
or claimed to be owed by the person in connection with the engagement—the
quantum, or the existence, of the debt owed or claimed to be owed; or
(e) the fact that the engagement will
involve exploitation, debt bondage or the confiscation of the person’s travel
or identity documents;
is guilty of an offence.
Penalty:
(a) in the case of an aggravated
offence (see section 270.8)—imprisonment for 9 years; or
(b) in any other case—imprisonment for
7 years.
(1A) In determining, for the purposes of any
proceedings for an offence against subsection (1), whether a person has
been deceived about any matter referred to in a paragraph of that subsection, a
court, or if the trial is before a jury, the jury, may have regard to any of
the following matters:
(a) the economic relationship between
the person and the alleged offender;
(b) the terms of any written or oral
contract or agreement between the person and the alleged offender;
(c) the personal circumstances of the
person, including but not limited to:
(i) whether the person is
entitled to be in Australia under the Migration Act 1958; and
(ii) the person’s ability
to speak, write and understand English or the language in which the deception
or inducement occurred; and
(iii) the extent of the
person’s social and physical dependence on the alleged offender.
(1B) Subsection (1A) does not:
(a) prevent the leading of any other
evidence in proceedings for an offence against subsection (1); or
(b) limit the manner in which evidence
may be adduced or the admissibility of evidence.
(2) In this
section:
deceive has the same meaning as in Division 271.
sexual service means the commercial use or
display of the body of the person providing the service for the sexual
gratification of others.
270.8
Aggravated offences
(1) For the purposes of this Division, an
offence against section 270.6 or 270.7 is an aggravated offence
if the offence was committed against a person who is under 18.
(2) If the prosecution intends to prove an
aggravated offence, the charge must allege that the offence was committed
against a person under that age.
(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 offence against a person under that age.
270.9
Alternative verdict if aggravated offence not proven
If, on a trial for an aggravated offence
against section 270.6 or 270.7, the jury is not satisfied that the
defendant is guilty of an aggravated offence, but is otherwise satisfied that
he or she is guilty of an offence against that section, it may find the
defendant not guilty of the aggravated offence but guilty of an offence against
that section.
270.12
Other laws not excluded
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.
270.13
Double jeopardy
If a person has been convicted or
acquitted in a country outside Australia of an offence against the law of that
country in respect of any conduct, the person cannot be convicted of an offence
against this Division in respect of that conduct.
270.14
External Territories
In this Division:
Australia, when used in a geographical sense,
includes the external Territories.
Division 271—Trafficking in persons and debt bondage
Subdivision A—Definitions
271.1
Definitions
In this Division:
confiscate, in relation to a person’s travel
or identity document, means to take possession of the document, whether
permanently or otherwise, to the exclusion of the person, or to destroy the document.
constitutional corporation means a
corporation to which paragraph 51(xx) of the Constitution applies.
deceive means mislead as to fact (including
the intention of any person) or as to law, by words or other conduct.
threat means:
(a) a threat of force; or
(b) a threat to cause a person’s
removal from Australia; or
(c) a threat of any other detrimental
action;
unless there are reasonable grounds for the threat of that
action.
Subdivision B—Offences relating to
trafficking in persons
271.2
Offence of trafficking in persons
(1) A person (the first person)
commits an offence of trafficking in persons if:
(a) the first person organises or
facilitates the entry or proposed entry, or the receipt, of another person into
Australia; and
(b) the first person uses force or
threats; and
(c) that use of force or threats
results in the first person obtaining the other person’s compliance in respect
of that entry or proposed entry or in respect of that receipt.
Penalty: Imprisonment for 12 years.
(1A) A person (the first person)
commits an offence of trafficking in persons if:
(a) the first person organises or
facilitates the exit or proposed exit of another person from Australia; and
(b) the first person uses force or
threats; and
(c) that use of force or threats
results in the first person obtaining the other person’s compliance in respect
of that exit or proposed exit.
Penalty: Imprisonment for 12 years.
(1B) A person (the first person)
commits an offence of trafficking in persons if:
(a) the first person organises or
facilitates the entry or proposed entry, or the receipt, of another person into
Australia; and
(b) in organising or facilitating that
entry or proposed entry, or that receipt, the first person is reckless as to
whether the other person will be exploited, either by the first person or
another, after that entry or receipt.
Penalty: Imprisonment for 12 years.
(1C) A person (the first person)
commits an offence of trafficking in persons if:
(a) the first person organises or
facilitates the exit or proposed exit of another person from Australia; and
(b) in organising or facilitating that
exit or proposed exit, the first person is reckless as to whether the other
person will be exploited, either by the first person or another, after that
exit.
Penalty: Imprisonment for 12 years.
(2) A person (the first person)
commits an offence of trafficking in persons if:
(a) the first person organises or
facilitates the entry or proposed entry, or the receipt, of another person into
Australia; and
(b) the first person deceives the
other person about the fact that the other person’s entry or proposed entry,
the other person’s receipt or any arrangements for the other person’s stay in
Australia, will involve the provision by the other person of sexual services or
will involve the other person’s exploitation or debt bondage or the
confiscation of the other person’s travel or identity documents.
Penalty: Imprisonment for 12 years.
(2A) A person (the first person)
commits an offence of trafficking in persons if:
(a) the first person organises or
facilitates the exit or proposed exit of another person from Australia; and
(b) the first person deceives the
other person about the fact that the other person’s exit or proposed exit is
for purposes that involve the provision by the other person of sexual services
outside Australia or will involve the other person’s exploitation or debt
bondage or the confiscation of the other person’s travel or identity documents.
Penalty: Imprisonment for 12 years.
(2B) A person (the first person)
commits an offence of trafficking in persons if:
(a) the first person organises or
facilitates the entry or proposed entry, or the receipt, of another person into
Australia; and
(b) there is an arrangement for the
other person to provide sexual services in Australia; and
(c) the first person deceives the
other person about any of the following:
(i) the nature of the
sexual services to be provided;
(ii) the extent to which
the other person will be free to leave the place or area where the other person
provides sexual services;
(iii) the extent to which
the other person will be free to cease providing sexual services;
(iv) the extent to which the
other person will be free to leave his or her place of residence;
(v) if there is a debt owed
or claimed to be owed by the other person in connection with the arrangement
for the other person to provide sexual services—the quantum, or the existence,
of the debt owed or claimed to be owed.
Penalty: Imprisonment for 12 years.
(2C) A person (the first person)
commits an offence of trafficking in persons if:
(a) the first person organises or
facilitates the exit or proposed exit of another person from Australia; and
(b) there is an arrangement for the
other person to provide sexual services outside Australia; and
(c) the first person deceives the
other person about any of the following:
(i) the nature of the
sexual services to be provided;
(ii) the extent to which
the other person will be free to leave the place or area where the other person
provides sexual services;
(iii) the extent to which
the other person will be free to cease providing sexual services;
(iv) the extent to which the
other person will be free to leave his or her place of residence;
(v) if there is a debt owed
or claimed to be owed by the other person in connection with the arrangement
for the other person to provide sexual services—the quantum, or the existence,
of the debt owed or claimed to be owed.
Penalty: Imprisonment for 12 years.
(3) Absolute liability applies to paragraphs (1)(c)
and (1A)(c).
271.3
Aggravated offence of trafficking in persons
(1) A person (the first person)
commits an aggravated offence of trafficking in persons if the first person
commits the offence of trafficking in persons 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, either by the first person
or another:
(i) if the offence of
trafficking in persons is an offence against subsection 271.2(1), (1B), (2) or
(2B)—after entry into Australia; and
(ii) if the offence of
trafficking in persons is an offence against subsection 271.2(1A), (1C), (2A)
or (2C)—after exit from Australia;
(b) the first person, in committing
the offence, subjects the victim to cruel, inhuman or degrading treatment;
(c) the first person, in committing
the offence:
(i) engages in conduct
that gives rise to a danger of death or serious harm to the victim; and
(ii) is reckless as to that
danger.
Penalty: Imprisonment for 20 years.
(2) If, on a trial for an offence against
this section, the court, or if the trial is before a jury, the jury, is not
satisfied that the defendant is guilty of the aggravated offence, but is
satisfied that he or she is guilty of an offence against section 271.2, it
may find the defendant not guilty of the aggravated offence but guilty of an
offence against that section.
271.4
Offence of trafficking in children
(1) A person (the first person)
commits an offence of trafficking in children if:
(a) the first person organises or
facilitates the entry or proposed entry into Australia, or the receipt in Australia,
of another person; and
(b) the other person is under the age
of 18; and
(c) in organising or facilitating that
entry or proposed entry, or that receipt, the first person:
(i) intends that the other
person will be used to provide sexual services or will be otherwise exploited,
either by the first person or another, after that entry or receipt; or
(ii) is reckless as to
whether the other person will be used to provide sexual services or will be
otherwise exploited, either by the first person or another, after that entry or
receipt.
Penalty: Imprisonment for 25 years.
(2) A person (the first person)
commits an offence of trafficking in children if:
(a) the first person organises or
facilitates the exit or proposed exit from Australia of another person; and
(b) the other person is under the age
of 18; and
(c) in organising or facilitating that
exit or proposed exit, the first person:
(i) intends that the other
person will be used to provide sexual services or will be otherwise exploited,
either by the first person or another, after that exit; or
(ii) is reckless as to
whether the other person will be used to provide sexual services or will be
otherwise exploited, either by the first person or another, after that exit.
Penalty: Imprisonment for 25 years.
(3) In this section:
sexual service means the use or display of
the body of the person providing the service for the sexual gratification of
others.
271.5
Offence of domestic trafficking in persons
(1) A person (the first person)
commits an offence of domestic trafficking in persons if:
(a) the first person organises or
facilitates the transportation or proposed transportation of another person
from one place in Australia to another place in Australia; and
(b) the first person uses force or
threats; and
(c) that use of force or threats
results in the first person obtaining the other person’s compliance in respect
of that transportation or proposed transportation.
Penalty: Imprisonment for 12 years.
(2) A person (the first person)
commits an offence of domestic trafficking in persons if:
(a) the first person organises or
facilitates the transportation or proposed transportation of another person
from one place in Australia to another place in Australia; and
(b) in organising or facilitating that
transportation or proposed transportation, the first person is reckless as to
whether the other person will be exploited, either by the first person or
another, after that transportation.
Penalty: Imprisonment for 12 years.
(2A) A person (the first person)
commits an offence of domestic trafficking in persons if:
(a) the first person organises or
facilitates the transportation of another person from one place in Australia to
another place in Australia; and
(b) the first person deceives the
other person about the fact that the transportation, or any arrangements the
first person has made for the other person following the transportation, will
involve the provision by the other person of sexual services or will involve
the other person’s exploitation or debt bondage or the confiscation of the
other person’s travel or identity documents.
Penalty: Imprisonment for 12 years.
(2B) A person (the first person)
commits an offence of domestic trafficking in persons if:
(a) the first person organises or
facilitates the transportation of another person from one place in Australia to
another place in Australia; and
(b) there is an arrangement for the
other person to provide sexual services; and
(c) the first person deceives the
other person about any of the following:
(i) the nature of the
sexual services to be provided;
(ii) the extent to which
the other person will be free to leave the place or area where the other person
provides sexual services;
(iii) the extent to which
the other person will be free to cease providing sexual services;
(iv) the extent to which the
other person will be free to leave his or her place of residence;
(v) if there is a debt owed
or claimed to be owed by the other person in connection with the arrangement
for the other person to provide sexual services—the quantum, or the existence,
of the debt owed or claimed to be owed.
Penalty: Imprisonment for 12 years.
(3) Absolute liability applies to paragraph (1)(c).
271.6
Aggravated offence of domestic trafficking in persons
(1) A person (the first person)
commits an aggravated offence of domestic trafficking in persons if the first
person commits the offence of domestic trafficking in persons 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, either by the first person
or by another, after arrival at the place to which the person has been
transported;
(b) the first person, in committing
the offence, subjects the victim to cruel, inhuman or degrading treatment;
(c) the first person, in committing
the offence:
(i) engages in conduct
that gives rise to a danger of death or serious harm to the victim; and
(ii) is reckless as to that
danger.
Penalty: Imprisonment for 20 years.
(2) If, on a trial for an offence against
this section, the court, or if the trial is before a jury, the jury, is not
satisfied that the defendant is guilty of the aggravated offence, but is
satisfied that he or she is guilty of an offence against section 271.5, it
may find the defendant not guilty of the aggravated offence, but guilty of an
offence against that section.
271.7
Offence of domestic trafficking in children
(1) A person commits an offence of domestic
trafficking in children if:
(a) the first‑mentioned person
organises or facilitates the transportation of another person from one place in
Australia to another place in Australia; and
(b) the other person is under the age
of 18; and
(c) in organising or facilitating that
transportation, the first‑mentioned person:
(i) intends that the other
person will be used to provide sexual services or will be otherwise exploited,
either by the first‑mentioned person or another, during or following the
transportation to that other place; or
(ii) is reckless as to
whether the other person will be used to provide sexual services or will be
otherwise exploited, either by the first‑mentioned person or another,
during or following the transportation to that other place.
Penalty: Imprisonment for 25 years.
(2) In this section:
sexual service means the use or display of
the body of the person providing the service for the sexual gratification of
others.
Subdivision C—Offences relating to
debt bondage
271.8
Offence of debt bondage
(1) A person commits an offence of debt
bondage if:
(a) the person engages in conduct that
causes another person to enter into debt bondage; and
(b) the person intends to cause the
other person to enter into debt bondage.
Penalty: Imprisonment for 12 months.
(2) In determining, for the purposes of any
proceedings for an offence against subsection (1), whether a person (the first
person) has caused another person (the second person) to
enter into debt bondage, a court, or if the trial is before a jury, the jury,
may have regard to any of the following matters:
(a) the economic relationship between
the first person and the second person;
(b) the terms of any written or oral
contract or agreement between the second person and another person (whether or
not the first person);
(c) the personal circumstances of the
second person, including but not limited to:
(i) whether the second
person is entitled to be in Australia under the Migration Act 1958; and
(ii) the second person’s
ability to speak, write and understand English or the language in which the
deception or inducement occurred; and
(iii) the extent of the
second person’s social and physical dependence on the first person.
(3) Subsection (2) does not:
(a) prevent the leading of any other
evidence in proceedings for an offence against subsection (1); or
(b) limit the manner in which evidence
may be adduced or the admissibility of evidence.
271.9
Offence of aggravated debt bondage
(1) A person commits an offence of aggravated
debt bondage if the person commits an offence of debt bondage in relation to
another person (the victim) and the victim is under 18.
Penalty: Imprisonment for 2 years.
(2) In order to prove an offence of
aggravated debt bondage, the prosecution must prove that the defendant intended
to commit, or was reckless as to committing, the offence against a person under
that age.
(3) If, on a trial for an offence against
this section, the court, or if the trial is before a jury, the jury, is not
satisfied that the defendant is guilty of the aggravated offence, but is
satisfied that he or she is guilty of an offence against section 271.8, it
may find the defendant not guilty of the aggravated offence but guilty of an
offence against that section.
Subdivision D—General provisions
relating to offences under this Division
271.10
Jurisdictional requirement for offences other than offences related to domestic
trafficking in persons
Section 15.2 (extended geographical
jurisdiction—category B) applies to an offence against section 271.2,
271.3, 271.4, 271.8 or 271.9.
271.11
Jurisdictional requirement for offences related to domestic trafficking in
persons
A person commits an offence against
section 271.5, 271.6 or 271.7 only if one or more of the following
paragraphs applies:
(a) the conduct constituting the
offence occurs to any extent outside Australia;
(b) the conduct constituting the
offence involves transportation across State borders, either for reward or in
connection with a commercial arrangement;
(c) the conduct constituting the
offence occurs within a Territory or involves transportation to or from a
Territory;
(d) the conduct constituting the
offence is engaged in by, or on behalf of, a constitutional corporation, or in
circumstances where the victims of the trafficking conduct were intended to be
employed by a constitutional corporation;
(e) some of the conduct constituting
the offence is engaged in by communication using a postal, telegraphic or
telephonic service within the meaning of paragraph 51(v) of the Constitution;
(f) the victim of the conduct
constituting the offence is an alien for the purposes of paragraph 51(xix) of
the Constitution.
271.12
Other laws not excluded
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.
271.13
Double jeopardy
If a person has been convicted or
acquitted in a country outside Australia of an offence against the law of that
country in respect of any conduct, the person cannot be convicted of an offence
against this Division in respect of that conduct.
Chapter 9—Dangers to the community
Part 9.1—Serious drug offences
Division 300—Preliminary
300.1
Purpose
(1) The purpose of this Part is to create
offences relating to drug trafficking and to give effect to the United Nations
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, done at Vienna on 20 December 1988.
Note: The text of the Convention is set out in
Australian Treaty Series 1993 No. 4. In 2005 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.
(2) Subsection (1) does not limit the
legislative powers of the Parliament in relation to this Part.
300.2
Definitions
In this Part:
aggravated offence has the meaning given by
section 310.4.
border controlled drug means a substance,
other than a growing plant:
(a) listed or described as a border
controlled drug in section 314.4; or
(b) prescribed by regulations under
paragraph 301.3(1)(a); or
(c) specified in a determination under
paragraph 301.8(1)(a).
border controlled plant means a growing
plant:
(a) listed or described as a border
controlled plant in section 314.5; or
(b) prescribed by regulations under
paragraph 301.3(1)(b); or
(c) specified in a determination under
paragraph 301.8(1)(b).
border controlled precursor means a substance
(including a growing plant):
(a) listed or described as a border
controlled precursor in section 314.6; or
(b) prescribed by regulations under
subsection 301.4(1); or
(c) specified in a determination under
subsection 301.9(1).
child means an individual who is under 18
years of age.
commercial quantity, in relation to a
controlled drug, controlled plant, controlled precursor, border controlled
drug, border controlled plant or border controlled precursor means a quantity
not less than the quantity specified as a commercial quantity of the drug,
plant or precursor in:
(a) Division 314; or
(b) regulations under section 301.5;
or
(c) a determination under section 301.10.
conceal a thing includes conceal or disguise:
(a) the nature, source or location of
the thing; or
(b) any movement of the thing; or
(c) the rights of any person with
respect to the thing; or
(d) the identity of any owner of the
thing.
controlled drug means a substance, other than
a growing plant:
(a) listed or described as a
controlled drug in section 314.1; or
(b) prescribed by regulations under
paragraph 301.1(1)(a); or
(c) specified in a determination under
paragraph 301.6(1)(a).
controlled plant means a growing plant:
(a) listed or described as a
controlled plant in section 314.2; or
(b) prescribed by regulations under
paragraph 301.1(1)(b); or
(c) specified in a determination under
paragraph 301.6(1)(b).
controlled precursor means a substance
(including a growing plant):
(a) listed or described as a
controlled precursor in section 314.3; or
(b) prescribed by regulations under
subsection 301.2(1); or
(c) specified in a determination under
subsection 301.7(1).
cultivate has the meaning given by subsection
303.1(1).
cultivates a plant has the meaning given by
subsection 303.1(2).
cultivates a plant for a commercial purpose
has the meaning given by section 303.3.
export includes take from Australia.
import includes bring into Australia.
manufacture has the meaning given by
subsection 305.1(1).
manufactures a substance has the meaning
given by subsection 305.1(2).
manufactures a substance for a commercial purpose
has the meaning given by section 305.2.
marketable quantity, in relation to a
controlled drug, controlled plant, controlled precursor, border controlled
drug, border controlled plant or border controlled precursor means a quantity
not less than the quantity specified as a marketable quantity of the drug,
plant or precursor in:
(a) Division 314; or
(b) regulations under section 301.5;
or
(c) a determination under section 301.10.
possession of a thing includes the following:
(a) receiving or obtaining possession
of the thing;
(b) having control over the
disposition of the thing (whether or not the thing is in the custody of the
person);
(c) having joint possession of the
thing.
pre‑traffics has the meaning
given by section 306.1.
procures an individual to pre‑traffic
has the meaning given by section 309.9.
procures an individual to traffic has the
meaning given by section 309.6.
product of a plant has the meaning given by
section 303.2.
requisite fraction has the meaning given by
subsection 312.2(3).
sell includes
the following:
(a) barter or exchange;
(b) agree to sell.
supply includes the following:
(a) supply, whether or not by way of
sale;
(b) agree to supply.
taking, in relation to a substance or plant,
means taking the substance or plant, or a product of the plant, into the body.
trafficable quantity, in relation to a
controlled drug or controlled plant, means a quantity not less than the
quantity specified as a trafficable quantity of the drug or plant in:
(a) Division 314; or
(b) regulations under section 301.5;
or
(c) a determination under section 301.10.
traffics has the meaning given by section 302.1.
transport includes deliver.
300.3
Geographical jurisdiction
Section 15.2 (extended geographical
jurisdiction—category B) applies to each offence against this Part.
300.4
Concurrent operation intended
(1) This Part is not intended to exclude or
limit the concurrent operation of any law of a State or Territory.
(2) Without limiting subsection (1),
this Part is not intended to exclude or limit the concurrent operation of a law
of a State or Territory that makes:
(a) an act or omission that is an
offence against a provision of this Part; or
(b) a similar act or omission;
an offence against the law of the State or Territory.
(3) Subsection (2) applies even if the
law of the State or Territory does any one or more of the following:
(a) provides for a penalty for the
offence that differs from the penalty provided for in this Part;
(b) provides for a fault element in
relation to the offence that differs from the fault elements applicable to the
offence under this Part;
(c) provides for a defence in relation
to the offence that differs from the defences applicable to the offence under
this Part.
300.5
Particular identity of drugs, plants and precursors
If, in a prosecution for an offence
against this Part, it is necessary for the prosecution to prove that a person
knew, or was reckless as to whether, a substance or plant was a controlled
drug, controlled plant, controlled precursor, border controlled drug, border
controlled plant or border controlled precursor, it is not necessary for the
prosecution to prove that the person knew, or was reckless as to, the
particular identity of the controlled drug, controlled plant, controlled
precursor, border controlled drug, border controlled plant or border controlled
precursor.
Division 301—Listing additional drugs, plants and precursors
Subdivision A—Interim regulations
301.1
Interim regulations—controlled drugs and controlled plants
(1) The regulations may prescribe:
(a) a substance, other than a growing
plant, as a controlled drug; or
(b) a growing plant as a controlled
plant;
if the conditions set out in subsection (2) are met.
(2) The conditions are as follows:
(a) the Minister must be satisfied
that taking the substance or plant concerned:
(i) would create a
substantial risk of death or serious harm; or
(ii) would have a physical
or mental effect substantially similar to that caused by taking a substance or
plant already listed or described in section 314.1 or 314.2;
(b) the Minister must be satisfied
that there is a substantial risk that the substance or plant will be taken
without appropriate medical supervision.
(3) However, the regulations must not
prescribe a particular substance or plant under this section for a period that
exceeds, or for periods that in total exceed, 12 months.
301.2
Interim regulations—controlled precursors
(1) The regulations may prescribe a substance
(including a growing plant) as a controlled precursor if the condition set out
in subsection (2) is met.
(2) The condition is that the Minister must
be satisfied that there is a substantial risk that the substance concerned will
be used to unlawfully manufacture a controlled drug.
(3) However, the regulations must not
prescribe a particular substance under this section for a period that exceeds,
or for periods that in total exceed, 12 months.
301.3
Interim regulations—border controlled drugs and border controlled plants
(1) The regulations may prescribe:
(a) a substance, other than a growing
plant, as a border controlled drug; or
(b) a growing plant as a border
controlled plant;
if the conditions set out in subsection (2) are met.
(2) The conditions are as follows:
(a) the Minister must be satisfied
that taking the substance or plant concerned:
(i) would create a
substantial risk of death or serious harm; or
(ii) would have a physical
or mental effect substantially similar to that caused by taking a substance or
plant already listed or described in section 314.4 or 314.5;
(b) the Minister must be satisfied
that there is a substantial risk that the substance or plant will be taken
without appropriate medical supervision.
(3) However, the regulations must not
prescribe a particular substance or plant under this section for a period that
exceeds, or for periods that in total exceed, 12 months.
301.4
Interim regulations—border controlled precursors
(1) The regulations may prescribe a substance
(including a growing plant) as a border controlled precursor if the condition
set out in subsection (2) is met.
(2) The condition is that the Minister must
be satisfied that there is a substantial risk that the substance concerned will
be used to unlawfully manufacture a controlled drug.
(3) However, the regulations must not
prescribe a particular substance under this section for a period that exceeds,
or for periods that in total exceed, 12 months.
301.5
Interim regulations—commercial, marketable and trafficable quantities
(1) The regulations may prescribe:
(a) a quantity of a controlled drug or
controlled plant as a commercial, marketable or trafficable quantity of the
drug or plant; or
(b) a quantity of a controlled
precursor as a commercial or marketable quantity of the precursor.
(2) However, the regulations must not
prescribe:
(a) a commercial quantity of a
particular controlled drug, controlled plant or controlled precursor; or
(b) a marketable quantity of a
particular controlled drug, controlled plant or controlled precursor; or
(c) a trafficable quantity of a
particular controlled drug or controlled plant;
for a period that exceeds, or for periods that in total
exceed, 12 months.
(3) If:
(a) there is no commercial, marketable
or trafficable quantity specified in section 314.1 for a substance listed
or described as a controlled drug in that section; or
(b) there is no commercial, marketable
or trafficable quantity specified in section 314.2 for a substance listed
or described as a controlled plant in that section; or
(c) there is no commercial or
marketable quantity specified in section 314.3 for a substance listed or
described as a controlled precursor in that section;
regulations under subsection (1) may prescribe such a
quantity of the drug, plant or precursor.
(4) The regulations may prescribe a quantity
of a border controlled drug, border controlled plant or border controlled
precursor as a commercial or marketable quantity of the drug, plant or
precursor.
(5) However, the regulations must not
prescribe:
(a) a commercial quantity of a
particular border controlled drug, border controlled plant or border controlled
precursor; or
(b) a marketable quantity of a
particular border controlled drug, border controlled plant or border controlled
precursor;
for a period that exceeds, or for periods that in total
exceed, 12 months.
(6) If:
(a) there is no commercial or
marketable quantity specified in section 314.4 for a substance listed or
described as a border controlled drug in that section; or
(b) there is no commercial or
marketable quantity specified in section 314.5 for a substance listed or
described as a border controlled plant in that section; or
(c) there is no commercial or
marketable quantity specified in section 314.6 for a substance listed or
described as a border controlled precursor in that section;
regulations under subsection (4) may prescribe such a
quantity of the drug, plant or precursor.
Subdivision B—Emergency
determinations
301.6
Emergency determinations—controlled drugs and controlled plants
(1) The Minister may, by legislative
instrument, determine that:
(a) a substance, other than a growing
plant, is a controlled drug; or
(b) a growing plant is a controlled
plant.
(2) The Minister must not make a
determination under subsection (1) unless he or she is satisfied:
(a) that taking the substance or plant
concerned:
(i) would create a
substantial risk of death or serious harm; or
(ii) would have a physical
or mental effect substantially similar to that caused by taking a substance or
plant already listed or described in section 314.1 or 314.2; and
(b) that there is an imminent and
substantial risk that the substance or plant will be:
(i) taken without
appropriate medical supervision; or
(ii) imported and made
available for taking without appropriate medical supervision.
Note: Sections 301.11 and 301.12 set out
general rules for emergency determinations.
301.7
Emergency determinations—controlled precursors
(1) The Minister may, by legislative
instrument, determine that a substance (including a growing plant) is a
controlled precursor.
(2) The Minister must not make a
determination under subsection (1) unless he or she is satisfied that
there is an imminent and substantial risk that the substance will be:
(a) used to unlawfully manufacture a
controlled drug; or
(b) imported and made available to be
used in unlawfully manufacturing a controlled drug.
Note: Sections 301.11 and 301.12 set out
general rules for emergency determinations.
301.8
Emergency determinations—border controlled drugs and border controlled plants
(1) The Minister may, by legislative
instrument, determine that:
(a) a substance, other than a growing
plant, is a border controlled drug; or
(b) a growing plant is a border
controlled plant.
(2) The Minister must not make a
determination under subsection (1) unless he or she is satisfied:
(a) that taking the substance or plant
concerned:
(i) would create a
substantial risk of death or serious harm; or
(ii) would have a physical
or mental effect substantially similar to that caused by taking a substance or
plant already listed or described in section 314.4 or 314.5; and
(b) that there is an imminent and
substantial risk that the substance or plant will be:
(i) taken without
appropriate medical supervision; or
(ii) imported and made
available for taking without appropriate medical supervision.
Note: Sections 301.11 and 301.12 set out
general rules for emergency determinations.
301.9
Emergency determinations—border controlled precursors
(1) The Minister may, by legislative
instrument, determine that a substance (including a growing plant) is a border
controlled precursor.
(2) The Minister must not make a
determination under subsection (1) unless he or she is satisfied that
there is an imminent and substantial risk that the substance will be:
(a) used to unlawfully manufacture a
controlled drug; or
(b) imported and made available to be
used in unlawfully manufacturing a controlled drug.
Note: Sections 301.11 and 301.12 set out
general rules for emergency determinations.
301.10
Emergency determinations—commercial, marketable and trafficable quantities
(1) The Minister may, by legislative
instrument, determine that:
(a) a quantity of a controlled drug or
controlled plant is a commercial, marketable or trafficable quantity of the
drug or plant; or
(b) a quantity of a controlled
precursor is a commercial or marketable quantity of the precursor.
