Criminal Code Act 1995
SECTION 1
1
Short title
This Act may be cited as the Criminal Code Act 1995. SECTION 2 Commencement (1)
Subject to subsection (2), this Act commences on a day to be fixed by Proclamation.
(2)
If this Act does not commence under subsection (1) within the period of 5 years beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.
SECTION 3 The Criminal Code (1)
The Schedule has effect as a law of the Commonwealth.
(2)
The Schedule may be cited as the Criminal Code.
SECTION 3A 3A External Territories
The Criminal Code extends to every external Territory. SECTION 3B 3B Offshore installations
Unless the contrary intention appears, an installation (within the meaning of the Customs Act 1901) that is deemed by section 5C of the Customs Act 1901 to be part of Australia is also taken to be part of Australia for the purposes of the Criminal Code. SECTION 4 Definitions (1)
Expressions used in the Code (or in a particular provision of the Code) that are defined in the Dictionary at the end of the Code have the meanings given to them in the Dictionary.
(2)
Definitions in the Code of expressions used in the Code apply to its construction except insofar as the context or subject matter otherwise indicates or requires.
SECTION 5 Regulations (1)
The Governor-General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2)
For the purposes of the Legislation Act 2003, the Minister administering the Australian Federal Police Act 1979 is the rule-maker for regulations made for the purposes of the following provisions of the Criminal Code:
(a) Division 71 (offences against United Nations and associated personnel);
(b) Division 72 (explosives and lethal devices);
(c) Division 73 (people smuggling and related offences);
(d) Part 5.1 (treason and related offences);
(e) Part 5.2 (espionage and related offences);
(f) Part 5.3 (terrorism), other than Division 100 (preliminary provisions);
(g) Part 5.4 (harming Australians);
(h) Part 5.5 (foreign incursions and recruitment);
(i) Division 270 (slavery and slavery-like conditions);
(j) Division 271 (trafficking in persons and debt b@ndage);
(k) Division 272 (child sex offences outside Australia);
(l) Division 273 (offences involving child abuse material outside Australia);
(la) Division 273A (possession of child-like sex dolls etc.);
(lb) Division 273B (protection of children);
(m) Chapter 9 (dangers to the community);
(n) Chapter 10 (national infrastructure).
(3)
Subsection (2) applies despite subsection 6(1) of the Legislation Act 2003.
Schedule - The Criminal Code
The only offences against laws of the Commonwealth are those offences created by, or under the authority of, this Code or any other Act.
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. SECTION 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.
SECTION 2.3 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 SECTION 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.
SECTION 3.2 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.
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:
(a) do an act; or
(b) omit to perform an act.
SECTION 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.
SECTION 4.3 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 there is a duty to perform by a law of the Commonwealth, a State or a Territory, or at common law.
Division 5 - Fault elements
SECTION 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.
SECTION 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.
SECTION 5.3 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. SECTION 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.
SECTION 5.5 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;
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.
Division 6 - Cases where fault elements are not required SECTION 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.
SECTION 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
A child under 10 years old is not criminally responsible for an offence. SECTION 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.
SECTION 7.3 Mental impairment (1)
A person is notcriminally 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 Code:
(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 SECTION 8.1 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. SECTION 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.
(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.
SECTION 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.
SECTION 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;
(5)
A fault element of basic intent is a fault element of intention for a physical element that consists only of conduct.
SECTION 8.5 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 SECTION 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.
SECTION 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.
SECTION 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.
SECTION 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
(b) (Repealed by No 127 of 2004)
(c) at the time of the conduct, the subordinate legislation:
(3)
In this section:
SECTION 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 SECTION 10.1 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. SECTION 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.
SECTION 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.
SECTION 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;
(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.
SECTION 10.5 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 SECTION 11.1 Attempt (1)
A person who attempts to commit an offence commits 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.
(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 11.2A (joint commission), section 11.3 (commission by proxy), section 11.5 (conspiracy to commit an offence) or section 135.4 (conspiracy to defraud).
SECTION 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 other person has not been prosecuted or has not been found guilty.
(6)
Any special liability provisions that apply to an offence apply also for the purposes of determining whether a person is guilty of that offence because of the operation of subsection (1).
(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);
SECTION 11.2A Joint commission
Joint commission
(1)
If:
(a) a person and at least one other party enter into an agreement to commit an offence; and
(b) either:
Offence committed in accordance with the agreement
(2)
An offence is committed in accordance with the agreement if:
(a) the conduct of one or more parties in accordance with the agreement makes up the physical elements consisting of conduct of an offence (the joint offence ) of the same type as the offence agreed to; and
(b) to the extent that a physical element of the joint offence consists of a result of conduct - that result arises from the conduct engaged in; and
(c) to the extent that a physical element of the joint offence consists of a circumstance - the conduct engaged in, or a result of the conduct engaged in, occurs in that circumstance.
Offence committed in the course of carrying out the agreement
(3)
An offence is committed in the course of carrying out the agreement if the person is reckless about the commission of an offence (the joint offence ) that another party in fact commits in the course of carrying out the agreement.
Intention to commit an offence
(4)
For a person to be guilty of an offence because of the operation of this section, the person and at least one other party to the agreement must have intended that an offence would be committed under the agreement.
Agreement may be non-verbal etc
(5)
The agreement:
(a) may consist of a non-verbal understanding; and
(b) may be entered into before, or at the same time as, the conduct constituting any of the physical elements of the joint offence was engaged in.
Termination of involvement etc
(6)
A person cannot be found guilty of an offence because of the operation of this section if, before the conduct constituting any of the physical elements of the joint offence concerned was engaged in, the person:
(a) terminated his or her involvement; and
(b) took all reasonable steps to prevent that conduct from being engaged in.
Person may be found guilty even if another party not prosecuted etc
(7)
A person may be found guilty of an offence because of the operation of this section even if:
(a) another party to the agreement has not been prosecuted or has not been found guilty; or
(b) the person was not present when any of the conduct constituting the physical elements of the joint offence was engaged in.
Special liability provisions apply
(8)
Any special liability provisions that apply to the joint offence apply also for the purposes of determining whether a person is guilty of that offence because of the operation of this section.
SECTION 11.3
11.3
Commission by proxy
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;
A person who urges the commission of an offence commits 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).(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.
SECTION 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, commits the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed.
(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:
(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.
SECTION 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;
Part 2.5 - Corporate criminal responsibility Division 12 SECTION 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.
SECTION 12.2 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. SECTION 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:
SECTION 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;
(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.
SECTION 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.
SECTION 12.6 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 SECTION 13.1 Legal burden of proof - prosecution (1)
The prosecution bears a legal burden ofproving every element of an offence relevant to the guilt of the person charged.
(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:
SECTION 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.
SECTION 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:
SECTION 13.4 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. SECTION 13.5 13.5 Standard of proof - defence
A legal burden of proof on the defendant must be discharged on the balance of probabilities. SECTION 13.6 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 SECTION 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:
(b) if a law of the Commonwealth provides that this section applies to a particular offence - this section applies to that offence.
(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:
(b) the conduct constituting the alleged offence occurs wholly outside Australia and a result of the conduct occurs:
(c) all of the following conditions are satisfied:
Defence - primary offence
(3)
If this section applies to a particular offence, a person does not commit 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:
(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 does not commit 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:
(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 SECTION 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:
(b) the conduct constituting the alleged offence occurs wholly outside Australia and a result of the conduct occurs:
(c) the conduct constituting the alleged offence occurs wholly outside Australia and:
(d) all of the following conditions are satisfied:
Defence - primary offence
(2)
If a law of the Commonwealth provides that this section applies to a particular offence, a person does not commit 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:
(c) there is not in force in:
(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 does not commit 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:
(e) there is not in force in:
(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.
SECTION 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:
(b) the conduct constituting the alleged offence occurs wholly outside Australia and a result of the conduct occurs:
(c) the conduct constituting the alleged offence occurs wholly outside Australia and:
(d) all of the following conditions are satisfied:
Defence - primary offence
(2)
If a law of the Commonwealth provides that this section applies to a particular offence, a person does not commit 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:
(c) there is not in force in:
(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 does not commit 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:
(e) there is not in force in:
(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.
SECTION 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.
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:
(c) there is not in force in:
(3)
For the purposes of the application of subsection 13.3(3) toan 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:
(e) there is not in force in:
(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.
SECTION 15.4 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.
Division 16 - Miscellaneous
SECTION 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:
(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.
SECTION 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;
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;
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.
SECTION 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 .
SECTION 16.4 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 Subdivision A - Definitions
SECTION 70.1
70.1
Definitions
In this Division:
(a) is an officer, employee, agent or contractor of the other person; or
(b) is a subsidiary (within the meaning of the Corporations Act 2001) of the other person; or
(c) is controlled (within the meaning of the Corporations Act 2001) by the other person; or
(d) otherwise performs services for or on behalf of the other person.
(a) is conferred on the official; or
(b) that the official holds himself or herself out as having.
(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.
(a) in the case of a company - one of the following applies:
(b) in the case of any other body or association - either of the following applies:
(c) the company, body or association:
(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 performsthe 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:
(m) an individual standing, or nominated, (whether formally or informally) as a candidate to be a foreign public official covered by any of paragraphs (a) to (k) of this definition.
(a) an organisation:
(b) an organisation established by, or a group of organisations constituted by:
(c) an organisation that is:
SECTION 70.2
Bribing a foreign public official
(1)
A person commits an offence if: (a) the person:
(2)
For the purposes of paragraph (1)(b): (a) the first-mentioned person does not need to intend to influence a particular foreign public official; and (b) the first-mentioned person does not need to intend to obtain or retain particular business or a particular business or personal advantage; and (c) business, or a business or personal advantage, does not need to be actually obtained or retained.
Penalty for individual
(3)
An offence against subsection (1) committed by an individual is punishable on conviction by imprisonment for not more than 10 years, a fine not more than 10,000 penalty units, or both.
Penalty for body corporate
(4)
An offence against subsection (1) committed by a body corporate is punishable on conviction by a fine not more than the greatest of the following: (a) 100,000 penalty units; (b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the conduct constituting the offence - 3 times the value of that benefit; (c) if the court cannot determine the value of that benefit - 10% of the annual turnover of the body corporate during the period (the turnover period ) of 12 months ending at the end of the month in which the body corporate committed, or began committing, the offence.
SECTION 70.2A
Improper influence
Determination to be a matter for the trier of fact
(1)
In a prosecution for an offence against section 70.2, the determination of whether influence is improper is a matter for the trier of fact.
Matters that must be disregarded
(2)
In determining whether influence is improper for the purposes of paragraph 70.2(1)(b), a trier of fact must disregard the following: (a) the fact that the benefit, or the offer or promise to provide the benefit, may be, or be perceived to be, customary, necessary or required in the situation; (b) any official tolerance of the benefit; (c) if particular business or a particular business or personal advantage is relevant to proving the matters referred to in that paragraph - the following:
Matters to which regard may be had
(3)
In determining whether influence is improper for the purposes of paragraph 70.2(1)(b), a trier of fact may have regard to the following: (a) the recipient or intended recipient of the benefit; (b) the nature of the benefit; (c) the manner of the provision of the benefit (or, if applicable, the offered or promised manner of the provision of the benefit); (d) whether the value of the benefit is disproportionate to the value of any consideration provided or purported to have been provided for the benefit; (e) if the benefit was provided, or the offer or promise to provide the benefit was made, in the absence of any legal obligation to do so - that fact; (f) whether the benefit was provided, or the offer or promise to provide the benefit was made, dishonestly; (g) whether, and to what extent, the provision of the benefit, or the offer or promise to provide the benefit, is recorded or documented; (h) if the provision of the benefit, or the offer or promise to provide the benefit, is recorded or documented:
(4)
To avoid doubt, subsection (3) does not limit the matters to which the trier of fact may have regard.
SECTION 70.3
Defence - conduct lawful in foreign public official's country
(1)
A person does not commit an offence against section 70.2 in the cases set out in the following table:
(2)
A person does not commit 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:
(2A)
A person does not commit an offence against section 70.2 if: (a) the person's conduct occurred in relation to a foreign public official (the relevant foreign public official ); and (b) the relevant foreign public official is covered by paragraph (m) of the definition of foreign public official in section 70.1 because the relevant foreign public official is a candidate to be a particular foreign public official (the substantive foreign public official ); and (c) assuming that the first-mentioned person's conduct had occurred wholly in the place, the foreign country or the part of the foreign country, as the case may be, (the relevant place ) referred to in the item of the table in subsection (1) that would be applicable if the first-mentioned person's conduct had occurred in relation to the substantive foreign public official, a written law in force in the relevant place permits the provision of the benefit to the relevant foreign public official.
(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;
SECTION 70.4 Defence - facilitation payments (1)
A person does not commit 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:
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:
(c) does not involve a decision about:
(d) does not involve encouraging a decision about:
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.
SECTION 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:
(b) the conduct constituting the alleged offence occurs wholly outside Australia and:
(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:
(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.
Subdivision C - Failure to prevent bribery of foreign public officials
SECTION 70.5A
Failing to prevent bribery of a foreign public official
Offence
(1)
A person (the first person ) commits an offence if: (a) the first person is a body corporate:
(2)
Absolute liability applies to: (a) paragraphs (1)(a) and (c); and (b) the circumstance in subparagraph (1)(b)(i) that the associate commits an offence against section 70.2; and (c) the circumstance in subparagraph (1)(b)(ii) that the associate engages in conduct outside Australia that, if engaged in in Australia, would constitute the notional offence.
(3)
To avoid doubt, the first person may be convicted of an offence against subsection (1) because of the commission by the associate of an offence against section 70.2 even if the associate has not been convicted of that offence.
(4)
Section 12.6 applies in relation to an offence against subsection (1) of this section as if the reference in section 12.6 to an employee, agent or officer of a body corporate included any associate of the body corporate.
Exception
(5)
Subsection (1) does not apply if the first person proves that the first person had in place adequate procedures designed to prevent: (a) the commission of an offence against section 70.2 by any associate of the first person; and (b) any associate of the first person engaging in conduct outside Australia that, if engaged in in Australia, would constitute an offence against section 70.2.
Penalty
(6)
An offence against subsection (1) is punishable on conviction by a fine not more than the greatest of the following: (a) 100,000 penalty units; (b) if the court can determine the value of the benefit that the associate obtained directly or indirectly and that is reasonably attributable to the conduct constituting the offence, or that would have constituted the notional offence, against section 70.2 - 3 times the value of that benefit; (c) if the court cannot determine the value of that benefit - 10% of the annual turnover of the first person during the period (the turnover period ) of 12 months ending at the end of the month in which the associate committed, or began committing, the offence or notional offence against section 70.2.
Geographical jurisdiction
(7)
Section 15.1 (extended geographical jurisdiction - category A) applies to an offence against subsection (1).
Indictable offence
(8)
An offence against subsection (1) is an indictable offence.
SECTION 70.5B
Guidance on preventing bribery of foreign public officials
(1)
The Minister must publish guidance on the steps that a body corporate can take to prevent an associate from bribing foreign public officials.
(2)
Guidance under subsection (1) is not a legislative instrument.
Subdivision D - Miscellaneous
SECTION 70.5C
Meaning of annual turnover
(1)
For the purposes of this Division, the annual turnover of a body corporate, during the turnover period, is the sum of the values of all the supplies that the body corporate, and any body corporate related to the body corporate, have made, or are likely to make, during that period, other than the following supplies: (a) supplies made from any of those bodies corporate to any other of those bodies corporate; (b) supplies that are input taxed; (c) supplies that are not for consideration (and are not taxable supplies under section 72-5 of the A New Tax System (Goods and Services Tax) Act 1999); (d) supplies that are not made in connection with an enterprise that the body corporate carries on.
(2)
Expressions used in this section that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning in this section as they have in that Act.
SECTION 70.5D
70.5D
Related bodies corporate
The question whether 2 bodies corporate are related to each other is to be determined for the purposes of this Division in the same way as for the purposes of the Corporations Act 2001.
SECTION 70.6
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 SECTION 71.1 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. SECTION 71.2 Murder of a UN or associated person (1)
A person commits 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.
(2)
Strict liability applies to paragraphs (1)(b) and (c).
SECTION 71.3 Manslaughter of a UN or associated person (1)
A person commits 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.
(2)
Strict liability applies to paragraphs (1)(b) and (c).
SECTION 71.4 Intentionally causing serious harm to a UN or associated person (1)
A person commits 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.
(2)
Strict liability applies to paragraphs (1)(b) and (c).
SECTION 71.5 Recklessly causing serious harm to a UN or associated person (1)
A person commits 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.
(2)
Strict liability applies to paragraphs (1)(b) and (c).
SECTION 71.6 Intentionally causing harm to a UN or associated person (1)
A person commits 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.
(2)
Strict liability applies to paragraphs (1)(b) and (c).
SECTION 71.7 Recklessly causing harm to a UN or associated person (1)
A person commits 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.
(2)
Strict liability applies to paragraphs (1)(b) and (c).
SECTION 71.8 Unlawful sexual penetration (1)
A person commits 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.
(2)
Strict liability applies to paragraphs (1)(b) and (c).
(3)
In this section:
(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.
SECTION 71.9 Kidnapping a UN or associated person (1)
A person commits 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:
(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.
SECTION 71.10 Unlawful detention of UN or associated person (1)
A person commits 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.
(2)
Strict liability applies to paragraphs (1)(b) and (c).
SECTION 71.11 Intentionally causing damage to UN or associated person's property etc. (1)
A person commits 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).
(2)
Strict liability applies to paragraphs (1)(b), (d) and (e).
SECTION 71.12 71.12 Threatening to commit other offences
A person commits 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.(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.
SECTION 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 the deliberate and systematic infliction of severe pain over a period of time; 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:
(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.
SECTION 71.14 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.
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.
A person commits an offence under this Division only if:
(a) the conduct constituting the alleged offence occurs:
(b) the conduct constituting the alleged offence occurs wholly outside Australia and:
(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)
(Repealed by No 136 of 2012)
SECTION 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;
SECTION 71.18 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. SECTION 71.19 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. SECTION 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.