(2) If:
(a) there is no commercial, marketable
or trafficable quantity specified in section 314.1 for a substance listed
or described as a controlled drug in that section; or
(b) there is no commercial, marketable
or trafficable quantity specified in section 314.2 for a substance listed
or described as a controlled plant in that section; or
(c) there is no commercial or
marketable quantity specified in section 314.3 for a substance listed or
described as a controlled precursor in that section;
the Minister may, under subsection (1), determine
such a quantity of the drug, plant or precursor.
(3) The Minister may, by legislative
instrument, determine that a quantity of a border controlled drug, border
controlled plant or border controlled precursor is a commercial or marketable
quantity of the drug, plant or precursor.
(4) If:
(a) there is no commercial or marketable
quantity specified in section 314.4 for a substance listed or described as
a border controlled drug in that section; or
(b) there is no commercial or
marketable quantity specified in section 314.5 for a substance listed or
described as a border controlled plant in that section; or
(c) there is no commercial or
marketable quantity specified in section 314.6 for a substance listed or
described as a border controlled precursor in that section;
the Minister may, under subsection (3), determine
such a quantity of the drug, plant or precursor.
Note: Sections 301.11 and 301.12 set out
general rules for emergency determinations.
301.11
General rules—period of effect, publication etc.
(1) A determination under this Subdivision
has effect:
(a) from the time it is registered
(within the meaning of the Legislative Instruments Act 2003); and
(b) for the period of 28 days from
that registration or such shorter period as is specified in the determination.
(2) However, despite paragraph (1)(b),
if:
(a) the Minister has made a
determination under this Subdivision; and
(b) exceptional circumstances have
prevented the making of regulations to the same effect;
the Minister may, by legislative instrument, extend the
period during which the determination is in force by no more than 28 days.
(3) The Minister must not make more than one
determination under sections 301.6 to 301.9 in relation to a particular
substance or plant.
(4) If the Minister makes a determination
under this Subdivision, the Minister must, on or before the day on which the
determination is registered:
(a) make a public announcement of the
determination; and
(b) cause a copy of the announcement
to be published:
(i) on the Internet; and
(ii) in a newspaper
circulating in each State, the Australian Capital Territory and the Northern
Territory.
(5) An announcement made under subsection (4)
is not a legislative instrument.
301.12
General rule—inconsistency with regulations
Despite subsections 301.11(1) and (2), a
determination made under this Subdivision has no effect to the extent that it
is inconsistent with a regulation made under Subdivision A.
Division 302—Trafficking controlled drugs
302.1
Meaning of traffics
(1) For the purposes of this Part, a person traffics
in a substance if:
(a) the person sells the substance; or
(b) the person prepares the substance
for supply with the intention of selling any of it or believing that another
person intends to sell any of it; or
(c) the person transports the
substance with the intention of selling any of it or believing that another
person intends to sell any of it; or
(d) the person guards or conceals the
substance with the intention of selling any of it or assisting another person
to sell any of it; or
(e) the person possesses the substance
with the intention of selling any of it.
(2) For the purposes of paragraph (1)(b),
preparing a substance for supply includes packaging the substance or separating
the substance into discrete units.
302.2
Trafficking commercial quantities of controlled drugs
(1) A person commits an offence if:
(a) the person traffics in a
substance; and
(b) the substance is a controlled
drug; and
(c) the quantity trafficked is a
commercial quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or
both.
(2) The fault element for paragraph (1)(b)
is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
Note: Section 313.4 provides a partial defence
in relation to the matter in paragraph (1)(c).
302.3
Trafficking marketable quantities of controlled drugs
(1) A person commits an offence if:
(a) the person traffics in a
substance; and
(b) the substance is a controlled
drug; and
(c) the quantity trafficked is a
marketable quantity.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or
both.
(2) The fault element for paragraph (1)(b)
is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
Note: Section 313.4 provides a partial defence
in relation to the matter in paragraph (1)(c).
302.4
Trafficking controlled drugs
(1) A person commits an offence if:
(a) the person traffics in a
substance; and
(b) the substance is a controlled
drug.
Penalty: Imprisonment for 10 years or 2,000 penalty units, or
both.
(2) The fault element for paragraph (1)(b)
is recklessness.
302.5
Presumption where trafficable quantities are involved
(1) For the purposes of proving an offence
against this Division, if a person has:
(a) prepared a trafficable quantity of
a substance for supply; or
(b) transported a trafficable quantity
of a substance; or
(c) guarded or concealed a trafficable
quantity of a substance; or
(d) possessed a trafficable quantity
of a substance;
the person is taken to have had the necessary intention or
belief concerning the sale of the substance to have been trafficking in the substance.
(2) Subsection (1) does not apply if the
person proves that he or she had neither that intention nor belief.
Note 1: A defendant bears a legal burden in relation to
the matters in subsection (2) (see section 13.4).
Note 2: This section does not apply where quantities
are combined for the purposes of section 311.2 (see subsection 311.2(3)).
302.6
Purchase of controlled drugs is not an ancillary offence
A person does not commit:
(a) an offence against this Division
because of the operation of section 11.2; or
(b) an offence against section 11.4
or 11.5 that relates to an offence against this Division;
merely because the person purchases, or intends to
purchase, a controlled drug from another person.
Note: A defendant bears an evidential burden in
relation to the matters in this section (see subsection 13.3(3)).
Division 303—Commercial cultivation of controlled plants
303.1
Meanings of cultivate and cultivates
a plant
(1) For the purposes of this Part, cultivate
includes the following:
(a) plant a seed, seedling or cutting;
(b) transplant a plant;
(c) nurture, tend or grow a plant;
(d) guard or conceal a plant
(including against interference or discovery by humans or natural predators);
(e) harvest a plant, pick any part of
a plant or separate any resin or other substance from a plant.
(2) For the purposes of this Part, a person cultivates
a plant if the person:
(a) engages in its cultivation; or
(b) exercises control or direction
over its cultivation; or
(c) provides finance for its cultivation.
303.2
Meaning of product of a plant
For the purposes of this Part, the product
of a plant includes the following:
(a) a seed of the plant;
(b) a part of the plant (whether alive
or dead);
(c) a substance separated from the
plant.
303.3
Meaning of cultivates a plant for a commercial purpose
For the purposes of this Part, a person cultivates
a plant for a commercial purpose if the person cultivates the plant:
(a) with the intention of selling any
of it or its products; or
(b) believing that another person
intends to sell any of it or its products.
303.4
Cultivating commercial quantities of controlled plants
(1) A person
commits an offence if:
(a) the person cultivates a plant for
a commercial purpose; and
(b) the plant is a controlled plant;
and
(c) the quantity cultivated is a
commercial quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or
both.
(2) The fault element for paragraph (1)(b)
is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
Note: Section 313.4 provides a partial defence
in relation to the matter in paragraph (1)(c).
303.5
Cultivating marketable quantities of controlled plants
(1) A person commits an offence if:
(a) the person cultivates a plant for
a commercial purpose; and
(b) the plant is a controlled plant;
and
(c) the quantity cultivated is a
marketable quantity.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or
both.
(2) The fault element for paragraph (1)(b)
is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
Note: Section 313.4 provides a partial defence
in relation to the matter in paragraph (1)(c).
303.6
Cultivating controlled plants
(1) A person commits an offence if:
(a) the person cultivates a plant for
a commercial purpose; and
(b) the plant is a controlled plant.
Penalty: Imprisonment for 10 years or 2,000 penalty units, or
both.
(2) The fault element for paragraph (1)(b)
is recklessness.
303.7
Presumption where trafficable quantities are involved
(1) For the purposes of proving an offence
against this Division, if a person has cultivated a trafficable quantity of a
plant, the person is taken to have had the necessary intention or belief
concerning the sale of the plant to have been cultivating the plant for a
commercial purpose.
(2) Subsection (1) does not apply if the
person proves that he or she had neither that intention nor belief.
Note: A defendant bears a legal burden in relation
to the matters in subsection (2) (see section 13.4).
Division 304—Selling controlled plants
304.1
Selling commercial quantities of controlled plants
(1) A person commits an offence if:
(a) the person sells a plant; and
(b) the plant is a controlled plant;
and
(c) the quantity sold is a commercial
quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or
both.
(2) The fault element for paragraph (1)(b)
is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
Note: Section 313.4 provides a partial defence
in relation to the matter in paragraph (1)(c).
304.2
Selling marketable quantities of controlled plants
(1) A person commits an offence if:
(a) the person sells a plant; and
(b) the plant is a controlled plant;
and
(c) the quantity sold is a marketable
quantity.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or
both.
(2) The fault element for paragraph (1)(b)
is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
Note: Section 313.4 provides a partial defence
in relation to the matter in paragraph (1)(c).
304.3
Selling controlled plants
(1) A person commits an offence if:
(a) the person sells a plant; and
(b) the plant is a controlled plant.
Penalty: Imprisonment for 10 years or 2,000 penalty units, or
both.
(2) The fault element for paragraph (1)(b)
is recklessness.
Division 305—Commercial manufacture of controlled drugs
305.1
Meanings of manufacture and manufactures a substance
(1) For the purposes of this Part, manufacture
means any process by which a substance is produced (other than the cultivation
of a plant), and includes the following:
(a) the process of extracting or
refining a substance;
(b) the process of transforming a
substance into a different substance.
(2) For the purposes of this Part, a person manufactures
a substance if the person:
(a) engages in its manufacture; or
(b) exercises control or direction
over its manufacture; or
(c) provides finance for its
manufacture.
305.2
Meaning of manufactures a substance for a commercial purpose
For the purposes of this Part, a person manufactures
a substance for a commercial purpose if the person manufactures the
substance:
(a) with the intention of selling any
of it; or
(b) believing that another person
intends to sell any of it.
305.3
Manufacturing commercial quantities of controlled drugs
(1) A person commits an offence if:
(a) the person manufactures a
substance for a commercial purpose; and
(b) the substance is a controlled
drug; and
(c) the quantity manufactured is a
commercial quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or
both.
(2) The fault element for paragraph (1)(b)
is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
Note: Section 313.4 provides a partial defence
in relation to the matter in paragraph (1)(c).
305.4
Manufacturing marketable quantities of controlled drugs
(1) A person commits an offence if:
(a) the person manufactures a
substance for a commercial purpose; and
(b) the substance is a controlled
drug; and
(c) the quantity manufactured is a
marketable quantity.
Penalty:
(a) in the case of an aggravated offence—imprisonment
for 28 years or 5,600 penalty units, or both; or
(b) in any other case—imprisonment for
25 years or 5,000 penalty units, or both.
Note: The additional elements for an aggravated
offence against this section are set out in subsection 310.4(2).
(2) The fault element for paragraph (1)(b)
is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
Note: Section 313.4 provides a partial defence
in relation to the matter in paragraph (1)(c).
305.5
Manufacturing controlled drugs
(1) A person commits an offence if:
(a) the person manufactures a
substance for a commercial purpose; and
(b) the substance is a controlled
drug.
Penalty:
(a) in the case of an aggravated
offence—imprisonment for 12 years or 2,400 penalty units, or both; or
(b) in any other case—imprisonment for
10 years or 2,000 penalty units, or both.
Note: The additional elements for an aggravated
offence against this section are set out in subsection 310.4(2).
(2) The fault element for paragraph (1)(b)
is recklessness.
305.6
Presumption where trafficable quantities are involved
(1) For the purposes of proving an offence
against this Division, if a person has manufactured a trafficable quantity of a
substance, the person is taken to have had the necessary intention or belief
concerning the sale of the substance to have been manufacturing the substance
for a commercial purpose.
(2) Subsection (1) does not apply if the
person proves that he or she had neither that intention nor belief.
Note: A defendant bears a legal burden in relation
to the matters in subsection (2) (see section 13.4).
Division 306—Pre‑trafficking controlled precursors
306.1
Meaning of pre‑traffics
For the purposes of this Part, a person pre‑traffics
in a substance if the person:
(a) sells the substance believing that
the person to whom it is sold, or another person, intends to use any of the
substance to manufacture a controlled drug; or
(b) manufactures the substance:
(i) with the intention of
using any of it to manufacture a controlled drug; and
(ii) with the intention of
selling any of the drug so manufactured, or believing that another person
intends to sell any of the drug so manufactured; or
(c) manufactures the substance:
(i) with the intention of
selling any of it to another person; and
(ii) believing that the
other person intends to use any of the substance to manufacture a controlled
drug; or
(d) possesses the substance:
(i) with the intention of
using any of it to manufacture a controlled drug; and
(ii) with the intention of
selling any of the drug so manufactured, or believing that another person
intends to sell any of the drug so manufactured.
306.2
Pre‑trafficking commercial quantities of controlled precursors
(1) A person commits an offence if:
(a) the person pre‑traffics in a
substance; and
(b) the substance is a controlled
precursor; and
(c) the quantity pre‑trafficked
is a commercial quantity.
Penalty:
(a) in the case of an aggravated
offence—imprisonment for 28 years or 5,600 penalty units, or both; or
(b) in any other case—imprisonment for
25 years or 5,000 penalty units, or both.
Note: The additional elements for an aggravated
offence against this section are set out in subsection 310.4(3).
(2) The fault element for paragraph (1)(b)
is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
Note: Section 313.4 provides a partial defence
in relation to the matter in paragraph (1)(c).
306.3
Pre‑trafficking marketable quantities of controlled precursors
(1) A person commits an offence if:
(a) the person pre‑traffics in a
substance; and
(b) the substance is a controlled
precursor; and
(c) the quantity pre‑trafficked
is a marketable quantity.
Penalty:
(a) in the case of an aggravated
offence—imprisonment for 17 years or 3,400 penalty units, or both; or
(b) in any other case—imprisonment for
15 years or 3,000 penalty units, or both.
Note: The additional elements for an aggravated
offence against this section are set out in subsection 310.4(3).
(2) The fault element for paragraph (1)(b)
is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
Note: Section 313.4 provides a partial defence
in relation to the matter in paragraph (1)(c).
306.4
Pre‑trafficking controlled precursors
(1) A person commits an offence if:
(a) the person pre‑traffics in a
substance; and
(b) the substance is a controlled
precursor.
Penalty:
(a) in the case of an aggravated
offence—imprisonment for 9 years or 1,800 penalty units, or both; or
(b) in any other case—imprisonment for
7 years or 1,400 penalty units, or both.
Note: The additional elements for an aggravated
offence against this section are set out in subsection 310.4(3).
(2) The fault element for paragraph (1)(b)
is recklessness.
306.5
Presumption for pre‑trafficking controlled precursors—sale
(1) For the purposes of proving an offence
against subsection 306.4(1), if:
(a) a person has sold a substance; and
(b) a law of the Commonwealth or of a
State or Territory required the sale to be authorised (however described); and
(c) the sale was not so authorised;
the person is taken to have sold the substance believing
that the person to whom it was sold, or another person, intended to use some or
all of the substance to manufacture a controlled drug.
(2) Subsection (1) does not apply if the
person proves that he or she did not have that belief.
Note: A defendant bears a legal burden in relation
to the matter in subsection (2) (see section 13.4).
306.6
Presumptions for pre‑trafficking controlled precursors—manufacture for
drug manufacture
(1) For the purposes of proving an offence
against subsection 306.4(1), if:
(a) a person has manufactured a
substance; and
(b) a law of the Commonwealth or of a
State or Territory required the manufacture to be authorised (however
described); and
(c) the manufacture was not so
authorised;
the person is taken to have manufactured the substance
with the intention of using some or all of it to manufacture a controlled drug.
(2) Subsection (1) does not apply if the
person proves that he or she did not have that intention.
Note: A defendant bears a legal burden in relation
to the matter in subsection (2) (see section 13.4).
(3) For the purposes of proving an offence
against subsection 306.4(1), if a person has manufactured a marketable quantity
of a substance with the intention of using some or all of it to manufacture a
controlled drug, the person is taken to have done so with the intention of
selling some or all of the drug so manufactured, or believing that another
person intended to sell some or all of the drug so manufactured.
(4) Subsection (3) does not apply if the
person proves that he or she had neither that intention nor belief.
Note: A defendant bears a legal burden in relation
to the matters in subsection (4) (see section 13.4).
306.7
Presumptions for pre‑trafficking controlled precursors—manufacture for
sale
(1) For the purposes of proving an offence
against subsection 306.4(1), if a person has manufactured a marketable quantity
of a substance, the person is taken to have done so with the intention of
selling some or all of it to another person.
(2) Subsection (1) does not apply if the
person proves that he or she did not have that intention.
Note: A defendant bears a legal burden in relation
to the matter in subsection (2) (see section 13.4).
(3) For the purposes of proving an offence
against subsection 306.4(1), if:
(a) a person has manufactured a
substance with the intention of selling some or all of it to another person;
and
(b) a law of the Commonwealth or of a
State or Territory required the manufacture to be authorised (however
described); and
(c) the manufacture was not so
authorised;
the person is taken to have manufactured the substance
believing that the other person intended to use some or all of the substance to
manufacture a controlled drug.
(4) Subsection (3) does not apply if the
person proves that he or she did not have that belief.
Note: A defendant bears a legal burden in relation
to the matter in subsection (4) (see section 13.4).
306.8
Presumptions for pre‑trafficking controlled precursors—possession
(1) For the purposes of proving an offence
against subsection 306.4(1), if:
(a) a person possessed a substance;
and
(b) a law of the Commonwealth or of a
State or Territory required the possession to be authorised (however
described); and
(c) the possession was not so
authorised;
the person is taken to have possessed the substance with
the intention of using some or all of it to manufacture a controlled drug.
(2) Subsection (1) does not apply if the
person proves that he or she did not have that intention.
Note: A defendant bears a legal burden in relation
to the matter in subsection (2) (see section 13.4).
(3) For the purposes of proving an offence
against subsection 306.4(1), if a person possessed a marketable quantity of a
substance with the intention of using some or all of it to manufacture a
controlled drug, the person is taken to have done so with the intention of
selling some or all of the drug so manufactured, or believing that another
person intended to sell some or all of the drug so manufactured.
(4) Subsection (3) does not apply if the
person proves that he or she had neither that intention nor belief.
Note: A defendant bears a legal burden in relation
to the matters in subsection (4) (see section 13.4).
Division 307—Import‑export offences
Subdivision A—Importing and exporting
border controlled drugs or border controlled plants
307.1
Importing and exporting commercial quantities of border controlled drugs or
border controlled plants
(1) A person commits an offence if:
(a) the person imports or exports a
substance; and
(b) the substance is a border
controlled drug or border controlled plant; and
(c) the quantity imported or exported
is a commercial quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or
both.
(2) The fault element for paragraph (1)(b)
is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
307.2
Importing and exporting marketable quantities of border controlled drugs or
border controlled plants
(1) A person commits an offence if:
(a) the person imports or exports a
substance; and
(b) the substance is a border
controlled drug or border controlled plant; and
(c) the quantity imported or exported
is a marketable quantity.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or
both.
(2) The fault element for paragraph (1)(b)
is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
(4) Subsection (1) does not apply if the
person proves that he or she neither intended, nor believed that another person
intended, to sell any of the border controlled drug or any of the border
controlled plant or its products.
Note: A defendant bears a legal burden in relation
to the matters in subsection (4) (see section 13.4).
307.3
Importing and exporting border controlled drugs or border controlled plants
(1) A person commits an offence if:
(a) the person imports or exports a
substance; and
(b) the substance is a border
controlled drug or border controlled plant.
Penalty: Imprisonment for 10 years or 2,000 penalty units, or
both.
(2) The fault element for paragraph (1)(b)
is recklessness.
(3) Subsection (1) does not apply if the
person proves that he or she neither intended, nor believed that another person
intended, to sell any of the border controlled drug or any of the border
controlled plant or its products.
Note: A defendant bears a legal burden in relation
to the matters in subsection (3) (see section 13.4).
307.4
Importing and exporting border controlled drugs or border controlled plants—no
defence relating to lack of commercial intent
(1) A person commits an offence if:
(a) the person imports or exports a
substance; and
(b) the substance is a border
controlled drug or border controlled plant.
Penalty: Imprisonment for 2 years, or 400 penalty units, or
both.
(2) The fault element for paragraph (1)(b)
is recklessness.
Subdivision B—Possessing unlawfully
imported border controlled drugs or border controlled plants
307.5
Possessing commercial quantities of unlawfully imported border controlled drugs
or border controlled plants
(1) A person commits an offence if:
(a) the person possesses a substance;
and
(b) the substance was unlawfully
imported; and
(c) the substance is a border
controlled drug or border controlled plant; and
(d) the quantity possessed is a
commercial quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or
both.
(2) Absolute liability applies to paragraphs (1)(b)
and (d).
(3) The fault element for paragraph (1)(c)
is recklessness.
(4) Subsection (1) does not apply if the
person proves that he or she did not know that the border controlled drug or
border controlled plant was unlawfully imported.
Note: A defendant bears a legal burden in relation
to the matter in subsection (4) (see section 13.4).
307.6
Possessing marketable quantities of unlawfully imported border controlled drugs
or border controlled plants
(1) A person commits an offence if:
(a) the person possesses a substance;
and
(b) the substance was unlawfully
imported; and
(c) the substance is a border
controlled drug or border controlled plant; and
(d) the quantity possessed is a
marketable quantity.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or
both.
(2) Absolute liability applies to paragraphs (1)(b)
and (d).
(3) The fault element for paragraph (1)(c)
is recklessness.
(4) Subsection (1) does not apply if the
person proves that he or she neither intended, nor believed that another person
intended, to sell any of the border controlled drug or any of the border
controlled plant or its products.
(5) Subsection (1) does not apply if the
person proves that he or she did not know that the border controlled drug or
border controlled plant was unlawfully imported.
Note: A defendant bears a legal burden in relation
to the matters in subsections (4) and (5) (see section 13.4).
307.7
Possessing unlawfully imported border controlled drugs or border controlled
plants
(1) A person commits an offence if:
(a) the person possesses a substance;
and
(b) the substance was unlawfully
imported; and
(c) the substance is a border
controlled drug or border controlled plant.
Penalty: Imprisonment for 2 years or 400 penalty units, or
both.
(2) Absolute liability applies to paragraph (1)(b).
(3) The fault element for paragraph (1)(c)
is recklessness.
(4) Subsection (1) does not apply if the
person proves that he or she did not know that the border controlled drug or
border controlled plant was unlawfully imported.
Note: A defendant bears a legal burden in relation
to the matter in subsection (4) (see section 13.4).
Subdivision C—Possessing border
controlled drugs or border controlled plants reasonably suspected of having
been unlawfully imported
307.8
Possessing commercial quantities of border controlled drugs or border
controlled plants reasonably suspected of having been unlawfully imported
(1) A person commits an offence if:
(a) the person possesses a substance;
and
(b) the substance is reasonably
suspected of having been unlawfully imported; and
(c) the substance is a border
controlled drug or border controlled plant; and
(d) the quantity possessed is a
commercial quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or
both.
(2) Absolute liability applies to paragraphs (1)(b)
and (d).
(3) The fault element for paragraph (1)(c)
is recklessness.
(4) Subsection (1) does not apply if the
person proves that the border controlled drug or border controlled plant was
not unlawfully imported.
Note: A defendant bears a legal burden in relation
to the matter in subsection (4) (see section 13.4).
307.9
Possessing marketable quantities of border controlled drugs or border
controlled plants reasonably suspected of having been unlawfully imported
(1) A person commits an offence if:
(a) the person possesses a substance;
and
(b) the substance is reasonably
suspected of having been unlawfully imported; and
(c) the substance is a border
controlled drug or border controlled plant; and
(d) the quantity possessed is a
marketable quantity.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or
both.
(2) Absolute liability applies to paragraphs (1)(b)
and (d).
(3) The fault element for paragraph (1)(c)
is recklessness.
(4) Subsection (1) does not apply if the
person proves that he or she neither intended, nor believed that another person
intended, to sell any of the border controlled drug or any of the border
controlled plant or its products.
(5) Subsection (1) does not apply if the
person proves that the border controlled drug or border controlled plant was
not unlawfully imported.
Note: A defendant bears a legal burden in relation
to the matters in subsections (4) and (5) (see section 13.4).
307.10
Possessing border controlled drugs or border controlled plants reasonably
suspected of having been unlawfully imported
(1) A person commits an offence if:
(a) the person possesses a substance;
and
(b) the substance is reasonably
suspected of having been unlawfully imported; and
(c) the substance is a border
controlled drug or border controlled plant.
Penalty: Imprisonment for 2 years or 400 penalty units, or
both.
(2) Absolute liability applies to paragraph (1)(b).
(3) The fault element for paragraph (1)(c)
is recklessness.
(4) Subsection (1) does not apply if the
person proves that the border controlled drug or border controlled plant was
not unlawfully imported.
Note: A defendant bears a legal burden in relation
to the matter in subsection (4) (see section 13.4).
Subdivision D—Importing and exporting
border controlled precursors
307.11
Importing and exporting commercial quantities of border controlled precursors
(1) A person commits an offence if:
(a) the person imports or exports a
substance; and
(b) either or both of the following
apply:
(i) the person intends to
use any of the substance to manufacture a controlled drug;
(ii) the person believes
that another person intends to use any of the substance to manufacture a
controlled drug; and
(c) the substance is a border
controlled precursor; and
(d) the quantity imported or exported
is a commercial quantity.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or
both.
(2) The fault element for paragraph (1)(c)
is recklessness.
(3) Absolute liability applies to paragraph (1)(d).
307.12
Importing and exporting marketable quantities of border controlled precursors
(1) A person commits an offence if:
(a) the person imports or exports a
substance; and
(b) either or both of the following
apply:
(i) the person intends to
use any of the substance to manufacture a controlled drug;
(ii) the person believes
that another person intends to use any of the substance to manufacture a
controlled drug; and
(c) the substance is a border
controlled precursor; and
(d) the quantity imported or exported
is a marketable quantity.
Penalty: Imprisonment for 15 years or 3,000 penalty units, or
both.
(2) The fault element for paragraph (1)(c)
is recklessness.
(3) Absolute liability applies to paragraph (1)(d).
(4) Subsection (1) does not apply if:
(a) in relation to conduct covered by subparagraph (1)(b)(i)—the
person proves that he or she neither intended, nor believed that another person
intended, to sell any of the controlled drug so manufactured; or
(b) in relation to conduct covered by subparagraph (1)(b)(ii)—the
person proves that, although he or she believed that the other person intended
to use the substance to manufacture a controlled drug, he or she did not intend
to sell any of the substance to the other person.
Note: A defendant bears a legal burden in relation
to the matters in subsection (4) (see section 13.4).
307.13
Importing and exporting border controlled precursors
(1) A person commits an offence if:
(a) the person imports or exports a
substance; and
(b) either or both of the following
apply:
(i) the person intends to
use any of the substance to manufacture a controlled drug;
(ii) the person believes that
another person intends to use any of the substance to manufacture a controlled
drug; and
(c) the substance is a border
controlled precursor.
Penalty: Imprisonment for 7 years or 1,400 penalty units, or
both.
(2) The fault element for paragraph (1)(c)
is recklessness.
(3) Subsection (1) does not apply if:
(a) in relation to conduct covered by subparagraph (1)(b)(i)—the
person proves that he or she neither intended, nor believed that another person
intended, to sell any of the controlled drug so manufactured; or
(b) in relation to conduct covered by subparagraph (1)(b)(ii)—the
person proves that, although he or she believed that the other person intended
to use the substance to manufacture a controlled drug, he or she did not intend
to sell any of the substance to the other person.
Note: A defendant bears a legal burden in relation
to the matters in subsection (3) (see section 13.4).
307.14
Presumptions for importing and exporting border controlled precursors
(1) For the purposes of proving an offence
against this Subdivision, if:
(a) a person has imported or exported
a substance; and
(b) a law of the Commonwealth required
the import or export to be authorised (however described); and
(c) the import or export was not so
authorised;
the person is taken to have imported or exported the
substance with the intention of using some or all of the substance to
manufacture a controlled drug.
(2) Subsection (1) does not apply if the
person proves that he or she did not have that intention.
Note: A defendant bears a legal burden in relation
to the matter in subsection (2) (see section 13.4).
(3) For the purposes of proving an offence
against this Subdivision, if:
(a) a person has imported or exported
a substance; and
(b) a law of the Commonwealth required
the import or export to be authorised (however described); and
(c) the import or export was not so
authorised;
the person is taken to have imported or exported the
substance believing that another person intends to use some or all of the
substance to manufacture a controlled drug.
(4) Subsection (3) does not apply if the
person proves that he or she did not have that belief.
Note: A defendant bears a legal burden in relation
to the matter in subsection (4) (see section 13.4).
Division 308—Possession offences
308.1
Possessing controlled drugs
(1) A person commits an offence if:
(a) the person possesses a substance;
and
(b) the substance is a controlled
drug.
Penalty: Imprisonment for 2 years or 400 penalty units, or
both.
(2) The fault element for paragraph (1)(b)
is recklessness.
(3) If:
(a) a person is charged with, or
convicted of, an offence against subsection (1); and
(b) the offence is alleged to have
been, or was, committed in a State or Territory;
the person may be tried, punished or otherwise dealt with
as if the offence were an offence against the law of the State or Territory
that involved the possession or use of a controlled drug (however described).
Note: Subsection (3) allows for drug users to
be diverted from the criminal justice system to receive the same education,
treatment and support that is available in relation to drug offences under
State and Territory laws.
(4) However, a person punished under subsection (3)
must not be:
(a) sentenced to a period of
imprisonment that exceeds the period set out in subsection (1); or
(b) fined an amount that exceeds the
amount set out in subsection (1).
(5) Subsection (3) does not limit:
(a) Part 1B of the Crimes Act
1914; or
(b) section 68 or 79 of the Judiciary
Act 1903; or
(c) any other law that provides for a
law of a State or Territory to apply in relation to the exercise of federal
jurisdiction.
308.2
Possessing controlled precursors
(1) A person commits an offence if:
(a) the person possesses a substance;
and
(b) the person intends to use any of
the substance to manufacture a controlled drug; and
(c) the substance is a controlled
precursor.
Penalty: Imprisonment for 2 years or 400 penalty units, or
both.
(2) The fault element for paragraph (1)(c)
is recklessness.
(3) For the purposes of proving an offence
against subsection (1), if:
(a) a person possessed a substance;
and
(b) a law of the Commonwealth or of a
State or Territory required the possession to be authorised (however
described); and
(c) the possession was not so authorised;
the person is taken to have possessed the substance with
the intention of using some or all of the substance to manufacture a controlled
drug.
(4) Subsection (3) does not apply if the
person proves that he or she did not have that intention.
Note: A defendant bears a legal burden in relation
to the matter in subsection (4) (see section 13.4).
308.3
Possessing plant material, equipment or instructions for commercial cultivation
of controlled plants
A person commits an offence if:
(a) the person possesses a plant, a
product of a plant, any equipment or any document containing instructions for
growing a plant; and
(b) the person intends to use the
plant, product, equipment or document to cultivate a controlled plant; and
(c) the person intends to sell, or
believes that another person intends to sell, any of the plant so cultivated or
any of its products.
Penalty: Imprisonment for 7 years or 1,400 penalty units, or
both.
308.4
Possessing substance, equipment or instructions for commercial manufacture of
controlled drugs
(1) A person commits an offence if:
(a) the person possesses any substance
(other than a controlled precursor), any equipment or any document containing
instructions for manufacturing a controlled drug; and
(b) the person intends to use the
substance, equipment or document to manufacture a controlled drug; and
(c) the person intends to sell, or
believes that another person intends to sell, any of the drug so manufactured.
Penalty: Imprisonment for 7 years or 1,400 penalty units, or
both.
(2) For the purposes of proving an offence
against subsection (1), if:
(a) a person possessed a tablet press;
and
(b) a law of the Commonwealth or of a
State or Territory required the possession to be authorised (however
described); and
(c) the possession was not so
authorised;
the person is taken to have possessed the tablet press
with the intention of using it to manufacture a controlled drug.
(3) Subsection (2) does not apply if the
person proves that he or she did not have that intention.
Note: A defendant bears a legal burden in relation
to the matter in subsection (3) (see section 13.4).
Division 309—Drug offences involving children
309.1
Children not criminally responsible for offences against this Division
A child is not criminally responsible
for an offence against this Division.
Note: For the purposes of this Part, a child
is an individual under 18 years of age (see section 300.2).
309.2
Supplying controlled drugs to children
(1) A person commits an offence if:
(a) the person supplies a substance to
an individual; and
(b) the individual is a child; and
(c) the substance is a controlled
drug.
Penalty: Imprisonment for 15 years or 3,000 penalty units, or
both.
(2) Strict liability applies to paragraph (1)(b).
(3) The fault element for paragraph (1)(c)
is recklessness.
309.3
Supplying marketable quantities of controlled drugs to children for trafficking
(1) A person commits an offence if:
(a) the person supplies a substance to
an individual; and
(b) the individual is a child; and
(c) the substance is a controlled
drug; and
(d) the quantity supplied is a
marketable quantity; and
(e) the person supplies the controlled
drug believing that the child intends to sell any of it.
Penalty: Imprisonment for life or 7,500 penalty units, or
both.
(2) Strict liability applies to paragraph (1)(b).
(3) The fault element for paragraph (1)(c)
is recklessness.
(4) Absolute liability applies to paragraph (1)(d).
Note: Section 313.4 provides a partial defence
in relation to the matter in paragraph (1)(d).
309.4
Supplying controlled drugs to children for trafficking
(1) A person commits an offence if:
(a) the person supplies a substance to
an individual; and
(b) the individual is a child; and
(c) the substance is a controlled
drug; and
(d) the person supplies the controlled
drug believing that the child intends to sell any of it.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or
both.
(2) Strict liability applies to paragraph (1)(b).
(3) The fault element for paragraph (1)(c)
is recklessness.
309.5
Presumption where trafficable quantities are involved
(1) For the purposes of proving an offence
against section 309.3 or 309.4, if a person has supplied a trafficable
quantity of a substance to a child, the person is taken to have done so
believing that the child intended to sell some or all of it.
(2) Subsection (1) does not apply if the
person proves that he or she did not have that belief.
Note: A defendant bears a legal burden in relation
to the matter in subsection (2) (see section 13.4).
309.6
Meaning of procures an individual to traffic
(1) For the purposes of this Part, a person procures
an individual to traffic in a substance if:
(a) the person procures the individual
to sell the substance; or
(b) the person, with the intention of
selling any of the substance or believing that another person intends to sell
any of the substance, procures the individual to prepare the substance for
supply or to transport the substance; or
(c) the person, with the intention of
selling any of the substance or assisting another person to sell any of the
substance, procures the individual to guard or conceal the substance.
(2) For the purposes of paragraph (1)(b),
preparing a substance for supply includes packaging the substance or separating
the substance into discrete units.
309.7
Procuring children for trafficking marketable quantities of controlled drugs
(1) A person commits an offence if:
(a) the person procures an individual
to traffic in a quantity of a substance; and
(b) the individual is a child; and
(c) the substance is a controlled
drug; and
(d) the quantity is a marketable
quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or
both.
(2) Strict liability applies to paragraph (1)(b).
(3) The fault element for paragraph (1)(c)
is recklessness.
(4) Absolute liability applies to paragraph (1)(d).
Note: Section 313.4 provides a partial defence
in relation to the matter in paragraph (1)(d).
309.8
Procuring children for trafficking controlled drugs
(1) A person commits an offence if:
(a) the person procures an individual
to traffic in a substance; and
(b) the individual is a child; and
(c) the substance is a controlled
drug.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or
both.
(2) Strict liability applies to paragraph (1)(b).
(3) The fault element for paragraph (1)(c)
is recklessness.
309.9
Meaning of procures an individual to pre‑traffic
For the purposes of this Part, a person procures
an individual to pre‑traffic in a substance if the person
procures the individual to sell the substance believing that the person to whom
the substance is sold intends to use any of the substance to manufacture a
controlled drug.
309.10
Procuring children for pre‑trafficking marketable quantities of controlled
precursors
(1) A person commits an offence if:
(a) the person procures an individual
to pre‑traffic in a quantity of a substance; and
(b) the individual is a child; and
(c) the substance is a controlled
precursor; and
(d) the quantity is a marketable
quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or
both.
(2) Strict liability applies to paragraph (1)(b).
(3) The fault element for paragraph (1)(c)
is recklessness.
(4) Absolute liability applies to paragraph (1)(d).
Note: Section 313.4 provides a partial defence
in relation to the matter in paragraph (1)(d).
309.11
Procuring children for pre‑trafficking controlled precursors
(1) A person commits an offence if:
(a) the person procures an individual
to pre‑traffic in a substance; and
(b) the individual is a child; and
(c) the substance is a controlled
precursor.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or
both.
(2) Strict liability applies to paragraph (1)(b).
(3) The fault element for paragraph (1)(c)
is recklessness.
309.12
Procuring children for importing or exporting marketable quantities of border
controlled drugs or border controlled plants
(1) A person commits an offence if:
(a) the person procures an individual
to import or export a substance; and
(b) the individual is a child; and
(c) the substance is a border
controlled drug or border controlled plant; and
(d) the quantity imported or exported
is a marketable quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or
both.
(2) Strict liability applies to paragraph (1)(b).
(3) The fault element for paragraph (1)(c)
is recklessness.
(4) Absolute liability applies to paragraph (1)(d).
Note: Section 313.4 provides a partial defence
in relation to the matter in paragraph (1)(d).
(5) Subsection (1) does not apply if the
person proves that he or she neither intended, nor believed that another person
intended, to sell any of the border controlled drug or any of the border
controlled plant or its products.
Note 1: A defendant bears a legal burden in relation to
the matters in subsection (5) (see section 13.4).
Note 2: A person who does not commit an offence against
this section because he or she proves the matters in subsection (5) may,
however, have committed an offence against section 309.2 (supplying
controlled drugs to children).
309.13
Procuring children for importing or exporting border controlled drugs or border
controlled plants
(1) A person commits an offence if:
(a) the person procures an individual
to import or export a substance; and
(b) the individual is a child; and
(c) the substance is a border
controlled drug or border controlled plant.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or
both.
(2) Strict liability applies to paragraph (1)(b).
(3) The fault element for paragraph (1)(c)
is recklessness.
(4) Subsection (1) does not apply if the
person proves that he or she neither intended, nor believed that another person
intended, to sell any of the border controlled drug or any of the border
controlled plant or its products.
Note 1: A defendant bears a legal burden in relation to
the matters in subsection (4) (see section 13.4).
Note 2: A person who does not commit an offence against
this section because he or she proves the matters in subsection (4) may,
however, have committed an offence against section 309.2 (supplying
controlled drugs to children).
309.14
Procuring children for importing or exporting marketable quantities of border
controlled precursors
(1) A person commits an offence if:
(a) the person procures an individual
to import or export a substance; and
(b) either or both of the following
apply:
(i) the person intends to
use any of the substance to manufacture a controlled drug;
(ii) the person believes
that another person intends to use any of the substance to manufacture a
controlled drug; and
(c) the individual is a child; and
(d) the substance is a border
controlled precursor; and
(e) the quantity imported or exported
is a marketable quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or
both.
(2) Strict liability applies to paragraph (1)(c).
(3) The fault element for paragraph (1)(d)
is recklessness.
(4) Absolute liability applies to paragraph (1)(e).
Note: Section 313.4 provides a partial defence
in relation to the matter in paragraph (1)(e).
(5) Subsection (1) does not apply if:
(a) in relation to conduct covered by subparagraph (1)(b)(i)—the
person proves that he or she neither intended, nor believed that another person
intended, to sell any of the controlled drug so manufactured; or
(b) in relation to conduct covered by subparagraph (1)(b)(ii)—the
person proves that, although he or she believed that the other person intended
to use the substance to manufacture a controlled drug, he or she did not intend
to sell any of the substance to the other person.
Note: A defendant bears a legal burden in relation
to the matters in subsection (5) (see section 13.4).
309.15
Procuring children for importing or exporting border controlled precursors
(1) A person commits an offence if:
(a) the person procures an individual
to import or export a substance; and
(b) either or both of the following
apply:
(i) the person intends to
use any of the substance to manufacture a controlled drug;
(ii) the person believes
that another person intends to use any of the substance to manufacture a
controlled drug; and
(c) the individual is a child; and
(d) the substance is a border
controlled precursor.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or
both.
(2) Strict liability applies to paragraph (1)(c).
(3) The fault element for paragraph (1)(d)
is recklessness.
(4) Subsection (1) does not apply if:
(a) in relation to conduct covered by subparagraph (1)(b)(i)—the
person proves that he or she neither intended, nor believed that another person
intended, to sell any of the controlled drug so manufactured; or
(b) in relation to conduct covered by subparagraph (1)(b)(ii)—the
person proves that, although he or she believed that the other person intended
to use the substance to manufacture a controlled drug, he or she did not intend
to sell any of the substance to the other person.
Note: A defendant bears a legal burden in relation
to the matters in subsection (4) (see section 13.4).
Division 310—Harm and danger to children under 14 from serious drug
offences
310.1
Children not criminally responsible for offences against this Division
A child is not criminally responsible
for an offence against this Division.
Note: For the purposes of this Part, a child
is an individual under 18 years of age (see section 300.2).
310.2
Danger from exposure to unlawful manufacturing
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct gives rise to a danger
of serious harm to an individual; and
(c) the individual is under 14 years
of age; and
(d) the danger exists because the
individual is exposed to the manufacture of a controlled drug or a controlled
precursor; and
(e) the manufacture is an offence
against this Part, or would be an offence against this Part if the manufacture
were for a commercial purpose (see section 305.2).
Penalty: Imprisonment for 9 years or 1,800 penalty units, or
both.
Note: A person can commit an offence against subsection (1)
without being involved in the unlawful manufacture of controlled drugs or
controlled precursors. The person need only expose a child under 14 to the
danger of serious harm from such manufacture.
(2) Strict liability applies to paragraphs (1)(c)
and (e).
(3) For the purposes of subsection (1),
if a person’s conduct exposes another person to the risk of catching a disease
that may give rise to a danger of serious harm to the other person, the conduct
is taken to give rise to a danger of serious harm to the other person.
(4) For the purposes of subsection (1),
a person’s conduct gives rise to a danger of serious harm if the conduct is
ordinarily capable of creating a real, and not merely a theoretical, danger of
serious harm.
(5) For the purposes of subsection (1),
a person’s conduct may give rise to a danger of serious harm whatever the
statistical or arithmetical calculation of the degree of risk of serious harm
involved.
(6) In a prosecution for an offence against subsection (1),
it is not necessary to prove:
(a) that a person was actually placed
in danger of serious harm by the conduct concerned; or
(b) that a particular person committed
the offence mentioned in paragraph (1)(e).
(7) If, in a prosecution for an offence
against subsection (1), the conduct of the defendant for the purposes of paragraph (1)(a)
is alleged to be an omission, the fault element for that omission is
recklessness.
310.3
Harm from exposure to unlawful manufacturing
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct causes harm to an
individual; and
(c) the individual is under 14 years
of age; and
(d) the harm is caused because the
individual is exposed to the manufacture of a controlled drug or a controlled
precursor; and
(e) the manufacture is an offence
against this Part, or would be an offence against this Part if the manufacture
were for a commercial purpose (see section 305.2).
Penalty: Imprisonment for 9 years or 1,800 penalty units, or
both.
Note: A person can commit an offence against this
section without being involved in the unlawful manufacture of controlled drugs
or controlled precursors. The person need only cause harm to a child under 14
by exposing the child to such manufacture.
(2) Strict liability applies to paragraphs (1)(c)
and (e).
(3) In a prosecution for an offence against subsection (1),
it is not necessary to prove that a particular person committed the offence
mentioned in paragraph (1)(e).
(4) If, in a prosecution for an offence
against subsection (1), the conduct of the defendant for the purposes of paragraph (1)(a)
is alleged to be an omission, the fault element for that omission is
recklessness.
310.4
Aggravated offences—manufacturing controlled drugs and controlled precursors
(1) If the prosecution intends to prove an
aggravated offence, the charge must allege the relevant aggravated offence.
(2) For the purposes of this Part, an offence
against section 305.4 or 305.5 is an aggravated offence if:
(a) the commission of the offence
exposes an individual to the manufacture of a controlled drug; and
(b) the individual is under 14 years
of age.
(3) For the purposes of this Part, an offence
against section 306.2, 306.3 or 306.4 is an aggravated offence
if:
(a) the commission of the offence
exposes an individual to:
(i) a controlled precursor
intended to be used for the manufacture of a controlled drug; or
(ii) the manufacture of a
controlled precursor; and
(b) the individual is under 14 years
of age.
(4) The fault element for paragraphs (2)(a)
and (3)(a) is recklessness.
(5) Strict liability applies to paragraphs (2)(b)
and (3)(b).
(6) Subsections (2) and (3) do not apply
if the commission of the offence does not give rise to a danger of harm to the
individual.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (6) (see subsection 13.3(3)).
(7) For the purposes of this section, if the
commission of an offence exposes a person to the risk of catching a disease
that may give rise to a danger of harm to the person, the commission of the
offence is taken to give rise to a danger of harm to the person.
(8) For the purposes of this section, the
commission of an offence gives rise to a danger of harm if the commission of
the offence is ordinarily capable of creating a real, and not merely a
theoretical, danger of harm.
(9) For the purposes of this section, the
commission of an offence may give rise to a danger of harm whatever the
statistical or arithmetical calculation of the degree of risk of harm involved.
Division 311—Combining quantities of drugs, plants or precursors
Subdivision A—Combining different
parcels on the same occasion
311.1
Combining different parcels on the same occasion
(1) If, on the same occasion, a person:
(a) traffics in different parcels of
controlled drugs (Division 302); or
(b) cultivates different parcels of
controlled plants (Division 303); or
(c) sells different parcels of
controlled plants (Division 304); or
(d) manufactures different parcels of
controlled drugs (Division 305); or
(e) pre‑traffics in different
parcels of controlled precursors (Division 306); or
(f) imports or exports different
parcels of border controlled drugs or border controlled plants (Subdivision A
of Division 307); or
(g) possesses different parcels of
unlawfully imported border controlled drugs or border controlled plants (Subdivision
B of Division 307); or
(h) possesses different parcels of
border controlled drugs or border controlled plants reasonably suspected of
having been unlawfully imported (Subdivision C of Division 307); or
(i) imports or exports different
parcels of border controlled precursors (Subdivision D of Division 307);
or
(j) supplies different parcels of
controlled drugs to a child for trafficking (sections 309.3 and 309.4); or
(k) procures a child to traffic in
different parcels of controlled drugs (sections 309.7 and 309.8); or
(l) procures a child to pre‑traffic
in different parcels of controlled precursors (sections 309.10 and
309.11); or
(m) procures a child to import or
export different parcels of border controlled drugs or border controlled plants
(sections 309.12 and 309.13); or
(n) procures a child to import or
export different parcels of border controlled precursors (sections 309.14
and 309.15);
the person may be charged with a single offence against
this Part in respect of all or any of the different parcels of drugs, plants or
precursors.
(2) The quantity of the drugs, plants or
precursors for the purposes of the offence is the sum of the quantities of the
drugs, plants or precursors in the different parcels.
Note: See section 312.2 for working out
quantities where different kinds of controlled or border controlled drugs,
plants or precursors are involved.
(3) If the prosecution intends to rely on
this Subdivision, particulars of each parcel of drugs, plants or precursors
must be set out in the charge.
(4) This Subdivision does not prevent a
person being charged with separate offences in respect of different parcels of
drugs, plants or precursors.
Subdivision B—Combining parcels from
organised commercial activities
311.2
Business of trafficking controlled drugs
(1) In proceedings for an offence against:
(a) section 302.2 (trafficking
commercial quantities of controlled drugs); or
(b) section 302.3 (trafficking
marketable quantities of controlled drugs);
the prosecution may prove the element of the offence
relating to the quantity of controlled drug by proving:
(c) that the defendant was engaged in
an organised commercial activity that involved repeated trafficking in
controlled drugs; and
(d) that the relevant quantity of a
controlled drug, or of a combination of controlled drugs, was trafficked in the
course of that activity.
Note 1: See section 312.2 for working out
quantities where different kinds of controlled drugs are involved.
Note 2: Section 313.4 provides a partial defence
in relation to the matter in paragraph (1)(d).
(2) For the purposes of subsection (1)
it is not necessary for the prosecution to specify or prove:
(a) the exact date of each occasion of
trafficking; or
(b) the exact quantity trafficked on
each occasion.
(3) Section 302.5 (presumption where
trafficable quantities are involved) does not apply to an offence prosecuted in
accordance with subsection (1).
311.3
Business of pre‑trafficking by selling controlled precursors
(1) In proceedings for an offence against:
(a) section 306.2 (pre‑trafficking
commercial quantities of controlled precursors); or
(b) section 306.3 (pre‑trafficking
marketable quantities of controlled precursors);
where the alleged conduct of the defendant involves pre‑trafficking
by selling controlled precursors, the prosecution may prove the element of the
offence relating to the quantity of controlled precursor by proving:
(c) that the defendant was engaged in
an organised commercial activity that involved repeated pre‑trafficking
by selling controlled precursors; and
(d) that the relevant quantity of a
controlled precursor, or of a combination of controlled precursors, was pre‑trafficked
by sale in the course of that activity.
Note 1: See section 312.2 for working out
quantities where different kinds of controlled precursors are involved.
Note 2: Section 313.4 provides a partial defence
in relation to the matter in paragraph (1)(d).
(2) For the
purposes of subsection (1) it is not necessary for the prosecution to
specify or prove:
(a) the exact date of each occasion of
pre‑trafficking; or
(b) the exact quantity pre‑trafficked
on each occasion.
311.4
Business of importing or exporting border controlled drugs or border controlled
plants
(1) In proceedings for an offence against:
(a) section 307.1 (importing and
exporting commercial quantities of border controlled drugs or border controlled
plants); or
(b) section 307.2 (importing and
exporting marketable quantities of border controlled drugs or border controlled
plants);
the prosecution may prove the element of the offence
relating to the quantity of border controlled drug or border controlled plant
by proving:
(c) that the defendant was engaged in
an organised commercial activity that involved repeated importing or exporting
of border controlled drugs or border controlled plants, or both; and
(d) that the relevant quantity of a
border controlled drug or border controlled plant or both, or of a combination
of border controlled drugs or border controlled plants or both, was imported or
exported in the course of that activity.
Note: See section 312.2 for working out
quantities where different kinds of border controlled drugs or border
controlled plants are involved.
(2) For the purposes of subsection (1)
it is not necessary for the prosecution to specify or prove:
(a) the exact date of each occasion of
import or export; or
(b) the exact quantity imported or
exported on each occasion.
311.5
Business of importing or exporting border controlled precursors
(1) In proceedings for an offence against:
(a) section 307.11 (importing and
exporting commercial quantities of border controlled precursors); or
(b) section 307.12 (importing and
exporting marketable quantities of border controlled precursors);
the prosecution may prove the element of the offence
relating to the quantity of border controlled precursor by proving:
(c) that the defendant was engaged in
an organised commercial activity that involved repeated importing or exporting
of border controlled precursors; and
(d) that the relevant quantity of a
border controlled precursor, or of a combination of border controlled
precursors, was imported or exported in the course of that activity.
Note: See section 312.2 for working out
quantities where different kinds of border controlled precursors are involved.
(2) For the purposes of subsection (1)
it is not necessary for the prosecution to specify or prove:
(a) the exact date of each occasion of
import or export; or
(b) the exact quantity imported or
exported on each occasion.
311.6
Business of supplying controlled drugs to children
(1) In proceedings for an offence against
section 309.3 (supplying marketable quantities of controlled drugs to
children for trafficking), the prosecution may prove the element of the offence
relating to the quantity of controlled drug by proving:
(a) that the defendant was engaged in
an organised commercial activity that involved repeated supplying of drugs to
children for trafficking; and
(b) that the relevant quantity of a
controlled drug, or of a combination of controlled drugs, was supplied to
children in the course of that activity.
Note 1: See section 312.2 for working out
quantities where different kinds of controlled drugs are involved.
Note 2: Section 313.4 provides a partial defence
in relation to the matter in paragraph (1)(b).
(2) For the purposes of subsection (1)
it is not necessary for the prosecution to specify or prove:
(a) the exact date of each occasion of
supply; or
(b) the exact quantity supplied on
each occasion.
(3) Section 309.5 (presumption where
trafficable quantities are involved) does not apply to an offence prosecuted in
accordance with subsection (1).
311.7
General rules—combining parcels from organised commercial activities
(1) If, in proceedings for an offence, the
prosecution intends to rely on section 311.2, 311.3, 311.4, 311.5 or
311.6:
(a) the fact that it intends to do so
must be set out in the charge; and
(b) a description of the conduct
alleged for the purposes of that section must be set out in the charge or
provided to the accused within a reasonable time before the proceedings.
(2) If:
(a) an occasion of trafficking, pre‑trafficking,
importing or exporting or supplying is alleged in proceedings against a person
for an offence prosecuted in accordance with section 311.2, 311.3, 311.4,
311.5 or 311.6; and
(b) the person is convicted or
acquitted of the offence;
that occasion must not be alleged in proceedings against
the person for another offence against this Part.
(3) If:
(a) an occasion of trafficking, pre‑trafficking,
importing or exporting or supplying is alleged in proceedings against a person
for an offence against this Part; and
(b) the person is convicted or
acquitted of the offence;
that occasion must not be alleged in proceedings against
the person for an offence prosecuted in accordance with section 311.2,
311.3, 311.4, 311.5 or 311.6.
(4) Subject to subsections (2) and (3),
this Subdivision does not prevent a person being charged with separate offences
in respect of conduct on different occasions.
Subdivision C—Combining parcels from
multiple offences
311.8
Multiple offences—trafficking controlled drugs
The prosecution may prove an offence
against Division 302 (trafficking controlled drugs) by proving:
(a) that the defendant committed
offences against that Division on different occasions; and
(b) that each of those offences was
committed within a period of not more than 7 days from another of those
offences; and
(c) that the relevant quantity (in
sum) of a controlled drug, or of a combination of controlled drugs, was
trafficked during the commission of those offences.
Note 1: See section 312.2 for working out
quantities where different kinds of controlled drugs are involved.
Note 2: Section 313.4 provides a partial defence
in relation to the matter in paragraph (c).
311.9
Multiple offences—cultivating controlled plants
The prosecution may prove an offence
against Division 303 (commercial cultivation of controlled plants) by
proving:
(a) that the defendant committed
offences against that Division on different occasions; and
(b) that each of those offences was
committed within a period of not more than 7 days from another of those
offences; and
(c) that the relevant quantity (in
sum) of a controlled plant, or of a combination of controlled plants, was
cultivated during the commission of those offences.
Note 1: See section 312.2 for working out
quantities where different kinds of controlled plants are involved.
Note 2: Section 313.4 provides a partial defence
in relation to the matter in paragraph (c).
311.10
Multiple offences—selling controlled plants
The prosecution may prove an offence
against Division 304 (selling controlled plants) by proving:
(a) that the defendant committed
offences against that Division on different occasions; and
(b) that each of those offences was
committed within a period of not more than 7 days from another of those
offences; and
(c) that the relevant quantity (in
sum) of a controlled plant, or of a combination of controlled plants, was sold
during the commission of those offences.
Note 1: See section 312.2 for working out
quantities where different kinds of controlled plants are involved.
Note 2: Section 313.4 provides a partial defence
in relation to the matter in paragraph (c).
311.11
Multiple offences—manufacturing controlled drugs
The prosecution may prove an offence
against Division 305 (commercial manufacture of controlled drugs) by
proving:
(a) that the defendant committed
offences against that Division on different occasions; and
(b) that each of those offences was
committed within a period of not more than 7 days from another of those
offences; and
(c) that the relevant quantity (in
sum) of a controlled drug, or of a combination of controlled drugs, was
manufactured during the commission of those offences.
Note 1: See section 312.2 for working out
quantities where different kinds of controlled drugs are involved.
Note 2: Section 313.4 provides a partial defence
in relation to the matter in paragraph (c).
311.12
Multiple offences—pre‑trafficking controlled precursors
The prosecution may prove an offence
against Division 306 (pre‑trafficking controlled precursors) by
proving:
(a) that the defendant committed
offences against that Division on different occasions; and
(b) that each of those offences was committed
within a period of not more than 7 days from another of those offences; and
(c) that the relevant quantity (in
sum) of a controlled precursor, or of a combination of controlled precursors,
was pre‑trafficked during the commission of those offences.
Note 1: See section 312.2 for working out
quantities where different kinds of controlled precursors are involved.
Note 2: Section 313.4 provides a partial defence
in relation to the matter in paragraph (c).
311.13
Multiple offences—importing or exporting border controlled drugs or border
controlled plants
The prosecution may prove an offence
against Subdivision A of Division 307 (importing and exporting border
controlled drugs or border controlled plants) by proving:
(a) that the defendant committed offences
against that Subdivision on different occasions; and
(b) that each of those offences was
committed within a period of not more than 30 days from another of those
offences; and
(c) that the relevant quantity (in
sum) of a border controlled drug or border controlled plant or both, or of a
combination of border controlled drugs or border controlled plants or both, was
imported or exported during the commission of those offences.
Note: See section 312.2 for working out
quantities where different kinds of border controlled drugs or border
controlled plants are involved.
311.14
Multiple offences—possessing unlawfully imported border controlled drugs or
border controlled plants
The prosecution may prove an offence
against Subdivision B of Division 307 (possessing unlawfully imported
border controlled drugs or border controlled plants) by proving:
(a) that the defendant committed
offences against that Subdivision on different occasions; and
(b) that each of those offences was
committed within a period of not more than 7 days from another of those
offences; and
(c) that the relevant quantity (in
sum) of a border controlled drug or border controlled plant or both, or of a
combination of border controlled drugs or border controlled plants or both, was
possessed by the defendant during the commission of those offences.
Note: See section 312.2 for working out
quantities where different kinds of border controlled drugs or border
controlled plants are involved.
311.15
Multiple offences—possessing border controlled drugs or border controlled
plants reasonably suspected of having been unlawfully imported
The prosecution may prove an offence
against Subdivision C of Division 307 (possessing border controlled drugs
or border controlled plants reasonably suspected of having been unlawfully
imported) by proving:
(a) that the defendant committed
offences against that Subdivision on different occasions; and
(b) that each of those offences was
committed within a period of not more than 7 days from another of those offences;
and
(c) that the relevant quantity (in
sum) of a border controlled drug or border controlled plant or both, or of a
combination of border controlled drugs or border controlled plants or both, was
possessed by the defendant during the commission of those offences.
Note: See section 312.2 for working out
quantities where different kinds of border controlled drugs or border
controlled plants are involved.