SECTION 71.21 Ministerial certificates relating to proceedings (1)
The Foreign Affairs Minister 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 Immigration Minister 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.
SECTION 71.22 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. SECTION 71.23 Definitions (1)
In this Division:
(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;
(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.
(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.
(a) persons engaged or deployed by the Secretary-General of the United Nations as members of the military, police or civilian components of a UN operation; or
(b) any other officials or experts on mission of the United Nations, its specialised agencies or the International Atomic Energy Agency who are present in an official capacity in the area where a UN operation is being conducted.
(2)
In this Division, a person's conduct causes death or harm if it substantially contributes to the death or harm.
Division 72 - Explosives and lethal devices
Subdivision A - International terrorist activities using explosive or lethal devices
SECTION 72.1
72.1
Purpose
The purpose of this Subdivision is to create offences relating to international terrorist activities using explosive or lethal devices and give effect to the International Convention for the Suppression of Terrorist Bombings, done at New York on 15 December 1997.
SECTION 72.2
72.2
ADF members not liable for prosecution
Nothing in this Subdivision makes a member of the Australian Defence Force acting in connection with the defence or security of Australia liable to be prosecuted for an offence.
SECTION 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:
(d) the person intends to cause death or serious harm.
(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:
(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.
(3)
Strict liability applies to paragraphs (1)(c) and (2)(c).
A person commits an offence under this Subdivision only if one or more of the following paragraphs applies and the circumstances relating to the alleged offence are not exclusively internal (see subsection (2)):
(a) the conduct constituting the alleged offence occurs:
(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:
(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.
SECTION 72.5 72.5 Saving of other laws
This Subdivision is not intended to exclude or limit the operation of any other law of the Commonwealth or of a State or Territory.
SECTION 72.6
72.6
Double jeopardy and foreign offences
If a person has been convicted or acquitted of an offence in respect of conduct under the law of a foreign country, the person cannot be convicted of an offence under this Subdivision in respect of that conduct.
SECTION 72.7
Bringing proceedings under this Subdivision
(1)
Proceedings for an offence under this Subdivision must not be commenced without the Attorney-General's written consent.
(2)
However, a person may be arrested, charged, remanded in custody, or released on bail, in connection with an offence under this Subdivision before the necessary consent has been given.
(3)
In determining whether to bring proceedings for an offence under this Subdivision, the Attorney-General must have regard to the terms of the Convention, including paragraph 2 of Article 19.
(4)
In determining whether to bring proceedings for an offence under this Subdivision, the Attorney-General must also have regard to:
(a) whether the conduct constituting the offence also gives rise to an offence under a law of a State or Territory; and
(b) whether a prosecution relating to the conduct under the State or Territory law has been or will be commenced.
SECTION 72.8 Ministerial certificates relating to proceedings (1)
The Minister administering the Charter of the United Nations Act 1945 may issue a certificate stating any of the following matters:
(a) that the Convention entered into force for Australia on a specified day;
(b) that the Convention remains in force for Australia or any other State Party on a specified day;
(c) a matter relevant to the establishment of jurisdiction by a State Party under paragraph 1 or 2 of Article 6 of the Convention.
(2)
The Minister administering the Australian Citizenship Act 2007 may issue a certificate stating that:
(a) a person is or was an Australian citizen at a particular time; or
(b) a person is or was a stateless person whose habitual residence is or was in Australia at a particular time.
(3)
In any proceedings, a certificate under this section is prima facie evidence of the matters in the certificate.
SECTION 72.9 72.9 Jurisdiction of State courts preserved
For the purposes of section 38 of the Judiciary Act 1903, a matter arising under this Subdivision, including a question of interpretation of the Convention, is taken not to be a matter arising directly under a treaty.
SECTION 72.10
72.10
Definitions
In this Subdivision:
Subdivision B - Plastic explosives
SECTION 72.11
72.11
Purpose
The purpose of this Subdivision is to create offences relating to plastic explosives and give effect to the Convention on the Marking of Plastic Explosives.
SECTION 72.12
Trafficking in unmarked plastic explosives etc.
(1)
A person commits an offence if:
(a) the person traffics in a substance; and
(b) the substance is a plastic explosive; and
(c) the plastic explosive breaches a marking requirement; and
(d) the trafficking is not authorised under section 72.18, 72.19, 72.22 or 72.23.
(2)
The fault element for paragraph (1)(b) is recklessness.
(3)
Strict liability applies to paragraphs (1)(c) and (d).
SECTION 72.13
Importing or exporting unmarked plastic explosives etc.
(1)
A person commits an offence if:
(a) the person imports or exports a substance; and
(b) the substance is a plastic explosive; and
(c) the plastic explosive breaches a marking requirement; and
(d) the import or export is not authorised under section 72.18, 72.19, 72.22 or 72.23.
(2)
The fault element for paragraph (1)(b) is recklessness.
(3)
Strict liability applies to paragraphs (1)(c) and (d).
SECTION 72.14
Manufacturing unmarked plastic explosives etc.
(1)
A person commits an offence if:
(a) the person:
(b) the substance is a plastic explosive; and
(c) the plastic explosive breaches the first marking requirement; and
(d) the manufacture is not authorised under section 72.18.
(2)
The fault element for paragraph (1)(b) is recklessness.
(3)
Strict liability applies to paragraphs (1)(c) and (d).
SECTION 72.15 Possessing unmarked plastic explosives etc. (1)
A person commits an offence if:
(a) the person possesses a substance; and
(b) the substance is a plastic explosive; and
(c) the plastic explosive breaches a marking requirement; and
(d) the possession is not authorised under section 72.18, 72.19, 72.22 or 72.23.
(2)
The fault element for paragraph (1)(b) is recklessness.
(3)
Strict liability applies to paragraphs (1)(c) and (d).
SECTION 72.16
Defences
(1)
If:
(a) a person is charged with an offence against section 72.12, 72.13, 72.14 or 72.15; and
(b) the prosecution alleges that the plastic explosive breached a particular marking requirement;
(2)
If:
(a) a person is charged with an offence against section 72.12, 72.13 or 72.15; and
(b) the prosecution alleges that the plastic explosive breached the second marking requirement;
(c) the plastic explosive contained a detection agent; and
(d) the concentration of the detection agent in the plastic explosive was not less than the minimum manufacture concentration for the detection agent; and
(e) the detection agent was homogenously distributed throughout the plastic explosive.
SECTION 72.17
Packaging requirements for plastic explosives
(1)
A person commits an offence if:
(a) the person manufactures a substance; and
(b) the substance is a plastic explosive; and
(c) within 24 hours after the manufacture of the plastic explosive, the person does not cause the plastic explosive to be contained, enclosed or packaged in a wrapper with:
(2)
The fault element for paragraphs (1)(b) and (c) is recklessness.
SECTION 72.18
Authorisation for research etc.
Authorisation
(1)
A responsible Minister may, by writing, authorise:
(a) the trafficking in; or
(b) the import, export, manufacture or possession of;
(2)
A responsible Minister must not give an authorisation under subsection (1) in relation to an unmarked plastic explosive unless the responsible Minister is satisfied that:
(a) the plastic explosive is for use exclusively for one or more of the following:
(b) both:
(c) the plastic explosive will, within 3 years after the commencement of this section, become an integral part of an explosive device manufactured exclusively for defence purposes.
(3)
An authorisation under subsection (1) must specify the grounds on which it was given.
Conditions and restrictions
(4)
An authorisation under subsection (1) is subject to such conditions and restrictions as are specified in the authorisation.
(5)
A responsible Minister must not give an authorisation under subsection (1) in relation to an unmarked plastic explosive on grounds covered by paragraph (2)(a) unless the authorisation is subject to a condition imposing a limit as to the quantity of the plastic explosive.
Criteria
(6)
In exercising a power conferred by this section in relation to:
(a) the trafficking in; or
(b) the import, export, manufacture or possession of;
(c) the Convention on the Marking of Plastic Explosives; and
(d) whether the trafficking, import, export, manufacture or possession is reasonable; and
(e) such other matters (if any) as the responsible Minister considers relevant.
SECTION 72.19
Authorisation for defence and police purposes - 15 year limit
Authorisation
(1)
A responsible Minister may, by writing, authorise:
(a) the trafficking in; or
(b) the import, export or possession of;
(2)
A responsible Minister must not give an authorisation under subsection (1) in relation to an unmarked plastic explosive unless the responsible Minister is satisfied that the plastic explosive is exclusively for use in connection with:
(a) the operation of the Australian Defence Force; or
(b) the operation in Australia of a visiting force (within the meaning of the Defence (Visiting Forces) Act 1963); or
(c) the operation of:
Conditions and restrictions
(3)
An authorisation under subsection (1) is subject to such conditions and restrictions as are specified in the authorisation.
Criteria
(4)
In exercising a power conferred by this section in relation to:
(a) the trafficking in; or
(b) the import, export or possession of;
(c) the Convention on the Marking of Plastic Explosives; and
(d) whether the trafficking, import, export or possession is reasonable; and
(e) such other matters (if any) as the responsible Minister considers relevant.
Sunset
(5)
This section ceases to have effect at the end of 15 years after its commencement.
SECTION 72.20
72.20
Authorisation for existing stocks - 3 year limit
(Repealed by No 31 of 2014)
SECTION 72.21
72.21
Authorisation of manufacturers - 6 month transitional period
(Repealed by No 31 of 2014)
SECTION 72.22
Authorisation for overseas defence purposes - 7 day limit
(1)
A member of the Australian Defence Force is authorised to possess, import or traffic in an unmarked plastic explosive if:
(a) the plastic explosive was obtained in the course of the operation outside Australia of the Australian Defence Force; and
(b) the member believes on reasonable grounds that there is insufficient time to obtain an authorisation under this Subdivision because of:
(2)
An authorisation under subsection (1) ceases to have effect at the end of the seventh day after the day on which the plastic explosive was obtained.
SECTION 72.23
Authorisation for overseas Australian Federal Police purposes - 7 day limit
(1)
A member of the Australian Federal Police is authorised to possess, import or traffic in an unmarked plastic explosive if:
(a) the plastic explosive was obtained in the course of the operation outside Australia of the Australian Federal Police; and
(b) the member believes on reasonable grounds that there is insufficient time to obtain an authorisation under this Subdivision because of:
(2)
An authorisation under subsection (1) ceases to have effect at the end of the seventh day after the day on which the plastic explosive was obtained.
SECTION 72.24
Forfeited plastic explosives
(1)
If a court:
(a) convicts a person of an offence against this Subdivision in relation to a plastic explosive; or
(b) makes an order under section 19B of the Crimes Act 1914 in respect of a person charged with an offence against this Subdivision in relation to a plastic explosive;
(2)
A plastic explosive forfeited to the Commonwealth under subsection (1) becomes the property of the Commonwealth.
(3)
A plastic explosive forfeited to the Commonwealth under subsection (1) is to be dealt with in such manner as a responsible Minister directs.
(4)
Without limiting subsection (3), a responsible Minister may direct that a plastic explosive forfeited to the Commonwealth under subsection (1) be:
(a) destroyed; or
(b) used exclusively for one or more of the purposes covered by paragraph 72.18(2)(a).
SECTION 72.25 Surrendered plastic explosives (1)
A person may surrender a plastic explosive to the Commonwealth at a place, and in a manner, prescribed for the purposes of this subsection.
(2)
A plastic explosive surrendered to the Commonwealth under subsection (1) becomes the property of the Commonwealth.
(3)
A plastic explosive surrendered to the Commonwealth under subsection (1) is to be dealt with in such manner as a responsible Minister directs.
(4)
Without limiting subsection (3), a responsible Minister may direct that a plastic explosive surrendered to the Commonwealth under subsection (1) be:
(a) destroyed; or
(b) used exclusively for one or more of the purposes covered by paragraph 72.18(2)(a).
SECTION 72.26
72.27
Destruction of plastic explosives obtained overseas for defence purposes
A member of the Australian Defence Force may destroy an unmarked plastic explosive if the plastic explosive was obtained in the course of the operation outside Australia of the Australian Defence Force.
SECTION 72.27
72.27
Destruction of plastic explosives obtained overseas for Australian Federal Police purposes
A member of the Australian Federal Police may destroy an unmarked plastic explosive if the plastic explosive was obtained in the course of the operation outside Australia of the Australian Federal Police.
SECTION 72.28
DELEGATION BY AFP MINISTER
(1)
The AFP Minister may, by writing, delegate to:
(a) the Secretary of the Department administered by that Minister; or
(b) an SES employee, or an acting SES employee, in that Department, where the employee occupies or acts in a position with a classification of Senior Executive Band 3;
(2)
A delegate is, in the exercise of a power delegated under subsection (1), subject to the written directions of the AFP Minister.
SECTION 72.29
Delegation by Minister for Defence
(1)
The Minister for Defence may, by writing, delegate to:
(a) an SES employee, or an acting SES employee, in the Department of Defence, where the employee occupies or acts in a position with a classification of Senior Executive Band 3; or
(b) an officer of the Australian Navy who holds the rank of Vice-Admiral or a higher rank; or
(c) an officer of the Australian Army who holds the rank of Lieutenant-General or a higher rank; or
(d) an officer of the Australian Air Force who holds the rank of Air Marshal or a higher rank; or
(e) an officer of the Australian Defence Force who is on deployment as the Commander of an Australian Task Force, contingent or force element that is operating outside Australia;
(2)
A delegate must not exercise a power delegated under subsection (1) unless the exercise of the power relates to:
(a) the operation of the Australian Defence Force; or
(b) the operation in Australia of a visiting force (within the meaning ofthe Defence (Visiting Forces) Act 1963); or
(c) the operation outside Australia of a person who, under a contract, performs services for the Australian Defence Force.
(3)
A delegate is, in the exercise of a power delegated under subsection (1), subject to the written directions of the Minister for Defence.
SECTION 72.30
Review by Administrative Review Tribunal of authorisation decisions
(1)
An application may be made to the Administrative Review Tribunal for review of a decision refusing to give an authorisation under subsection 72.18(1) or 72.19(1).
(2)
An application may be made to the Administrative Review Tribunal for review of a decision to specify a condition or restriction in an authorisation under subsection 72.18(1) or 72.19(1), but such an application may only be made by a person to whom the authorisation applies.
SECTION 72.31
72.31
Geographical jurisdiction
Section 15.2 (extended geographical jurisdiction - category B) applies to each offence against this Subdivision.
SECTION 72.32
72.32
Saving of other laws
This Subdivision is not intended to exclude or limit the operation of any other law of the Commonwealth or of a State or Territory.
SECTION 72.33
Marking requirements
(1)
This section sets out the 2 marking requirements for a plastic explosive.
Concentration of detection agent at time of manufacture
(2)
The first marking requirement is that, at the time of the manufacture of the plastic explosive, all of the following conditions were satisfied:
(a) the plastic explosive contained a detection agent;
(b) the concentration of the detection agent in the plastic explosive was not less than the minimum manufacture concentration for the detection agent;
(c) the detection agent was homogenously distributed throughout the plastic explosive.
Freshness
(3)
the second marking requirement is that less than 10 years have elapsed since the manufacture of the plastic explosive.
Interpretation
(4)
In determining whether a plastic explosive manufactured before the commencement of this section breached the first marking requirement, assume that this section and sections 72.34 and 72.36 had been in force at the time of manufacture.
SECTION 72.34
72.34
Detection agents and minimum manufacture concentrations
For the purposes of this Subdivision, the following table defines:
(a) detection agent ; and
(b) the minimum manufacture concentration for each detection agent.
SECTION 72.35
Presumption as to concentration of detection agent
(1)
This section applies in relation to a prosecution for an offence against this Subdivision.
(2)
If no detection agent can be detected in a sample of a plastic explosive when tested using:
(a) a method generally accepted in the scientific community as a reliable means of measuring the concentration of detection agents in plastic explosives; or
(b) a method prescribed for the purposes of this paragraph;
SECTION 72.36
72.36
Definitions
In this Subdivision:
(a) the Convention on the Marking of Plastic Explosives for the Purpose of Detection, done at Montreal on 1 March 1991; or
(b) if:
(a) a bomb;
(b) a grenade;
(c) a mine;
(d) a missile;
(e) a perforator;
(f) a projectile;
(g) a rocket;
(h) a shaped charge;
(i) a shell.
(a) cyclotetramethylenetetranitramine (HMX);
(b) pentaerythritol tetranitrate (PETN);
(c) cyclotrimethylenetrinitramine (RDX).
(a) the process of transforming a substance into a different substance;
(b) the reprocessing of a substance.
(a) formulated with:
(b) as a mixture, malleable or flexible at normal room temperature.
(a) receive or obtain possession of the substance;
(b) have control over the disposition of the substance (whether or not the substance is in the custody of the person);
(c) have joint possession of the substance.
(a) the AFP Minister; or
(b) the Minister for Defence.
(a) transfer the substance; or
(b) offer the substance for sale; or
(c) invite the making of offers to buy the substance; or
(d) prepare the substance for transfer with the intention of transferring any of it or believing that another person intends to transfer any of it; or
(e) transport or deliver the substance with the intention of transferring any of it or believing that another person intends to transfer any of it; or
(f) guard or conceal the substance with the intention of transferring any of it or the intention of assisting another person to transfer any of it; or
(g) possess the substance with the intention of transferring any of it.
Subdivision C - Cluster munitions and explosive bomblets
SECTION 72.37
72.37
Purpose
The purpose of this Subdivision is to create offences relating to cluster munitions and explosive bomblets and give effect to the Convention on Cluster Munitions.
SECTION 72.38
Offences relating to cluster munitions
Doing acts with a cluster munition
(1)
A person commits an offence if the person does any of the following with a cluster munition:
(a) uses it;
(b) develops, produces or otherwise acquires it;
(c) stockpiles or retains it;
(d) transfers it to anyone.
Promoting acts with a cluster munition
(2)
A person (the first person ) commits an offence if:
(a) the first person assists, encourages or induces another person to do any of the following acts with a cluster munition:
(b) the other person does the act; and
(c) the first person intends that the act be done.
Geographical jurisdiction
(3)
Section 15.2 (extended geographical jurisdiction - category B) applies to an offence against this section.
Relationship with other provisions
(4)
Division 11 does not apply in relation to an offence against subsection (2).
SECTION 72.39
Defence - acquisition or retention authorised by Defence Minister
(1)
Section 72.38 does not apply to the acquisition or retention of a cluster munition authorised under subsection (2).
(2)
The Minister administering the Explosives Act 1961 may authorise, in writing, specified members of the Australian Defence Force or other specified Commonwealth public officials to acquire or retain specified cluster munitions for one or more of the following purposes:
(a) the development of, and training in, cluster munition and explosive submunition detection, clearance or destruction techniques;
(b) the development of cluster munition counter-measures;
(c) the destruction of the munitions.
(3)
The regulations may prescribe requirements relating to authorisations under subsection (2).
(4)
An authorisation made under subsection (2) is not a legislative instrument.
(5)
The Minister described in subsection (2) may delegate his or her power under that subsection to:
(a) the Secretary of the Department administered by that Minister; or
(b) an SES employee in that Department.
SECTION 72.40
Defence - transfer for destruction etc.
Transfer to foreign party to Convention on Cluster Munitions
(1)
Section 72.38 does not apply to the transfer of a cluster munition to a party to the Convention on Cluster Munitions for one or more of the following purposes:
(a) the development of, and training in, cluster munition and explosive submunition detection, clearance or destruction techniques;
(b) the development of cluster munition counter-measures;
(c) the destruction of the munition.
Intended transfer to Australian Defence Force
(2)
Subsections (3) and (4) have effect if:
(a) a person has a cluster munition; and
(b) the person gives notice to a police officer or member of the Australian Defence Force that the person wishes to transfer the munition to a member of the Australian Defence Force or other Commonwealth public official; and
(c) the person gives notice without delay after the first time the person has the cluster munition after the commencement of this subsection.
(3)
Subsection 72.38(1) does not apply to the person stockpiling or retaining the cluster munition at any time before the person transfers it to a member of the Australian Defence Force or other Commonwealth public official.
(4)
Subsection 72.38(1) does not apply to the person transferring the cluster munition to a member of the Australian Defence Force or other Commonwealth public official.
SECTION 72.41
72.41
Defence - acts by Australians in military cooperation with countries not party to Convention on Cluster Munitions
A person who is an Australian citizen, is a member of the Australian Defence Force or is performing services under a Commonwealth contract does not commit an offence against section 72.38 by doing an act if:
(a) the act is done in the course of military cooperation or operations with a foreign country that is not a party to the Convention on Cluster Munitions; and
(b) the act is not connected with the Commonwealth:
(c) the act does not consist of expressly requesting the use of a cluster munition in a case where the choice of munitions used is within the Commonwealth's exclusive control.
SECTION 72.42
Defence - acts by military personnel of countries not party to Convention on Cluster Munitions
(1)
Section 72.38 does not apply to the stockpiling, retention or transfer of a cluster munition that:
(a) is done by:
(b) is done in connection with the use by those forces of any of the following in Australia in the course of military cooperation or operations with the Australian Defence Force:
(2)
This subsection covers a person with any of the following connections with the armed forces of a foreign country that is not a party to the Convention on Cluster Munitions:
(a) the person is employed by, or in the service of, any of those forces;
(b) the person is serving with an organisation accompanying any of those forces;
(c) the person is attached to or accompanying those forces and is subject to the law of that country governing any of the armed forces of that country.
SECTION 72.43
Forfeiture of cluster munition
(1)
This section applies if a court:
(a) convicts someone of an offence against subsection 72.38(1); or
(b) makes an order under section 19B of the Crimes Act 1914 relating to an offence against subsection 72.38(1).
(2)
The court may order forfeiture to the Commonwealth of any cluster munition involved in the offence.
(3)
A cluster munition ordered to be forfeited to the Commonwealth becomes the Commonwealth's property.
SECTION 72.44
72.44
Application of this Subdivision to explosive bomblets
This Subdivision applies in relation to explosive bomblets in the same way as it applies in relation to cluster munitions.
SECTION 72.45
72.45
Definitions
In this Subdivision:
(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); or
(c) a member (however described) of a police force of a State or Territory.
Division 73 - People smuggling and related offences
Subdivision A - People smuggling offences
SECTION 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;
(d) (Repealed by No 50 of 2010)
(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.
SECTION 73.2 Aggravated offence of people smuggling (danger of death or serious harm etc.) (1)
A person (the first person ) commits an offence against this section if the first person commits the offence of people smuggling (the underlying offence ) in relation to another person (the victim ) and either or both of the following apply:
(a) (Repealed by No 6 of 2013)
(b) in committing the underlying offence, the first person subjects the victim to cruel, inhuman or degrading treatment;
(c) in committing the underlying offence:
(2)
There is no fault element for the physical element of conduct described in subsection (1), that the first person commits the underlying offence, other than the fault elements (however described), if any, for the underlying offence.
(2A)
To avoid doubt, the first person may be convicted of an offence against this section even if the first person has not been convicted of the underlying offence.
(3)
(Repealed by No 6 of 2013)
SECTION 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 otherpersons whose entry into the foreign country is covered by paragraph (b) are not citizens or permanent residents of the foreign country;
(d) (Repealed by No 50 of 2010)
(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.
SECTION 73.3A Supporting the offence of people smuggling (1)
A person (the first person ) commits an offence if:
(a) the first person provides material support or resources to another person or an organisation (the receiver ); and
(b) the support or resources aids the receiver, or a person or organisation other than the receiver, to engage in conduct constituting the offence of people smuggling.
(2)
Subsection (1) does not apply if the conduct constituting the offence of people smuggling relates, or would relate, to:
(a) the first person; or
(b) a group of persons that includes the first person.
(3)
To avoid doubt, the first person commits an offence against subsection (1) even if the offence of people smuggling is not committed.
SECTION 73.4
73.4
Jurisdictional requirement
A person commits an offence against this Subdivision only if:
(a) both:
(b) both:
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 SECTION 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.
(2)
(Repealed by No 96 of 2005)
SECTION 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:
(b) the document, or any part of the document:
(c) the document, or any part of the document:
(d) the document, or any part of the document:
(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.
SECTION 73.8 73.8 Making, providing or possessing a false travel or identity document
A person (the first person ) commits 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:
A person (the first person ) commits an offence if:
(a) the first person provides or possesses a travel or identity document; and
(b) the first person knows that:
(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:
(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.
SECTION 73.10 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 ) commits 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:
A person (the first person ) commits 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:
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 related offences
Division 80 - Treason, urging violence, advocating terrorism or genocide, and prohibited symbols and Nazi salute
Subdivision A - Preliminary
SECTION 80.1A
80.1A
Definitions
In this Division:
(a) a body corporate; or
(b) an unincorporated body;
SECTION 80.1AAA
80.1AAA
Expressions also used in the
Australian Security Intelligence Organisation Act 1979
The meaning of an expression in this Division does not affect the meaning of that expression in the Australian Security Intelligence Organisation Act 1979, unless that Act expressly provides otherwise.
Subdivision B - Treason
SECTION 80.1
Treason
(1)
A person commits an offence 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)-(f) (Omitted)
(g) instigates a person who is not an Australian citizen to make an armed invasion of the Commonwealth or a Territory of the Commonwealth.
(h) (Omitted)
This Act may be cited as the Criminal Code Act 1995. SECTION 2 Commencement (1)
Subject to subsection (2), this Act commences on a day to be fixed by Proclamation.
(2)
If this Act does not commence under subsection (1) within the period of 5 years beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.
SECTION 3 The Criminal Code (1)
The Schedule has effect as a law of the Commonwealth.
(2)
The Schedule may be cited as the Criminal Code.
SECTION 3A 3A External Territories
The Criminal Code extends to every external Territory. SECTION 3B 3B Offshore installations
Unless the contrary intention appears, an installation (within the meaning of the Customs Act 1901) that is deemed by section 5C of the Customs Act 1901 to be part of Australia is also taken to be part of Australia for the purposes of the Criminal Code. SECTION 4 Definitions (1)
Expressions used in the Code (or in a particular provision of the Code) that are defined in the Dictionary at the end of the Code have the meanings given to them in the Dictionary.
(2)
Definitions in the Code of expressions used in the Code apply to its construction except insofar as the context or subject matter otherwise indicates or requires.
SECTION 5 Regulations (1)
The Governor-General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
Hide history note(2)
For the purposes of the Legislation Act 2003, the Minister administering the Australian Federal Police Act 1979 is the rule-maker for regulations made for the purposes of the following provisions of the Criminal Code:
(a) Division 71 (offences against United Nations and associated personnel);
(b) Division 72 (explosives and lethal devices);
(c) Division 73 (people smuggling and related offences);
(d) Part 5.1 (treason and related offences);
(e) Part 5.2 (espionage and related offences);
(f) Part 5.3 (terrorism), other than Division 100 (preliminary provisions);
(g) Part 5.4 (harming Australians);
(h) Part 5.5 (foreign incursions and recruitment);
(i) Division 270 (slavery and slavery-like conditions);
(j) Division 271 (trafficking in persons and debt b@ndage);
(k) Division 272 (child sex offences outside Australia);
(l) Division 273 (offences involving child abuse material outside Australia);
(la) Division 273A (possession of child-like sex dolls etc.);
(lb) Division 273B (protection of children);
(m) Chapter 9 (dangers to the community);
(n) Chapter 10 (national infrastructure).
(3)
Subsection (2) applies despite subsection 6(1) of the Legislation Act 2003.
Schedule - The Criminal Code
Section 3
CHAPTER 1 - CODIFICATION Division 1 SECTION 1.1 1.1 CodificationThe 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 SECTION 2.1 2.1 PurposeThe 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. SECTION 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.
SECTION 2.3 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 SECTION 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.
SECTION 3.2 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 SECTION 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.
(a) do an act; or
(b) omit to perform an act.
SECTION 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.
SECTION 4.3 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 there is a duty to perform by a law of the Commonwealth, a State or a Territory, or at common law.
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.
SECTION 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.
SECTION 5.3 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. SECTION 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.
SECTION 5.5 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.
SECTION 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 SECTION 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.
SECTION 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 SECTION 7.1 7.1 Children under 10A child under 10 years old is not criminally responsible for an offence. SECTION 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.
SECTION 7.3 Mental impairment (1)
A person is notcriminally 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 Code:
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 SECTION 8.1 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. SECTION 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.
SECTION 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.
SECTION 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.
SECTION 8.5 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 SECTION 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.
SECTION 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.
SECTION 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.
SECTION 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
(b) (Repealed by No 127 of 2004)
(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 Legislation 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.
SECTION 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 SECTION 10.1 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. SECTION 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.
SECTION 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.
SECTION 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.
SECTION 10.5 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 SECTION 11.1 Attempt (1)
A person who attempts to commit an offence commits 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 11.2A (joint commission), section 11.3 (commission by proxy), section 11.5 (conspiracy to commit an offence) or section 135.4 (conspiracy to defraud).
SECTION 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 other person has not been prosecuted or has not been found guilty.
(6)
Any special liability provisions that apply to an offence apply also for the purposes of determining whether a person is guilty of that offence because of the operation of subsection (1).
(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.
SECTION 11.2A Joint commission
Joint commission
(1)
If:
(a) a person and at least one other party enter into an agreement to commit an offence; and
(b) either:
(i) an offence is committed in accordance with the agreement (within the meaning of subsection (2)); or
the person is taken to have committed the joint offence referred to in whichever of subsection (2) or (3) applies and is punishable accordingly.
(ii) an offence is committed in the course of carrying out the agreement (within the meaning of subsection (3));
Offence committed in accordance with the agreement
(2)
An offence is committed in accordance with the agreement if:
(a) the conduct of one or more parties in accordance with the agreement makes up the physical elements consisting of conduct of an offence (the joint offence ) of the same type as the offence agreed to; and
(b) to the extent that a physical element of the joint offence consists of a result of conduct - that result arises from the conduct engaged in; and
(c) to the extent that a physical element of the joint offence consists of a circumstance - the conduct engaged in, or a result of the conduct engaged in, occurs in that circumstance.
Offence committed in the course of carrying out the agreement
(3)
An offence is committed in the course of carrying out the agreement if the person is reckless about the commission of an offence (the joint offence ) that another party in fact commits in the course of carrying out the agreement.
Intention to commit an offence
(4)
For a person to be guilty of an offence because of the operation of this section, the person and at least one other party to the agreement must have intended that an offence would be committed under the agreement.
Agreement may be non-verbal etc
(5)
The agreement:
(a) may consist of a non-verbal understanding; and
(b) may be entered into before, or at the same time as, the conduct constituting any of the physical elements of the joint offence was engaged in.
Termination of involvement etc
(6)
A person cannot be found guilty of an offence because of the operation of this section if, before the conduct constituting any of the physical elements of the joint offence concerned was engaged in, the person:
(a) terminated his or her involvement; and
(b) took all reasonable steps to prevent that conduct from being engaged in.
Person may be found guilty even if another party not prosecuted etc
(7)
A person may be found guilty of an offence because of the operation of this section even if:
(a) another party to the agreement has not been prosecuted or has not been found guilty; or
(b) the person was not present when any of the conduct constituting the physical elements of the joint offence was engaged in.
Special liability provisions apply
(8)
Any special liability provisions that apply to the joint offence apply also for the purposes of determining whether a person is guilty of that offence because of the operation of this section.
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.
SECTION 11.4 Incitement (1)A person who urges the commission of an offence commits 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:
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.
SECTION 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, commits 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.
SECTION 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), 11.2A (joint commission), and 11.3 (commission by proxy) 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 SECTION 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.
SECTION 12.2 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. SECTION 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.
SECTION 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.
SECTION 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.
SECTION 12.6 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 SECTION 13.1 Legal burden of proof - prosecution (1)
The prosecution bears a legal burden ofproving 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.
SECTION 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.
SECTION 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.
SECTION 13.4 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. SECTION 13.5 13.5 Standard of proof - defence
A legal burden of proof on the defendant must be discharged on the balance of probabilities. SECTION 13.6 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 SECTION 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 subsections 11.2(1) and 11.2A(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 does not commit 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
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.
(ii) the part of the foreign country where the conduct constituting the alleged offence occurs;
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 does not commit 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
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.
(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;
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 SECTION 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 subsections 11.2(1) and 11.2A(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 does not commit 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
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.
(ii) the part of the foreign country where the conduct constituting the alleged offence occurs;
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 does not commit 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
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.
(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;
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.
SECTION 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 subsections 11.2(1) and 11.2A(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 does not commit 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
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.
(ii) the part of the foreign country where the conduct constituting the alleged offence occurs;
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 does not commit 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
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.
(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;
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.
SECTION 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 subsections 11.2(1) and 11.2A(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
a law of that foreign country, or that part of that foreign country, that creates an offence that corresponds to the first-mentioned offence.
(ii) the part of the foreign country where the conduct constituting the alleged offence occurs;
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) toan 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
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.
(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;
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.
SECTION 15.4 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 subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(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.
SECTION 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.
SECTION 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 .
SECTION 16.4 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 Subdivision A - Definitions
In this Division:
advantage
means an advantage of any kind and is not limited to property.
annual turnover
has the meaning given by section 70.5C.
associate
: a person is an
associate
of another person if the first-mentioned person:
(a) is an officer, employee, agent or contractor of the other person; or
(b) is a subsidiary (within the meaning of the Corporations Act 2001) of the other person; or
(c) is controlled (within the meaning of the Corporations Act 2001) by the other person; or
(d) otherwise performs services for or on behalf of the other person.
benefit
(Repealed by No 5 of 2024)
business advantage
(Repealed by No 5 of 2024)
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
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.
(ii) enjoys special benefits or privileges under a law of a foreign country or of part of a foreign country;
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 performsthe 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; or
(m) an individual standing, or nominated, (whether formally or informally) as a candidate to be a foreign public official covered by any of paragraphs (a) to (k) of this definition.
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
Subdivision B - Bribery of foreign public officials
(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.
A person commits 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
(b) the first-mentioned person does so with the intention of improperly influencing a foreign public official (who may be the other person) in order to obtain or retain business or a business or personal advantage (whether or not for the first-mentioned person).
(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
Note:
See also section 70.2A. For defences, see sections 70.3 and 70.4.
(2)
For the purposes of paragraph (1)(b): (a) the first-mentioned person does not need to intend to influence a particular foreign public official; and (b) the first-mentioned person does not need to intend to obtain or retain particular business or a particular business or personal advantage; and (c) business, or a business or personal advantage, does not need to be actually obtained or retained.
Penalty for individual
(3)
An offence against subsection (1) committed by an individual is punishable on conviction by imprisonment for not more than 10 years, a fine not more than 10,000 penalty units, or both.
Penalty for body corporate
(4)
An offence against subsection (1) committed by a body corporate is punishable on conviction by a fine not more than the greatest of the following: (a) 100,000 penalty units; (b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the conduct constituting the offence - 3 times the value of that benefit; (c) if the court cannot determine the value of that benefit - 10% of the annual turnover of the body corporate during the period (the turnover period ) of 12 months ending at the end of the month in which the body corporate committed, or began committing, the offence.
Determination to be a matter for the trier of fact
(1)
In a prosecution for an offence against section 70.2, the determination of whether influence is improper is a matter for the trier of fact.
Matters that must be disregarded
(2)
In determining whether influence is improper for the purposes of paragraph 70.2(1)(b), a trier of fact must disregard the following: (a) the fact that the benefit, or the offer or promise to provide the benefit, may be, or be perceived to be, customary, necessary or required in the situation; (b) any official tolerance of the benefit; (c) if particular business or a particular business or personal advantage is relevant to proving the matters referred to in that paragraph - the following:
(i) if the value of the business or advantage is insignificant - that fact;
(ii) in the case of an advantage - any official tolerance of the advantage;
(iii) in the case of an advantage - the fact that the advantage may be customary, or perceived to be customary, in the situation.