311.16
Multiple offences—importing or exporting border controlled precursors
The prosecution may prove an offence
against Subdivision D of Division 307 (importing and exporting border
controlled precursors) by proving:
(a) that the defendant committed
offences against that Subdivision on different occasions; and
(b) that each of those offences was
committed within a period of not more than 30 days from another of those
offences; and
(c) that the relevant quantity (in
sum) of a border controlled precursor, or of a combination of border controlled
precursors, was imported or exported during the commission of those offences.
Note: See section 312.2 for working out
quantities where different kinds of border controlled precursors are involved.
311.17
Multiple offences—supplying controlled drugs to children for trafficking
The prosecution may prove an offence
against section 309.3 (supplying marketable quantities of controlled drugs
to children for trafficking) by proving:
(a) that the defendant committed
offences against section 309.4 (supplying controlled drugs to children for
trafficking) on different occasions; and
(b) that each of those offences was
committed within a period of not more than 7 days from another of those
offences; and
(c) that the relevant quantity (in
sum) of a controlled drug, or of a combination of controlled drugs, was supplied
during the commission of those offences.
Note 1: See section 312.2 for working out
quantities where different kinds of controlled drugs are involved.
Note 2: Section 313.4 provides a partial defence
in relation to the matter in paragraph (c).
311.18
Multiple offences—procuring children for trafficking controlled drugs
The prosecution may prove an offence
against section 309.7 (procuring children for trafficking marketable
quantities of controlled drugs) by proving:
(a) that the defendant committed offences
against section 309.8 (procuring children for trafficking controlled
drugs) on different occasions; and
(b) that each of those offences was
committed within a period of not more than 7 days from another of those
offences; and
(c) that the relevant quantity (in
sum) of a controlled drug, or of a combination of controlled drugs, was
trafficked during the commission of those offences.
Note 1: See section 312.2 for working out
quantities where different kinds of controlled drugs are involved.
Note 2: Section 313.4 provides a partial defence
in relation to the matter in paragraph (c).
311.19
Multiple offences—procuring children for pre‑trafficking controlled
precursors
The prosecution may prove an offence
against section 309.10 (procuring children for pre‑trafficking
marketable quantities of controlled precursors) by proving:
(a) that the defendant committed
offences against section 309.11 (procuring children for pre‑trafficking
controlled precursors) on different occasions; and
(b) that each of those offences was
committed within a period of not more than 7 days from another of those
offences; and
(c) that the relevant quantity (in
sum) of a controlled precursor, or of a combination of controlled precursors,
was pre‑trafficked during the commission of those offences.
Note 1: See section 312.2 for working out
quantities where different kinds of controlled precursors are involved.
Note 2: Section 313.4 provides a partial defence
in relation to the matter in paragraph (c).
311.20
Multiple offences—procuring children for importing or exporting border
controlled drugs or border controlled plants
The prosecution may prove an offence
against section 309.12 (procuring children for importing or exporting
marketable quantities of border controlled drugs or border controlled plants)
by proving:
(a) that the defendant committed
offences against section 309.13 (procuring children for importing or
exporting border controlled drugs or border controlled plants) on different
occasions; and
(b) that each of those offences was
committed within a period of not more than 30 days from another of those
offences; and
(c) that the relevant quantity (in
sum) of a border controlled drug or border controlled plant or both, or of a
combination of border controlled drugs or border controlled plants or both, was
imported or exported during the commission of those offences.
Note 1: See section 312.2 for working out
quantities where different kinds of border controlled drugs or border
controlled plants are involved.
Note 2: Section 313.4 provides a partial defence
in relation to the matter in paragraph (c).
311.21
Multiple offences—procuring children for importing or exporting border
controlled precursors
The prosecution may prove an offence
against section 309.14 (procuring children for importing or exporting
marketable quantities of border controlled precursors) by proving:
(a) that the defendant committed
offences against section 309.15 (procuring children for importing or
exporting border controlled precursors) on different occasions; and
(b) that each of those offences was
committed within a period of not more than 30 days from another of those
offences; and
(c) that the relevant quantity (in
sum) of a border controlled precursor, or of a combination of border controlled
precursors, was imported or exported during the commission of those offences.
Note 1: See section 312.2 for working out
quantities where different kinds of border controlled precursors are involved.
Note 2: Section 313.4 provides a partial defence
in relation to the matter in paragraph (c).
311.22
General rules—combining parcels from multiple offences
(1) If the prosecution intends to rely on a
section of this Subdivision, the particulars of the offences alleged to have
been committed on the different occasions must be set out in the charge.
(2) The same parcel of controlled drugs,
controlled plants, controlled precursors, border controlled drugs, border
controlled plants or border controlled precursors must not be counted more than
once for the purposes of this Subdivision.
Example: A person is in possession of a quantity of a
controlled drug for sale on one day (the first occasion) and sells that
particular quantity the next day (the second occasion). Only the quantity
trafficked on one of those occasions may be counted.
(3) This Subdivision does not prevent a
person being charged with separate offences in respect of conduct on different
occasions.
Division 312—Working out quantities of drugs, plants or precursors
312.1
Working out quantities of drugs and precursors in mixtures
(1) If an alleged offence against this Part
involves a quantity of a controlled drug in a mixture of substances, the
prosecution may prove the quantity of the controlled drug involved:
(a) by proving that the mixture
contains that quantity of the pure form of the controlled drug; or
(b) if such a quantity is specified in
Division 314 for the controlled drug in a mixture—by proving that quantity
of the mixture.
(2) If an alleged offence against this Part
involves a quantity of a controlled precursor in a mixture of substances, the
prosecution may prove the quantity of the controlled precursor involved by
proving that the mixture contains that quantity of the pure form of the
controlled precursor.
(3) If an alleged offence against this Part
involves a quantity of a border controlled drug in a mixture of substances, the
prosecution may prove the quantity of the border controlled drug involved:
(a) by proving that the mixture
contains that quantity of the pure form of the border controlled drug; or
(b) if such a quantity is specified in
Division 314 for the border controlled drug in a mixture—by proving that
quantity of the mixture.
(4) If an alleged offence against this Part
involves a quantity of a border controlled precursor in a mixture of
substances, the prosecution may prove the quantity of the border controlled
precursor involved by proving that the mixture contains that quantity of the
pure form of the border controlled precursor.
312.2
Working out quantities where different kinds of drugs, plants or precursors are
involved
(1) This section applies if a person is
charged with a single offence against this Part that involves:
(a) trafficking in more than one kind
of controlled drug; or
(b) cultivating more than one kind of
controlled plant; or
(c) selling more than one kind of
controlled plant; or
(d) manufacturing more than one kind
of controlled drug; or
(e) pre‑trafficking in more than
one kind of controlled precursor; or
(f) importing or exporting more than
one kind of border controlled drug or border controlled plant; or
(g) possessing more than one kind of
unlawfully imported border controlled drug or border controlled plant; or
(h) possessing more than one kind of
border controlled drug or border controlled plant reasonably suspected of
having been unlawfully imported; or
(i) importing or exporting more than
one kind of border controlled precursor; or
(j) supplying more than one kind of
controlled drug to a child for trafficking; or
(k) procuring a child to traffic in
more than one kind of controlled drug; or
(l) procuring a child to pre‑traffic
in more than one kind of controlled precursor; or
(m) procuring a child to import or
export more than one kind of border controlled drug or border controlled plant;
or
(n) procuring a child to import or
export more than one kind of border controlled precursor.
(2) The following apply for the purposes of
working out the quantity of controlled drugs, controlled plants, controlled
precursors, border controlled drugs, border controlled plants or border
controlled precursors involved in the offence:
(a) the quantity of the drugs or
plants is a trafficable quantity if the sum of the requisite fractions of the
trafficable quantity of each of those drugs or plants is equal to or greater
than one;
(b) the quantity of drugs, plants or
precursors is a marketable quantity if the sum of the requisite fractions of
the marketable quantity of each of those drugs, plants or precursors is equal
to or greater than one;
(c) the quantity of drugs, plants or
precursors is a commercial quantity if the sum of the requisite fractions of
the commercial quantity of each of those drugs, plants or precursors is equal
to or greater than one.
(3) For the purposes of this Part, requisite
fraction means:
(a) in relation to a trafficable
quantity of a controlled drug or controlled plant, the actual quantity of the
drug or plant divided by the smallest trafficable quantity of the drug or
plant; or
(b) in relation to a marketable
quantity of a controlled drug, controlled plant, controlled precursor, border
controlled drug, border controlled plant or border controlled precursor, the
actual quantity of the drug, plant or precursor divided by the smallest
marketable quantity of the drug, plant or precursor; or
(c) in relation to a commercial
quantity of a controlled drug, controlled plant, controlled precursor, border
controlled drug, border controlled plant or border controlled precursor, the
actual quantity of the drug, plant or precursor divided by the smallest
commercial quantity of the drug, plant or precursor.
(4) If this section applies in relation to a
controlled drug in a mixture of substances, the requisite fraction of a
trafficable, marketable or commercial quantity of the controlled drug may be
calculated:
(a) on the basis of the quantity of
the controlled drug in pure form; or
(b) if such a quantity is specified in
Division 314 for the controlled drug in a mixture—on the basis of the
quantity of the mixture.
(5) If this section applies in relation to a
border controlled drug in a mixture of substances, the requisite fraction of a
marketable or commercial quantity of the border controlled drug may be
calculated:
(a) on the basis of the quantity of
the border controlled drug in pure form; or
(b) if such a quantity is specified in
Division 314 for the border controlled drug in a mixture—on the basis of
the quantity of the mixture.
Division 313—Defences and alternative verdicts
313.1
Defence—conduct justified or excused by or under a law of a State or Territory
This Part, other than Division 307,
does not apply in relation to conduct if:
(a) a person engages in the conduct in
a State or Territory; and
(b) the conduct is justified or
excused by or under a law of that State or Territory.
Note 1: A defendant bears an evidential burden in
relation to the matters in this section (see subsection 13.3(3)).
Note 2: A person is not criminally responsible for an
offence against this Part if the person’s conduct is justified or excused by or
under another Commonwealth law (see section 10.5). In 2005, Commonwealth
laws that authorised importation, possession or use of controlled drugs,
controlled plants, controlled precursors, border controlled drugs, border
controlled plants or border controlled precursors included the Customs Act
1901, the Narcotic Drugs Act 1967 and the Crimes Act 1914.
313.2
Defence—reasonable belief that conduct is justified or excused by or under a
law
A person is not criminally responsible
for an offence against this Part if:
(a) at the time of the conduct
constituting the offence, the person was under a mistaken but reasonable belief
that the conduct was justified or excused by or under a law of the Commonwealth
or of a State or Territory; and
(b) had the conduct been so justified
or excused—the conduct would not have constituted the offence.
Note: A defendant bears an evidential burden in
relation to the matter in paragraph (a) (see subsection 13.3(3)).
313.3
Alternative verdict—offence not proved
If:
(a) in a prosecution for an offence
against this Part, the trier of fact:
(i) is not satisfied that
the defendant is guilty of the alleged offence; but
(ii) is satisfied, beyond
reasonable doubt, that the defendant is guilty of another offence against this
Part; and
(b) the maximum penalty for the other
offence is not greater than the maximum penalty for the alleged offence;
the trier of fact may find the defendant not guilty of the
alleged offence but guilty of the other offence, so long as the defendant has
been accorded procedural fairness in relation to that finding of guilt.
313.4
Alternative verdict—mistake as to quantity of drug, plant or precursor
(1) This section applies if:
(a) an offence against this Part
(other than Division 307) is prosecuted; and
(b) the offence involves a commercial
quantity or a marketable quantity of a controlled drug, controlled plant,
controlled precursor, border controlled drug, border controlled plant or border
controlled precursor; and
(c) the trier of fact would, apart
from this section, have found the defendant guilty of the offence.
(2) If:
(a) the defendant proves that, at the
time of the alleged offence, he or she was under a mistaken belief about the
quantity of the drug, plant or precursor; and
(b) if the mistaken belief had been
correct, the defendant would have been guilty of another offence against this
Part; and
(c) the maximum penalty for the other
offence is less than the maximum penalty for the alleged offence;
the trier of fact may find the defendant:
(d) not guilty of the alleged offence;
but
(e) guilty of the other offence.
Note: A defendant bears a legal burden in relation
to the matter in paragraph (2)(a) (see section 13.4).
313.5
Alternative verdict—mistake as to identity of drug, plant or precursor
(1) This section applies if:
(a) an offence against this Part
(other than Division 307) is prosecuted; and
(b) the offence involves a controlled
drug, controlled plant, controlled precursor, border controlled drug, border
controlled plant or border controlled precursor; and
(c) the trier of fact would, apart
from this section, have found the defendant guilty of the offence.
(2) If:
(a) the defendant proves that, at the
time of the alleged offence, he or she was under a mistaken belief about the
identity of the drug, plant or precursor; and
(b) if the mistaken belief had been
correct, the defendant would have been guilty of another offence against this
Part; and
(c) the maximum penalty for the other
offence is less than the maximum penalty for the alleged offence;
the trier of fact may find the defendant:
(d) not guilty of the alleged offence;
but
(e) guilty of the other offence.
Note: A defendant bears a legal burden in relation
to the matter in paragraph (2)(a) (see section 13.4).
Division 314—Drugs, plants, precursors and quantities
314.1
Controlled drugs
(1) The following table lists controlled
drugs and sets out quantities:
|
Controlled drugs and
quantities
|
|
|
Controlled drug
|
Trafficable quantity
(grams)
|
Marketable quantity
(grams)
|
Commercial quantity
(kilograms)
|
|
1
|
Amphetamine
|
2.0
|
250.0
|
0.75
|
|
2
|
Cannabis (in any form, including flowering or fruiting
tops, leaves, seeds or stalks, but not including Cannabis resin or Cannabis
fibre)
|
250.0
|
25,000.0
|
125.0
|
|
3
|
Cannabis resin
|
20.0
|
25,000.0
|
125.0
|
|
4
|
Cocaine
|
2.0
|
250.0
|
2.0
|
|
5
|
Gammabutyrolactone (GBL)
|
0.5
|
250.0
|
1.0
|
|
6
|
4‑Hydroxybutanoic acid (GHB)
|
0.5
|
250.0
|
1.0
|
|
7
|
Heroin (diacetylmorphine)
|
2.0
|
250.0
|
1.5
|
|
8
|
Lysergide (LSD)
|
0.002
|
0.05
|
0.002
|
|
9
|
Methamphetamine
|
2.0
|
250.0
|
0.75
|
|
10
|
3,4‑Methylenedioxyamphetamine (MDA)
|
0.5
|
100.0
|
0.75
|
|
11
|
3,4‑Methylenedioxymethamphetamine (MDMA)
|
0.5
|
100.0
|
0.5
|
|
12
|
Opium
|
20.0
|
10,000.0
|
20.0
|
|
13
|
Psilocine
|
2.0
|
1,000.0
|
2.0
|
|
14
|
Psilocybine
|
2.0
|
1,000.0
|
2.0
|
|
15
|
Tetrahydrocannabinol (THC)
|
2.0
|
1,000.0
|
5.0
|
(2) A substance is a controlled drug if the
substance (the drug analogue) is, in relation to a controlled
drug listed in subsection (1) (or a stereoisomer, a structural isomer
(with the same constituent groups) or an alkaloid of such a controlled drug):
(a) a stereoisomer; or
(b) a structural isomer having the
same constituent groups; or
(c) an alkaloid; or
(d) a structural modification obtained
by the addition of one or more of the following groups:
(i) alkoxy, cyclic
diether, acyl, acyloxy, mono‑amino or dialkylamino groups with up to 6
carbon atoms in any alkyl residue;
(ii) alkyl, alkenyl or
alkynyl groups with up to 6 carbon atoms in the group, where the group is
attached to oxygen (for example, an ester or an ether group), nitrogen, sulphur
or carbon;
(iii) halogen, hydroxy,
nitro or amino groups; or
(e) a structural modification obtained
in one or more of the following ways:
(i) by the replacement of
up to 2 carbocyclic or heterocyclic ring structures with different carbocyclic
or heterocyclic ring structures;
(ii) by the addition of
hydrogen atoms to one or more unsaturated bonds;
(iii) by the replacement of
one or more of the groups specified in paragraph (d) with another such
group or groups;
(iv) by the conversion of a
carboxyl or an ester group into an amide group; or
(f) otherwise a homologue, analogue,
chemical derivative or substance substantially similar in chemical structure;
however obtained, except where the drug analogue is
separately listed in subsection (1).
(3) The trafficable quantity for a drug
analogue described in subsection (2) is:
(a) unless paragraph (b)
applies—the trafficable quantity set out in the table in subsection (1)
for the controlled drug to the which the drug analogue relates (whether
directly or indirectly); or
(b) if the drug analogue relates to
more than one controlled drug listed in the table in subsection (1)—the
smallest trafficable quantity set out in the table in subsection (1) for
any of those controlled drugs.
(4) The marketable quantity for a drug
analogue described in subsection (2) is:
(a) unless paragraph (b)
applies—the marketable quantity set out in the table in subsection (1) for
the controlled drug to which the drug analogue relates (whether directly or
indirectly); or
(b) if the drug analogue relates to
more than one controlled drug listed in the table in subsection (1)—the
smallest marketable quantity set out in the table in subsection (1) for
any of those controlled drugs.
(5) The commercial quantity for a drug
analogue described in subsection (2) is:
(a) unless paragraph (b)
applies—the commercial quantity set out in the table in subsection (1) for
the controlled drug to which the drug analogue relates (whether directly or
indirectly); or
(b) if the drug analogue relates to
more than one controlled drug listed in the table in subsection (1)—the
smallest commercial quantity set out in the table in subsection (1) for
any of those controlled drugs.
314.2
Controlled plants
The following table lists controlled
plants and sets out quantities:
|
Controlled plants and
quantities
|
|
|
Controlled plant
|
Trafficable quantity
|
Marketable quantity
|
Commercial quantity
|
|
1
|
Any plant of the genus Cannabis
|
250 g or
10 plants
|
25 kg or
100 plants
|
250 kg or
1,000 plants
|
314.3
Controlled precursors
(1) The
following table lists controlled precursors and sets out quantities:
|
Controlled precursors
and quantities
|
|
|
Controlled precursor
|
Marketable quantity
(grams)
|
Commercial quantity
(kilograms)
|
|
1
|
Ephedrine
|
400.0
|
1.2
|
|
2
|
Ergometrine
|
0.15
|
0.006
|
|
3
|
Ergotamine
|
0.25
|
0.01
|
|
4
|
Isosafrole
|
290.0
|
1.45
|
|
5
|
Lysergic acid
|
0.075
|
0.003
|
|
6
|
3,4‑Methylenedioxyphenylacetic acid
|
300.0
|
1.5
|
|
7
|
3,4‑Methylenedioxyphenyl‑2‑propanone
|
150.0
|
0.75
|
|
8
|
Phenylacetic acid
|
1,350.0
|
4.05
|
|
9
|
Phenyl‑2‑propanone
|
675.0
|
2.03
|
|
10
|
Piperonal
|
320.0
|
1.6
|
|
11
|
Pseudoephedrine
|
400.0
|
1.2
|
|
12
|
Safrole
|
570.0
|
2.85
|
(2) A substance is a controlled precursor if
the substance is a salt or ester of a precursor listed in the table in subsection (1).
314.4
Border controlled drugs
(1) The following table lists border
controlled drugs and sets out quantities:
|
Border controlled drugs
and quantities
|
|
|
Border controlled drugs
|
Marketable quantity
(grams)
|
Commercial quantity
(kilograms)
|
|
1
|
Acetorphine
|
2.0
|
2.0
|
|
2
|
Acetyl‑alpha‑methylfentanyl
|
0.005
|
0.005
|
|
3
|
Acetylcodeine
|
2.0
|
2.0
|
|
4
|
Acetyldihydrocodeine
|
2.0
|
2.0
|
|
5
|
Acetylmethadol
|
2.0
|
2.0
|
|
6
|
Allylprodine
|
2.0
|
2.0
|
|
7
|
Alphacetylmethadol
|
10.0
|
10.0
|
|
8
|
Alphameprodine
|
0.2
|
0.2
|
|
9
|
Alphamethadol
|
0.2
|
0.2
|
|
10
|
alpha‑Methylfentanyl
|
0.005
|
0.005
|
|
11
|
alpha‑Methylthiofentanyl
|
0.005
|
0.005
|
|
12
|
Alphaprodine
|
25.0
|
25.0
|
|
13
|
Amphecloral
|
2.0
|
2.0
|
|
14
|
3‑(2‑Aminopropyl)indole (alpha‑methyltryptamine
(AMT))
|
2.0
|
2.0
|
|
15
|
Amphetamine
|
2.0
|
0.75
|
|
16
|
Anileridine
|
25.0
|
25.0
|
|
17
|
Barbiturates
|
50.0
|
5.0
|
|
18
|
Benzethidine
|
10.0
|
10.0
|
|
19
|
Benzoylecgonine
|
2.0
|
2.0
|
|
20
|
Benzylmorphine
|
5.0
|
5.0
|
|
21
|
Betacetylmethadol
|
5.0
|
5.0
|
|
22
|
beta‑Hydroxyfentanyl
|
0.005
|
0.005
|
|
23
|
beta‑Hydroxy‑3‑methylfentanyl
|
0.005
|
0.005
|
|
24
|
Betameprodine
|
5.0
|
5.0
|
|
25
|
Betamethadol
|
5.0
|
5.0
|
|
26
|
Betaprodine
|
5.0
|
5.0
|
|
27
|
Bezitramide
|
5.0
|
5.0
|
|
28
|
4‑Bromo‑2,5‑dimethoxyamphetamine
|
0.5
|
0.5
|
|
29
|
Bufotenine
|
2.0
|
2.0
|
|
30
|
Cannabinoids (other than a Cannabinoid of a kind that can
be obtained from a plant that is not a Cannabis plant)
|
2.0
|
2.0
|
|
31
|
Cannabis (in any form, including flowering or fruiting
tops, leaves, seeds or stalks, but not including Cannabis resin or Cannabis
fibre)
|
25,000.0
|
100.0
|
|
32
|
Cannabis resin
|
20.0
|
50.0
|
|
33
|
Chlorphentermine
|
2.0
|
2.0
|
|
34
|
Clonitazene
|
5.0
|
5.0
|
|
35
|
Cocaine
|
2.0
|
2.0
|
|
36
|
Codeine
|
10.0
|
10.0
|
|
37
|
Codeine‑N‑oxide
|
10.0
|
10.0
|
|
38
|
Codoxime
|
10.0
|
10.0
|
|
39
|
Desomorphine
|
2.0
|
2.0
|
|
40
|
Dexamphetamine
|
2.0
|
2.0
|
|
41
|
Dextromoramide
|
2.0
|
2.0
|
|
42
|
2,5‑Dimethoxy‑4‑n‑propylthiophenethylamine
(2C‑T‑7)
|
0.5
|
0.5
|
|
43
|
2,5‑Dimethoxy‑4‑ethylthiophenethylamine
(2C‑T‑2)
|
0.5
|
0.5
|
|
44
|
2,5‑Dimethoxy‑4‑iodophenethylamine (2C‑I)
|
0.5
|
0.5
|
|
45
|
Diampromide
|
5.0
|
5.0
|
|
46
|
Diethylpropion
|
5.0
|
5.0
|
|
47
|
Diethylthiambutene
|
5.0
|
5.0
|
|
48
|
N,N‑Diethyltryptamine
|
2.0
|
2.0
|
|
49
|
Difenoxin
|
2.0
|
2.0
|
|
50
|
Dihydrocodeine
|
10.0
|
10.0
|
|
51
|
Dihydromorphine
|
10.0
|
10.0
|
|
52
|
Dimenoxadol
|
10.0
|
10.0
|
|
53
|
Dimepheptanol
|
10.0
|
10.0
|
|
54
|
2,5‑Dimethoxy‑4‑methylamphetamine
|
2.0
|
0.75
|
|
55
|
1‑Dimethylamino‑1,2‑diphenylethane
|
5.0
|
5.0
|
|
56
|
Dimethylthiambutene
|
20.0
|
20.0
|
|
57
|
N,N‑Dimethyltryptamine
|
2.0
|
2.0
|
|
58
|
Dioxaphetyl butyrate
|
2.0
|
2.0
|
|
59
|
Diphenoxylate
|
2.0
|
2.0
|
|
60
|
Dipipanone
|
10.0
|
10.0
|
|
61
|
Drotebanol
|
2.0
|
2.0
|
|
62
|
Ecgonine
|
10.0
|
10.0
|
|
63
|
Ethchlorvynol
|
50.0
|
50.0
|
|
64
|
Ethinamate
|
50.0
|
50.0
|
|
65
|
Ethylmethylthiambutene
|
10.0
|
10.0
|
|
66
|
Ethylmorphine
|
2.0
|
2.0
|
|
67
|
Etonitazene
|
5.0
|
5.0
|
|
68
|
Etorphine
|
5.0
|
5.0
|
|
69
|
Etoxeridine
|
5.0
|
5.0
|
|
70
|
Fentanyl
|
0.005
|
0.005
|
|
71
|
Furethidine
|
1.0
|
1.0
|
|
72
|
Gammabutyrolactone (GBL)
|
2.0
|
1.0
|
|
73
|
Glutethimide
|
50.0
|
50.0
|
|
74
|
Harmaline
|
2.0
|
5.0
|
|
75
|
Harmine
|
2.0
|
5.0
|
|
76
|
Heroin (diacetylmorphine)
|
2.0
|
1.5
|
|
77
|
Hydrocodone
|
2.0
|
2.0
|
|
78
|
Hydromorphinol
|
2.0
|
2.0
|
|
79
|
Hydromorphone
|
2.0
|
2.0
|
|
80
|
Hydroxyamphetamine
|
2.0
|
2.0
|
|
81
|
4‑Hydroxybutanoic acid (GHB)
|
2.0
|
1.0
|
|
82
|
Hydroxypethidine
|
5.0
|
5.0
|
|
83
|
Isomethadone
|
2.0
|
2.0
|
|
84
|
Ketobemidone
|
2.0
|
2.0
|
|
85
|
Levophenacylmorphan
|
2.0
|
2.0
|
|
86
|
Levomethorphan, but not including dextromethorphan
|
2.0
|
2.0
|
|
87
|
Levorphanol, but not including dextrorphan
|
1.0
|
1.0
|
|
88
|
Lysergamide
|
0.1
|
0.01
|
|
89
|
Lysergide (LSD)
|
0.002
|
0.002
|
|
90
|
Meprobamate
|
50.0
|
50.0
|
|
91
|
Mescaline
|
7.5
|
7.5
|
|
92
|
Metazocine
|
7.0
|
7.0
|
|
93
|
Methadone
|
2.0
|
2.0
|
|
94
|
Methaqualone
|
50.0
|
5.0
|
|
95
|
Methcathinone
|
|
|
|
96
|
Methorphan, but not including dextromethorphan
|
2.0
|
2.0
|
|
97
|
5‑Methoxy‑alpha‑methyltryptamine (5‑MeO‑AMT)
|
2.0
|
2.0
|
|
98
|
5‑Methoxy‑N,N‑diisopropyltryptamine (5‑MeO‑DiPT)
|
2.0
|
2.0
|
|
99
|
Methamphetamine
|
2.0
|
0.75
|
|
100
|
3,4‑Methylenedioxyamphetamine (MDA)
|
0.5
|
0.75
|
|
101
|
3,4‑Methylenedioxymethamphetamine (MDMA)
|
0.5
|
0.5
|
|
102
|
Methyldesorphine
|
2.0
|
2.0
|
|
103
|
Methyldihydromorphine
|
2.0
|
2.0
|
|
104
|
3‑Methylfentanyl
|
0.005
|
0.005
|
|
105
|
Methylphenidate
|
2.0
|
2.0
|
|
106
|
1‑Methyl‑4‑phenyl‑4‑propionoxypiperidine
(MPPP)
|
2.0
|
2.0
|
|
107
|
3‑Methylthiofentanyl
|
0.005
|
0.005
|
|
108
|
Methyprylon
|
50.0
|
50.0
|
|
109
|
Metopon
|
2.0
|
2.0
|
|
110
|
Monoacetylmorphines
|
2.0
|
2.0
|
|
111
|
Moramide
|
2.0
|
2.0
|
|
112
|
Morphan, but not including dextrorphan
|
2.0
|
2.0
|
|
113
|
Morpheridine
|
2.0
|
2.0
|
|
114
|
Morphine
|
2.0
|
1.5
|
|
115
|
Morphine‑N‑oxide
|
2.0
|
2.0
|
|
116
|
Myrophine
|
20.0
|
20.0
|
|
117
|
Nicocodine
|
2.0
|
2.0
|
|
118
|
Nicodicodine
|
2.0
|
2.0
|
|
119
|
Nicomorphine
|
2.0
|
2.0
|
|
120
|
Noracymethadol
|
2.0
|
2.0
|
|
121
|
Norcodeine
|
2.0
|
2.0
|
|
122
|
Norlevorphanol
|
2.0
|
2.0
|
|
123
|
Normethadone
|
5.0
|
5.0
|
|
124
|
Normorphine
|
20.0
|
20.0
|
|
125
|
Norpipanone
|
10.0
|
10.0
|
|
126
|
Opium
|
20.0
|
20.0
|
|
127
|
Oxycodone
|
5.0
|
5.0
|
|
128
|
Oxymorphone
|
2.0
|
2.0
|
|
129
|
para‑Fluorofentanyl
|
0.005
|
0.005
|
|
130
|
Pentazocine
|
20.0
|
20.0
|
|
131
|
Pethidine
|
10.0
|
10.0
|
|
132
|
Phenadoxone
|
10.0
|
10.0
|
|
133
|
Phenampromide
|
10.0
|
10.0
|
|
134
|
Phenazocine
|
1.0
|
1.0
|
|
135
|
Phencyclidine
|
2.0
|
2.0
|
|
136
|
Phendimetrazine
|
5.0
|
5.0
|
|
137
|
Phenmetrazine
|
5.0
|
5.0
|
|
138
|
Phenomorphan
|
5.0
|
5.0
|
|
139
|
Phenoperidine
|
1.0
|
1.0
|
|
140
|
Phentermine
|
5.0
|
5.0
|
|
141
|
1‑Phenylethyl‑4‑phenyl‑4‑acetoxypiperidine
(PEPAP)
|
2.0
|
2.0
|
|
142
|
Pholcodine
|
5.0
|
5.0
|
|
143
|
Piminodine
|
10.0
|
10.0
|
|
144
|
Pipradrol
|
1.0
|
1.0
|
|
145
|
Piritramide
|
1.0
|
1.0
|
|
146
|
Proheptazine
|
1.0
|
1.0
|
|
147
|
Properidine
|
25.0
|
25.0
|
|
148
|
Propiram
|
10.0
|
10.0
|
|
149
|
Psilocine
|
0.1
|
0.1
|
|
150
|
Psilocybine
|
0.1
|
0.1
|
|
151
|
Tetrahydrocannabinols
|
2.0
|
5.0
|
|
152
|
Thebacon
|
2.0
|
2.0
|
|
153
|
Thebaine
|
2.0
|
2.0
|
|
154
|
Thiofentanyl
|
0.005
|
0.005
|
|
155
|
Trimeperidine
|
10.0
|
10.0
|
(2) A substance is also a border controlled
drug if the substance (the drug analogue) is, in relation to a
border controlled drug listed in subsection (1) (or a stereoisomer, a
structural isomer (with the same constituent groups) or an alkaloid of such a
border controlled drug):
(a) a stereoisomer; or
(b) a structural isomer having the
same constituent groups; or
(c) an alkaloid; or
(d) a structural modification obtained
by the addition of one or more of the following groups:
(i) alkoxy, cyclic
diether, acyl, acyloxy, mono‑amino or dialkylamino groups with up to 6
carbon atoms in any alkyl residue;
(ii) alkyl, alkenyl or
alkynyl groups with up to 6 carbon atoms in the group, where the group is
attached to oxygen (for example, an ester or an ether group), nitrogen, sulphur
or carbon;
(iii) halogen, hydroxy,
nitro or amino groups; or
(e) a structural modification obtained
in one or more of the following ways:
(i) by the replacement of
up to 2 carbocyclic or heterocyclic ring structures with different carbocyclic
or heterocyclic ring structures;
(ii) by the addition of
hydrogen atoms to one or more unsaturated bonds;
(iii) by the replacement of
one or more of the groups specified in paragraph (d) with another such
group or groups;
(iv) by the conversion of a
carboxyl or an ester group into an amide group; or
(f) otherwise a homologue, analogue,
chemical derivative or substance substantially similar in chemical structure;
however obtained, except where the drug analogue is
separately listed in subsection (1).