Matters to which regard may be had
(3)
In determining whether influence is improper for the purposes of paragraph 70.2(1)(b), a trier of fact may have regard to the following: (a) the recipient or intended recipient of the benefit; (b) the nature of the benefit; (c) the manner of the provision of the benefit (or, if applicable, the offered or promised manner of the provision of the benefit); (d) whether the value of the benefit is disproportionate to the value of any consideration provided or purported to have been provided for the benefit; (e) if the benefit was provided, or the offer or promise to provide the benefit was made, in the absence of any legal obligation to do so - that fact; (f) whether the benefit was provided, or the offer or promise to provide the benefit was made, dishonestly; (g) whether, and to what extent, the provision of the benefit, or the offer or promise to provide the benefit, is recorded or documented; (h) if the provision of the benefit, or the offer or promise to provide the benefit, is recorded or documented:
(i) the accuracy of the record or documentation; and
(i) whether there is evidence that due diligence was exercised by the first-mentioned person in section 70.2 in relation to the benefit, or the offer or promise to provide the benefit; (j) whether any of the following conduct is contrary to a written law in force in the place where that conduct occurs:
(ii) whether the record or documentation is consistent with the ordinary practices of the person who made the record or documentation;
(i) the provision of the benefit, or the offer or promise to provide the benefit;
(ii) the acceptance of the benefit;
(k) if particular business or a particular business or personal advantage is relevant to proving the matters referred to in that paragraph - the following:
(iii) any conduct directly connected with conduct referred to in subparagraph (i) or (ii);
(i) whether the business or advantage was awarded on a competitive or non-commercial basis;
(ii) whether there is any demonstrable conflict of interest in the provision of the business or advantage.
(4)
To avoid doubt, subsection (3) does not limit the matters to which the trier of fact may have regard.
A person does not commit an offence against section 70.2 in the cases set out in the following table:
| Defence of lawful conduct | |||
| Item | In a case where the person's conduct occurred in relation to this kind of foreign public official... | and if it were assumed that the person's conduct had occurred wholly... | this written law requires or permits the provision of the benefit... |
| 1 | an employee or official of a foreign government body | in the place where the central administration of the body is located | a written law in force in that place |
| 2 | an individual who performs work for a foreign government body under a contract | in the place where the central administration of the body is located | a written law in force in that place |
| 3 | an individual who holds or performs the duties of an appointment, office or position under a law of a foreign country or of part of a foreign country | in the foreign country or in the part of the foreign country, as the case may be | a written law in force in the foreign country or in the part of the foreign country, as the case may be |
| 4 | an individual who holds or performs the duties of an appointment, office or position created by custom or convention of a foreign country or of part of a foreign country | in the foreign country or in the part of the foreign country, as the case may be | a written law in force in the foreign country or in the part of the foreign country, as the case may be |
| 5 | an individual who is otherwise in the service of a foreign government body (including service as a member of a military force or police force) | in the place where the central administration of the body is located | a written law in force in that place |
| 6 | a member of the executive, judiciary or magistracy of a foreign country or of part of a foreign country | in the foreign country or in the part of the foreign country, as the case may be | a written law in force in the foreign country or in the part of the foreign country, as the case may be |
| 7 | an employee of a public international organisation | in the place where the headquarters of the organisation is located | a written law in force in that place |
| 8 | an individual who performs work for a public international organisation under a contract | in the place where the headquarters of the organisation is located | a written law in force in that place |
| 9 | an individual who holds or performs the duties of a public office or position in a public international organisation | in the place where the headquarters of the organisation is located | a written law in force in that place |
| 10 | an individual who is otherwise in the service of a public international organisation | in the place where the headquarters of the organisation is located | a written law in force in that place |
| 11 | a member or officer of the legislature of a foreign country or of part of a foreign country | in the foreign country or in the part of the foreign country, as the case may be | a written law in force in the foreign country or in the part of the foreign country, as the case may be |
Note:
A defendant bears an evidential burden in relation to the matter in subsection (1). See subsection 13.3(3).
(2)
A person does not commit 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
subsection (1) would have applied in relation to the first-mentioned person.
(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;
Note:
A defendant bears an evidential burden in relation to the matter in subsection (2). See subsection 13.3(3).
(2A)
A person does not commit an offence against section 70.2 if: (a) the person's conduct occurred in relation to a foreign public official (the relevant foreign public official ); and (b) the relevant foreign public official is covered by paragraph (m) of the definition of foreign public official in section 70.1 because the relevant foreign public official is a candidate to be a particular foreign public official (the substantive foreign public official ); and (c) assuming that the first-mentioned person's conduct had occurred wholly in the place, the foreign country or the part of the foreign country, as the case may be, (the relevant place ) referred to in the item of the table in subsection (1) that would be applicable if the first-mentioned person's conduct had occurred in relation to the substantive foreign public official, a written law in force in the relevant place permits the provision of the benefit to the relevant foreign public official.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (2A). 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.
SECTION 70.4 Defence - facilitation payments (1)
A person does not commit 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.
SECTION 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), 11.2A(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.
Subdivision C - Failure to prevent bribery of foreign public officials
Offence
(1)
A person (the first person ) commits an offence if: (a) the first person is a body corporate:
(i) that is a constitutional corporation; or
(ii) that is incorporated in a Territory; or
(b) an associate of the first person:
(iii) that is taken to be registered in a Territory under section 119A of the Corporations Act 2001; and
(i) commits an offence against section 70.2; or
(c) the associate does so for the profit or gain of the first person.
(ii) engages in conduct outside Australia that, if engaged in in Australia, would constitute an offence (the notional offence ) against section 70.2; and
(2)
Absolute liability applies to: (a) paragraphs (1)(a) and (c); and (b) the circumstance in subparagraph (1)(b)(i) that the associate commits an offence against section 70.2; and (c) the circumstance in subparagraph (1)(b)(ii) that the associate engages in conduct outside Australia that, if engaged in in Australia, would constitute the notional offence.
(3)
To avoid doubt, the first person may be convicted of an offence against subsection (1) because of the commission by the associate of an offence against section 70.2 even if the associate has not been convicted of that offence.
(4)
Section 12.6 applies in relation to an offence against subsection (1) of this section as if the reference in section 12.6 to an employee, agent or officer of a body corporate included any associate of the body corporate.
Exception
(5)
Subsection (1) does not apply if the first person proves that the first person had in place adequate procedures designed to prevent: (a) the commission of an offence against section 70.2 by any associate of the first person; and (b) any associate of the first person engaging in conduct outside Australia that, if engaged in in Australia, would constitute an offence against section 70.2.
Note:
A defendant bears a legal burden in relation to the matter in subsection (5): see section 13.4.
Penalty
(6)
An offence against subsection (1) is punishable on conviction by a fine not more than the greatest of the following: (a) 100,000 penalty units; (b) if the court can determine the value of the benefit that the associate obtained directly or indirectly and that is reasonably attributable to the conduct constituting the offence, or that would have constituted the notional offence, against section 70.2 - 3 times the value of that benefit; (c) if the court cannot determine the value of that benefit - 10% of the annual turnover of the first person during the period (the turnover period ) of 12 months ending at the end of the month in which the associate committed, or began committing, the offence or notional offence against section 70.2.
Geographical jurisdiction
(7)
Section 15.1 (extended geographical jurisdiction - category A) applies to an offence against subsection (1).
Indictable offence
(8)
An offence against subsection (1) is an indictable offence.
The Minister must publish guidance on the steps that a body corporate can take to prevent an associate from bribing foreign public officials.
(2)
Guidance under subsection (1) is not a legislative instrument.
For the purposes of this Division, the annual turnover of a body corporate, during the turnover period, is the sum of the values of all the supplies that the body corporate, and any body corporate related to the body corporate, have made, or are likely to make, during that period, other than the following supplies: (a) supplies made from any of those bodies corporate to any other of those bodies corporate; (b) supplies that are input taxed; (c) supplies that are not for consideration (and are not taxable supplies under section 72-5 of the A New Tax System (Goods and Services Tax) Act 1999); (d) supplies that are not made in connection with an enterprise that the body corporate carries on.
(2)
Expressions used in this section that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning in this section as they have in that Act.
The question whether 2 bodies corporate are related to each other is to be determined for the purposes of this Division in the same way as for the purposes of the Corporations Act 2001.
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 SECTION 71.1 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. SECTION 71.2 Murder of a UN or associated person (1)
A person commits 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.
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).
SECTION 71.3 Manslaughter of a UN or associated person (1)
A person commits 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.
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).
SECTION 71.4 Intentionally causing serious harm to a UN or associated person (1)
A person commits 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.
Penalty: Imprisonment for 20 years.
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).
SECTION 71.5 Recklessly causing serious harm to a UN or associated person (1)
A person commits 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.
Penalty: Imprisonment for 15 years.
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).
SECTION 71.6 Intentionally causing harm to a UN or associated person (1)
A person commits 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.
Penalty: Imprisonment for 10 years.
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).
SECTION 71.7 Recklessly causing harm to a UN or associated person (1)
A person commits 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.
Penalty: Imprisonment for 7 years.
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).
SECTION 71.8 Unlawful sexual penetration (1)
A person commits 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.
Penalty: Imprisonment for 15 years.
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:
(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.
SECTION 71.9 Kidnapping a UN or associated person (1)
A person commits 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.
Penalty: Imprisonment for 15 years.
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.
SECTION 71.10 Unlawful detention of UN or associated person (1)
A person commits 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.
Penalty: Imprisonment for 5 years.
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).
SECTION 71.11 Intentionally causing damage to UN or associated person's property etc. (1)
A person commits 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).
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).
SECTION 71.12 71.12 Threatening to commit other offences
A person commits 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.
Penalty:
Note:
Section 71.23 defines UN or associated person .
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 the deliberate and systematic infliction of severe pain over a period of time; 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:
(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
(Repealed by No 37 of 2010)
SECTION 71.14 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).
SECTION 71.15 71.5 Defence - medical or hygienic proceduresA 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).
SECTION 71.16 71.16 Jurisdictional requirementA 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.
(Repealed by No 136 of 2012)
SECTION 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.
SECTION 71.18 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. SECTION 71.19 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. SECTION 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.
SECTION 71.21 Ministerial certificates relating to proceedings (1)
The Foreign Affairs Minister 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 Immigration Minister 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.
SECTION 71.22 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. SECTION 71.23 Definitions (1)
In this Division:
(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 through that Department's website.
Foreign Affairs Minister
means the Minister administering the Diplomatic Privileges and Immunities Act 1967.
Immigration Minister
means the Minister administering the Migration Act 1958.
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.
(a) persons engaged or deployed by the Secretary-General of the United Nations as members of the military, police or civilian components of a UN operation; or
(b) any other officials or experts on mission of the United Nations, its specialised agencies or the International Atomic Energy Agency who are present in an official capacity in the area where a UN operation is being conducted.
(2)
In this Division, a person's conduct causes death or harm if it substantially contributes to the death or harm.
Division 72 - Explosives and lethal devices
The purpose of this Subdivision is to create offences relating to international terrorist activities using explosive or lethal devices and give effect to the International Convention for the Suppression of Terrorist Bombings, done at New York on 15 December 1997.
Note:
The text of the Convention is available in the Australian Treaties Library of the Department of Foreign Affairs and Trade, accessible through that Department's website.
Nothing in this Subdivision makes a member of the Australian Defence Force acting in connection with the defence or security of Australia liable to be prosecuted for an offence.
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).
Note:
A court that is sentencing a person who has been convicted of an offence against this section must warn the person about continuing detention orders and extended supervision orders (see section 105A.23).
SECTION 72.4
Jurisdictional requirement
(1)
A person commits an offence under this Subdivision only if one or more of the following paragraphs applies and the circumstances relating to the alleged offence are not exclusively internal (see subsection (2)):
(a) the conduct constituting the alleged offence occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian ship or an Australian aircraft;
(b) at the time of the alleged offence, the person is an Australian citizen;
(c) at the time of the alleged offence, the person is a stateless person whose habitual residence is in Australia;
(d) the conduct is subject to the jurisdiction of another State Party to the Convention established in accordance with paragraph 1 or 2 of Article 6 of the Convention and the person is in Australia;
(e) the alleged offence is committed against a government facility of the Commonwealth, or of a State or Territory, that is located outside Australia;
(f) the alleged offence is committed against:
(i) an Australian citizen; or
(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory;
(g) by engaging in the conduct constituting the alleged offence, the person intends to compel a legislative, executive or judicial institution of the Commonwealth, a State or a Territory to do or omit to do an act.
(2)
The circumstances relating to the alleged offence are exclusively internal if:
(a) the conduct constituting the alleged offence occurs wholly within Australia; and
(b) the alleged offender is an Australian citizen; and
(c) all of the persons against whom the offence is committed are Australian citizens or bodies corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and
(d) the alleged offender is in Australia; and
(e) no other State Party to the Convention has a basis under paragraph 1 or 2 of Article 6 of the Convention for exercising jurisdiction in relation to the conduct.
SECTION 72.5 72.5 Saving of other laws
This Subdivision is not intended to exclude or limit the operation of any other law of the Commonwealth or of a State or Territory.
If a person has been convicted or acquitted of an offence in respect of conduct under the law of a foreign country, the person cannot be convicted of an offence under this Subdivision in respect of that conduct.
Proceedings for an offence under this Subdivision must not be commenced without the Attorney-General's written consent.
(2)
However, a person may be arrested, charged, remanded in custody, or released on bail, in connection with an offence under this Subdivision before the necessary consent has been given.
(3)
In determining whether to bring proceedings for an offence under this Subdivision, the Attorney-General must have regard to the terms of the Convention, including paragraph 2 of Article 19.
(4)
In determining whether to bring proceedings for an offence under this Subdivision, the Attorney-General must also have regard to:
(a) whether the conduct constituting the offence also gives rise to an offence under a law of a State or Territory; and
(b) whether a prosecution relating to the conduct under the State or Territory law has been or will be commenced.
SECTION 72.8 Ministerial certificates relating to proceedings (1)
The Minister administering the Charter of the United Nations Act 1945 may issue a certificate stating any of the following matters:
(a) that the Convention entered into force for Australia on a specified day;
(b) that the Convention remains in force for Australia or any other State Party on a specified day;
(c) a matter relevant to the establishment of jurisdiction by a State Party under paragraph 1 or 2 of Article 6 of the Convention.
(2)
The Minister administering the Australian Citizenship Act 2007 may issue a certificate stating that:
(a) a person is or was an Australian citizen at a particular time; or
(b) a person is or was a stateless person whose habitual residence is or was in Australia at a particular time.
(3)
In any proceedings, a certificate under this section is prima facie evidence of the matters in the certificate.
SECTION 72.9 72.9 Jurisdiction of State courts preserved
For the purposes of section 38 of the Judiciary Act 1903, a matter arising under this Subdivision, including a question of interpretation of the Convention, is taken not to be a matter arising directly under a treaty.
In this Subdivision:
Convention
means the Convention referred to in section 72.1.
explosive or other lethal device
has the same meaning as in the Convention.
government facility
has the same meaning as
State or government facility
has in the Convention.
infrastructure facility
has the same meaning as in the Convention.
place of public use
has the same meaning as in the Convention.
public transportation system
has the same meaning as in the Convention.
The purpose of this Subdivision is to create offences relating to plastic explosives and give effect to the Convention on the Marking of Plastic Explosives.
Note:
The Convention requires the introduction of detection agents into plastic explosives so as to render the explosives detectable by vapour detection means. This is known as the marking of the explosives.
A person commits an offence if:
(a) the person traffics in a substance; and
(b) the substance is a plastic explosive; and
(c) the plastic explosive breaches a marking requirement; and
(d) the trafficking is not authorised under section 72.18, 72.19, 72.22 or 72.23.
Penalty: Imprisonment for 10 years.
(2)
The fault element for paragraph (1)(b) is recklessness.
(3)
Strict liability applies to paragraphs (1)(c) and (d).
Note 1:
For the marking requirements, see section 72.33.
Note 2:
For defences, see section 72.16.
A person commits an offence if:
(a) the person imports or exports a substance; and
(b) the substance is a plastic explosive; and
(c) the plastic explosive breaches a marking requirement; and
(d) the import or export is not authorised under section 72.18, 72.19, 72.22 or 72.23.
Penalty: Imprisonment for 10 years.
(2)
The fault element for paragraph (1)(b) is recklessness.
(3)
Strict liability applies to paragraphs (1)(c) and (d).
Note 1:
For the marking requirements, see section 72.33.
Note 2:
For defences, see section 72.16.
A person commits an offence if:
(a) the person:
(i) engages in the manufacture of a substance; or
(ii) exercises control or direction over the manufacture of a substance; and
(b) the substance is a plastic explosive; and
(c) the plastic explosive breaches the first marking requirement; and
(d) the manufacture is not authorised under section 72.18.
Penalty: Imprisonment for 10 years.
(2)
The fault element for paragraph (1)(b) is recklessness.
(3)
Strict liability applies to paragraphs (1)(c) and (d).
Note 1:
For the marking requirements, see section 72.33.
Note 2:
For defences, see section 72.16.
SECTION 72.15 Possessing unmarked plastic explosives etc. (1)
A person commits an offence if:
(a) the person possesses a substance; and
(b) the substance is a plastic explosive; and
(c) the plastic explosive breaches a marking requirement; and
(d) the possession is not authorised under section 72.18, 72.19, 72.22 or 72.23.
Penalty: Imprisonment for 2 years.
(2)
The fault element for paragraph (1)(b) is recklessness.
(3)
Strict liability applies to paragraphs (1)(c) and (d).
Note 1:
For the marking requirements, see section 72.33.
Note 2:
For defences, see section 72.16.
If:
(a) a person is charged with an offence against section 72.12, 72.13, 72.14 or 72.15; and
(b) the prosecution alleges that the plastic explosive breached a particular marking requirement;
it is a defence if the defendant proves that he or she had no reasonable grounds for suspecting that the plastic explosive breached that marking requirement.
Note1:
A defendant bears a legal burden in relation to the matter in subsection (1) (see section 13.4).
Note 2:
For the marking requirements, see section 72.33.
(2)
If:
(a) a person is charged with an offence against section 72.12, 72.13 or 72.15; and
(b) the prosecution alleges that the plastic explosive breached the second marking requirement;
it is a defence if the defendant proves that, at the time of the alleged offence:
(c) the plastic explosive contained a detection agent; and
(d) the concentration of the detection agent in the plastic explosive was not less than the minimum manufacture concentration for the detection agent; and
(e) the detection agent was homogenously distributed throughout the plastic explosive.
Note 1:
A defendant bears a legal burden in relation to the matter in subsection (2) (see section 13.4).
Note 2:
For the marking requirements, see section 72.33.
Note 3:
For minimum manufacture concentration , see section 72.34.
A person commits an offence if:
(a) the person manufactures a substance; and
(b) the substance is a plastic explosive; and
(c) within 24 hours after the manufacture of the plastic explosive, the person does not cause the plastic explosive to be contained, enclosed or packaged in a wrapper with:
(i) the expression "PLASTIC EXPLOSIVE" (in upper-case lettering); and
(ii) the date of manufacture of the plastic explosive; and
(iii) if the plastic explosive is of a prescribed type - that type; and
(iv) if the plastic explosive contains a detection agent for the purpose of meeting the first marking requirement - the name of the detection agent; and
legibly displayed on the outer surface of the wrapper.
(v) if the plastic explosive contains a detection agent for the purpose of meeting the first marking requirement - the concentration of the detection agent in the plastic explosive at the time of manufacture, expressed as a percentage by mass;
Penalty: Imprisonment for 2 years.
(2)
The fault element for paragraphs (1)(b) and (c) is recklessness.
Authorisation
(1)
A responsible Minister may, by writing, authorise:
(a) the trafficking in; or
(b) the import, export, manufacture or possession of;
an unmarked plastic explosive.
(2)
A responsible Minister must not give an authorisation under subsection (1) in relation to an unmarked plastic explosive unless the responsible Minister is satisfied that:
(a) the plastic explosive is for use exclusively for one or more of the following:
(i) research, development or testing of new or modified explosives;
(ii) development or testing of explosives detection equipment;
(iii) training in explosives detection;
(iv) forensic science; or
(b) both:
(i) the plastic explosive is an integral part of an explosive device that was manufactured exclusively for defence purposes; and
(ii) the explosive device is for use exclusively for defence purposes; or
(c) the plastic explosive will, within 3 years after the commencement of this section, become an integral part of an explosive device manufactured exclusively for defence purposes.
(3)
An authorisation under subsection (1) must specify the grounds on which it was given.
Conditions and restrictions
(4)
An authorisation under subsection (1) is subject to such conditions and restrictions as are specified in the authorisation.
(5)
A responsible Minister must not give an authorisation under subsection (1) in relation to an unmarked plastic explosive on grounds covered by paragraph (2)(a) unless the authorisation is subject to a condition imposing a limit as to the quantity of the plastic explosive.
Criteria
(6)
In exercising a power conferred by this section in relation to:
(a) the trafficking in; or
(b) the import, export, manufacture or possession of;
an unmarked plastic explosive, a responsible Minister must have regard to:
(c) the Convention on the Marking of Plastic Explosives; and
(d) whether the trafficking, import, export, manufacture or possession is reasonable; and
(e) such other matters (if any) as the responsible Minister considers relevant.
Authorisation
(1)
A responsible Minister may, by writing, authorise:
(a) the trafficking in; or
(b) the import, export or possession of;
an unmarked plastic explosive that was manufactured before the commencement of this section.
(2)
A responsible Minister must not give an authorisation under subsection (1) in relation to an unmarked plastic explosive unless the responsible Minister is satisfied that the plastic explosive is exclusively for use in connection with:
(a) the operation of the Australian Defence Force; or
(b) the operation in Australia of a visiting force (within the meaning of the Defence (Visiting Forces) Act 1963); or
(c) the operation of:
(i) the Australian Federal Police; or
(ii) the police force or police service of a State or Territory.
Conditions and restrictions
(3)
An authorisation under subsection (1) is subject to such conditions and restrictions as are specified in the authorisation.
Criteria
(4)
In exercising a power conferred by this section in relation to:
(a) the trafficking in; or
(b) the import, export or possession of;
an unmarked plastic explosive, a responsible Minister must have regard to:
(c) the Convention on the Marking of Plastic Explosives; and
(d) whether the trafficking, import, export or possession is reasonable; and
(e) such other matters (if any) as the responsible Minister considers relevant.
Sunset
(5)
This section ceases to have effect at the end of 15 years after its commencement.
(Repealed by No 31 of 2014)
(Repealed by No 31 of 2014)
A member of the Australian Defence Force is authorised to possess, import or traffic in an unmarked plastic explosive if:
(a) the plastic explosive was obtained in the course of the operation outside Australia of the Australian Defence Force; and
(b) the member believes on reasonable grounds that there is insufficient time to obtain an authorisation under this Subdivision because of:
(i) an emergency; or
(ii) any other sudden or unexpected circumstances.
(2)
An authorisation under subsection (1) ceases to have effect at the end of the seventh day after the day on which the plastic explosive was obtained.
A member of the Australian Federal Police is authorised to possess, import or traffic in an unmarked plastic explosive if:
(a) the plastic explosive was obtained in the course of the operation outside Australia of the Australian Federal Police; and
(b) the member believes on reasonable grounds that there is insufficient time to obtain an authorisation under this Subdivision because of:
(i) an emergency; or
(ii) any other sudden or unexpected circumstances.
(2)
An authorisation under subsection (1) ceases to have effect at the end of the seventh day after the day on which the plastic explosive was obtained.
If a court:
(a) convicts a person of an offence against this Subdivision in relation to a plastic explosive; or
(b) makes an order under section 19B of the Crimes Act 1914 in respect of a person charged with an offence against this Subdivision in relation to a plastic explosive;
the court may order the forfeiture to the Commonwealth of the plastic explosive.
(2)
A plastic explosive forfeited to the Commonwealth under subsection (1) becomes the property of the Commonwealth.
(3)
A plastic explosive forfeited to the Commonwealth under subsection (1) is to be dealt with in such manner as a responsible Minister directs.
(4)
Without limiting subsection (3), a responsible Minister may direct that a plastic explosive forfeited to the Commonwealth under subsection (1) be:
(a) destroyed; or
(b) used exclusively for one or more of the purposes covered by paragraph 72.18(2)(a).
Note 1:
See also section 10.5 (lawful authority).
Note 2:
See also section 229 of the Customs Act 1901 (forfeiture of goods that have been unlawfully imported or exported).
SECTION 72.25 Surrendered plastic explosives (1)
A person may surrender a plastic explosive to the Commonwealth at a place, and in a manner, prescribed for the purposes of this subsection.
(2)
A plastic explosive surrendered to the Commonwealth under subsection (1) becomes the property of the Commonwealth.
(3)
A plastic explosive surrendered to the Commonwealth under subsection (1) is to be dealt with in such manner as a responsible Minister directs.
(4)
Without limiting subsection (3), a responsible Minister may direct that a plastic explosive surrendered to the Commonwealth under subsection (1) be:
(a) destroyed; or
(b) used exclusively for one or more of the purposes covered by paragraph 72.18(2)(a).
Note:
See also section 10.5 (lawful authority).
A member of the Australian Defence Force may destroy an unmarked plastic explosive if the plastic explosive was obtained in the course of the operation outside Australia of the Australian Defence Force.
A member of the Australian Federal Police may destroy an unmarked plastic explosive if the plastic explosive was obtained in the course of the operation outside Australia of the Australian Federal Police.
The AFP Minister may, by writing, delegate to:
(a) the Secretary of the Department administered by that Minister; or
(b) an SES employee, or an acting SES employee, in that Department, where the employee occupies or acts in a position with a classification of Senior Executive Band 3;
all or any of the AFP Minister's powers under sections 72.18, 72.19, 72.24 and 72.25.
(2)
A delegate is, in the exercise of a power delegated under subsection (1), subject to the written directions of the AFP Minister.
The Minister for Defence may, by writing, delegate to:
(a) an SES employee, or an acting SES employee, in the Department of Defence, where the employee occupies or acts in a position with a classification of Senior Executive Band 3; or
(b) an officer of the Australian Navy who holds the rank of Vice-Admiral or a higher rank; or
(c) an officer of the Australian Army who holds the rank of Lieutenant-General or a higher rank; or
(d) an officer of the Australian Air Force who holds the rank of Air Marshal or a higher rank; or
(e) an officer of the Australian Defence Force who is on deployment as the Commander of an Australian Task Force, contingent or force element that is operating outside Australia;
all or any of the powers of the Minister for Defence under sections 72.18, 72.19, 72.24 and 72.25.
(2)
A delegate must not exercise a power delegated under subsection (1) unless the exercise of the power relates to:
(a) the operation of the Australian Defence Force; or
(b) the operation in Australia of a visiting force (within the meaning ofthe Defence (Visiting Forces) Act 1963); or
(c) the operation outside Australia of a person who, under a contract, performs services for the Australian Defence Force.
(3)
A delegate is, in the exercise of a power delegated under subsection (1), subject to the written directions of the Minister for Defence.
An application may be made to the Administrative Review Tribunal for review of a decision refusing to give an authorisation under subsection 72.18(1) or 72.19(1).
(2)
An application may be made to the Administrative Review Tribunal for review of a decision to specify a condition or restriction in an authorisation under subsection 72.18(1) or 72.19(1), but such an application may only be made by a person to whom the authorisation applies.
Section 15.2 (extended geographical jurisdiction - category B) applies to each offence against this Subdivision.
This Subdivision is not intended to exclude or limit the operation of any other law of the Commonwealth or of a State or Territory.
This section sets out the 2 marking requirements for a plastic explosive.
Concentration of detection agent at time of manufacture
(2)
The first marking requirement is that, at the time of the manufacture of the plastic explosive, all of the following conditions were satisfied:
(a) the plastic explosive contained a detection agent;
(b) the concentration of the detection agent in the plastic explosive was not less than the minimum manufacture concentration for the detection agent;
(c) the detection agent was homogenously distributed throughout the plastic explosive.
Note:
For minimum manufacture concentration , see section 72.34.
Freshness
(3)
the second marking requirement is that less than 10 years have elapsed since the manufacture of the plastic explosive.
Interpretation
(4)
In determining whether a plastic explosive manufactured before the commencement of this section breached the first marking requirement, assume that this section and sections 72.34 and 72.36 had been in force at the time of manufacture.
For the purposes of this Subdivision, the following table defines:
(a) detection agent ; and
(b) the minimum manufacture concentration for each detection agent.
| Detection agents and minimum manufacture concentrations | ||
| Item | Detection agent | Minimum manufacture concentration |
| 1 | Ethylene glycol dinitrate (EGDN) (molecular formula: C2H4(NO3)2) (molecular weight: 152) | 0.2% by mass |
| 2 | 2,3-Dimethyl-2,3-dinitrobutane (DMNB) (molecular formula: C6H12(NO2)2) (molecular weight: 176) | 1% by mass |
| 3 | para-Mononitrotoluene (p-MNT) (molecular formula: C7H7NO2) (molecular weight: 137) | 0.5% by mass |
| 4 | a substance prescribed for the purposes of this table item | the concentration prescribed for the purposes of this table item in relation to the substance |
This section applies in relation to a prosecution for an offence against this Subdivision.
(2)
If no detection agent can be detected in a sample of a plastic explosive when tested using:
(a) a method generally accepted in the scientific community as a reliable means of measuring the concentration of detection agents in plastic explosives; or
(b) a method prescribed for the purposes of this paragraph;
it is presumed, unless the contrary is proved, that the plastic explosive breaches the first marking requirement.
Note:
A defendant bears a legal burden in relation to proving the contrary (see section 13.4).
In this Subdivision:
AFP Minister
means the Minister administering the Australian Federal Police Act 1979.
Convention on the Marking of Plastic Explosives
means:
(a) the Convention on the Marking of Plastic Explosives for the Purpose of Detection, done at Montreal on 1 March 1991; or
(b) if:
(i) the Convention is amended; and
the Convention as so amended.
(ii) the amendment binds Australia;
Note:
In 2006, the text of the Convention was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
Department of Defence
means the Department that deals with matters relating to defence.
detection agent
has the meaning given by section 72.34.
explosive device
includes the following:
(a) a bomb;
(b) a grenade;
(c) a mine;
(d) a missile;
(e) a perforator;
(f) a projectile;
(g) a rocket;
(h) a shaped charge;
(i) a shell.
export
includes take from Australia.
first marking requirement
has the meaning given by subsection 72.33(2).
high explosive
means an explosive with a velocity of detonation that is greater than the velocity of sound in the explosive (typically greater than 340 metres per second), and includes the following:
(a) cyclotetramethylenetetranitramine (HMX);
(b) pentaerythritol tetranitrate (PETN);
(c) cyclotrimethylenetrinitramine (RDX).
import
includes bring into Australia.
manufacture a substance
means any process by which a substance is produced, and includes the following:
(a) the process of transforming a substance into a different substance;
(b) the reprocessing of a substance.
marking requirement
has the meaning given by section 72.33.
minimum manufacture concentration
has the meaning given by section 72.34.
Minister for Defence
means the Minister administering the Defence Act 1903.
plastic explosive
means an explosive product (including an explosive produce in flexible or elastic sheet form) that is:
(a) formulated with:
(i) one or more high explosives which in their pure form have a vapour pressure less than 10-4 Pa at a temperature of 25°C; and
(ii) a binder material; and
(b) as a mixture, malleable or flexible at normal room temperature.
possess
a substance includes the following:
(a) receive or obtain possession of the substance;
(b) have control over the disposition of the substance (whether or not the substance is in the custody of the person);
(c) have joint possession of the substance.
(a) the AFP Minister; or
(b) the Minister for Defence.
second marking requirement
has the meaning given by subsection 72.33(3).
(a) transfer the substance; or
(b) offer the substance for sale; or
(c) invite the making of offers to buy the substance; or
(d) prepare the substance for transfer with the intention of transferring any of it or believing that another person intends to transfer any of it; or
(e) transport or deliver the substance with the intention of transferring any of it or believing that another person intends to transfer any of it; or
(f) guard or conceal the substance with the intention of transferring any of it or the intention of assisting another person to transfer any of it; or
(g) possess the substance with the intention of transferring any of it.
For the purposes of paragraph (d), preparing a substance for transfer includes packaging the substance or separating the substance into discrete units.
transfer
means transfer ownership or possession.
unmarked plastic explosive
means a plastic explosive that breaches a marking requirement.
wrapper
, in relation to a plastic explosive, means a wrapper the inner surface of which is in contact with the plastic explosive.
The purpose of this Subdivision is to create offences relating to cluster munitions and explosive bomblets and give effect to the Convention on Cluster Munitions.
Doing acts with a cluster munition
(1)
A person commits an offence if the person does any of the following with a cluster munition:
(a) uses it;
(b) develops, produces or otherwise acquires it;
(c) stockpiles or retains it;
(d) transfers it to anyone.
Penalty: Imprisonment for 10 years.
Promoting acts with a cluster munition
(2)
A person (the first person ) commits an offence if:
(a) the first person assists, encourages or induces another person to do any of the following acts with a cluster munition:
(i) use it;
(ii) develop, produce or otherwise acquire it;
(iii) stockpile or retain it;
(iv) transfer it to anyone; and
(b) the other person does the act; and
(c) the first person intends that the act be done.
Penalty: Imprisonment for 10 years.
Geographical jurisdiction
(3)
Section 15.2 (extended geographical jurisdiction - category B) applies to an offence against this section.
Relationship with other provisions
(4)
Division 11 does not apply in relation to an offence against subsection (2).
Note 1:
Later sections of this Subdivision set out defences.
Note 2:
This section relates to Articles 1 and 9 of the Convention on Cluster Munitions.
Section 72.38 does not apply to the acquisition or retention of a cluster munition authorised under subsection (2).
Note:
A defendant bears an evidential burden in relation to the matter in subsection (1): see subsection 13.3(3).
(2)
The Minister administering the Explosives Act 1961 may authorise, in writing, specified members of the Australian Defence Force or other specified Commonwealth public officials to acquire or retain specified cluster munitions for one or more of the following purposes:
(a) the development of, and training in, cluster munition and explosive submunition detection, clearance or destruction techniques;
(b) the development of cluster munition counter-measures;
(c) the destruction of the munitions.
Note 1:
For specification by class see the Acts Interpretation Act 1901.
Note 2:
This section relates to paragraphs 6 and 7 of Article 3 of the Convention on Cluster Munitions.
(3)
The regulations may prescribe requirements relating to authorisations under subsection (2).
(4)
An authorisation made under subsection (2) is not a legislative instrument.
(5)
The Minister described in subsection (2) may delegate his or her power under that subsection to:
(a) the Secretary of the Department administered by that Minister; or
(b) an SES employee in that Department.
Note:
For the definition of SES employee see the Acts Interpretation Act 1901.
Transfer to foreign party to Convention on Cluster Munitions
(1)
Section 72.38 does not apply to the transfer of a cluster munition to a party to the Convention on Cluster Munitions for one or more of the following purposes:
(a) the development of, and training in, cluster munition and explosive submunition detection, clearance or destruction techniques;
(b) the development of cluster munition counter-measures;
(c) the destruction of the munition.
Note 1:
A defendant bears an evidential burden in relation to the matter in subsection (1): see subsection 13.3(3).