(3) The marketable quantity for a drug
analogue described in subsection (2) is:
(a) unless paragraph (b)
applies—the marketable quantity specified in the table in subsection (1)
for the border controlled drug to which the drug analogue relates (whether
directly or indirectly); or
(b) if the drug analogue relates to
more than one border controlled drug listed in the table in subsection (1)—the
smallest marketable quantity specified in the table in subsection (1) for
any of those border controlled drugs.
(4) The commercial quantity for a drug
analogue described in subsection (2) is:
(a) unless paragraph (b)
applies—the commercial quantity specified in the table in subsection (1)
for the border controlled drug to which the drug analogue relates (whether
directly or indirectly); or
(b) if the drug analogue relates to
more than one border controlled drug listed in the table in subsection (1)—the
smallest commercial quantity specified in the table in subsection (1) for
any of those border controlled drugs.
314.5
Border controlled plants
The
following table lists border controlled plants and sets out quantities:
|
Border controlled
plants and quantities
|
|
|
Border controlled
plants
|
Marketable quantity
|
Commercial quantity
|
|
1
|
Any plant of the genus Cannabis
|
25 kg or
100 plants
|
250 kg or
1,000 plants
|
|
2
|
Any plant of the genus Erythroxylon (also known as
Erythroxylum) from which cocaine can be extracted either directly or by
chemical transformation
|
80 kg
|
|
|
3
|
Any plant of the genus Lophophora
|
|
|
|
4
|
Any plant of the species Papaver bracteatum
|
10 kg
|
|
|
5
|
Any plant of the species Papaver somniferum
|
10 kg
|
|
|
6
|
Any plant of the species Piptagenia peregrine
|
|
|
|
7
|
Any plant of the species Psilocybe
|
|
|
314.6
Border controlled precursors
(1) The following table lists border
controlled precursors and sets out quantities:
|
Border controlled precursors and quantities
|
|
|
Border controlled precursors
|
Marketable quantity
(grams)
|
Commercial quantity
(kilograms)
|
|
1
|
N‑Acetylanthranilic acid
|
|
|
|
2
|
Any plant of the species Ephedra
|
|
|
|
3
|
Ephedrine
|
3.2
|
1.2
|
|
4
|
Ergometrine
|
0.006
|
0.006
|
|
5
|
Ergotamine
|
0.01
|
0.01
|
|
6
|
Isosafrole
|
1.45
|
1.45
|
|
7
|
Lysergic acid
|
0.003
|
0.003
|
|
8
|
3,4‑Methylenedioxyphenyl‑2‑propanone
|
0.75
|
0.75
|
|
9
|
Phenylacetic acid
|
10.8
|
4.05
|
|
10
|
Phenylpropanolamine
|
|
|
|
11
|
Phenyl‑2‑propanone
|
5.4
|
2.03
|
|
12
|
Piperonal
|
1.6
|
1.6
|
|
13
|
Pseudoephedrine
|
3.2
|
1.2
|
|
14
|
Safrole
|
2.85
|
2.85
|
(2) A substance is a border controlled
precursor if the substance is a salt or ester of a precursor listed in the
table in subsection (1).
(3) A substance is a border controlled
precursor if the substance is a chemical or compound, other than a chemical or
compound that is listed in a table in this Division, that, in the manufacture
by a chemical process of a chemical or compound referred to in the table in subsection (1),
is an immediate precursor of that chemical or compound.
Part 9.4—Dangerous weapons
Division 360—Cross‑border firearms trafficking
360.1
Disposal and acquisition of a firearm
(1) For the purposes of this Division, and
without limitation, a person disposes of a firearm if any of the
following applies:
(a) the person sells the firearm
(whether or not the person to whom the firearm is sold also acquires physical
control of the firearm);
(b) the person hires, leases or rents
the firearm to another person;
(c) the person passes physical control
of the firearm to another person (whether or not the person to whom physical
control is passed also acquires ownership of the firearm).
(2) For the purposes of this Division, and
without limitation, a person acquires a firearm if any of the
following applies:
(a) the person purchases the firearm
(whether or not the person also acquires physical control of the firearm);
(b) the person hires, leases or rents
the firearm from another person;
(c) the person obtains physical
control of the firearm (whether or not the person also acquires ownership of
the firearm).
360.2
Cross‑border offence of disposal or acquisition of a firearm
(1) A person is guilty of an offence if:
(a) in the course of trade or commerce
among the States, between Territories or between a Territory and a State, the
person engages in conduct that constitutes an offence against a firearm law;
and
(b) the primary element of the offence
is:
(i) the disposal of a
firearm by the person; or
(ii) the acquisition of a
firearm by the person.
Penalty: Imprisonment for 10 years or a fine of 2,500 penalty
units, or both.
(2) Absolute liability applies to the paragraph (1)(a)
element of the offence.
(3) In this section:
firearm means a firearm within the meaning of
the firearm law concerned.
firearm law means a law of a State or
Territory which is prescribed by the regulations for the purposes of this
Division.
360.3
Taking or sending a firearm across borders
(1) A person is guilty of an offence if:
(a) in the course of trade or commerce
among the States, between Territories or between a Territory and a State, the
person takes or sends a firearm from one State or Territory to another State or
Territory; and
(b) the person does so intending that
the firearm will be disposed of in the other State or Territory (whether by the
person or another); and
(c) the person knows that, or is
reckless as to whether:
(i) the disposal of the
firearm; or
(ii) any acquisition of the
firearm that results from the disposal;
would happen in circumstances that
would constitute an offence against the firearm law of that other State or
Territory.
Penalty: Imprisonment for 10 years or a fine of 2,500 penalty
units, or both.
(2) In this section:
firearm means a firearm within the meaning of
the firearm law mentioned in paragraph (1)(c).
firearm law means a law of a State or
Territory which is prescribed by the regulations for the purposes of this
Division.
360.4
Concurrent operation intended
This Division is not intended to exclude
or limit the concurrent operation of any law of a State or Territory.
Part 9.6—Contamination of goods
380.1
Definitions
(1) In this Part:
constitutional trade and commerce means trade
and commerce:
(a) with other countries; or
(b) among the States; or
(c) between a State and a Territory;
or
(d) between 2 Territories.
contaminate goods includes:
(a) interfere with the goods; or
(b) make it appear that the goods have
been contaminated or interfered with.
goods includes any substance:
(a) whether or not for human
consumption; and
(b) whether natural or manufactured;
and
(c) whether or not incorporated or
mixed with other goods.
(2) A reference in this Part to economic loss
caused through public awareness of the contamination of goods includes a
reference to economic loss caused through:
(a) members of the public not
purchasing or using those goods or similar things; or
(b) steps taken to avoid public alarm
or anxiety or to avoid harm to members of the public.
380.2
Contaminating goods
Offence based on implied nationhood power
(1) A person is guilty of an offence if:
(a) the person contaminates goods; and
(b) the person does so with intent:
(i) to cause public alarm
or anxiety in Australia; or
(ii) to cause widespread,
or nationally significant, economic loss in Australia through public awareness
of the contamination, or possible contamination, of the goods; or
(iii) to cause harm to, or
create a risk of harm to, public health in Australia.
Penalty: Imprisonment for 10 years.
Offences based on other constitutional powers
(2) A person is guilty of an offence if:
(a) the person contaminates goods; and
(b) the person does so with intent to
cause:
(i) public alarm or
anxiety; or
(ii) economic loss through
public awareness of the contamination, or possible contamination, of the goods;
and
(c) any of the following subparagraphs
applies:
(i) the loss is a loss to
a constitutional corporation (other than a foreign corporation within the
meaning of paragraph 51(xx) of the Constitution);
(ii) the loss is a loss to
a constitutional corporation that is a foreign corporation within the meaning
of paragraph 51(xx) of the Constitution and the goods have been produced,
manufactured, assembled or otherwise processed in Australia;
(iii) the goods belong to a
constitutional corporation (other than a foreign corporation within the meaning
of paragraph 51(xx) of the Constitution);
(iv) the goods belong to a
constitutional corporation that is a foreign corporation within the meaning of
paragraph 51(xx) of the Constitution and the goods have been produced,
manufactured, assembled or otherwise processed in Australia;
(v) the person is a
constitutional corporation (other than a foreign corporation within the meaning
of paragraph 51(xx) of the Constitution);
(vi) the person is a constitutional
corporation that is a foreign corporation within the meaning of paragraph
51(xx) of the Constitution and the goods have been produced, manufactured,
assembled or otherwise processed in Australia;
(vii) the loss takes the form
of detriment to constitutional trade and commerce;
(viii) the goods are in the
course of, or intended for, constitutional trade and commerce;
(ix) the contamination
occurs outside Australia and the goods have been produced, manufactured,
assembled or otherwise processed in Australia;
(x) the loss is a loss to
the Commonwealth or a Commonwealth authority.
Penalty: Imprisonment for 10 years.
(3) Absolute liability applies to paragraph (2)(c).
380.3
Threatening to contaminate goods
Offence based on implied nationhood power
(1) A person is guilty of an offence if:
(a) the person makes a threat that
goods will be contaminated; and
(b) the person does so with intent:
(i) to cause public alarm
or anxiety in Australia; or
(ii) to cause widespread,
or nationally significant, economic loss in Australia through public awareness
of the contamination, or possible contamination, of the goods; or
(iii) to cause harm to, or
create a risk of harm to, public health in Australia.
Penalty: Imprisonment for 10 years.
Offences based on other constitutional powers
(2) A person is guilty of an offence if:
(a) the person makes a threat that
goods will be contaminated; and
(b) the person does so with intent to
cause:
(i) public alarm or
anxiety; or
(ii) economic loss through
public awareness of the contamination, or possible contamination, of the goods;
and
(c) any of the following subparagraphs
applies:
(i) the loss is a loss to
a constitutional corporation (other than a foreign corporation within the
meaning of paragraph 51(xx) of the Constitution);
(ii) the loss is a loss to
a constitutional corporation that is a foreign corporation within the meaning
of paragraph 51(xx) of the Constitution and the goods have been produced,
manufactured, assembled or otherwise processed in Australia;
(iii) the goods belong to a
constitutional corporation (other than a foreign corporation within the meaning
of paragraph 51(xx) of the Constitution);
(iv) the goods belong to a
constitutional corporation that is a foreign corporation within the meaning of
paragraph 51(xx) of the Constitution and the goods have been produced,
manufactured, assembled or otherwise processed in Australia;
(v) the person is a
constitutional corporation (other than a foreign corporation within the meaning
of paragraph 51(xx) of the Constitution);
(vi) the person is a
constitutional corporation that is a foreign corporation within the meaning of
paragraph 51(xx) of the Constitution and the goods have been produced,
manufactured, assembled or otherwise processed in Australia;
(vii) the loss takes the form
of detriment to constitutional trade and commerce;
(viii) the goods are in the
course of, or intended for, constitutional trade and commerce;
(ix) the person makes the
threat in Australia using a postal or other like service or an electronic
communication;
(x) the person makes the
threat outside Australia and the goods have been produced, manufactured,
assembled or otherwise processed in Australia;
(xi) the loss is a loss to
the Commonwealth or a Commonwealth authority;
(xii) the threat is made to
the Commonwealth or a Commonwealth authority.
Penalty: Imprisonment for 10 years.
(3) Absolute liability applies to paragraph (2)(c).
380.4
Making false statements about contamination of goods
Offence based on implied nationhood power
(1) A person is guilty of an offence if:
(a) the person makes a statement that
the person believes to be false; and
(b) the person does so with the
intention of inducing the person to whom the statement is made or others to
believe that goods have been contaminated; and
(c) the person does so with intent:
(i) to cause public alarm
or anxiety in Australia; or
(ii) to cause widespread,
or nationally significant, economic loss in Australia through public awareness
of the contamination, or possible contamination, of the goods; or
(iii) to cause harm to, or
create a risk of harm to, public health in Australia.
Penalty: Imprisonment for 10 years.
Offence based on other constitutional powers
(2) A person is guilty of an offence if:
(a) the person makes a statement that
the person believes to be false; and
(b) the person does so with the
intention of inducing the person to whom the statement is made or others to
believe that goods have been contaminated; and
(c) the person does so with intent to
cause:
(i) public alarm or
anxiety; or
(ii) economic loss through
public awareness of the contamination, or possible contamination, of the goods;
and
(d) any of the following subparagraphs
applies:
(i) the loss is a loss to
a constitutional corporation (other than a foreign corporation within the
meaning of paragraph 51(xx) of the Constitution);
(ii) the loss is a loss to
a constitutional corporation that is a foreign corporation within the meaning
of paragraph 51(xx) of the Constitution and the goods have been produced,
manufactured, assembled or otherwise processed in Australia;
(iii) the goods belong to a
constitutional corporation (other than a foreign corporation within the meaning
of paragraph 51(xx) of the Constitution);
(iv) the goods belong to a constitutional
corporation that is a foreign corporation within the meaning of paragraph
51(xx) of the Constitution and the goods have been produced, manufactured,
assembled or otherwise processed in Australia;
(v) the person is a
constitutional corporation (other than a foreign corporation within the meaning
of paragraph 51(xx) of the Constitution);
(vi) the person is a
constitutional corporation that is a foreign corporation within the meaning of
paragraph 51(xx) of the Constitution and the goods have been produced,
manufactured, assembled or otherwise processed in Australia;
(vii) the loss takes the form
of detriment to constitutional trade and commerce;
(viii) the goods are in the
course of, or intended for, constitutional trade and commerce;
(ix) the person makes the
statement in Australia using a postal or other like service or an electronic
communication;
(x) the person makes the
statement outside Australia and the goods have been produced, manufactured,
assembled or otherwise processed in Australia;
(xi) the loss is a loss to
the Commonwealth or a Commonwealth authority;
(xii) the statement is made
to the Commonwealth or a Commonwealth authority.
Penalty: Imprisonment for 10 years.
(3) Absolute liability applies to paragraph (2)(d).
(4) For the purposes of this section, making
a statement includes conveying information by any means.
380.5
Extended geographical jurisdiction—category D
Section 15.4 (extended geographical
jurisdiction—category D) applies to an offence against subsection 380.2(1) or
(2), 380.3 (1) or (2) or 380.4(1) or (2).
Chapter 10—National infrastructure
Part 10.2—Money laundering
Division 400—Money laundering
400.1
Definitions
(1) In this Division:
ADI (authorised deposit‑taking
institution) means:
(a) a body corporate that is an ADI
for the purposes of the Banking Act 1959; or
(b) the Reserve Bank of Australia; or
(c) a person who carries on State
banking within the meaning of paragraph 51(xiii) of the Constitution.
Australian Capital Territory indictable
offence means an offence against a law of the Australian Capital
Territory that may be dealt with as an indictable offence (even if it may, in
some circumstances, be dealt with as a summary offence).
banking transaction includes:
(a) any transaction made at an ADI; and
(b) any transaction involving a money
order.
Commonwealth indictable offence means an
offence against a law of the Commonwealth, or a law of a Territory (other than
the Australian Capital Territory and the Northern Territory), that may be dealt
with as an indictable offence (even if it may, in some circumstances, be dealt
with as a summary offence).
deals with money or other property has the
meaning given by section 400.2.
export money or other property, from Australia,
includes transfer money or other property from Australia by an electronic
communication.
foreign indictable offence means an offence
against a law of a foreign country constituted by conduct that, if it had
occurred in Australia, would have constituted an offence against:
(a) a law of the Commonwealth; or
(b) a law of a State or Territory
connected with the offence;
that may be dealt with as an indictable offence (even if
it may, in some circumstances, be dealt with as a summary offence).
Note: See subsection (3) for when a law of a
State or Territory is connected with the offence.
import money or other property, into Australia,
includes transfer money or other property to Australia by an electronic
communication.
instrument of crime: money or other property
is an instrument of crime if it is used in the commission of, or used to
facilitate the commission of, an offence that may be dealt with as an
indictable offence (even if it may, in some circumstances, be dealt with as a
summary offence).
Northern Territory indictable offence
means an offence against a law of the Northern Territory that may be dealt with
as an indictable offence (even if it may, in some circumstances, be dealt with
as a summary offence).
proceeds of crime means any money or other
property that is derived or realised, directly or indirectly, by any person
from the commission of an offence that may be dealt with as an indictable
offence (even if it may, in some circumstances, be dealt with as a summary
offence).
property means real or personal property of
every description, whether situated in Australia or elsewhere and whether
tangible or intangible, and includes an interest in any such real or personal
property.
State indictable offence means an offence
against a law of a State that may be dealt with as an indictable offence (even
if it may, in some circumstances, be dealt with as a summary offence).
(2) To avoid doubt, a reference in this
Division to money or other property includes a reference to
financial instruments, cards and other objects that represent money or can be
exchanged for money, whether or not they have intrinsic value.
(3) For the purposes of the definition of foreign
indictable offence in subsection (1), a State or Territory is
connected with the offence if:
(a) a dealing in money or property
takes place in the State or Territory; and
(b) the money or property would be
proceeds of crime, or could become an instrument of crime, in relation to the
offence if the offence were a foreign indictable offence.
400.2
Meaning of dealing with money or other property
(1) For the purposes of this Division, a
person deals with money or other property if:
(a) the person does any of the
following:
(i) receives, possesses,
conceals or disposes of money or other property;
(ii) imports money or other
property into, or exports money or other property from, Australia;
(iii) engages in a banking
transaction relating to money or other property; and
(b) the money or other property is
proceeds of crime, or could become an instrument of crime, in relation to an
offence that is:
(i) a Commonwealth
indictable offence; or
(ii) a foreign indictable
offence; or
(iii) a State indictable
offence; or
(iv) an Australian Capital
Territory indictable offence; or
(v) a Northern Territory
indictable offence.
(2) For the purposes of this Division, a
person deals with money or other property if:
(a) the person does any of the
following:
(i) receives, possesses,
conceals or disposes of money or other property;
(ii) imports money or other
property into, or exports money or other property from, Australia;
(iii) engages in a banking
transaction relating to money or other property; and
(b) the person does any of the matters
referred to in paragraph (a):
(i) in the course of or
for the purposes of importation of goods into, or exportation of goods from, Australia;
or
(ii) by means of a
communication using a postal, telegraphic or telephonic service within the
meaning of paragraph 51(v) of the Constitution; or
(iii) in the course of
banking (other than State banking that does not extend beyond the limits of the
State concerned).
(3) Subparagraph (1)(b)(iii), in its
application to a particular offence against this Division, has effect only to
the extent to which it is a law with respect to external affairs (within the
meaning of paragraph 51(xxix) of the Constitution).
400.3
Dealing in proceeds of crime etc.—money or property worth $1,000,000 or more
(1) A person is guilty of an offence if:
(a) the person deals with money or
other property; and
(b) either:
(i) the money or property
is, and the person believes it to be, proceeds of crime; or
(ii) the person intends
that the money or property will become an instrument of crime; and
(c) at the time of the dealing, the
value of the money and other property is $1,000,000 or more.
Penalty: Imprisonment for 25 years, or 1500 penalty units, or
both.
(2) A person is guilty of an offence if:
(a) the person deals with money or
other property; and
(b) either:
(i) the money or property
is proceeds of crime; or
(ii) there is a risk that
the money or property will become an instrument of crime; and
(c) the person is reckless as to the
fact that the money or property is proceeds of crime or the fact that there is
a risk that it will become an instrument of crime (as the case requires); and
(d) at the time of the dealing, the
value of the money and other property is $1,000,000 or more.
Penalty: Imprisonment for 12 years, or 720 penalty units, or
both.
(3) A person is guilty of an offence if:
(a) the person deals with money or
other property; and
(b) either:
(i) the money or property
is proceeds of crime; or
(ii) there is a risk that
the money or property will become an instrument of crime; and
(c) the person is negligent as to the
fact that the money or property is proceeds of crime or the fact that there is
a risk that it will become an instrument of crime (as the case requires); and
(d) at the time of the dealing, the
value of the money and other property is $1,000,000 or more.
Penalty: Imprisonment for 5 years, or 300 penalty units, or
both.
(4) Absolute liability applies to paragraphs (1)(c),
(2)(d) and (3)(d).
Note: Section 400.10 provides for a defence of
mistake of fact in relation to these paragraphs.
400.4
Dealing in proceeds of crime etc.—money or property worth $100,000 or more
(1) A person is guilty of an offence if:
(a) the person deals with money or
other property; and
(b) either:
(i) the money or property
is, and the person believes it to be, proceeds of crime; or
(ii) the person intends
that the money or property will become an instrument of crime; and
(c) at the time of the dealing, the
value of the money and other property is $100,000 or more.
Penalty: Imprisonment for 20 years, or 1200 penalty units, or
both.
(2) A person is guilty of an offence if:
(a) the person deals with money or
other property; and
(b) either:
(i) the money or property
is proceeds of crime; or
(ii) there is a risk that
the money or property will become an instrument of crime; and
(c) the person is reckless as to the
fact that the money or property is proceeds of crime or the fact that there is
a risk that it will become an instrument of crime (as the case requires); and
(d) at the time of the dealing, the
value of the money and other property is $100,000 or more.
Penalty: Imprisonment for 10 years, or 600 penalty units, or
both.
(3) A person is guilty of an offence if:
(a) the person deals with money or
other property; and
(b) either:
(i) the money or property
is proceeds of crime; or
(ii) there is a risk that
the money or property will become an instrument of crime; and
(c) the person is negligent as to the
fact that the money or property is proceeds of crime or the fact that there is
a risk that it will become an instrument of crime (as the case requires); and
(d) at the time of the dealing, the
value of the money and other property is $100,000 or more.
Penalty: Imprisonment for 4 years, or 240 penalty units, or
both.
(4) Absolute liability applies to paragraphs (1)(c),
(2)(d) and (3)(d).
Note: Section 400.10 provides for a defence of
mistake of fact in relation to these paragraphs.
400.5
Dealing in proceeds of crime etc.—money or property worth $50,000 or more
(1) A person is guilty of an offence if:
(a) the person deals with money or
other property; and
(b) either:
(i) the money or property
is, and the person believes it to be, proceeds of crime; or
(ii) the person intends
that the money or property will become an instrument of crime; and
(c) at the time of the dealing, the
value of the money and other property is $50,000 or more.
Penalty: Imprisonment for 15 years, or 900 penalty units, or
both.
(2) A person is guilty of an offence if:
(a) the person deals with money or
other property; and
(b) either:
(i) the money or property
is proceeds of crime; or
(ii) there is a risk that
the money or property will become an instrument of crime; and
(c) the person is reckless as to the
fact that the money or property is proceeds of crime or the fact that there is
a risk that it will become an instrument of crime (as the case requires); and
(d) at the time of the dealing, the
value of the money and other property is $50,000 or more.
Penalty: Imprisonment for 7 years, or 420 penalty units, or
both.
(3) A person is guilty of an offence if:
(a) the person deals with money or
other property; and
(b) either:
(i) the money or property
is proceeds of crime; or
(ii) there is a risk that
the money or property will become an instrument of crime; and
(c) the person is negligent as to the
fact that the money or property is proceeds of crime or the fact that there is
a risk that it will become an instrument of crime (as the case requires); and
(d) at the time of the dealing, the
value of the money and other property is $50,000 or more.
Penalty: Imprisonment for 3 years, or 180 penalty units, or
both.
(4) Absolute liability applies to paragraphs (1)(c),
(2)(d) and (3)(d).
Note: Section 400.10 provides for a defence of
mistake of fact in relation to these paragraphs.
400.6
Dealing in proceeds of crime etc.—money or property worth $10,000 or more
(1) A person is guilty of an offence if:
(a) the person deals with money or
other property; and
(b) either:
(i) the money or property
is, and the person believes it to be, proceeds of crime; or
(ii) the person intends
that the money or property will become an instrument of crime; and
(c) at the time of the dealing, the
value of the money and other property is $10,000 or more.
Penalty: Imprisonment for 10 years, or 600 penalty units, or
both.
(2) A person is guilty of an offence if:
(a) the person deals with money or
other property; and
(b) either:
(i) the money or property
is proceeds of crime; or
(ii) there is a risk that
the money or property will become an instrument of crime; and
(c) the person is reckless as to the
fact that the money or property is proceeds of crime or the fact that there is
a risk that it will become an instrument of crime (as the case requires); and
(d) at the time of the dealing, the
value of the money and other property is $10,000 or more.
Penalty: Imprisonment for 5 years, or 300 penalty units, or
both.
(3) A person is guilty of an offence if:
(a) the person deals with money or
other property; and
(b) either:
(i) the money or property
is proceeds of crime; or
(ii) there is a risk that
the money or property will become an instrument of crime; and
(c) the person is negligent as to the
fact that the money or property is proceeds of crime or the fact that there is
a risk that it will become an instrument of crime (as the case requires); and
(d) at the time of the dealing, the
value of the money and other property is $10,000 or more.
Penalty: Imprisonment for 2 years, or 120 penalty units, or
both.
(4) Absolute liability applies to paragraphs (1)(c),
(2)(d) and (3)(d).
Note: Section 400.10 provides for a defence of
mistake of fact in relation to these paragraphs.
400.7
Dealing in proceeds of crime etc.—money or property worth $1,000 or more
(1) A person is guilty of an offence if:
(a) the person deals with money or
other property; and
(b) either:
(i) the money or property
is, and the person believes it to be, proceeds of crime; or
(ii) the person intends
that the money or property will become an instrument of crime; and
(c) at the time of the dealing, the
value of the money and other property is $1,000 or more.
Penalty: Imprisonment for 5 years, or 300 penalty units, or
both.
(2) A person is guilty of an offence if:
(a) the person deals with money or
other property; and
(b) either:
(i) the money or property
is proceeds of crime; or
(ii) there is a risk that
the money or property will become an instrument of crime; and
(c) the person is reckless as to the
fact that the money or property is proceeds of crime or the fact that there is
a risk that it will become an instrument of crime (as the case requires); and
(d) at the time of the dealing, the
value of the money and other property is $1,000 or more.
Penalty: Imprisonment for 2 years, or 120 penalty units, or
both.
(3) A person is guilty of an offence if:
(a) the person deals with money or
other property; and
(b) either:
(i) the money or property
is proceeds of crime; or
(ii) there is a risk that
the money or property will become an instrument of crime; and
(c) the person is negligent as to the
fact that the money or property is proceeds of crime or the fact that there is
a risk that it will become an instrument of crime (as the case requires); and
(d) at the time of the dealing, the
value of the money and other property is $1,000 or more.
Penalty: Imprisonment for 12 months, or 60 penalty units, or
both.
(4) Absolute liability applies to paragraphs (1)(c),
(2)(d) and (3)(d).
Note: Section 400.10 provides for a defence of
mistake of fact in relation to these paragraphs.
400.8
Dealing in proceeds of crime etc.—money or property of any value
(1) A person is guilty of an offence if:
(a) the person deals with money or
other property; and
(b) either:
(i) the money or property
is, and the person believes it to be, proceeds of crime; or
(ii) the person intends
that the money or property will become an instrument of crime.
Penalty: Imprisonment for 12 months, or 60 penalty units, or
both.
(2) A person is guilty of an offence if:
(a) the person deals with money or
other property; and
(b) either:
(i) the money or property
is proceeds of crime; or
(ii) there is a risk that
the money or property will become an instrument of crime; and
(c) the person is reckless as to the
fact that the money or property is proceeds of crime or the fact that there is
a risk that it will become an instrument of crime (as the case requires).
Penalty: Imprisonment for 6 months, or 30 penalty units, or
both.
(3) A person is guilty of an offence if:
(a) the person deals with money or
other property; and
(b) either:
(i) the money or property
is proceeds of crime; or
(ii) there is a risk that
the money or property will become an instrument of crime; and
(c) the person is negligent as to the
fact that the money or property is proceeds of crime or the fact that there is
a risk that it will become an instrument of crime (as the case requires).
Penalty: 10 penalty units.
400.9
Possession etc. of property reasonably suspected of being proceeds of crime
etc.
(1) A person is guilty of an offence if:
(a) the person:
(i) receives, possesses,
conceals or disposes of money or other property; or
(ii) imports money or other
property into, or exports money or other property from, Australia; and
(b) it
is reasonable to suspect any of the following:
(i) the
money or property is proceeds of crime in relation to a Commonwealth indictable
offence or a foreign indictable offence;
(ia) the money or property
is proceeds of crime in relation to a State indictable offence;
(ib) the money or property
is proceeds of crime in relation to an Australian Capital Territory indictable
offence or a Northern Territory indictable offence;
(ii) the
money or property is proceeds of crime, and the person’s conduct referred to in
paragraph (a) takes place in circumstances referred to in subsection (3).
Penalty: Imprisonment for 2 years, or 50 penalty units, or
both.
(2) Without limiting paragraph (1)(b),
that paragraph is taken to be satisfied if:
(a) the conduct referred to in paragraph (1)(a)
involves a number of transactions that are structured or arranged to avoid the
reporting requirements of the Financial Transaction Reports Act 1988
that would otherwise apply to the transactions; or
(aa) the conduct involves a number of
transactions that are structured or arranged to avoid the reporting
requirements of the Anti‑Money Laundering and Counter‑Terrorism Financing
Act 2006 that would otherwise apply to the transactions; or
(b) the conduct involves using one or
more accounts held with ADIs in false names; or
(ba) the conduct amounts to an offence
against section 139, 140 or 141 of the Anti‑Money Laundering and
Counter‑Terrorism Financing Act 2006; or
(c) the value of the money and
property involved in the conduct is, in the opinion of the trier of fact,
grossly out of proportion to the defendant’s income and expenditure; or
(d) the conduct involves a significant
cash transaction within the meaning of the Financial Transaction Reports Act
1988, and the defendant:
(i) has contravened his or
her obligations under that Act relating to reporting the transaction; or
(ii) has given false or
misleading information in purported compliance with those obligations; or
(da) the conduct involves a threshold
transaction (within the meaning of the Anti‑Money Laundering and
Counter‑Terrorism Financing Act 2006) and the defendant:
(i) has contravened the
defendant’s obligations under that Act relating to reporting the transaction;
or
(ii) has given false or
misleading information in purported compliance with those obligations; or
(e) the defendant:
(i) has stated that the
conduct was engaged in on behalf of or at the request of another person; and
(ii) has not provided
information enabling the other person to be identified and located.
(3) Subparagraph (1)(b)(ii)
applies if the conduct in question takes place:
(a) in the course of or for the
purposes of importation of goods into, or exportation of goods from, Australia;
or
(b) by means of a communication using
a postal, telegraphic or telephonic service within the meaning of paragraph
51(xx) of the Constitution; or
(c) in the course of banking (other
than State banking that does not extend beyond the limits of the State
concerned).
(4) Absolute liability applies to paragraph (1)(b).
(5) This section does not apply if the
defendant proves that he or she had no reasonable grounds for suspecting that
the money or property was derived or realised, directly or indirectly, from
some form of unlawful activity.
Note: A defendant bears a legal burden in relation
to the matter in subsection (5) (see section 13.4).
(6) Subparagraph (1)(b)(ia), in its
application to an offence against subsection (1), has effect only to the
extent to which it is a law with respect to external affairs (within the
meaning of paragraph 51 (xxix) of the Constitution).
400.10
Mistake of fact as to the value of money or property
(1) A person is not criminally responsible
for an offence against section 400.3, 400.4, 400.5, 400.6 or 400.7 in
relation to money or property if:
(a) at or before the time of dealing
with the money or property, the person considered what was the value of the
money or property, and was under a mistaken but reasonable belief about that
value; and
(b) had the value been what the person
believed it to be, the person’s conduct would have constituted another offence
against this Division for which the maximum penalty, in penalty units, is less
than the maximum penalty, in penalty units, for the offence charged.
Example: Assume that a person deals with money or property
that is the proceeds of crime. While the person believes it to be proceeds of
crime, he or she is under a mistaken but reasonable belief that it is worth
$90,000 when it is in fact worth $120,000.
That belief is a defence to an offence
against subsection 400.4(1) (which deals with money or property of a value of
$100,000 or more). However, the person would be guilty of an offence against
subsection 400.5(1) (which deals with money or property of a value of $10,000
or more). Section 400.14 allows for an alternative verdict of guilty of an
offence against subsection 400.5(1).
Note: A defendant bears an evidential burden in
relation to the matter in subsection (1) (see subsection 13.3(3)).
(2) A person may be regarded as having
considered what the value of the money or property was if:
(a) he or she had considered, on a
previous occasion, what the value of the money or property was 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.
400.11
Proof of certain matters relating to kinds of offences not required
In a prosecution for an offence against
a provision of this Division, it is not necessary to prove the existence of any
fault element in relation to any of the following:
(a) whether an offence may be dealt
with as an indictable offence;
(b) whether an offence is an
indictable offence;
(c) whether an offence is a
Commonwealth indictable offence;
(d) whether an offence is a foreign
indictable offence;
(e) whether an offence is a State
indictable offence;
(f) whether an offence is an Australian
Capital Territory indictable offence;
(g) whether an offence is a Northern
Territory indictable offence.
400.12
Combining several contraventions in a single charge
(1) A single charge of an offence against a
provision of this Division may be about 2 or more instances of the defendant
engaging in conduct (at the same time or different times) that constitutes an
offence against a provision of this Division.
(2) If:
(a) a single charge is about 2 or more
such instances; and
(b) the value of the money and other
property dealt with is an element of the offence in question;
that value is taken to be the sum of the values of the
money and other property dealt with in respect of each of those instances.
400.13
Proof of other offences is not required
(1) To avoid doubt, it is not necessary, in
order to prove for the purposes of this Division that money or property is
proceeds of crime, to establish:
(a) a particular offence was committed
in relation to the money or property; or
(b) a particular person committed an
offence in relation to the money or property.
(2) To avoid doubt, it is not necessary, in
order to prove for the purposes of this Division an intention or risk that
money or property will be an instrument of crime, to establish that:
(a) an intention or risk that a
particular offence will be committed in relation to the money or property; or
(b) an intention or risk that a
particular person will commit an offence in relation to the money or property.
400.14
Alternative verdicts
If, on a trial for an offence against a
provision of this Division (the offence charged), the trier of
fact:
(a) is not satisfied that the
defendant is guilty of the offence charged; but
(b) is otherwise satisfied that the
defendant is guilty of another offence against this Division for which the
maximum penalty, in penalty units, is less than the maximum penalty, in penalty
units, for the offence charged;
the trier of fact may find the defendant not guilty of the
offence charged but guilty of the other offence, so long as the person has been
accorded procedural fairness in relation to that finding of guilt.
400.15
Geographical jurisdiction
Section 15.2 (extended geographical
jurisdiction—category B) applies to each offence against this Division.
400.16
Saving of other laws
This Division is not intended to exclude
or limit the operation of any other law of the Commonwealth or any law of a
State or Territory.
Part 10.5—Postal services
Division 470—Preliminary
470.1
Definitions
In this Part:
article has the same meaning as in the Australian
Postal Corporation Act 1989.
article in the course of post means an
article that is being carried by post, and includes an article that has been
collected or received by or on behalf of Australia Post for carriage by post,
but has not been delivered by or on behalf of Australia Post.
Australia Post means the Australian Postal
Corporation.
carry, in relation to an article, has the
same meaning as in the Australian Postal Corporation Act 1989.
carry by post has the same meaning as in the Australian
Postal Corporation Act 1989.
constitutional corporation means a
corporation to which paragraph 51(xx) of the Constitution applies.
mail‑receptacle means a mail‑bag,
package, parcel, container, wrapper, receptacle or similar thing that:
(a) belongs to, or is in the
possession of, Australia Post; and
(b) is used, or intended for use, in
the carriage of articles by post (whether or not it actually contains such
articles).
postage stamp has the same meaning as in the
Australian Postal Corporation Act 1989.
postal message means:
(a) a material record of an unwritten
communication:
(i) carried by post; or
(ii) collected or received
by Australia Post for carriage by post; or
(b) a material record issued by
Australia Post as a record of an unwritten communication:
(i) carried by post; or
(ii) collected or received
by Australia Post for carriage by post.
postal or similar service
means:
(a) a postal service (within the meaning
of paragraph 51(v) of the Constitution); or
(b) a courier service, to the extent
to which the service is a postal or other like service (within the meaning of
paragraph 51(v) of the Constitution); or
(c) a packet or parcel carrying
service, to the extent to which the service is a postal or other like service
(within the meaning of paragraph 51(v) of the Constitution); or
(d) any other service that is a postal
or other like service (within the meaning of paragraph 51(v) of the
Constitution); or
(e) a courier service that is provided
by a constitutional corporation; or
(f) a packet or parcel carrying
service that is provided by a constitutional corporation; or
(g) a courier service that is provided
in the course of, or in relation to, trade or commerce:
(i) between Australia and
a place outside Australia; or
(ii) among the States; or
(iii) between a State and a
Territory or between 2 Territories; or
(h) a packet or parcel carrying
service that is provided in the course of, or in relation to, trade or
commerce:
(i) between Australia and
a place outside Australia; or
(ii) among the States; or
(iii) between a State and a
Territory or between 2 Territories.
property has the same meaning as in Chapter 7.
unwritten communication has the same meaning
as in the Australian Postal Corporation Act 1989.
470.2
Dishonesty
For the purposes of this Part, 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.
470.3
Determination of dishonesty to be a matter for the trier of fact
In a prosecution for an offence against
this Part, the determination of dishonesty is a matter for the trier of fact.
Division 471—Postal offences
471.1
Theft of mail‑receptacles, articles or postal messages
(1) A person is guilty of an offence if:
(a) the person dishonestly
appropriates:
(i) a mail‑receptacle;
or
(ii) an article in the
course of post (including an article that appears to have been lost or wrongly
delivered by or on behalf of Australia Post or lost in the course of delivery
to Australia Post); or
(iii) a postal message; and
(b) the person does so with the
intention of permanently depriving another person of the mail‑receptacle,
article or postal message.
Penalty: Imprisonment for 10 years.
Dishonesty
(2) For the purposes of this section, a
person’s appropriation of a mail‑receptacle, article or postal message
may be dishonest even if the person or another person is willing to pay for the
mail‑receptacle, article or postal message.
Intention of permanently depriving a person of a mail‑receptacle,
article or postal message
(3) For the purposes of this section, if:
(a) a person appropriates a mail‑receptacle,
article or postal message without meaning another permanently to lose the thing
itself; and
(b) the person’s intention is to treat
the thing as the person’s own to dispose of regardless of the other’s rights;
the person has the intention of permanently depriving the
other of it.
(4) For the purposes of subsection (3),
a borrowing or lending of a thing amounts to treating the thing as the
borrower’s or lender’s own to dispose of regardless of another’s rights if, and
only if, the borrowing or lending is for a period and in circumstances making
it equivalent to an outright taking or disposal.
471.2
Receiving stolen mail‑receptacles, articles or postal messages
(1) A person is guilty of an offence if the
person dishonestly receives stolen property, knowing or believing the property
to be stolen.
Penalty: Imprisonment for 10 years.
Stolen property
(2) For the purposes of this section,
property is stolen property if, and only if:
(a) it is original stolen property (as
defined by subsection (3)); or
(b) it is tainted property (as defined
by subsection (5)).
This subsection has effect subject to subsection (4).
Original stolen property
(3) For the purposes of this section, original
stolen property is property, or a part of property, that:
(a) was appropriated in the course of
an offence against section 471.1 (whether or not the property, or the part
of the property, is in the state it was in when it was so appropriated); and
(b) is in the possession or custody of
the person who so appropriated the property.
(4) For the purposes of this section,
property ceases to be original stolen property:
(a) after the property is restored:
(i) to the person from
whom it was appropriated; or
(ii) to other lawful
possession or custody; or
(b) after:
(i) the person from whom
the property was appropriated ceases to have any right to restitution in
respect of the property; or
(ii) a person claiming
through the person from whom the property was appropriated ceases to have any
right to restitution in respect of the property.
Tainted property
(5) For the purposes of this section, tainted
property is property that:
(a) is (in whole or in part) the
proceeds of sale of, or property exchanged for, original stolen property; and
(b) is in the possession or custody of
the person who so appropriated the original stolen property.
Alternative verdicts
(6) If, in a prosecution for an offence
against section 471.1, the trier of fact is not satisfied that the
defendant is guilty of the offence, but is satisfied beyond reasonable doubt
that the defendant is guilty of an offence against this section, the trier of
fact may find the defendant not guilty of the offence against section 471.1
but guilty of the offence against this section, so long as the defendant has
been accorded procedural fairness in relation to that finding of guilt.
(7) If, in a prosecution for an offence
against this section, the trier of fact is not satisfied that the defendant is
guilty of the offence, but is satisfied beyond reasonable doubt that the
defendant is guilty of an offence against section 471.1, the trier of fact
may find the defendant not guilty of the offence against this section but
guilty of the offence against section 471.1, so long as the defendant has
been accorded procedural fairness in relation to that finding of guilt.
Receiving stolen property before commencement
(8) For the purposes of this section:
(a) it is to be assumed that section 471.1
had been in force at all times before the commencement of this section; and
(b) property that was appropriated at
a time before the commencement of this section does not become stolen
property unless the property was appropriated in circumstances that
(apart from paragraph (a)) amounted to an offence against a law of the
Commonwealth in force at that time.
471.3
Taking or concealing of mail‑receptacles, articles or postal messages
A person is guilty of an offence if the
person dishonestly takes or conceals:
(a) a mail‑receptacle; or
(b) an article in the course of post
(including an article that appears to have been lost or wrongly delivered by or
on behalf of Australia Post or lost in the course of delivery to Australia
Post); or
(c) a postal message.
Penalty: Imprisonment for 5 years.
471.4
Dishonest removal of postage stamps or postmarks
A person is guilty of an offence if the person
dishonestly:
(a) removes any postage stamp affixed
to, or printed on, an article; or
(b) removes any postmark from a
postage stamp that has previously been used for postal services.
Penalty: Imprisonment for 12 months.
471.5
Dishonest use of previously used, defaced or obliterated stamps
(1) A person is guilty of an offence if the
person dishonestly uses for postal services a postage stamp:
(a) that has previously been used for
postal services; or
(b) that has been obliterated; or
(c) that has been defaced.
Penalty: Imprisonment for 12 months.
(2) If, in proceedings for an offence against
subsection (1), it is proved that the defendant caused an article to or on
which was affixed or printed a postage stamp:
(a) that had previously been used for
postal services; or
(b) that had been obliterated; or
(c) that had been defaced;
to be carried by post, it is presumed, in the absence of
evidence to the contrary, that the defendant used the stamp for postal
services.
(3) The burden of proof in respect of
evidence to the contrary is an evidential burden of proof.
471.6
Damaging or destroying mail‑receptacles, articles or postal messages
(1) A person is guilty of an offence if:
(a) the person engages in conduct; and
(b) the person’s conduct causes damage
to, or the destruction of:
(i) a mail‑receptacle;
or
(ii) an article in the
course of post (including an article that appears to have been lost or wrongly
delivered by or on behalf of Australia Post or lost in the course of delivery
to Australia Post); or
(iii) a postal message; and
(c) the person:
(i) intends that his or
her conduct cause that damage; or
(ii) is reckless as to
whether his or her conduct causes that damage.
Penalty: Imprisonment for 10 years.
(2) For the purposes of this section, a
person’s conduct is taken to cause the destruction of a thing if the person’s
conduct causes the physical loss of the thing by interfering with the thing
(including by removing any restraint over the thing or abandoning the thing).
(3) For the purposes of this section, a
person’s conduct is taken to cause damage to a thing if:
(a) the person’s conduct causes any
loss of a use of the function of the thing by interfering with the thing; or
(b) the person’s conduct causes the
thing to be defaced.
471.7
Tampering with mail‑receptacles
(1) A person
is guilty of an offence if the person dishonestly:
(a) opens a mail‑receptacle; or
(b) tampers with a mail‑receptacle.
Penalty: Imprisonment for 5 years.
(2) A person is guilty of an offence if:
(a) the person intentionally opens a
mail‑receptacle; and
(b) the person is not authorised by
Australia Post to open the mail‑receptacle; and
(c) the person does so knowing that he
or she is not authorised by Australia Post to open the mail‑receptacle.
Penalty: Imprisonment for 2 years.
471.8
Dishonestly obtaining delivery of articles
A person is guilty of an offence if the
person dishonestly obtains delivery of, or receipt of, an article in the course
of post that is not directed to the person.
Penalty: Imprisonment for 5 years.
471.9
Geographical jurisdiction
Section 15.3 (extended geographical
jurisdiction—category C) applies to an offence against section 471.1,
471.2, 471.3, 471.4, 471.5, 471.6, 471.7 or 471.8.
471.10
Hoaxes—explosives and dangerous substances
(1) A person is guilty of an offence if:
(a) the person causes an article to be
carried by a postal or similar service; and
(b) the person does so with the
intention of inducing a false belief that:
(i) the article consists
of, encloses or contains an explosive or a dangerous or harmful substance or
thing; or
(ii) an explosive, or a
dangerous or harmful substance or thing, has been or will be left in any place.
Penalty: Imprisonment for 10 years.
(2) To avoid doubt, the definition of carry
by post in section 470.1 does not apply to this section.
471.11
Using a postal or similar service to make a threat
Threat to kill
(1) A person (the first person)
is guilty of an offence if:
(a) the first person uses a postal or
similar service to make to another person (the second person) a
threat to kill the second person or a third person; and
(b) the first person intends the
second person to fear that the threat will be carried out.
Penalty: Imprisonment for 10 years.
Threat to cause serious harm
(2) A person (the first person)
is guilty of an offence if:
(a) the first person uses a postal or
similar service to make to another person (the second person) a
threat to cause serious harm to the second person or a third person; and
(b) the first person intends the
second person to fear that the threat will be carried out.
Penalty: Imprisonment for 7 years.
Actual fear not necessary
(3) In a prosecution for an offence against
this section, it is not necessary to prove that the person receiving the threat
actually feared that the threat would be carried out.
Definitions
(4) In this section:
fear includes apprehension.
threat to cause serious harm to a person
includes a threat to substantially contribute to serious harm to
the person.
471.12
Using a postal or similar service to menace, harass or cause offence
A person
is guilty of an offence if:
(a) the person uses a postal or
similar service; and
(b) the person does so in a way
(whether by the method of use or the content of a communication, or both) that
reasonable persons would regard as being, in all the circumstances, menacing,
harassing or offensive.
Penalty: Imprisonment for 2 years.
471.13
Causing a dangerous article to be carried by a postal or similar service
Offence
(1) A person (the first person)
is guilty of an offence if:
(a) the first person causes an article
to be carried by a postal or similar service; and
(b) the person does so in a way that
gives rise to a danger of death or serious harm to another person; and
(c) the first person is reckless as to
the danger of death or serious harm.
Penalty: Imprisonment for 10 years.
Danger of death or serious harm
(2) For the
purposes of this section, if a person’s conduct exposes another person to the
risk of catching a disease that may give rise to a danger of death or serious
harm to the other person, the conduct is taken to give rise to a danger of
death or serious harm to the other person.
(3) For the purposes of this section, a
person’s conduct gives rise to a danger of death or serious harm if the conduct
is ordinarily capable of creating a real, and not merely a theoretical, danger
of death or serious harm.
(4) For the purposes of this section, a
person’s conduct may give rise to a danger of death or serious harm whatever
the statistical or arithmetical calculation of the degree of risk of death or
serious harm involved.
(5) In a prosecution for an offence against subsection (1),
it is not necessary to prove that a specific person was actually placed in
danger of death or serious harm by the conduct concerned.
Definition
(6) To avoid doubt, the definition of carry
by post in section 470.1 does not apply to this section.
471.14
Geographical jurisdiction
Section 15.1 (extended geographical
jurisdiction—category A) applies to an offence against section 471.10,
471.11, 471.12 or 471.13.
471.15
Causing an explosive, or a dangerous or harmful substance, to be carried by
post
Offence
(1) A person is guilty of an offence if:
(a) the person causes an article to be
carried by post; and
(b) the article consists of, encloses
or contains:
(i) an explosive; or
(ii) a dangerous or harmful
substance or thing that the regulations say must not, without exception, be
carried by post.
Penalty: Imprisonment for 10 years.
Geographical jurisdiction
(2) Section 15.3 (extended geographical
jurisdiction—category C) applies to an offence against subsection (1).
Division 472—Miscellaneous
472.1
Saving of other laws
This Part is not intended to exclude or
limit the operation of any other law of the Commonwealth or any law of a State
or Territory.
472.2
Interpretation of other laws
In determining the meaning of a
provision of:
(a) Part VIIA of the Crimes
Act 1914; or
(b) the Australian Postal
Corporation Act 1989;
this Part is to be disregarded.
Part 10.6—Telecommunications
Services
Division 473—Preliminary
473.1
Definitions
In this Part:
access in relation to material includes:
(a) the display of the material by a
computer or any other output of the material from a computer; or
(b) the copying or moving of the
material to any place in a computer or to a data storage device; or
(c) in the case of material that is a
program—the execution of the program.
account identifier means:
(a) something that:
(i) contains subscription‑specific
secure data; and
(ii) is installed, or
capable of being installed, in a mobile telecommunications device; or
(b) anything else that:
(i) allows a particular
mobile telecommunications account to be identified; and
(ii) is prescribed by the
regulations as an account identifier for the purposes of this Part.
Note: Paragraph (a)—This would include a SIM
card.
carriage service provider has the same
meaning as in the Telecommunications Act 1997.
Note: See also section 474.3 respecting persons
who are taken to be carriage service providers in relation to certain matters.
carrier has the same meaning as in the Telecommunications
Act 1997.
Note: See also section 474.3 respecting persons
who are taken to be carriers in relation to certain matters.
carry includes transmit, switch and receive.
child abuse material means:
(a) material that depicts a person, or
a representation of a person, who:
(i) is, or appears to be,
under 18 years of age; and
(ii) is, or appears to be,
a victim of torture, cruelty or physical abuse;
and does this in a way that
reasonable persons would regard as being, in all the circumstances, offensive;
or
(b) material that describes a person
who:
(i) is, or is implied to
be, under 18 years of age; and
(ii) is, or is implied to
be, a victim of torture, cruelty or physical abuse;
and does this in a way that
reasonable persons would regard as being, in all the circumstances, offensive.
child pornography material means:
(a) material that depicts a person, or
a representation of a person, who is, or appears to be, under 18 years of age
and who:
(i) is engaged in, or
appears to be engaged in, a sexual pose or sexual activity (whether or not in
the presence of other persons); or
(ii) is in the presence of
a person who is engaged in, or appears to be engaged in, a sexual pose or
sexual activity;
and does this in a way that
reasonable persons would regard as being, in all the circumstances, offensive;
or
(b) material the dominant
characteristic of which is the depiction, for a sexual purpose, of:
(i) a sexual organ or the
anal region of a person who is, or appears to be, under 18 years of age; or
(ii) a representation of
such a sexual organ or anal region; or
(iii) the breasts, or a
representation of the breasts, of a female person who is, or appears to be,
under 18 years of age;
in a way that reasonable persons
would regard as being, in all the circumstances, offensive; or
(c) material that describes a person
who is, or is implied to be, under 18 years of age and who:
(i) is engaged in, or is
implied to be engaged in, a sexual pose or sexual activity (whether or not in
the presence of other persons); or
(ii) is in the presence of
a person who is engaged in, or is implied to be engaged in, a sexual pose or
sexual activity;
and does this in a way that
reasonable persons would regard as being, in all the circumstances, offensive;
or
(d) material that describes:
(i) a sexual organ or the
anal region of a person who is, or is implied to be, under 18 years of age; or
(ii) the breasts of a
female person who is, or is implied to be, under 18 years of age;
and does this in a way that
reasonable persons would regard as being, in all the circumstances, offensive.
communication in the course of telecommunications
carriage means a communication that is being carried by a carrier or
carriage service provider, and includes a communication that has been collected
or received by a carrier or carriage service provider for carriage, but has not
yet been delivered by the carrier or carriage service provider.
connected, in relation to a
telecommunications network, includes connection otherwise than by means of
physical contact (for example, a connection by means of radiocommunication).
control of data, or material that is in the
form of data, has the meaning given by section 473.2.
depict includes contain data from which a
visual image (whether still or moving) can be generated.
describe includes contain data from which
text or sounds can be generated.
emergency call person has the same meaning as
in the Telecommunications Act 1997.
emergency service number has the same meaning
as in the Telecommunications Act 1997.
emergency service organisation has the same
meaning as in section 147 of the Telecommunications (Consumer
Protection and Service Standards) Act 1999.
facility has the same meaning as in the Telecommunications
Act 1997.
intelligence or security officer means an
officer or employee of:
(a) the Australian Security
Intelligence Organisation; or
(b) the Australian Secret Intelligence
Service; or
(c) the Office of National
Assessments; or
(d) that part of the Department of
Defence known as the Defence Signals Directorate; or
(e) that part of the Department of
Defence known as the Defence Intelligence Organisation;
and includes a staff member (within the meaning of the Intelligence
Services Act 2001) of the Australian Security Intelligence Organisation,
the Australian Secret Intelligence Service or the Defence Signals Directorate.
interception device means an apparatus or
device that:
(a) is of a kind that is capable of
being used to enable a person to intercept a communication passing over a
telecommunications system; and
(b) could reasonably be regarded as
having been designed:
(i) for the purpose of; or
(ii) for purposes including
the purpose of;
using it in connection with the
interception of communications passing over a telecommunications system; and
(c) is not designed principally for
the reception of communications transmitted by radiocommunications.
Terms used in this definition that are defined in the Telecommunications
(Interception and Access) Act 1979 have the same meaning in this definition
as they have in that Act.
Internet content host has the same meaning as
in Schedule 5 to the Broadcasting Services Act 1992.
Internet service provider has the same
meaning as in Schedule 5 to the Broadcasting Services Act 1992.
law enforcement officer means any of the
following:
(a) the Commissioner of the Australian
Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP
employee or a special member of the Australian Federal Police (all within the
meaning of the Australian Federal Police Act 1979);
(b) a member, or employee, of the
police force of a State or Territory;
(c) a member of the staff of the
Australian Crime Commission (within the meaning of the Australian Crime
Commission Act 2002);
(d) a member of a police force, or
other law enforcement agency, of a foreign country;
(e) the Director of Public
Prosecutions or a person performing a similar function under a law of a State
or Territory;
(f) a member of the staff of the
Office of the Director of Public Prosecutions (within the meaning of the Director
of Public Prosecutions Act 1983) or of a similar body established under a
law of a State or Territory;
(g) a member of the New South Wales
Crime Commission or a member of the staff of that Commission;
(h) an officer of the Independent
Commission Against Corruption of New South Wales, being a person who is an
officer as defined by the Independent Commission Against Corruption Act 1988
of New South Wales;
(i) the Commissioner of the Police
Integrity Commission of New South Wales, an Assistant Commissioner of that
Commission or a member of the staff of that Commission;
(j) an officer of the Corruption and
Crime Commission of Western Australia within the meaning of the Corruption
and Crime Commission Act 2003 of Western Australia;
(k) an authorised commission officer
of the Crime and Misconduct Commission of Queensland within the meaning of the Crime
and Misconduct Act 2001 of Queensland.
loss means a loss in property, whether
temporary or permanent, and includes not getting what one might get.
material includes material in any form, or
combination of forms, capable of constituting a communication.
mobile telecommunications account means an
account with a carriage service provider for the supply of a public mobile
telecommunications service to an end‑user.
mobile telecommunications device means an
item of customer equipment (within the meaning of the Telecommunications Act
1997) that is used, or is capable of being used, in connection with a
public mobile telecommunications service.
nominated carrier has the same meaning as in
the Telecommunications Act 1997.