Note 2:
This subsection relates to paragraph 7 of Article 3 of the Convention on Cluster Munitions.
Intended transfer to Australian Defence Force
(2)
Subsections (3) and (4) have effect if:
(a) a person has a cluster munition; and
(b) the person gives notice to a police officer or member of the Australian Defence Force that the person wishes to transfer the munition to a member of the Australian Defence Force or other Commonwealth public official; and
(c) the person gives notice without delay after the first time the person has the cluster munition after the commencement of this subsection.
(3)
Subsection 72.38(1) does not apply to the person stockpiling or retaining the cluster munition at any time before the person transfers it to a member of the Australian Defence Force or other Commonwealth public official.
(4)
Subsection 72.38(1) does not apply to the person transferring the cluster munition to a member of the Australian Defence Force or other Commonwealth public official.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (2) and whichever of subsections (3) and (4) is relevant: see subsection 13.3(3).
A person who is an Australian citizen, is a member of the Australian Defence Force or is performing services under a Commonwealth contract does not commit an offence against section 72.38 by doing an act if:
(a) the act is done in the course of military cooperation or operations with a foreign country that is not a party to the Convention on Cluster Munitions; and
(b) the act is not connected with the Commonwealth:
(i) using a cluster munition; or
(ii) developing, producing or otherwise acquiring a cluster munition; or
(iii) stockpiling or retaining a cluster munition; or
(iv) transferring a cluster munition; and
(c) the act does not consist of expressly requesting the use of a cluster munition in a case where the choice of munitions used is within the Commonwealth's exclusive control.
Note 1:
A defendant bears an evidential burden in relation to the matter in this section: see subsection 13.3(3).
Note 2:
The expression offence against section 72.38 is given an extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(2).
Note 3:
This section relates to paragraphs 3 and 4 of Article 21 of the Convention on Cluster Munitions.
Section 72.38 does not apply to the stockpiling, retention or transfer of a cluster munition that:
(a) is done by:
(i) a member of the armed forces of a foreign country that is not a party to the Convention on Cluster Munitions; or
(ii) a person who is connected with such forces as described in subsection (2) and is neither an Australian citizen nor a resident of Australia; and
(b) is done in connection with the use by those forces of any of the following in Australia in the course of military cooperation or operations with the Australian Defence Force:
(i) a base;
(ii) an aircraft of any part of those forces or an aircraft being commanded or piloted by a member of those forces in the course of his or her duties as such a member;
(iii) a ship of any part of those forces or a ship being operated or commanded by a member of those forces in the course of his or her duties as such a member.
Note:
A defendant bears an evidential burden in relation to the matter in this section: see subsection 13.3(3).
(2)
This subsection covers a person with any of the following connections with the armed forces of a foreign country that is not a party to the Convention on Cluster Munitions:
(a) the person is employed by, or in the service of, any of those forces;
(b) the person is serving with an organisation accompanying any of those forces;
(c) the person is attached to or accompanying those forces and is subject to the law of that country governing any of the armed forces of that country.
This section applies if a court:
(a) convicts someone of an offence against subsection 72.38(1); or
(b) makes an order under section 19B of the Crimes Act 1914 relating to an offence against subsection 72.38(1).
Note:
The expression offence against subsection 72.38(1) is given an extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(2).
(2)
The court may order forfeiture to the Commonwealth of any cluster munition involved in the offence.
(3)
A cluster munition ordered to be forfeited to the Commonwealth becomes the Commonwealth's property.
This Subdivision applies in relation to explosive bomblets in the same way as it applies in relation to cluster munitions.
In this Subdivision:
cluster munition
has the meaning given by paragraph 2 of Article 2 of the Convention on Cluster Munitions.
Convention on Cluster Munitions
means the Convention on Cluster Munitions done at Dublin on 30 May 2008.
Note:
In 2012, the text of the Convention was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
explosive bomblet
has the meaning given by paragraph 13 of Article 2 of the Convention on Cluster Munitions.
explosive submunition
has the meaning given by paragraph 3 of Article 2 of the Convention on Cluster Munitions.
(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); or
(c) a member (however described) of a police force of a State or Territory.
transfer
has the meaning given by paragraph 8 of Article 2 of the Convention on Cluster Munitions.
Note:
Imports and exports are some examples of transfers.
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;
(d) (Repealed by No 50 of 2010)
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.
SECTION 73.2 Aggravated offence of people smuggling (danger of death or serious harm etc.) (1)
A person (the first person ) commits an offence against this section if the first person commits the offence of people smuggling (the underlying offence ) in relation to another person (the victim ) and either or both of the following apply:
(a) (Repealed by No 6 of 2013)
(b) in committing the underlying offence, the first person subjects the victim to cruel, inhuman or degrading treatment;
(c) in committing the underlying offence:
(i) the first person's conduct 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.
(2)
There is no fault element for the physical element of conduct described in subsection (1), that the first person commits the underlying offence, other than the fault elements (however described), if any, for the underlying offence.
(2A)
To avoid doubt, the first person may be convicted of an offence against this section even if the first person has not been convicted of the underlying offence.
(3)
(Repealed by No 6 of 2013)
SECTION 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 otherpersons whose entry into the foreign country is covered by paragraph (b) are not citizens or permanent residents of the foreign country;
(d) (Repealed by No 50 of 2010)
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.
SECTION 73.3A Supporting the offence of people smuggling (1)
A person (the first person ) commits an offence if:
(a) the first person provides material support or resources to another person or an organisation (the receiver ); and
(b) the support or resources aids the receiver, or a person or organisation other than the receiver, to engage in conduct constituting the offence of people smuggling.
Penalty: Imprisonment for 10 years, or 1,000 penalty units, or both.
(2)
Subsection (1) does not apply if the conduct constituting the offence of people smuggling relates, or would relate, to:
(a) the first person; or
(b) a group of persons that includes the first person.
(3)
To avoid doubt, the first person commits an offence against subsection (1) even if the offence of people smuggling is not committed.
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
SECTION 73.5 Attorney-General's consent required (1)
(ii) a result of the conduct occurs, or is intended by the person to occur, outside Australia.
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 SECTION 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.
(2)
(Repealed by No 96 of 2005)
SECTION 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.
SECTION 73.8 73.8 Making, providing or possessing a false travel or identity document
A person (the first person ) commits 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.
SECTION 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 ) commits 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
has been obtained dishonestly or by threats; and
(ii) an alteration of the travel or identity document;
(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.
SECTION 73.10 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 ) commits 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.
SECTION 73.11 73.11 Taking possession of or destroying another person's travel or identity documentA person (the first person ) commits 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.
SECTION 73.12 73.12 Jurisdictional requirementSection 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 related offences
In this Division:
(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.
party
includes a person, body or group of any kind.
The meaning of an expression in this Division does not affect the meaning of that expression in the Australian Security Intelligence Organisation Act 1979, unless that Act expressly provides otherwise.
A person commits an offence 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)-(f) (Omitted)
(g) instigates a person who is not an Australian citizen to make an armed invasion of the Commonwealth or a Territory of the Commonwealth.
(h) (Omitted)
Penalty: Imprisonment for life.
S 80.1(1) amended by No 127 of 2010, s 3 and Sch 1 items 8 to 11, by omitting ", called treason,", omitting paras (e), (f) and (h), and substituting "Commonwealth." for "Commonwealth; or" in para (g), effective 25 November 2010. Paras (e), (f) and (h) formerly read:
(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; orthat is engaged in armed hostilities against the Australian Defence Force; or
(ii) an organisation;
(h) forms an intention to do any act referred to in a preceding paragraph and manifests that intention by an overt act.
(1A)
(Repealed by No 127 of 2010)
(1B)
(Repealed by No 127 of 2010)
(2)
A person commits an offence if the person:
(a) receives or assists another person who, to his or her knowledge, has committed an offence against this Subdivision (other than this subsection) with the intention of allowing him or her to escape punishment or apprehension; or
(b) knowing that another person intends to commit an offence against this Subdivision (other than this subsection), 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.
(3)
(Repealed by No 144 of 2005)
(4)
(Repealed by No 144 of 2005)
(5)
(Repealed by No 127 of 2010)
(6)
(Repealed by No 144 of 2005)
(7)
(Repealed by No 144 of 2005)
(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.
organisation
(Repealed by No 144 of 2005)
SECTION 80.1AA Treason - assisting enemy to engage in armed conflict (1)
A person commits an offence if:
(a) a party (the enemy ) is engaged in armed conflict involving the Commonwealth or the Australian Defence Force; and
(b) the enemy is declared in a Proclamation made under section 80.1AB; and
(c) the person engages in conduct; and
(d) the person intends that the conduct will materially assist the enemy to engage in armed conflict involving the Commonwealth or the Australian Defence Force; and
(e) the conduct materially assists the enemy to engage in armed conflict involving the Commonwealth or the Australian Defence Force; and
(f) at the time the person engages in the conduct:
(i) the person knows that the person is an Australian citizen or a resident of Australia; or
(ii) the person knows that the person has voluntarily put himself or herself under the protection of the Commonwealth; or
(iii) the person is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.
Note 1:
There is a defence in section 80.3 for acts done in good faith.
Note 2:
If a body corporate is convicted of an offence against subsection (1), subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 10,000 penalty units.
Penalty: Imprisonment for life.
(2)
Strict liability applies to paragraph (1)(b) and subparagraph (1)(f)(iii).
(3)
Absolute liability applies to paragraph (1)(e).
(4)
Subsection (1) does not apply to engagement in conduct solely by way of, or for the purposes of, the provision of aid or assistance of a humanitarian nature.
Note:
A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
The Governor-General may, by Proclamation, declare a party to be an enemy engaged in armed conflict involving the Commonwealth or the Australian Defence Force.
Note:
See subsection 80.1AA(1) for the effect of the Proclamation.
A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct involves the use of force or violence; and
(c) the person engages in the conduct with the intention of overthrowing:
(i) the Constitution; or
(ii) the Government of the Commonwealth, of a State or of a Territory; or
(iii) the lawful authority of the Government of the Commonwealth.
Note 1:
There is a defence in section 80.3 for acts done in good faith.
Note 2:
If a body corporate is convicted of an offence against subsection (1), subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 10,000 penalty units.
Penalty: Imprisonment for life.
Urging the overthrow of the Constitution or Government by force or violence
(1)
A person (the first person ) commits an offence if:
(a) the first person intentionally urges another person to overthrow by force or violence:
(i) the Constitution; or
(ii) the Government of the Commonwealth, of a State or of a Territory; or
(iii) the lawful authority of the Government of the Commonwealth; and
(b) the first person does so intending that force or violence will occur.
Penalty: Imprisonment for 7 years.
Note:
For intention, see section 5.2.
(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 person urges the other person to overthrow.
Urging interference in Parliamentary elections or constitutional referenda by force or violence
(3)
A person (the first person ) commits an offence if:
(a) the first person intentionally urges another person to interfere, by force or violence, with lawful processes for:
(i) an election of a member or members of a House of the Parliament; or
(ii) a referendum; and
(b) the first person does so intending that force or violence will occur.
Penalty: Imprisonment for 7 years.
Note:
For intention, see section 5.2.
(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, or for a referendum, that the first person urges the other person to interfere with.
Note:
There is a defence in section 80.3 for acts done in good faith.
(5)
(Repealed by No 127 of 2010)
(6)
(Repealed by No 127 of 2010)
(7)
(Repealed by No 127 of 2010)
(8)
(Repealed by No 127 of 2010)
(9)
(Repealed by No 127 of 2010)
SECTION 80.2A Urging violence against groups
Offences
(1)
A person (the first person ) commits an offence if:
(a) the first person intentionally urges another person, or a group, to use force or violence against a group (the targeted group ); and
(b) the first person does so intending that force or violence will occur; and
(c) the targeted group is distinguished by race, religion, nationality, national or ethnic origin or political opinion; and
(d) the use of the force or violence would threaten the peace, order and good government of the Commonwealth.
Penalty: Imprisonment for 7 years.
Note:
For intention, see section 5.2.
(2)
A person (the first person ) commits an offence if:
(a) the first person intentionally urges another person, or a group, to use force or violence against a group (the targeted group ); and
(b) the first person does so intending that force or violence will occur; and
(c) the targeted group is distinguished by race, religion, nationality, national or ethnic origin or political opinion.
Penalty: Imprisonment for 5 years.
Note:
For intention, see section 5.2.
(3)
The fault element for paragraphs (1)(c) and (2)(c) is recklessness.
Note:
For recklessness, see section 5.4.
Alternative verdict
(4)
Subsection (5) applies if, in a prosecution for an offence (the prosecuted offence ) against subsection (1), the trier of fact:
(a) is not satisfied that the defendant is guilty of the offence; but
(b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence (the alternative offence ) against subsection (2).
(5)
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.
Note:
There is a defence in section 80.3 for acts done in good faith.
Offences
(1)
A person (the first person ) commits an offence if:
(a) the first person intentionally urges another person, or a group, to use force or violence against a person (the targeted person ); and
(b) the first person does so intending that force or violence will occur; and
(c) the first person does so because of his or her belief that the targeted person is a member of a group (the targeted group ); and
(d) the targeted group is distinguished by race, religion, nationality, national or ethnic origin or political opinion; and
(e) the use of the force or violence would threaten the peace, order and good government of the Commonwealth.
Penalty: Imprisonment for 7 years.
Note:
For intention, see section 5.2.
(2)
A person (the first person ) commits an offence if:
(a) the first person intentionally urges another person, or a group, to use force or violence against a person (the targeted person ); and
(b) the first person does so intending that force or violence will occur; and
(c) the first person does so because of his or her belief that the targeted person is a member of a group (the targeted group ); and
(d) the targeted group is distinguished by race, religion, nationality, national or ethnic origin or political opinion.
Penalty: Imprisonment for 5 years.
Note:
For intention, see section 5.2.
(3)
For the purposes of paragraphs (1)(c) and (2)(c), it is immaterial whether the targeted person actually is a member of the targeted group.
(4)
The fault element for paragraphs (1)(d) and (2)(d) is recklessness.
Note:
For recklessness, see section 5.4.
Alternative verdict
(5)
Subsection (6) applies if, in a prosecution for an offence (the prosecuted offence ) against subsection (1), the trier of fact:
(a) is not satisfied that the defendant is guilty of the offence; but
(b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence (the alternative offence) against subsection (2).
(6)
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.
Note:
There is a defence in section 80.3 for acts done in good faith.
A person commits an offence if: (a) the person advocates:
(i) the doing of a terrorist act; or
(b) the person engages in that conduct reckless as to whether another person will:
(ii) the commission of a terrorism offence referred to in subsection (2); and
(i) engage in a terrorist act; or
(ii) commit a terrorism offence referred to in subsection (2).
Note:
There is a defence in section 80.3 for acts done in good faith.
Penalty:
(a) if subparagraph (a)(i) of this subsection applies - imprisonment for 7 years; or
(b) if subparagraph (a)(ii) of this subsection applies - imprisonment for 7 years or for the maximum term of imprisonment for the terrorism offence advocated, whichever is the lesser.
(2)
A terrorism offence is referred to in this subsection if: (a) the offence is punishable on conviction by imprisonment for 5 years or more; and (b) the offence is not:
(i) an offence against section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) tothe extent that it relates to a terrorism offence; or
(ii) a terrorism offence that a person is taken to have committed because of section 11.2 (complicity and common purpose), 11.2A (joint commission) or 11.3 (commission by proxy).
Definitions
(3)
In this section:
advocates
: a person
advocates
the doing of a terrorist act or the commission of a terrorism offence if:
(a) the person counsels, promotes, encourages or urges the doing of a terrorist act or the commission of a terrorism offence; or
(b) the person provides instruction on the doing of a terrorist act or the commission of a terrorism offence; or
(c) the person praises the doing of a terrorist act or the commission of a terrorism offence in circumstances where there is a substantial risk that such praise might have the effect of leading another person to engage in a terrorist act or to commit a terrorism offence.
terrorism offence
has the same meaning as in subsection 3(1) of the Crimes Act 1914.
terrorist act
has the same meaning as in section 100.1.
(4)
A reference in this section to advocating the doing of a terrorist act or the commission of a terrorism offence includes a reference to:
(a) advocating the doing of a terrorist act or the commission of a terrorism offence, even if a terrorist act or terrorism offence does not occur; and
(b) advocating the doing of a specific terrorist act or the commission of a specific terrorism offence; and
(c) advocating the doing of more than one terrorist act or the commission of more than one terrorism offence.
A person commits an offence if:
(a) the person advocates genocide; and
(b) the person engages in that conduct reckless as to whether another person will engage in genocide.
Note:
There is a defence in section 80.3 for acts done in good faith.
Penalty: Imprisonment for 7 years.
Double jeopardy
(2)
A person cannot be tried by a federal court or a court of a State or Territory for an offence against subsection (1) 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 against subsection (1).
Definitions
(3)
In this section:
advocate
means counsel, promote, encourage or urge.
genocide
means the commission of an offence against Subdivision B (genocide) of Division 268, other than:
(a) an offence against section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) to the extent that it relates to an offence against that Subdivision; or
(b) an offence against that Subdivision that a person is taken to have committed because of section 11.2 (complicity and common purpose), 11.2A (joint commission) or 11.3 (commission by proxy).
(4)
A reference in this section to advocating genocide includes a reference to:
(a) advocating genocide, even if genocide does not occur; and
(b) advocating the commission of a specific offence that is genocide; and
(c) advocating the commission of more than one offence, each of which is genocide.
Each of the following is a prohibited symbol : (a) a prohibited Nazi symbol; (b) a prohibited terrorist organisation symbol.
(2)
Each of the following is a prohibited Nazi symbol : (a) the Nazi hakenkreuz; (b) the Nazi double-sig rune; (c) something that so nearly resembles a thing to which paragraph (a) or (b) applies that it is likely to be confused with, or mistaken for, that thing.
(3)
Each of the following is a prohibited terrorist organisation symbol : (a) a symbol that a terrorist organisation (within the meaning of Division 102) uses, or members of a terrorist organisation use, to identify the organisation; (b) something that so nearly resembles a symbol to which paragraph (a) applies that it is likely to be confused with, or mistaken for, that symbol.
A thing is displayed in a public place if it is capable of being seen by a member of the public who is in a public place (whether or not the thing is actually so seen by a member of the public).
(2)
A thing is also displayed in a public place if it is included in: (a) a document (including, for example, a newspaper, magazine, program, leaflet or ticket); or (b) a film, video or television program;
that is available, or distributed, to the public or a section of the public.
(3)
A thing is also displayed in a public place if it is included in a document, film, video or television program that is available, or distributed to, the public or a section of the public by means of a telegraphic, telephonic or other like service within the meaning of paragraph 51(v) of the Constitution including, for example, by means of the internet.
Example:
If a thing is included in a document that is available to the public or a section of the public on a website, then the thing is displayed in a public place under this subsection.
(4)
In this section, available or distributed includes available or distributed as of right or by invitation, whether express or implied, and whether or not a charge is made for availability or distribution.
A person makes a gesture in a public place if: (a) the person makes a gesture; and (b) the gesture is capable of being seen by a member of the public who is in a public place (whether or not the gesture is actually so seen by a member of the public).
For the purposes of this Subdivision, a person trades in goods if: (a) the person sells the goods; or (b) the person prepares the goods for supply with the intention of selling the goods or believing that another person intends to sell the goods; or (c) the person transports the goods with the intention of selling the goods or believing that another person intends to sell the goods; or (d) the person guards or conceals the goods with the intention of selling the goods or assisting another person to sell the goods; or (e) the person possesses the goods with the intention of selling the goods.
(2)
For the purposes of paragraph (1)(b) and sections 80.2J and 80.2JA, preparing goods for supply includes packaging the goods or separating the goods into discrete units.
(3)
This section and sections 80.2J and 80.2JA apply in relation to leasing out or renting out (or agreeing to lease out or rent out) in the same way as they apply in relation to selling.
(4)
In this section and sections 80.2J and 80.2JA:
conceal
goods includes conceal or disguise:
(a) the nature, source or location of the goods; or
(b) any movement of the goods; or
(c) the rights of any person with respect to the goods; or
(d) the identity of any owner of the goods.
possession
of goods includes the following:
(a) receiving or obtaining possession of the goods;
(b) having control over the disposition of the goods (whether or not the goods are in the custody of the person);
(c) having joint possession of the goods.
(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.
A person commits an offence if: (a) the person:
(i) causes a thing to be displayed in a public place; or
(b) the thing is a prohibited Nazi symbol, or the gesture is a Nazi salute; and (c) subsection (3), (4) or (7) applies; and (d) subsection (9) does not apply.
(ii) makes a gesture in a public place; and
Note:
For defences, see subsection (10).
Penalty: Imprisonment for 12 months.
(2)
Absolute liability applies to paragraphs (1)(c) and (d).
(3)
For the purposes of paragraph (1)(c), this subsection applies if a reasonable person would consider that the conduct mentioned in paragraph (1)(a): (a) involves dissemination of ideas based on racial superiority or racial hatred; or (b) could incite another person or a group of persons to offend, insult, humiliate or intimidate:
(i) a person (the targeted person ) because of the race of the targeted person; or
(ii) the members of a group of persons (the targeted group ) because of the race of some or all of the members of the targeted group.
Note:
The object of this subsection is to give further effect to Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination, done at New York on 21 December 1965. The Convention is in Australian Treaty Series 1975 No. 40 ([1975] ATS 40) and could in 2023 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
(4)
For the purposes of paragraph (1)(c), this subsection applies if a reasonable person would consider that the conduct mentioned in paragraph (1)(a) involves advocacy that: (a) is advocacy of hatred of:
(i) a group of persons distinguished by race, religion or nationality (a targeted group ); or
(b) constitutes incitement of another person or group of persons to offend, insult, humiliate, intimidate or use force or violence against:
(ii) a member of a targeted group; and
(i) the targeted group; or
(ii) a member of the targeted group.
Note:
The object of this subsection is to give further effect to article 20 of the Covenant.
(5)
For the purposes of paragraph (4)(a), it does not matter whether the conduct actually results in the hatred mentioned in that paragraph.
(6)
For the purposes of paragraph (4)(b), it does not matter whether the conduct actually incites another person as mentioned in that paragraph.
(7)
For the purposes of paragraph (1)(c), this subsection applies if the conduct mentioned in paragraph (1)(a) is likely to offend, insult, humiliate or intimidate a person who is: (a) a reasonable person; and (b) a member of a group of persons distinguished by race, colour, sex, language, religion, political or other opinion or national or social origin;
because of the reasonable person's membership of that group.
Note:
The object of this subsection is to give further effect to article 26 of the Covenant.
(8)
For the purposes of subsection (7), it does not matter whether a member of the group sees: (a) the thing while it is displayed in a public place; or (b) the gesture while it is made in a public place.
(9)
For the purposes of paragraph (1)(d), this subsection applies if a reasonable person would consider that: (a) the conduct mentioned in paragraph (1)(a) is engaged in for a purpose that is:
(i) a religious, academic, educational, artistic, literary or scientific purpose; and
(b) the conduct mentioned in paragraph (1)(a) is engaged in for the purposes of making a news report, or a current affairs report, that:
(ii) not contrary to the public interest; or
(i) is in the public interest; and
(ii) is made by a person working in a professional journalistic capacity.
Defences
(10)
Subsection (1) does not apply to a person engaging in conduct mentioned in paragraph (1)(a) if: (a) engaging in the conduct is necessary for enforcing a law of:
(i) the Commonwealth; or
(ii) a State; or
(iii) a Territory; or
(iv) a foreign country; or
(b) engaging in the conduct is necessary for monitoring compliance with, or investigating a contravention of, a law of:
(v) a part of a foreign country; or
(i) the Commonwealth; or
(ii) a State; or
(iii) a Territory; or
(iv) a foreign country; or
(c) the person engages in the conduct for the purposes of proceedings in a court or tribunal; or (d) both:
(v) a part of a foreign country; or
(i) the person engages in the conduct in connection with the performance by a public official of the official's duties or functions; and
(e) both:
(ii) engaging in the conduct is reasonable in the circumstances for the purpose of the public official performing that duty or function; or
(i) the person engages in the conduct in connection with an individual assisting a public official in relation to the performance of the public official's duties or functions; and
(f) the person genuinely engages in the conduct for the purpose of opposing Nazi ideology, fascism or a related ideology.
(ii) engaging in the conduct is reasonable in the circumstances for the purpose of the individual assisting the public official in relation to the performance of the public official's duties or functions; or
Note:
A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
Functions
(11)
The references in this section to function or functions do not, by implication, affect the meaning of the expressions duty or duties when used in any other provision of this Code.
A person commits an offence if: (a) the person causes a thing to be displayed in a public place; and (b) the person knows that the thing is a prohibited terrorist organisation symbol; and (c) subsection (3), (4) or (7) applies; and (d) subsection (9) does not apply.
Note:
For defences, see subsection (10).
Penalty: Imprisonment for 12 months.
(2)
Absolute liability applies to paragraphs (1)(c) and (d).
(3)
For the purposes of paragraph (1)(c), this subsection applies if a reasonable person would consider that the conduct mentioned in paragraph (1)(a): (a) involves dissemination of ideas based on racial superiority or racial hatred; or (b) could incite another person or a group of persons to offend, insult, humiliate or intimidate:
(i) a person (the targeted person ) because of the race of the targeted person; or
(ii) the members of a group of persons (the targeted group ) because of the race of some or all of the members of the targeted group.
Note:
The object of this subsection is to give further effect to Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination, done at New York on 21 December 1965. The Convention is in Australian Treaty Series 1975 No. 40 ([1975] ATS 40) and could in 2023 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
(4)
For the purposes of paragraph (1)(c), this subsection applies if a reasonable person would consider that the conduct mentioned in paragraph (1)(a) involves advocacy that: (a) is advocacy of hatred of:
(i) a group of persons distinguished by race, religion or nationality (a targeted group ); or
(b) constitutes incitement of another person or group of persons to offend, insult, humiliate, intimidate or use force or violence against:
(ii) a member of a targeted group; and
(i) the targeted group; or
(ii) a member of the targeted group.
Note:
The object of this subsection is to give further effect to article 20 of the Covenant.
(5)
For the purposes of paragraph (4)(a), it does not matter whether the conduct actually results in the hatred mentioned in that paragraph.
(6)
For the purposes of paragraph (4)(b), it does not matter whether the conduct actually incites another person as mentioned in that paragraph.
(7)
For the purposes of paragraph (1)(c), this subsection applies if the conduct mentioned in paragraph (1)(a) is likely to offend, insult, humiliate or intimidate a person who is: (a) a reasonable person; and
because of the reasonable person's membership of that group.
Note:
The object of this subsection is to give further effect to article 26 of the Covenant.
(8)
For the purposes of subsection (7), it does not matter whether a member of the group sees the thing while it is displayed in a public place.
(9)
For the purposes of paragraph (1)(d), this subsection applies if a reasonable person would consider that: (a) the conduct mentioned in paragraph (1)(a) is engaged in for a purpose that is:
(i) a religious, academic, educational, artistic, literary or scientific purpose; and
(b) the conduct mentioned in paragraph (1)(a) is engaged in for the purposes of making a news report, or a current affairs report, that:
(ii) not contrary to the public interest; or
(i) is in the public interest; and
(ii) is made by a person working in a professional journalistic capacity.
Defences
(10)
Subsection (1) does not apply to a person engaging in conduct mentioned in paragraph (1)(a) if: (a) engaging in the conduct is necessary for enforcing a law of:
(i) the Commonwealth; or
(ii) a State; or
(iii) a Territory; or
(iv) a foreign country; or
(b) engaging in the conduct is necessary for monitoring compliance with, or investigating a contravention of, a law of:
(v) a part of a foreign country; or
(i) the Commonwealth; or
(ii) a State; or
(iii) a Territory; or
(iv) a foreign country; or
(c) the person engages in the conduct for the purposes of proceedings in a court or tribunal; or (d) both:
(v) a part of a foreign country; or
(i) the person engages in the conduct in connection with the performance by a public official of the official's duties or functions; and
(e) both:
(ii) engaging in the conduct is reasonable in the circumstances for the purpose of the public official performing that duty or function; or
(i) the person engages in the conduct in connection with an individual assisting a public official in relation to the performance of the public official's duties or functions; and
(f) the person genuinely engages in the conduct for the purpose of opposing the ideology or purposes of a terrorist organisation (within the meaning of Division 102).
(ii) engaging in the conduct is reasonable in the circumstances for the purpose of the individual assisting the public official in relation to the performance of the public official's duties or functions; or
Note:
A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
Functions
(11)
The references in this section to function or functions do not, by implication, affect the meaning of the expressions duty or duties when used in any other provision of this Code.
A person commits an offence if: (a) the person trades in goods; and (b) the goods depict or contain a prohibited Nazi symbol; and (c) the person knows that, or is reckless as to whether, the prohibited Nazi symbol is associated with Nazi ideology; and (d) subsection (3) applies; and (e) subsections (4) and (5) do not apply.
Note:
For defences, see subsections (6) to (8).
Penalty: Imprisonment for 12 months.
(2)
Absolute liability applies to paragraphs (1)(d) and (e).
Jurisdictional requirements
(3)
For the purposes of paragraph (1)(d), this subsection applies if: (a) the trading occurs to any extent outside Australia; or (b) the trading involves transportation across State borders, either for reward or in connection with a commercial arrangement; or (c) the trading occurs within a Territory or involves transportation to or from a Territory; or (d) the trading is engaged in by, or on behalf of, a constitutional corporation; or (e) some of the trading is engaged in by communication using a postal, telegraphic, telephonic or other like service within the meaning of paragraph 51(v) of the Constitution; or (f) the trading:
(i) occurs to any extent at a Commonwealth place; or
(g) the person is an alien; or (h) the trading involves the person:
(ii) involves transportation to or from a Commonwealth place; or
(i) selling the goods to an alien; or
(ii) preparing the goods for supply with theintention of selling them to an alien or believing that another person intends to sell them to an alien or believing that an alien intends to sell them; or
(iii) transporting the goods with the intention of selling them to an alien or believing that another person intends to sell them to an alien or believing that an alien intends to sell them; or
(iv) guarding or concealing the goods with the intention of selling them to an alien or with the intention of assisting another person to sell them to an alien or with the intention of assisting an alien to sell them; or
(v) possessing the goods with the intention of selling them to an alien.
Other matters
(4)
For the purposes of paragraph (1)(e), this subsection applies if a reasonable person would consider that: (a) the goods that are traded are intended to serve a religious, academic, educational, artistic, literary or scientific purpose; and (b) the person's trading in the goods is not contrary to the public interest.
(5)
For the purposes of paragraph (1)(e), this subsection applies if: (a) the goods that are traded contain one or more news reports or current affairs reports; and (b) each prohibited Nazi symbol that the goods depict or contain appears in such a report and only appears in such a report; and (c) in relation to each such report in which a prohibited Nazi symbol appears - a reasonable person would consider that:
(i) the report was made by a person working in a professional journalistic capacity; and
(ii) disseminating the report is in the public interest.
Defences
(6)
Subsection (1) does not apply to a person's trading in goods if: (a) the goods that are traded contain commentary on public affairs; and (b) each prohibited Nazi symbol that the goods depict or contain appears in the commentary and only appears in the commentary; and (c) in relation to commentary in which a prohibited Nazi symbol appears - making the commentary is in the public interest.
Note:
A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
(7)
Subsection (1) does not apply to a person's trading in goods if the trading is necessary for or of assistance in: (a) enforcing a law of the Commonwealth, a State or Territory, or a foreign country; or (b) monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or Territory, or a foreign country; or (c) the administration of justice (whether within or outside Australia).
Note:
A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
(8)
Subsection (1) does not apply to a person's trading in goods if: (a) both:
(i) the trading is in connection with the performance by a public official of the official's duties or functions; and
(b) both:
(ii) the trading is reasonable in the circumstances for the purpose of the public official performing that duty or function; or
(i) the trading is in connection with an individual assisting a public official in relation to the performance of the public official's duties or functions; and
(ii) the trading is reasonable in the circumstances for the purpose of the individual assisting the public official in relation to the performance of the public official's duties or functions.
Note:
A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
Interpretation
(9)
The references in this section to function or functions do not, by implication, affect the meaning of the expressions duty or duties when used in any other provision of this Code.
(10)
In this section, Commonwealth place has the same meaning as in the Commonwealth Places (Application of Laws) Act 1970.
A person commits an offence if: (a) the person trades in goods; and (b) the goods depict or contain a symbol; and (c) the person knows that the symbol is a prohibited terrorist organisation symbol; and (d) subsection (3) applies; and (e) subsections (4) and (5) do not apply.
Note:
For defences, see subsections (6) to (8).
Penalty: Imprisonment for 12 months.
(2)
Absolute liability applies to paragraphs (1)(d) and (e).
Jurisdictional requirements
(3)
For the purposes of paragraph (1)(d), this subsection applies if: (a) the trading occurs to any extent outside Australia; or (b) the trading involves transportation across State borders, either for reward or in connection with a commercial arrangement; or (c) the trading occurs within a Territory or involves transportation to or from a Territory; or (d) the trading is engaged in by, or on behalf of, a constitutional corporation; or (e) some of the trading is engaged in by communication using a postal, telegraphic, telephonic or other like service within the meaning of paragraph 51(v) of the Constitution; or (f) the trading:
(i) occurs to any extent at a Commonwealth place; or
(g) the person is an alien; or (h) the trading involves the person:
(ii) involves transportation to or from a Commonwealth place; or
(i) selling the goods to an alien; or
(ii) preparing the goods for supply with the intention of selling them to an alien or believing that another person intends to sell them to an alien or believing that an alien intends to sell them; or
(iii) transporting the goods with the intention of selling them to an alien or believing that another person intends to sell them to an alien or believing that an alien intends to sell them; or
(iv) guarding or concealing the goods with the intention of selling them to an alien or with the intention of assisting another person to sell them to an alien or with the intention of assisting an alien to sell them; or
(v) possessing the goods with the intention of selling them to an alien.
Other matters
(4)
For the purposes of paragraph (1)(e), this subsection applies if a reasonable person would consider that: (a) the goods that are traded are intended to serve a religious, academic, educational, artistic, literary or scientific purpose; and (b) the person's trading in the goods is not contrary to the public interest.
(5)
For the purposes of paragraph (1)(e), this subsection applies if: (a) the goods that are traded contain one or more news reports or current affairs reports; and (b) each prohibited terrorist organisation symbol that the goods depict or contain appears in such a report and only appears in such a report; and (c) in relation to each such report in which a prohibited terrorist organisation symbol appears - a reasonable person would consider that:
(i) the report was made by a person working in a professional journalistic capacity; and
(ii) disseminating the report is in the public interest.
Defences
(6)
Subsection (1) does not apply to a person's trading in goods if: (a) the goods that are traded contain commentary on public affairs; and (b) each prohibited terrorist organisation symbol that the goods depict or contain appears in the commentary and only appears in the commentary; and (c) in relation to commentary in which a prohibited terrorist organisation symbol appears - making the commentary is in the public interest.
Note:
A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
(7)
Subsection (1) does not apply to a person's trading in goods if the trading is necessary for or of assistance in: (a) enforcing a law of the Commonwealth, a State or Territory, or a foreign country; or (b) monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or Territory, or a foreign country; or (c) the administration of justice (whether within or outside Australia).
Note:
A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
(8)
Subsection (1) does not apply to a person's trading in goods if: (a) both:
(i) the trading is in connection with the performance by a public official of the official's duties or functions; and
(b) both:
(ii) the trading is reasonable in the circumstances for the purpose of the public official performing that duty or function; or
(i) the trading is in connection with an individual assisting a public official in relation to the performance of the public official's duties or functions; and
(ii) the trading is reasonable in the circumstances for the purpose of the individual assisting the public official in relation to the performance of the public official's duties or functions.