NRS provider has the same meaning as in Part 3
of the Telecommunications (Consumer Protection and Service Standards) Act
1999.
obtaining includes:
(a) obtaining for another person; and
(b) inducing a third person to do
something that results in another person obtaining.
obtaining data, or material that is in the
form of data, has the meaning given by section 473.3.
possession of data, or material that is in
the form of data, has the meaning given by section 473.2.
producing data, or material that is in the
form of data, has the meaning given by section 473.3.
property has the same meaning as in Chapter 7.
public mobile telecommunications service has
the same meaning as in the Telecommunications Act 1997.
Radiocommunication has the same meaning as in
the Radiocommunications Act 1992.
serious offence against a foreign law means an
offence against a law of a foreign country constituted by conduct that, if it
had occurred in Australia, would have constituted a serious offence against a
law of the Commonwealth, a State or a Territory.
serious offence against a law of the Commonwealth, a
State or a Territory means an offence against a law of the
Commonwealth, a State or a Territory that is punishable by imprisonment:
(a) for life; or
(b) for a period of 5 or more years.
subscription‑specific secure data means
data that is used, or is capable of being used, to:
(a) allow a carrier to identify a
particular mobile telecommunications account (whether an existing account or an
account that may be set up in the future); and
(b) allow a mobile telecommunications
device in which an account identifier that contains the data is installed to
access the public mobile telecommunication service to which that account
relates.
supplying data, or material that is in the
form of data, has the meaning given by section 473.3.
telecommunications device identifier means:
(a) an electronic identifier of a
mobile telecommunications device that is:
(i) installed in the
device by the manufacturer; and
(ii) is capable of being
used to distinguish that particular device from other mobile telecommunications
devices; or
(b) any other form of identifier that
is prescribed by the regulations as a telecommunications device identifier for
the purposes of this Part.
Note: Paragraph (a)—For example, GSM mobile
phones use an industry‑recognised International Mobile Equipment Identity
(IMEI) number. This number identifies the particular phone, as compared to the
SIM card number which identifies a particular telecommunications account.
Carriers are able to block service to lost and stolen mobile phones based on
their IMEI numbers.
telecommunications network has the same
meaning as in the Telecommunications Act 1997.
473.2
Possession or control of data or material in the form of data
A reference in this Part to a person
having possession or control of data, or material that is in the form of data,
includes a reference to the person:
(a) having possession of a computer or
data storage device that holds or contains the data; or
(b) having possession of a document in
which the data is recorded; or
(c) having control of data held in a
computer that is in the possession of another person (whether inside or outside
Australia).
473.3
Producing, supplying or obtaining data or material in the form of data
A reference in this Part to a person
producing, supplying or obtaining data, or material that is in the form of
data, includes a reference to the person:
(a) producing, supplying or obtaining
data held or contained in a computer or data storage device; or
(b) producing, supplying or obtaining
a document in which the data is recorded.
473.4
Determining whether material is offensive
The matters to be taken into account in
deciding for the purposes of this Part whether reasonable persons would regard
particular material, or a particular use of a carriage service, as being, in
all the circumstances, offensive, include:
(a) the standards of morality, decency
and propriety generally accepted by reasonable adults; and
(b) the literary, artistic or
educational merit (if any) of the material; and
(c) the general character of the
material (including whether it is of a medical, legal or scientific character).
Division 474—Telecommunications offences
Subdivision A—Dishonesty with respect
to carriage services
474.1
Dishonesty
(1) For the purposes of this Subdivision, 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.
(2) In a prosecution for an offence against
this Subdivision, the determination of dishonesty is a matter for the trier of
fact.
474.2
General dishonesty with respect to a carriage service provider
Obtaining a gain
(1) A person is guilty of an offence if the
person does anything with the intention of dishonestly obtaining a gain from a
carriage service provider by way of the supply of a carriage service.
Penalty: Imprisonment for 5 years.
Causing a loss
(2) A person is guilty of an offence if the
person does anything with the intention of dishonestly causing a loss to a
carriage service provider in connection with the supply of a carriage service.
Penalty: Imprisonment for 5 years.
(3) A person is guilty of an offence if:
(a) the person dishonestly causes a
loss, or dishonestly causes a risk of loss, to a carriage service provider in
connection with the supply of a carriage service; and
(b) the person knows or believes that
the loss will occur or that there is a substantial risk of the loss occurring.
Penalty: Imprisonment for 5 years.
Subdivision B—Interference with
telecommunications
474.3 Person
acting for a carrier or carriage service provider
(1) For the purposes of this Subdivision, a
person who does any thing for or on behalf of a carrier, or on behalf of
persons at least one of whom is a carrier, is, in respect of:
(a) the doing by that person of that
thing; or
(b) any rental, fee or charge payable
for or in relation to the doing by that person of that thing; or
(c) the operation by that person of a
facility in connection with the doing of that thing; or
(d) a facility belonging to that
person; or
(e) the operation by that person of a
satellite;
taken to be a carrier.
(2) For the purposes of this Subdivision, a
person who does any thing for or on behalf of a carriage service provider, or
on behalf of persons at least one of whom is a carriage service provider, is,
in respect of:
(a) the doing by that person of that
thing; or
(b) any rental, fee or charge payable
for or in relation to the doing by that person of that thing; or
(c) the operation by that person of a
facility in connection with the doing of that thing; or
(d) a facility belonging to that
person; or
(e) the operation by that person of a
satellite;
taken to be a carriage service provider.
474.4
Interception devices
(1) A person is guilty of an offence if:
(a) the person:
(i) manufactures; or
(ii) advertises, displays
or offers for sale; or
(iii) sells; or
(iv) possesses;
an apparatus or device (whether
in an assembled or unassembled form); and
(b) the apparatus or device is an
interception device.
Penalty: Imprisonment for 5 years.
(2) A person is not criminally responsible
for an offence against subsection (1) if the person possesses the
interception device in the course of the person’s duties relating to the
interception of communications that does not constitute a contravention of
subsection 7(1) of the Telecommunications (Interception and Access) Act 1979.
Note: A defendant bears an evidential burden in
relation to the matter in this subsection, see subsection 13.3(3).
(3) A person is not criminally responsible
for an offence against subsection (1) if the applicable conduct mentioned
in subparagraphs (1)(a)(i) to (iv) is in circumstances specified in
regulations made for the purposes of this subsection.
Note: A defendant bears an evidential burden in relation
to the matter in this subsection, see subsection 13.3(3).
474.5
Wrongful delivery of communications
(1) A person is guilty of an offence if:
(a) a communication is in the course
of telecommunications carriage; and
(b) the person causes the communication
to be received by a person or carriage service other than the person or service
to whom it is directed.
Penalty: Imprisonment for 1 year.
(2) A person is not criminally responsible
for an offence against subsection (1) if the person engages in the conduct
referred to in paragraph (1)(b) with the consent or authorisation of the
person to whom, or the person operating the carriage service to which, the
communication is directed.
Note: A defendant bears an evidential burden in
relation to the matter in this subsection, see subsection 13.3(3).
474.6
Interference with facilities
(1) A person
is guilty of an offence if the person tampers with, or interferes with, a
facility owned or operated by:
(a) a carrier; or
(b) a carriage service provider; or
(c) a nominated carrier.
Penalty: Imprisonment for 1 year.
(2) For the purposes of an offence against subsection (1),
absolute liability applies to the physical element of circumstance of the
offence, that the facility is owned or operated by a carrier, a carriage
service provider or a nominated carrier.
(3) A person is guilty of an offence if:
(a) the person tampers with, or
interferes with, a facility owned or operated by:
(i) a carrier; or
(ii) a carriage service
provider; or
(iii) a nominated carrier;
and
(b) this conduct results in hindering
the normal operation of a carriage service supplied by a carriage service
provider.
Penalty: Imprisonment for 2 years.
(4) For the purposes of an offence against subsection (3),
absolute liability applies to the following physical elements of circumstance
of the offence:
(a) that the facility is owned or
operated by a carrier, a carriage service provider or a nominated carrier;
(b) that the carriage service is
supplied by a carriage service provider.
(5) A person is guilty of an offence if:
(a) the person uses or operates any
apparatus or device (whether or not it is comprised in, connected to or used in
connection with a telecommunications network); and
(b) this conduct results in hindering
the normal operation of a carriage service supplied by a carriage service
provider.
Penalty: Imprisonment for 2 years.
(6) For the purposes of an offence against subsection (5),
absolute liability applies to the physical element of circumstance of the
offence, that the carriage service is supplied by a carriage service provider.
(7) A person is not criminally responsible
for an offence against subsection (5) if:
(a) the person is, at the time of the
offence, a law enforcement officer, or an intelligence or security officer,
acting in good faith in the course of his or her duties; and
(b) the conduct of the person is
reasonable in the circumstances for the purpose of performing that duty.
Note 1: A defendant bears an evidential burden in
relation to the matter in this subsection, see subsection 13.3(3).
Note 2: See also subsection 475.1(2) for the
interaction between this defence and the Radiocommunications Act 1992.
(8) For the purposes of this section, a
facility is taken to be owned or operated by a nominated carrier if the Telecommunications
Act 1997 applies, under section 81A of that Act, as if that facility
were owned or operated by the nominated carrier.
474.7
Modification etc. of a telecommunications device identifier
(1) A person is guilty of an offence if the
person:
(a) modifies a telecommunications
device identifier; or
(b) interferes with the operation of a
telecommunications device identifier.
Penalty: Imprisonment for 2 years.
(2) A person is not criminally responsible
for an offence against subsection (1) if the person is:
(a) the manufacturer of the mobile
telecommunications device in which the telecommunications device identifier is
installed; or
(b) an employee or agent of the
manufacturer who is acting on behalf of the manufacturer; or
(c) acting with the consent of the
manufacturer.
Note: A defendant bears an evidential burden in
relation to the matter in this subsection, see subsection 13.3(3).
(3) A person is not criminally responsible
for an offence against subsection (1) if:
(a) the person is, at the time of the
offence, a law enforcement officer, or an intelligence or security officer,
acting in the course of his or her duties; and
(b) the conduct of the person is
reasonable in the circumstances for the purpose of performing that duty.
Note 1: A defendant bears an evidential burden in
relation to the matter in this subsection, see subsection 13.3(3).
Note 2: This subsection merely creates a defence to an
offence against subsection (1) and does not operate to authorise any
conduct that requires a warrant under some other law.
474.8
Possession or control of data or a device with intent to modify a
telecommunications device identifier
(1) A person is guilty of an offence if:
(a) the person has possession or
control of any thing or data; and
(b) the person has that possession or
control with the intention that the thing or data be used:
(i) by the person; or
(ii) by another person;
in committing an offence against
subsection 474.7(1) (modification of a telecommunications device identifier).
Penalty: Imprisonment for 2 years.
(2) A person may be found guilty of an
offence against subsection (1) even if committing the offence against
subsection 474.7(1) (modification of a telecommunications device identifier) is
impossible.
(3) It is not an offence to attempt to commit
an offence against subsection (1).
(4) A person is not criminally responsible
for an offence against subsection (1) if the person is:
(a) the manufacturer of the mobile
telecommunications device in which the telecommunications device identifier is
installed; or
(b) an employee or agent of the
manufacturer who is acting on behalf of the manufacturer; or
(c) acting with the consent of the
manufacturer.
Note: A defendant bears an evidential burden in
relation to the matter in this subsection, see subsection 13.3(3).
(5) A person is not criminally responsible
for an offence against subsection (1) if:
(a) the person is, at the time of the
offence, a law enforcement officer, or an intelligence or security officer,
acting in the course of his or her duties; and
(b) the conduct of the person is
reasonable in the circumstances for the purpose of performing that duty.
Note 1: A defendant bears an evidential burden in
relation to the matter in this subsection, see subsection 13.3(3).
Note 2: This subsection merely creates a defence to an
offence against subsection (1) and does not operate to authorise any
conduct that requires a warrant under some other law.
474.9
Producing, supplying or obtaining data or a device with intent to modify a
telecommunications device identifier
(1) A person is guilty of an offence if:
(a) the person produces, supplies or
obtains any thing or data; and
(b) the person does so with the
intention that the thing or data be used:
(i) by the person; or
(ii) by another person;
in committing an offence against
subsection 474.7(1) (modification of a telecommunications device identifier).
Penalty: Imprisonment for 2 years.
(2) A person may be found guilty of an
offence against subsection (1) even if committing the offence against
subsection 474.7(1) (modification of a telecommunications device identifier) is
impossible.
(3) It is not an offence to attempt to commit
an offence against subsection (1).
(4) A person is not criminally responsible
for an offence against subsection (1) if the person is:
(a) the manufacturer of the mobile
telecommunications device in which the telecommunications device identifier is
installed; or
(b) an employee or agent of the
manufacturer who is acting on behalf of the manufacturer; or
(c) acting with the consent of the
manufacturer.
Note: A defendant bears an evidential burden in
relation to the matter in this subsection, see subsection 13.3(3).
(5) A person is not criminally responsible
for an offence against subsection (1) if:
(a) the person is, at the time of the
offence, a law enforcement officer, or an intelligence or security officer,
acting in the course of his or her duties; and
(b) the conduct of the person is
reasonable in the circumstances for the purpose of performing that duty.
Note 1: A defendant bears an evidential burden in
relation to the matter in this subsection, see subsection 13.3(3).
Note 2: This subsection merely creates a defence to an
offence against subsection (1) and does not operate to authorise any
conduct that requires a warrant under some other law.
474.10
Copying subscription‑specific secure data
Copying subscription‑specific secure data from an
existing account identifier
(1) A person is guilty of an offence if the
person:
(a) copies the subscription‑specific
secure data from an account identifier; and
(b) does so with the intention that
the data will be copied (whether by the person or by someone else) onto
something that:
(i) is an account
identifier; or
(ii) will, once the data is
copied onto it, be capable of operating as an account identifier.
Penalty: Imprisonment for 2 years.
Copying subscription‑specific secure data onto a
new account identifier
(2) A person is guilty of an offence if:
(a) subscription‑specific secure
data is copied from an account identifier (whether by the person or by someone
else); and
(b) the person copies that data onto
something that:
(i) is an account
identifier; or
(ii) will, once the data is
copied onto it, be capable of operating as an account identifier.
This is so whether or not the person knows which
particular account identifier the subscription‑specific secure data is
copied from.
Penalty: Imprisonment for 2 years.
Defences
(3) A person is not criminally responsible
for an offence against subsection (1) or (2) if the person is:
(a) the carrier who operates the
facilities used, or to be used, in the supply of the public mobile
telecommunications service to which the subscription‑specific secure data
relates; or
(b) an employee or agent of that carrier
who is acting on behalf of that carrier; or
(c) acting with the consent of that
carrier.
Note: A defendant bears an evidential burden in
relation to the matter in this subsection, see subsection 13.3(3).
(4) A person is not criminally responsible for
an offence against subsection (1) or (2) if:
(a) the person is, at the time of the
offence, a law enforcement officer, or an intelligence or security officer,
acting in the course of his or her duties; and
(b) the conduct of the person is
reasonable in the circumstances for the purpose of performing that duty.
Note 1: A defendant bears an evidential burden in
relation to the matter in this subsection, see subsection 13.3(3).
Note 2: This subsection merely creates a defence to an
offence against subsection (1) or (2) and does not operate to authorise
any conduct that requires a warrant under some other law.
474.11
Possession or control of data or a device with intent to copy an account
identifier
(1) A person is guilty of an offence if:
(a) the person has possession or
control of any thing or data; and
(b) the person has that possession or
control with the intention that the thing or data be used:
(i) by the person; or
(ii) by another person;
in committing an offence against
subsection 474.10(1) (copying subscription‑specific secure data from an
account identifier) or 474.10(2) (copying subscription‑specific secure
data onto an account identifier).
Penalty: Imprisonment for 2 years.
(2) A person may be found guilty of an
offence against subsection (1) even if committing the offence against
subsection 474.10(1) (copying subscription‑specific secure data from an
account identifier) or 474.10(2) (copying subscription‑specific secure
data onto an account identifier) is impossible.
(3) It is not an offence to attempt to commit
an offence against subsection (1).
Defences
(4) A person is not criminally responsible
for an offence against subsection (1) if the person is:
(a) the carrier who operates the
facilities used, or to be used, in the supply of the public mobile
telecommunications service to which the subscription‑specific secure data
relates; or
(b) an employee or agent of that
carrier who is acting on behalf of that carrier; or
(c) acting with the consent of that
carrier.
Note: A defendant bears an evidential burden in
relation to the matter in this subsection, see subsection 13.3(3).
(5) A person is not criminally responsible
for an offence against subsection (1) if:
(a) the person is, at the time of the
offence, a law enforcement officer, or an intelligence or security officer,
acting in the course of his or her duties; and
(b) the conduct of the person is
reasonable in the circumstances for the purpose of performing that duty.
Note 1: A defendant bears an evidential burden in
relation to the matter in this subsection, see subsection 13.3(3).
Note 2: This subsection merely creates a defence to an
offence against subsection (1) and does not operate to authorise any
conduct that requires a warrant under some other law.
474.12
Producing, supplying or obtaining data or a device with intent to copy an
account identifier
(1) A person is guilty of an offence if:
(a) the person produces, supplies or
obtains any thing or data; and
(b) the person does so with the
intention that the thing or data be used:
(i) by the person; or
(ii) by another person;
in committing an offence against
subsection 474.10(1) (copying subscription‑specific secure data from an
account identifier) or 474.10(2) (copying subscription‑specific secure
data onto an account identifier).
Penalty: Imprisonment for 2 years.
(2) A person may be found guilty of an
offence against subsection (1) even if committing the offence against
subsection 474.10(1) (copying subscription‑specific secure data from an
account identifier) or 474.10(2) (copying subscription‑specific secure
data onto an account identifier) is impossible.
(3) It is not an offence to attempt to commit
an offence against subsection (1).
Defences
(4) A person is not criminally responsible
for an offence against subsection (1) if the person is:
(a) the carrier who operates the
facilities used, or to be used, in the supply of the public mobile
telecommunications service to which the subscription‑specific secure data
relates; or
(b) an employee or agent of that
carrier who is acting on behalf of that carrier; or
(c) acting with the consent of that
carrier.
Note: A defendant bears an evidential burden in
relation to the matter in this subsection, see subsection 13.3(3).
(5) A person is not criminally responsible
for an offence against subsection (1) if:
(a) the person is, at the time of the
offence, a law enforcement officer, or an intelligence or security officer,
acting in the course of his or her duties; and
(b) the conduct of the person is
reasonable in the circumstances for the purpose of performing that duty.
Note 1: A defendant bears an evidential burden in
relation to the matter in this subsection, see subsection 13.3(3).
Note 2: This subsection merely creates a defence to an
offence against subsection (1) and does not operate to authorise any
conduct that requires a warrant under some other law.
Subdivision C—Offences related to use
of telecommunications
474.13
Use of a carriage service
For the purposes of this Subdivision, a
person is taken not to use a carriage service by engaging in
particular conduct if:
(a) the person is a carrier and, in
engaging in that conduct, is acting solely in the person’s capacity as a
carrier; or
(b) the person is a carriage service
provider and, in engaging in that conduct, is acting solely in the person’s
capacity as a carriage service provider; or
(c) the person is an Internet service
provider and, in engaging in that conduct, is acting solely in the person’s
capacity as an Internet service provider; or
(d) the person is an Internet content
host and, in engaging in that conduct, is acting solely in the person’s
capacity as an Internet content host.
474.14
Using a telecommunications network with intention to commit a serious offence
(1) A person is guilty of an offence if:
(a) the person:
(i) connects equipment to
a telecommunications network; and
(ii) intends by this to
commit, or to facilitate the commission of, an offence (whether by that person
or another person); and
(b) the offence is:
(i) a serious offence
against a law of the Commonwealth, a State or a Territory; or
(ii) a serious offence
against a foreign law.
(2) A person is guilty of an offence if:
(a) the person uses equipment
connected to a telecommunications network in the commission of, or to
facilitate the commission of, an offence (whether by that person or another
person); and
(b) the offence is:
(i) a serious offence
against a law of the Commonwealth, a State or a Territory; or
(ii) a serious offence
against a foreign law.
(3) A person who is guilty of an offence
against subsection (1) or (2) is punishable, on conviction, by a penalty
not exceeding the penalty applicable to the serious offence.
(4) Absolute liability applies to paragraphs (1)(b)
and (2)(b).
Note: For absolute liability, see
section 6.2.
(5) A person may be found guilty of an
offence against subsection (1) or (2) even if committing the serious
offence is impossible.
(6) It is not an offence to attempt to commit
an offence against subsection (1) or (2).
474.15
Using a carriage service to make a threat
Threat to kill
(1) A person (the first person)
is guilty of an offence if:
(a) the first person uses a carriage
service to make to another person (the second person) a threat to
kill the second person or a third person; and
(b) the first person intends the
second person to fear that the threat will be carried out.
Penalty: Imprisonment for 10 years.
Threat to cause serious harm
(2) A person (the first person)
is guilty of an offence if:
(a) the first person uses a carriage service to make to another person (the
second person) a threat to cause serious harm to the second person or a
third person; and
(b) the first person intends the
second person to fear that the threat will be carried out.
Penalty: Imprisonment for 7 years.
Actual fear not necessary
(3) In a prosecution for an offence against
this section, it is not necessary to prove that the person receiving the threat
actually feared that the threat would be carried out.
Definitions
(4) In this section:
fear includes apprehension.
threat to cause serious harm to a person
includes a threat to substantially contribute to serious harm to
the person.
474.16
Using a carriage service for a hoax threat
A person
is guilty of an offence if:
(a) the person uses a carriage service
to send a communication; and
(b) the person does so with the
intention of inducing a false belief that an explosive, or a dangerous or
harmful substance or thing, has been or will be left in any place.
Penalty: Imprisonment for 10 years.
474.17
Using a carriage service to menace, harass or cause offence
(1) A person is guilty of an offence if:
(a) the person uses a carriage
service; and
(b) the person does so in a way
(whether by the method of use or the content of a communication, or both) that
reasonable persons would regard as being, in all the circumstances, menacing,
harassing or offensive.
Penalty: Imprisonment for 3 years.
(2) Without limiting subsection (1),
that subsection applies to menacing, harassing or causing offence to:
(a) an employee of the NRS provider;
or
(b) an emergency call person; or
(c) an employee of an emergency
service organisation; or
(d) an APS employee in the Attorney‑General’s
Department acting as a National Security Hotline call taker.
474.18
Improper use of emergency call service
(1) A person is guilty of an offence if the
person:
(a) makes a call to an emergency
service number; and
(b) does so with the intention of
inducing a false belief that an emergency exists.
Penalty: Imprisonment for 3 years.
(2) A person is guilty of an offence if:
(a) the person makes a call to an
emergency service number; and
(b) the person makes the call
otherwise than for the purpose of reporting an emergency; and
(c) the call is a vexatious one.
Penalty: Imprisonment for 3 years.
(3) In determining whether a call by a person
to an emergency service number is a vexatious one, have regard to:
(a) the content of the call; and
(b) the number, frequency and content
of previous calls the person has made to emergency service numbers otherwise
than for the purpose of reporting emergencies; and
(c) any other relevant matter.
474.19
Using a carriage service for child pornography material
(1) A person is guilty of an offence if:
(a) the person:
(i) uses a carriage
service to access material; or
(ii) uses a carriage
service to cause material to be transmitted to the person; or
(iii) uses a carriage
service to transmit material; or
(iv) uses a carriage service
to make material available; or
(v) uses a carriage service
to publish or otherwise distribute material; and
(b) the material is child pornography
material.
Penalty: Imprisonment for 10 years.
(2) To avoid doubt, the following are the
fault elements for the physical elements of an offence against subsection (1):
(a) intention is the fault element for
the conduct referred to in paragraph (1)(a);
(b) recklessness is the fault element
for the circumstances referred to in paragraph (1)(b).
Note: For the meaning of intention and
recklessness see sections 5.2 and 5.4.
(3) As well as the general defences provided
for in Part 2.3, defences are provided for under section 474.21 in
relation to this section.
474.20
Possessing, controlling, producing, supplying or obtaining child pornography
material for use through a carriage service
(1) A person is guilty of an offence if:
(a) the person:
(i) has possession or
control of material; or
(ii) produces, supplies or
obtains material; and
(b) the material is child pornography
material; and
(c) the person has that possession or
control, or engages in that production, supply or obtaining, with the intention
that the material be used:
(i) by that person; or
(ii) by another person;
in committing an offence against
section 474.19 (using a carriage service for child pornography material).
Penalty: Imprisonment for 10 years.
(2) A person may be found guilty of an
offence against subsection (1) even if committing the offence against
section 474.19 (using a carriage service for child pornography material)
is impossible.
(3) It is not an offence to attempt to commit
an offence against subsection (1).
474.21
Defences in respect of child pornography material
(1) A person is not criminally responsible
for an offence against section 474.19 (using a carriage service for child
pornography material) or 474.20 (possessing etc. child pornography material for
use through a carriage service) because of engaging in particular conduct if
the conduct:
(a) is of public benefit; and
(b) does not extend beyond what is of
public benefit.
In determining whether the person is, under this
subsection, not criminally responsible for the offence, the question whether
the conduct is of public benefit is a question of fact and the person’s motives
in engaging in the conduct are irrelevant.
Note: A defendant bears an evidential burden in
relation to the matter in this subsection, see subsection 13.3(3).
(2) For the purposes of subsection (1),
conduct is of public benefit if, and only if, the conduct is necessary for or
of assistance in:
(a) enforcing a law of the Commonwealth,
a State or a Territory; or
(b) monitoring compliance with, or
investigating a contravention of, a law of the Commonwealth, a State or a
Territory; or
(c) the administration of justice; or
(d) conducting scientific, medical or
educational research that has been approved by the Minister in writing for the
purposes of this section.
(3) A person is not criminally responsible
for an offence against section 474.19 (using a carriage service for child
pornography material) or 474.20 (possessing etc. child pornography material for
use through a carriage service) if:
(a) the person is, at the time of the
offence, a law enforcement officer, or an intelligence or security officer,
acting in the course of his or her duties; and
(b) the conduct of the person is reasonable
in the circumstances for the purpose of performing that duty.
Note: A defendant bears an evidential burden in
relation to the matter in this subsection, see subsection 13.3(3).
(4) A person is not criminally responsible
for an offence against section 474.19 (using a carriage service for child
pornography material) or 474.20 (possessing etc. child pornography material for
use through a carriage service) if the person engages in the conduct in good
faith for the sole purpose of:
(a) assisting the Australian
Communications and Media Authority to detect:
(i) prohibited content
(within the meaning of Schedule 5 to the Broadcasting Services Act 1992);
or
(ii) potential prohibited
content (within the meaning of that Schedule);
in the performance of the
Authority’s functions under that Schedule; or
(b) manufacturing or developing, or
updating, content filtering technology (including software) in accordance with:
(i) a recognised
alternative access‑prevention arrangement (within the meaning of clause 40
of Schedule 5 to the Broadcasting Services Act 1992); or
(ii) a designated
alternative access‑prevention arrangement (within the meaning of clause 60
of that Schedule).
Note: A defendant bears an evidential burden in
relation to the matter in this subsection, see subsection 13.3(3).
474.22
Using a carriage service for child abuse material
(1) A person is guilty of an offence if:
(a) the person:
(i) uses a carriage
service to access material; or
(ii) uses a carriage
service to cause material to be transmitted to the person; or
(iii) uses a carriage
service to transmit material; or
(iv) uses a carriage service
to make material available; or
(v) uses a carriage service
to publish or otherwise distribute material; and
(b) the material is child abuse
material.
Penalty: Imprisonment for 10 years.
(2) To avoid doubt, the following are the
fault elements for the physical elements of an offence against subsection (1):
(a) intention is the fault element for
the conduct referred to in paragraph (1)(a);
(b) recklessness is the fault element
for the circumstances referred to in paragraph (1)(b).
Note: For the meaning of intention and
recklessness see sections 5.2 and 5.4.
(3) As well as the general defences provided
for in Part 2.3, defences are provided for under section 474.24 in
relation to this section.
474.23
Possessing, controlling, producing, supplying or obtaining child abuse material
for use through a carriage service
(1) A person is guilty of an offence if:
(a) the person:
(i) has possession or
control of material; or
(ii) produces, supplies or
obtains material; and
(b) the material is child abuse
material; and
(c) the person has that possession or
control, or engages in that production, supply or obtaining, with the intention
that the material be used:
(i) by that person; or
(ii) by another person;
in committing an offence against
section 474.22 (using a carriage service for child abuse material).
Penalty: Imprisonment for 10 years.
(2) A person may be found guilty of an
offence against subsection (1) even if committing the offence against
section 474.22 (using a carriage service for child abuse material) is
impossible.
(3) It is not an offence to attempt to commit
an offence against subsection (1).
474.24
Defences in respect of child abuse material
(1) A person is not criminally responsible
for an offence against section 474.22 (using a carriage service for child
abuse material) or 474.23 (possessing etc. child abuse material for use through
a carriage service) because of engaging in particular conduct if the conduct:
(a) is of public benefit; and
(b) does not extend beyond what is of
public benefit.
In determining whether the person is, under this
subsection, not criminally responsible for the offence, the question whether
the conduct is of public benefit is a question of fact and the person’s motives
in engaging in the conduct are irrelevant.
Note: A defendant bears an evidential burden in
relation to the matter in this subsection, see subsection 13.3(3).
(2) For the purposes of subsection (1),
conduct is of public benefit if, and only if, the conduct is necessary for or
of assistance in:
(a) enforcing a law of the
Commonwealth, a State or a Territory; or
(b) monitoring compliance with, or
investigating a contravention of, a law of the Commonwealth, a State or a
Territory; or
(c) the administration of justice; or
(d) conducting scientific, medical or
educational research that has been approved by the Minister in writing for the
purposes of this section.
(3) A person is not criminally responsible
for an offence against section 474.22 (using a carriage service for child
abuse material) or 474.23 (possessing etc. child abuse material for use through
a carriage service) if:
(a) the person is, at the time of the
offence, a law enforcement officer, or an intelligence or security officer,
acting in the course of his or her duties; and
(b) the conduct of the person is
reasonable in the circumstances for the purpose of performing that duty.
Note: A defendant bears an evidential burden in
relation to the matter in this subsection, see subsection 13.3(3).
(4) A person is not criminally responsible
for an offence against section 474.22 (using a carriage service for child
abuse material) or 474.23 (possessing etc. child abuse material for use through
a carriage service) if the person engages in the conduct in good faith for the
sole purpose of:
(a) assisting the Australian
Communications and Media Authority to detect:
(i) prohibited content
(within the meaning of Schedule 5 to the Broadcasting Services Act 1992);
or
(ii) potential prohibited
content (within the meaning of that Schedule);
in the performance of the
Authority’s functions under that Schedule; or
(b) manufacturing or developing, or
updating, content filtering technology (including software) in accordance with:
(i) a recognised
alternative access‑prevention arrangement (within the meaning of clause 40
of Schedule 5 to the Broadcasting Services Act 1992); or
(ii) a designated
alternative access‑prevention arrangement (within the meaning of clause 60
of that Schedule).
Note: A defendant bears an evidential burden in
relation to the matter in this subsection, see subsection 13.3(3).
474.25
Obligations of Internet service providers and Internet content hosts
A person commits an offence if the
person:
(a) is an Internet service provider or
an Internet content host; and
(b) is aware that the service provided
by the person can be used to access particular material that the person has
reasonable grounds to believe is:
(i) child pornography
material; or
(ii) child abuse material;
and
(c) does not refer details of the
material to the Australian Federal Police within a reasonable time after
becoming aware of the existence of the material.
Penalty: 100 penalty units.
474.26
Using a carriage service to procure persons under 16 years of age
(1) A person (the sender)
commits an offence if:
(a) the sender uses a carriage service
to transmit a communication to another person (the recipient);
and
(b) the sender does this with the intention
of procuring the recipient to engage in, or submit to, sexual activity with the
sender; and
(c) the recipient is someone who is,
or who the sender believes to be, under 16 years of age; and
(d) the sender is at least 18 years of
age.
Penalty: Imprisonment for 15 years.
(2) A person (the sender)
commits an offence if:
(a) the sender uses a carriage service
to transmit a communication to another person (the recipient);
and
(b) the sender does this with the
intention of procuring the recipient to engage in, or submit to, sexual
activity with another person; and
(c) the recipient is someone who is,
or who the sender believes to be, under 16 years of age; and
(d) the other person referred to in paragraph (b)
is someone who is, or who the sender believes to be, at least 18 years of age.
Penalty: Imprisonment for 15 years.
(3) A person (the sender)
commits an offence if:
(a) the sender uses a carriage service
to transmit a communication to another person (the recipient);
and
(b) the sender does this with the
intention of procuring the recipient to engage in, or submit to, sexual
activity with another person; and
(c) the recipient is someone who is,
or who the sender believes to be, under 16 years of age; and
(d) the other person referred to in paragraph (b)
is someone who is, or who the sender believes to be, under 18 years of age; and
(e) the sender intends that the sexual
activity referred to in paragraph (b) will take place in the presence of:
(i) the sender; or
(ii) another person who is,
or who the sender believes to be, at least 18 years of age.
Penalty: Imprisonment for 15 years.
474.27
Using a carriage service to “groom” persons under 16 years of age
(1) A person (the sender)
commits an offence if:
(a) the sender uses a carriage service
to transmit a communication to another person (the recipient);
and
(b) the communication includes
material that is indecent; and
(c) the sender does this with the
intention of making it easier to procure the recipient to engage in, or submit
to, sexual activity with the sender; and
(d) the recipient is someone who is,
or who the sender believes to be, under 16 years of age; and
(e) the sender is at least 18 years of
age.
Penalty: Imprisonment for 12 years.
(2) A person (the sender)
commits an offence if:
(a) the sender uses a carriage service
to transmit a communication to another person (the recipient);
and
(b) the communication includes
material that is indecent; and
(c) the sender does this with the
intention of making it easier to procure the recipient to engage in, or submit
to, sexual activity with another person; and
(d) the recipient is someone who is,
or who the sender believes to be, under 16 years of age; and
(e) the other person referred to in paragraph (c)
is someone who is, or who the sender believes to be, at least 18 years of age.
Penalty: Imprisonment for 12 years.
(3) A person (the sender)
commits an offence if:
(a) the sender uses a carriage service
to transmit a communication to another person (the recipient);
and
(b) the communication includes
material that is indecent; and
(c) the sender does this with the
intention of making it easier to procure the recipient to engage in, or submit
to, sexual activity with another person; and
(d) the recipient is someone who is,
or who the sender believes to be, under 16 years of age; and
(e) the other person referred to in paragraph (c)
is someone who is, or who the sender believes to be, under 18 years of age; and
(f) the sender intends that the
sexual activity referred to in paragraph (c) will take place in the
presence of:
(i) the sender; or
(ii) another person who is,
or who the sender believes to be, at least 18 years of age.
Penalty: Imprisonment for 15 years.
(4) In a prosecution for an offence against subsection (1),
(2) or (3), whether material is indecent is a matter for the trier of fact.
(5) In this section:
indecent means indecent according to the
standards of ordinary people.
474.28
Provisions relating to offences against sections 474.26 and 474.27
Age‑related issues
(1) For the purposes of an offence against
section 474.26 or 474.27, absolute liability applies to the physical
element of circumstance of the offence that the recipient is someone who is
under 16 years of age.
Note 1: For absolute liability, see
section 6.2.
Note 2: For a defence based on belief about age, see
section 474.29.
(2) For the purposes of an offence against
subsection 474.26(2) or (3) or 474.27(2) or (3), absolute liability applies to
the physical elements of circumstance of the offence that the other person
referred to in paragraph 474.26(2)(b) or (3)(e) or 474.27(2)(c) or (3)(f) is at
least 18 years of age.
Note 1: For absolute liability, see
section 6.2.
Note 2: For a defence based on belief about age, see
section 474.29.
(3) For the purposes of sections 474.26
and 474.27, evidence that the recipient was represented to the sender as being
under or of a particular age is, in the absence of evidence to the contrary,
proof that the sender believed the recipient to be under or of that age.
(4) For the purposes of sections 474.26
and 474.27, evidence that the other person referred to in paragraph
474.26(2)(b) or (3)(e) or 474.27(2)(c) or (3)(f) was represented to the sender
as being:
(a) at least 18 years of age; or
(b) over or of a particular age;
is, in the absence of evidence to the contrary, proof that
the sender believed the other person to be at least 18 years of age or over or
of that age.
(5) In determining for the purposes of
sections 474.26 and 474.27 how old a person is or was at a particular
time, a jury or court may treat any of the following as admissible evidence:
(a) the person’s appearance;
(b) medical or other scientific
opinion;
(c) a document that is or appears to
be an official or medical record from a country outside Australia;
(d) a document that is or appears to
be a copy of such a record.
(6) Subsection (5) does not make any
other kind of evidence inadmissible, and does not affect a prosecutor’s duty to
do all he or she can to adduce the best possible evidence for determining the
question.
(7) If, on a trial for an offence against
sections 474.26 and 474.27, evidence may be treated as admissible because
of subsection (5), the court must warn the jury that it must be satisfied
beyond reasonable doubt in determining the question.
Impossibility of sexual activity taking place
(8) A person may be found guilty of an
offence against section 474.26 or 474.27 even if it is impossible for the
sexual activity referred to in that section to take place.
Fictitious recipient
(9) For the purposes of sections 474.26
and 474.27, it does not matter that the recipient to whom the sender believes
the sender is transmitting the communication is a fictitious person represented
to the sender as a real person.
Attempt not offence
(10) It is not an offence to attempt to commit
an offence against section 474.26 or 474.27.
Definitions
(11) In sections 474.26 and 474.27 and
this section:
procure a person to engage in sexual activity
includes:
(a) encourage, entice or recruit the
person to engage in that activity; or
(b) induce the person (whether by
threats, promises or otherwise) to engage in that activity.
sexual activity means:
(a) sexual intercourse as defined in
section 50AC of the Crimes Act 1914; or
(b) an act of indecency as defined in
section 50AB of that Act; or
(c) any other activity of a sexual or
indecent nature that involves the human body, or bodily actions or functions.
The activity referred to in paragraph (c) need not
involve physical contact between people.
474.29
Defences to offences against section 474.26 or 474.27
(1) It is a defence to a prosecution for an
offence against section 474.26 or 474.27 that the defendant believed at
the time the communication was transmitted that the recipient was not under 16
years of age.
Note: A defendant bears an evidential burden in
relation to the matter in this section, see subsection 13.3(3).
(2) It is a defence to a prosecution for an
offence against subsection 474.26(2) or (3) or 474.27(2) or (3) that the
defendant believed at the time the communication was transmitted that the other
person referred to in paragraph 474.26(2)(b) or (3)(e) or 474.27(2)(c) or
(3)(f) was not at least 18 years of age.
Note: A defendant bears an evidential burden in
relation to the matter in this section, see subsection 13.3(3).
(3) In determining whether the defendant had
the belief referred to in subsection (1) or (2), the jury may take into
account whether the alleged belief was reasonable in the circumstances.
474.29A
Using a carriage service for suicide related material
(1) A person is guilty of an offence if:
(a) the person:
(i) uses a carriage
service to access material; or
(ii) uses a carriage
service to cause material to be transmitted to the person; or
(iii) uses a carriage
service to transmit material; or
(iv) uses a carriage service
to make material available; or
(v) uses a carriage service
to publish or otherwise distribute material; and
(b) the material directly or
indirectly counsels or incites committing or attempting to commit suicide; and
(c) the person:
(i) intends to use the
material to counsel or incite committing or attempting to commit suicide; or
(ii) intends that the
material be used by another person to counsel or incite committing or
attempting to commit suicide.
Penalty: 1,000 penalty units.
(2) A person is guilty of an offence if:
(a) the person:
(i) uses a carriage
service to access material; or
(ii) uses a carriage
service to cause material to be transmitted to the person; or
(iii) uses a carriage
service to transmit material; or
(iv) uses a carriage service
to make material available; or
(v) uses a carriage service
to publish or otherwise distribute material; and
(b) the material directly or
indirectly:
(i) promotes a particular
method of committing suicide; or
(ii) provides instruction
on a particular method of committing suicide; and
(c) the person:
(i) intends to use the
material to promote that method of committing suicide or provide instruction on
that method of committing suicide; or
(ii) intends that the
material be used by another person to promote that method of committing suicide
or provide instruction on that method of committing suicide; or
(iii) intends the material
to be used by another person to commit suicide.
Penalty: 1,000 penalty units.
(3) To avoid doubt, a person is not guilty of
an offence against subsection (1) merely because the person uses a
carriage service to:
(a) engage in public discussion or
debate about euthanasia or suicide; or
(b) advocate reform of the law
relating to euthanasia or suicide;
if the person does not:
(c) intend to use the material
concerned to counsel or incite committing or attempting to commit suicide; or
(d) intend that the material concerned
be used by another person to counsel or incite committing or attempting to
commit suicide.
(4) To avoid doubt, a person is not guilty of
an offence against subsection (2) merely because the person uses a
carriage service to:
(a) engage in public discussion or
debate about euthanasia or suicide; or
(b) advocate reform of the law
relating to euthanasia or suicide;
if the person does not:
(c) intend to use the material
concerned to promote a method of committing suicide or provide instruction on a
method of committing suicide; or
(d) intend that the material concerned
be used by another person to promote a method of committing suicide or provide
instruction on a method of committing suicide; or
(e) intend the material concerned to
be used by another person to commit suicide.
474.29B
Possessing, controlling, producing, supplying or obtaining suicide related
material for use through a carriage service
(1) A person is guilty of an offence if:
(a) the person:
(i) has possession or
control of material; or
(ii) produces, supplies or
obtains material; and
(b) the material directly or
indirectly:
(i) counsels or incites committing
or attempting to commit suicide; or
(ii) promotes a particular
method of committing suicide; or
(iii) provides instruction
on a particular method of committing suicide; and
(c) the person has that possession or
control, or engages in that production, supply or obtaining, with the intention
that the material be used:
(i) by that person; or
(ii) by another person;
in committing an offence against
section 474.29A (using a carriage service for suicide related material).
Penalty: 1,000 penalty units.
(2) A person may be found guilty of an
offence against subsection (1) even if committing the offence against
section 474.29A (using a carriage service for suicide related material) is
impossible.
(3) It is not an offence to attempt to commit
an offence against subsection (1).
474.30
Defences for NRS employees and emergency call persons
(1) A person is not criminally responsible
for an offence against a provision of this Subdivision in relation to
particular conduct if the person:
(a) is an employee of the NRS
provider; and
(b) engages in the conduct in good
faith in the course of the person’s duties as such an employee.
(2) A person is not criminally responsible
for an offence against a provision of this Subdivision in relation to
particular conduct if the person:
(a) is an emergency call person; and
(b) engages in the conduct in good
faith in the course of the person’s duties as such an emergency call person.
Division 475—Miscellaneous
475.1
Saving of other laws
(1) This Part is not intended to exclude or
limit the operation of any other law of the Commonwealth or any law of a State
or Territory.
(2) Without limiting subsection (1), a
provision in this Part to the effect that a person is not criminally
responsible for an offence against a provision of this Part in relation to
particular conduct does not make the conduct lawful if it would otherwise be
unlawful under the Radiocommunications Act 1992.
475.2
Geographical jurisdiction
Section 15.1 (extended geographical
jurisdiction—category A) applies to each offence against this Part.
Part 10.7—Computer offences
Division 476—Preliminary
476.1
Definitions
(1) In this Part:
access to data held in a computer means:
(a) the display of the data by the
computer or any other output of the data from the computer; or
(b) the copying or moving of the data
to any other place in the computer or to a data storage device; or
(c) in the case of a program—the
execution of the program.
Commonwealth computer means a computer owned,
leased or operated by a Commonwealth entity.
electronic communication means a
communication of information in any form by means of guided or unguided
electromagnetic energy.
impairment of electronic communication to or from a
computer includes:
(a) the prevention of any such
communication; or
(b) the impairment of any such
communication on an electronic link or network used by the computer;
but does not include a mere interception of any such
communication.
modification, in respect of data held in a
computer, means:
(a) the alteration or removal of the
data; or
(b) an addition to the data.
unauthorised access, modification or
impairment has the meaning given in section 476.2.
(2) In this Part, a reference to:
(a) access to data held in a computer;
or
(b) modification of data held in a
computer; or
(c) the impairment of electronic
communication to or from a computer;
is limited to such access, modification or impairment
caused, whether directly or indirectly, by the execution of a function of a
computer.
476.2
Meaning of unauthorised access, modification or impairment
(1) In this Part:
(a) access to data held in a computer;
or
(b) modification of data held in a
computer; or
(c) the impairment of electronic communication
to or from a computer; or
(d) the impairment of the reliability,
security or operation of any data held on a computer disk, credit card or other
device used to store data by electronic means;
by a person is unauthorised if the person is not entitled
to cause that access, modification or impairment.
(2) Any such access, modification or
impairment caused by the person is not unauthorised merely because he or she
has an ulterior purpose for causing it.
(3) For the purposes of an offence under this
Part, a person causes any such unauthorised access, modification or impairment
if the person’s conduct substantially contributes to it.
(4) For the purposes of subsection (1),
if:
(a) a person causes any access,
modification or impairment of a kind mentioned in that subsection; and
(b) the person does so:
(i) under a warrant issued
under the law of the Commonwealth, a State or a Territory; or
(ii) under an emergency
authorisation given to the person under Part 3 of the Surveillance
Devices Act 2004 or under a law of a State or Territory that makes
provision to similar effect; or
(iii) under a tracking
device authorisation given to the person under section 39 of that Act;
the person is entitled to cause that access, modification
or impairment.
476.3
Geographical jurisdiction
Section 15.1 (extended geographical
jurisdiction—Category A) applies to offences under this Part.
476.4
Saving of other laws
(1) This Part is not intended to exclude or
limit the operation of any other law of the Commonwealth, a State or a
Territory.
(2) Subsection (1) has effect subject to
section 476.5.
476.5
Liability for certain acts
(1) A staff member or agent of ASIS, DIGO or
DSD (the agency) is not subject to any civil or criminal
liability for any computer‑related act done outside Australia if the act
is done in the proper performance of a function of the agency.
(2) A person is not subject to any
civil or criminal liability for any act done inside Australia if:
(a) the act is preparatory to, in
support of, or otherwise directly connected with, overseas activities of the
agency concerned; and
(b) the act:
(i) taken together with a
computer‑related act, event, circumstance or result that took place, or
was intended to take place, outside Australia, could amount to an offence; but
(ii) in the absence of that
computer‑related act, event, circumstance or result, would not amount to
an offence; and
(c) the act is done in the proper
performance of a function of the agency.
(2A) Subsection (2) is not intended to
permit any act in relation to premises, persons, computers, things, or carriage
services in Australia, being:
(a) an act that ASIO could not do
without a Minister authorising it by warrant issued under Division 2 of
Part III of the Australian Security Intelligence Organisation Act 1979
or under Part 2‑2 of the Telecommunications (Interception and
Access) Act 1979; or
(b) an act to obtain information that
ASIO could not obtain other than in accordance with section 283 of the Telecommunications
Act 1997.
(2B) The Inspector‑General of Intelligence
and Security may give a certificate in writing certifying any fact relevant to
the question of whether an act was done in the proper performance of a function
of an agency.
(2C) In any proceedings, a certificate given under
subsection (2B) is prima facie evidence of the facts certified.
(3) In this section:
ASIS means the Australian Secret Intelligence
Service.
civil or criminal liability means any civil
or criminal liability (whether under this Part, under another law or
otherwise).
computer‑related act, event, circumstance or
result means an act, event, circumstance or result involving:
(a) the reliability, security or
operation of a computer; or
(b) access to, or modification of,
data held in a computer or on a data storage device; or
(c) electronic communication to or
from a computer; or
(d) the reliability, security or
operation of any data held in or on a computer, computer disk, credit card, or
other data storage device; or
(e) possession or control of data held
in a computer or on a data storage device; or
(f) producing, supplying or obtaining
data held in a computer or on a data storage device.
DIGO means that part of the Department of
Defence known as the Defence Imagery and Geospatial Organisation.
DSD means that part of the Department of
Defence known as the Defence Signals Directorate.
staff member
means:
(a) in relation to ASIS—the Director‑General
of ASIS or a member of the staff of ASIS (whether an employee of ASIS, a
consultant or contractor to ASIS, or a person who is made available by another
Commonwealth or State authority or other person to perform services for ASIS);
and
(b) in relation to DSD—the Director of
DSD or a member of the staff of DSD (whether an employee of DSD, a consultant or
contractor to DSD, or a person who is made available by another Commonwealth or
State authority or other person to perform services for DSD); and
(c) in relation to DIGO—the Director
of DIGO or a member of the staff of DIGO (whether an employee of DIGO, a
consultant or contractor to DIGO, or a person who is made available by another
Commonwealth or State authority or other person to perform services for DIGO).
Division 477—Serious computer offences
477.1
Unauthorised access, modification or impairment with intent to commit a serious
offence
Intention to commit a serious Commonwealth, State or
Territory offence
(1) A person is guilty of an offence if:
(a) the person causes:
(i) any unauthorised
access to data held in a computer; or
(ii) any unauthorised modification
of data held in a computer; or
(iii) any unauthorised
impairment of electronic communication to or from a computer; and
(b) the unauthorised access,
modification or impairment is caused by means of a carriage service; and
(c) the person knows the access,
modification or impairment is unauthorised; and
(d) the person intends to commit, or
facilitate the commission of, a serious offence against a law of the
Commonwealth, a State or a Territory (whether by that person or another person)
by the access, modification or impairment.
(2) Absolute liability applies to paragraph (1)(b).
(3) In a prosecution for an offence against subsection (1),
it is not necessary to prove that the defendant knew that the offence was:
(a) an offence against a law of the
Commonwealth, a State or a Territory; or
(b) a serious offence.
Intention to commit a serious Commonwealth offence
(4) A person is guilty of an offence if:
(a) the person causes:
(i) any unauthorised
access to data held in a computer; or
(ii) any unauthorised
modification of data held in a computer; or
(iii) any unauthorised
impairment of electronic communication to or from a computer; and
(b) the person knows the access,
modification or impairment is unauthorised; and
(c) the person intends to commit, or
facilitate the commission of, a serious offence against a law of the
Commonwealth (whether by that person or another person) by the access,
modification or impairment.
(5) In a prosecution for an offence against subsection (3),
it is not necessary to prove that the defendant knew that the offence was:
(a) an offence against a law of the
Commonwealth; or
(b) a serious offence.
Penalty
(6) A person who is guilty of an offence
against this section is punishable, on conviction, by a penalty not exceeding
the penalty applicable to the serious offence.
Impossibility
(7) A person may be found guilty of an
offence against this section even if committing the serious offence is
impossible.
No offence of attempt
(8) It is not an offence to attempt to commit
an offence against this section.
Meaning of serious offence
(9) In this section:
serious offence means an offence that is
punishable by imprisonment for life or a period of 5 or more years.
477.2
Unauthorised modification of data to cause impairment
(1) A person
is guilty of an offence if:
(a) the person causes any unauthorised
modification of data held in a computer; and
(b) the person knows the modification
is unauthorised; and
(c) the person is reckless as to
whether the modification impairs or will impair:
(i) access to that or any
other data held in any computer; or
(ii) the reliability,
security or operation, of any such data; and
(d) one or more of the following
applies:
(i) the data that is
modified is held in a Commonwealth computer;
(ii) the data that is
modified is held on behalf of the Commonwealth in a computer;
(iii) the modification of
the data is caused by means of a carriage service;
(iv) the modification of the
data is caused by means of a Commonwealth computer;
(v) the modification of the
data impairs access to, or the reliability, security or operation of, other
data held in a Commonwealth computer;
(vi) the modification of the
data impairs access to, or the reliability, security or operation of, other
data held on behalf of the Commonwealth in a computer;
(vii) the modification of the
data impairs access to, or the reliability, security or operation of, other
data by means of a carriage service.
Penalty: 10 years imprisonment.
(2) Absolute liability applies to paragraph (1)(d).
(3) A person may be guilty of an offence
against this section even if there is or will be no actual impairment to:
(a) access to data held in a computer;
or
(b) the reliability, security or
operation, of any such data.
(4) A conviction for an offence against this
section is an alternative verdict to a charge for an offence against section 477.3
(unauthorised impairment of electronic communication).
477.3
Unauthorised impairment of electronic communication
(1) A person
is guilty of an offence if:
(a) the person causes any unauthorised
impairment of electronic communication to or from a computer; and
(b) the person knows that the
impairment is unauthorised; and
(c) one or both of the following
applies:
(i) the electronic
communication is sent to or from the computer by means of a carriage service;
(ii) the electronic
communication is sent to or from a Commonwealth computer.
Penalty: 10 years imprisonment.
(2) Absolute liability applies to paragraph (1)(c).
(3) A conviction for an offence against this
section is an alternative verdict to a charge for an offence against section 477.2
(unauthorised modification of data to cause impairment).
Division 478—Other computer offences
478.1
Unauthorised access to, or modification of, restricted data
(1) A person is guilty of an offence if:
(a) the person causes any unauthorised
access to, or modification of, restricted data; and
(b) the person intends to cause the
access or modification; and
(c) the person knows that the access
or modification is unauthorised; and
(d) one or more of the following
applies:
(i) the restricted data is
held in a Commonwealth computer;
(ii) the restricted data is
held on behalf of the Commonwealth;
(iii) the access to, or
modification of, the restricted data is caused by means of a carriage service.
Penalty: 2 years imprisonment.
(2) Absolute liability applies to paragraph (1)(d).
(3) In this section:
restricted data means data:
(a) held in a computer; and
(b) to which access is restricted by
an access control system associated with a function of the computer.
478.2
Unauthorised impairment of data held on a computer disk etc.
(1) A person is guilty of an offence if:
(a) the person causes any unauthorised
impairment of the reliability, security or operation of data held on:
(i) a computer disk; or
(ii) a credit card; or
(iii) another device used to
store data by electronic means; and
(b) the person intends to cause the
impairment; and
(c) the person knows that the
impairment is unauthorised; and
(d) the computer disk, credit card or
other device is owned or leased by a Commonwealth entity.
Penalty: 2 years imprisonment.
(2) Absolute liability applies to paragraph (1)(d).
478.3
Possession or control of data with intent to commit a computer offence
(1) A person is guilty of an offence if:
(a) the person has possession or
control of data; and
(b) the person has that possession or
control with the intention that the data be used, by the person or another
person, in:
(i) committing an offence
against Division 477; or
(ii) facilitating the
commission of such an offence.
Penalty: 3 years imprisonment.
(2) A person may be found guilty of an
offence against this section even if committing the offence against Division 477
is impossible.
No offence of attempt
(3) It is not an offence to attempt to commit
an offence against this section.
Meaning of possession or control of data
(4) In this section, a reference to a person
having possession or control of data includes a reference to the person:
(a) having possession of a computer or
data storage device that holds or contains the data; or
(b) having possession of a document in
which the data is recorded; or
(c) having control of data held in a
computer that is in the possession of another person (whether inside or outside
Australia).
478.4
Producing, supplying or obtaining data with intent to commit a computer offence
(1) A person is guilty of an offence if:
(a) the person produces, supplies or
obtains data; and
(b) the person does so with the
intention that the data be used, by the person or another person, in:
(i) committing an offence
against Division 477; or
(ii) facilitating the
commission of such an offence.
Penalty: 3 years imprisonment.
(2) A person may be found guilty of an
offence against this section even if committing the offence against Division 477
is impossible.
No offence of attempt
(3) It is not an offence to attempt to commit
an offence against this section.
Meaning of producing, supplying or obtaining data
(4) In this section, a reference to a person
producing, supplying or obtaining data includes a reference to the person:
(a) producing, supplying or obtaining
data held or contained in a computer or data storage device; or
(b) producing, supplying or obtaining
a document in which the data is recorded.
Part 10.8—Financial information offences
480.1
Definitions
(1) In this Part:
ADI (authorised deposit‑taking
institution) means a corporation that is an ADI for the purposes of the Banking
Act 1959.
dealing in personal financial information
includes supplying or using financial information.
deception means an intentional or reckless
deception, whether by words or other conduct, and whether as to fact or as to
law, and includes:
(a) a deception as to the intentions
of the person using the deception or any other person; and
(b) conduct by a person that causes a
computer, a machine or an electronic device to make a response that the person
is not authorised to cause it to do.
dishonest has the meaning given by section 480.2.
obtaining personal financial information
includes possessing or making personal financial information.
personal financial information means
information relating to a person that may be used (whether alone or in
conjunction with other information) to access funds, credit or other financial
benefits.
(2) For the purposes of this Part, a person
is taken to obtain or deal in personal information without the consent of the
person to whom the information relates if the consent of that person is
obtained by any deception.
(3) This Part extends to personal information
relating to:
(a) an individual; or
(b) a corporation; or
(c) a living or dead person.
480.2
Dishonesty
(1) For the purposes of this Part, 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.
(2) In a prosecution for an offence against
this Part, the determination of dishonesty is a matter for the trier of fact.
480.3
Constitutional application of this Part
This Part applies to personal financial
information only if:
(a) the funds concerned represent
amounts that have been deposited with or lent to, or are otherwise to be
provided or made available by, an ADI or a constitutional corporation; or
(b) the credit or other financial
benefits concerned are provided, or made available, by an ADI or a
constitutional corporation.
480.4
Dishonestly obtaining or dealing in personal financial information
A person is guilty of an offence if the
person:
(a) dishonestly obtains, or deals in,
personal financial information; and
(b) obtains, or deals in, that
information without the consent of the person to whom the information relates.
Penalty: Imprisonment for 5 years.
480.5
Possession or control of thing with intent to dishonestly obtain or deal in
personal financial information
(1) A person is guilty of an offence if:
(a) the person has possession or
control of any thing; and
(b) the person has that possession or
control with the intention that the thing be used:
(i) by the person; or
(ii) by another person;
to commit an offence against
section 480.4 (dishonestly obtaining or dealing in personal financial
information) or to facilitate the commission of that offence.
Penalty: Imprisonment for 3 years.
(2) A person may be found guilty of an
offence against subsection (1) even if committing the offence against
section 480.4 (dishonestly obtaining or dealing in personal financial
information) is impossible.
(3) It is not an offence to attempt to commit
an offence against subsection (1).
480.6
Importation of thing with intent to dishonestly obtain or deal in personal
financial information
A person is guilty of an offence if the
person:
(a) imports a thing into Australia;
and
(b) does so with the intention that
the thing be used:
(i) by the person; or
(ii) by another person;
in committing an offence against
section 480.3 (dishonestly obtaining or dealing in personal financial
information) or to facilitate the commission of that offence.
Penalty: Imprisonment for 3 years.