Note:
A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
Interpretation
(9)
The references in this section to function or functions do not, by implication, affect the meaning of the expressions duty or duties when used in any other provision of this Code.
(10)
In this section, Commonwealth place has the same meaning as in the Commonwealth Places (Application of Laws) Act 1970.
Directions
(1)
A police officer may, in accordance with section 80.2L, direct a person to cause a prohibited symbol to cease to be displayed in a public place if: (a) the prohibited symbol is displayed in a public place as mentioned in subsection 80.2F(1) (other than by being made available on the internet); and (b) subsection (2), (3) or (6) of this section applies.
Circumstances in which direction may be given
(2)
For the purposes of paragraph (1)(b), this subsection applies if the police officer reasonably suspects that the display in a public place mentioned in paragraph (1)(a): (a) involves dissemination of ideas based on racial superiority or racial hatred; or (b) could incite another person or a group of persons to offend, insult, humiliate or intimidate:
(i) a person (the targeted person ) because of the race of the targeted person; or
(ii) the members of a group of persons (the targeted group ) because of the race of some or all of the members of the targeted group.
Note:
The object of this subsection is to give further effect to Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination, done at New York on 21 December 1965. The Convention is in Australian Treaty Series 1975 No. 40 ([1975] ATS 40) and could in 2023 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
(3)
For the purposes of paragraph (1)(b), this subsection applies if the police officer reasonably suspects that the display in a public place mentioned in paragraph (1)(a) involves advocacy that: (a) is advocacy of hatred of:
(i) a group of persons distinguished by race, religion or nationality (a targeted group ); or
(b) constitutes incitement of another person or group of persons to offend, insult, humiliate, intimidate or use force or violence against:
(ii) a member of a targeted group; and
(i) the targeted group; or
(ii) a member of the targeted group.
Note:
The object of this subsection is to give further effect to article 20 of the Covenant.
(4)
For the purposes of paragraph (3)(a), it does not matter whether the conduct actually results in the hatred mentioned in that paragraph.
(5)
For the purposes of paragraph (3)(b), it does not matter whether the conduct actually incites another person as mentioned in that paragraph.
(6)
For the purposes of paragraph (1)(b), this subsection applies if the police officer reasonably suspects that the display in a public place mentioned in paragraph (1)(a) is likely to offend, insult, humiliate or intimidate a person who is: (a) a reasonable person; and (b) a member of a group of persons distinguished by race, colour, sex, language, religion, political or other opinion or national or social origin;
because of the reasonable person's membership of that group.
Note:
The object of this subsection is to give further effect to article 26 of the Covenant.
(7)
For the purposes of subsection (6), it does not matter whether a member of the group sees the prohibited symbol while it is displayed in a public place.
Time by which direction must be complied with
(8)
A direction given under subsection (1) must specify the time by which the prohibited symbol must cease to be displayed in a public place. The time must be reasonable.
Definitions
(9)
In this section:
(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); or
(c) a member (however described) of a police force of a Stateor Territory.
A police officer may give a direction to cause a prohibited symbol to cease to be displayed in a public place under subsection 80.2K(1) only in accordance with subsection (2), (3) or (4) of this section.
(2)
The direction may be given to a person, either orally or in writing, if the police officer suspects on reasonable grounds that: (a) one or more of the following is satisfied:
(i) the person caused the prohibited symbol to be displayed in a public place;
(ii) the person is an owner or an occupier of land or premises on, at or from which the prohibited symbol is displayed in a public place;
(b) there are steps the person can take to cause the prohibited symbol to cease to be displayed in a public place.
(iii) the person is an owner or an occupant of an aircraft, vehicle or vessel on or from which the prohibited symbol is displayed in a public place; and
(3)
The direction may also be given in writing by being left on or at land or premises on, at or from which the prohibited symbol is displayed in a public place. In this case, the direction is taken to have been given to each person who is an owner or occupier of the land or premises at the time the direction is given.
(4)
The direction may also be given in writing by being affixed or placed in a conspicuous manner on an aircraft, vehicle or vessel on or from which the prohibited symbol is displayed in a public place. In this case, the direction is taken to have been given to each person who is an owner of the aircraft, vehicle or vessel at the time the direction is given.
Offence
(1)
A person commits an offence if: (a) the person is given a direction under subsection 80.2K(1); and (b) the prohibited symbol specified in the direction does not cease to be displayed in a public place before the time specified in the direction under subsection 80.2K(8).
Penalty: 20 penalty units.
(2)
Strict liability applies to paragraph (1)(b).
Defences
(3)
Subsection (1) does not apply if: (a) the conduct that caused the prohibited symbol to be displayed in a public place was genuinely engaged in for a purpose that is:
(i) a religious, academic, educational, artistic, literary or scientific purpose; and
(b) the conduct that caused the prohibited symbol to be displayed in a public place was engaged in for the purposes of making a news report, or a current affairs report, that is:
(ii) not contrary to the public interest; or
(i) in the public interest; and
(c) if the prohibited symbol is a prohibited Nazi symbol - any of paragraphs 80.2H(10)(a) to (f) applied to the person engaging in the conduct that caused the prohibited symbol to be displayed in a public place; or (d) if the prohibited symbol is a prohibited terrorist organisation symbol - any of paragraphs 80.2HA(10)(a) to (f) applied to the person engaging in the conduct that caused the prohibited symbol to be displayed in a public place.
(ii) made by a person working in a professional journalistic capacity; or
Note:
A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
(4)
For the purposes of paragraphs (3)(a), (b) and (c), it does not matter whether the conduct referred to in those paragraphs was conduct of the person who is given the direction as mentioned in paragraph (1)(a).
(5)
Subsection (1) does not apply if: (a) both:
(i) the person (the recipient ) who is given the direction did not cause the prohibited symbol to be displayed in a public place; and
(b) either the person (the recipient ) who is given the direction takes all reasonable steps to cause the prohibited symbol to cease to be displayed in a public place, or there are no such steps that the recipient can take.
(ii) when the direction is given, the recipient is not an owner or an occupier of land or premises on, at or from which the prohibited symbol is displayed in a public place, or an owner of an aircraft, vehicle or vessel on or from which the prohibited symbol is displayed in a public place; or
Note:
A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
Subdivisions B and C, and sections 83.1 and 83.4, 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 a party:
(i) engaged in armed conflict involving the Commonwealth or the Australian Defence Force; and
(ii) declared in a Proclamation made under section 80.1AB to be an enemy engaged in armed conflict involving the Commonwealth or the Australian Defence Force; or
(c)-(e) (Repealed by No 67 of 2018)
(f) with the intention of causing violence or creating public disorder or a public disturbance.
(3)
Without limiting subsection (2), in considering a defence under subsection (1) in respect of an offence against Subdivision C, the Court may have regard to any relevant matter, including whether the acts were done:
(a) in the development, performance, exhibition or distribution of an artistic work; or
(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
(c) in the dissemination of news or current affairs.
Subject to subsection (2), section 15.4 (extended geographical jurisdiction - category D) applies to an offence against this Division.
(2)
Section 15.2 (extended geographical jurisdiction - category B) applies to an offence against: (a) section 80.1AC; or (b) subsection 80.2A(2); or (c) subsection 80.2B(2); or (d) subsection 80.2C(1); or (e) subsection 80.2H(1); or (ea) subsection 80.2HA(1); or (f) subsection 80.2J(1); or (fa) subsection 80.2JA(1); or (g) subsection 80.2M(1).
SECTION 80.5 80.5 Attorney-General's consent required
(Repealed by No 127 of 2010)
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.
In this Division:
advantage
: conduct will not
advantage
the national security of a foreign country if the conduct will advantage Australia's national security to an equivalent extent.
damage to public infrastructure
: conduct results in
damage to public infrastructure
if any of the following paragraphs apply in relation to public infrastructure:
(a) the conduct destroys it or results in its destruction;
(b) the conduct involves interfering with it, or abandoning it, resulting in it being lost or rendered unserviceable;
(c) the conduct results in it suffering a loss of function or becoming unsafe or unfit for its purpose;
(d) the conduct limits or prevents access to it or any part of it by persons who are ordinarily entitled to access it or that part of it;
(e) the conduct results in it or any part of it becoming defective or being contaminated;
(f) the conduct significantly degrades its quality;
(g) if it is an electronic system - the conduct seriously disrupts it.
foreign principal
has the meaning given by section 90.2.
national security
has the meaning given by section 90.4.
prejudice
: embarrassment alone is not sufficient to
prejudice
Australia's national security.
public infrastructure
: see section 82.2.
Public infrastructure
(1)
Public infrastructure means any of the following:
(a) any infrastructure, facility, premises, network or electronic system that belongs to the Commonwealth;
(b) defence premises within the meaning of Part VIA of the Defence Act 1903;
(c) service property, and service land, within the meaning of the Defence Force Discipline Act 1982;
(d) any part of the infrastructure of a telecommunications network within the meaning of the Telecommunications Act 1997;
(e) any infrastructure, facility, premises, network or electronic system (including an information, telecommunications or financial system) that:
(i) provides or relates to providing the public with utilities or services (including transport of people or goods) of any kind, or relates to food (within the meaning of the Food Standards Australia New Zealand Act 1991) intended for the public; and
(ii) is located in Australia; and
(iii) belongs to or is operated by a constitutional corporation or is used to facilitate constitutional trade and commerce.
(f) food (within the meaning of the Food Standards Australia New Zealand Act 1991) that:
(i) is intended for the public; and
(ii) is produced, distributed or sold by a constitutional corporation or for the purposes of, or in the course of, constitutional trade and commerce.
(2)
For the purposes of the application of paragraph (1)(a) or (e) in relation to property within the meaning of Chapter 7, whether the property belongs to the Commonwealth or a constitutional corporation is to be determined in the same way as it would be under Chapter 7 (see section 130.2).
Fault element for offences in relation to public infrastructure
(3)
For the purposes of a reference, in an element of an offence, to public infrastructure within the meaning of this Division, absolute liability applies:
(a) in relation to public infrastructure within the meaning of paragraph (1)(a) - to the element that the infrastructure, facility, premises, network or electronic system belongs to the Commonwealth; and
(b) in relation to public infrastructure within the meaning of paragraph (1)(e) - to the element that the infrastructure, facility, premises, network or electronic system belongs to or is operated by a constitutional corporation or is used to facilitate constitutional trade or commerce: and
(c) in relation to public infrastructure within the meaning of paragraph (1)(f) - to the element that the food is produced, distributed or sold by a constitutional corporation or for the purposes of, or in the course of, constitutional trade and commerce.
The meaning of an expression in this Division does not affect the meaning of that expression in the Australian Security Intelligence Organisation Act 1979, unless that Act expressly provides otherwise.
A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in damage to public infrastructure; and
(c) the person intends that the conduct will:
(i) prejudice Australia's national security; or
(ii) advantage the national security of a foreign country; and
(d) any of the following circumstances exists:
(i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal;
(ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal.
Penalty: Imprisonment for 25 years.
(2)
For the purposes of subparagraph (1)(c)(ii), the person:
(a) does not need to have in mind a particular foreign country; and
(b) may have in mind more than one foreign country.
(3)
For the purposes of paragraph (1)(d), the person:
(a) does not need to have in mind a particular foreign principal; and
(b) may have in mind more than one foreign principal.
Note:
An alternative verdict may be available for an offence against this section (see section 82.12).
A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in damage to public infrastructure; and
(c) the person is reckless as to whether the conduct will:
(i) prejudice Australia's national security; or
(ii) advantage the national security of a foreign country; and
(d) any of the following circumstances exists:
(i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal;
(ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal.
Penalty: Imprisonment for 20 years.
(2)
For the purposes of subparagraph (1)(c)(ii), the person:
(a) does not need to have in mind a particular foreign country; and
(b) may have in mind more than one foreign country.
(3)
For the purposes of paragraph (1)(d), the person:
(a) does not need to have in mind a particular foreign principal; and
(b) may have in mind more than one foreign principal.
Note:
An alternative verdict may be available for an offence against this section (see section 82.12).
A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in damage to public infrastructure; and
(c) the person intends that the conduct will:
(i) prejudice Australia's national security; or
(ii) advantage the national security of a foreign country.
Penalty: Imprisonment for 20 years.
(2)
For the purposes of subparagraph (1)(c)(ii), the person:
(a) does not need to have in mind a particular foreign country; and
(b) may have in mind more than one foreign country.
Note:
An alternative verdict may be available for an offence against this section (see section 82.12).
A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in damage to public infrastructure; and
(c) the person is reckless as to whether the conduct will:
(i) prejudice Australia's national security; or
(ii) advantage the national security of a foreign country.
Penalty: Imprisonment for 15 years.
(2)
For the purposes of paragraph (1)(c), the person:
(a) does not need to have in mind a particular foreign country; and
(b) may have in mind more than one foreign country.
A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct has the result that an article or thing, or software, becomes vulnerable:
(i) to misuse or impairment; or
(ii) to being accessed or modified by a person not entitled to access or modify it; and
(c) the article or thing, or software, is or is part of public infrastructure; and
(d) the person engages in the conduct with the intention that prejudice to Australia's national security will occur (whether at the time or at a future time).
Note:
An alternative verdict may be available for an offence against this section (see section 82.12).
Penalty: Imprisonment for 15 years.
A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct has the result that an article or thing, or software, becomes vulnerable:
(i) to misuse or impairment; or
(ii) to being accessed or modified by a person not entitled to access or modify it; and
(c) the article or thing, or software, is or is part of public infrastructure; and
(d) the person engages in the conduct reckless as to whether prejudice to Australia's national security will occur (whether at the time or at a future time).
Penalty: Imprisonment for 10 years.
A person commits an offence if:
(a) the person engages in conduct; and
(b) the person does so with the intention of preparing for, or planning, an offence against this Division (other than this section).
Penalty: Imprisonment for 7 years.
(2)
Section 11.1 (attempt) does not apply to an offence against subsection (1).
(3)
Subsection (1) applies:
(a) whether or not an offence against this Division is committed; and
(b) whether or not the person engages in the conduct in preparation for, or planning, a specific offence against a provision of this Division; and
(c) whether or not the person engages in the conduct in preparation for, or planning, more than one offence against this Division.
It is a defence to a prosecution for an offence by a person against this Division if:
(a) the person is, at the time of the offence, a public official; and
(b) the person engaged in the conduct in good faith in the course of performing duties as a public official; and
(c) the conduct is reasonable in the circumstances for the purpose of performing those duties.
Note:
A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).
(2)
It is a defence to a prosecution for an offence by a person against this Division if:
(a) the person is, at the time of the offence:
(i) an owner or operator of the public infrastructure; or
(ii) acting on behalf of, or with the consent of, an owner or operator of the public infrastructure; and
(b) the person engaged in the conduct in good faith; and
(c) the conduct is within the lawful authority of the owner or operator; and
(d) the conduct is reasonable in the circumstances for the purpose of exercising that lawful authority.
Note:
A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).
Section 15.4 (extended geographical jurisdiction - category D) applies to an offence against this Division.
If, on a trial of a person for an offence specified in column 1 of an item in the following table, the trier of fact:
(a) is not satisfied that the person is guilty of that offence; and
(b) is satisfied beyond reasonable doubt that the person is guilty of an offence against a provision specified in column 2 of that item;
it may find the person not guilty of the offence specified in column 1 but guilty of an offence specified in column 2.
| Alternative verdicts | ||
| Item | Column 1 For an offence against: | Column 2 The alternative verdict is an offence against: |
| 1 | section 82.3 (sabotage involving foreign principal with intention as to national security) | any of the following:
(a) section 82.4 (sabotage involving foreign principal reckless as to national security); (b) section 82.5 (sabotage with intention as to national security); (c) section 82.6 (sabotage reckless as to national security) |
| 2 | section 82.4 (sabotage involving foreign principal reckless as to national security) | section 82.6 (sabotage reckless as to national security) |
| 3 | section 82.5 (sabotage with intention as to national security) | section 82.6 (sabotage reckless as to national security) |
| 4 | section 82.7 (introducing vulnerability with intention as to national security) | section 82.8 (introducing vulnerability reckless as to national security) |
(2)
Subsection (1) only applies if the person has been accorded procedural fairness in relation to the finding of guilt for the offence specified in column 2.
Proceedings for the commitment of a person for trial for an offence against this Division must not be instituted without the written consent of the Attorney-General.
(2)
However, the following steps may be taken (but no further steps in proceedings may be taken) without consent having been given:
(a) a person may be arrested for the offence and a warrant for such an arrest may be issued and executed;
(b) a person may be charged with the offence;
(c) a person so charged may be remanded in custody or on bail.
(3)
Nothing in subsection (2) prevents the discharge of the accused if proceedings are not continued within a reasonable time.
(4)
In deciding whether to consent, the Attorney-General must consider whether the conduct might be authorised by section 82.10.
The meaning of an expression in this Division does not affect the meaning of that expression in the Australian Security Intelligence Organisation Act 1979, unless that Act expressly provides otherwise.
A person (the advocate ) commits an offence if:
(a) the advocate engages in conduct; and
(b) the conduct involves advocating mutiny; and
(c) the advocate engages in the conduct reckless as to whether the result will be that a defence member (within the meaning of the Defence Force Discipline Act 1982) will take part in a mutiny; and
(d) at the time the advocate engages in the conduct:
(i) the advocate knows that the advocate is an Australian citizen or a resident of Australia; or
(ii) the advocate knows that the advocate has voluntarily put himself or herself under the protection of the Commonwealth; or
(iii) the advocate is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.
Note:
The defence in section 80.3 for acts done in good faith applies to this offence.
Penalty: Imprisonment for 7 years.
(1A)
For the purposes of this section:
(a) a person advocates mutiny if the person counsels, promotes, encourages or urges mutiny; and
(b) a reference to advocating mutiny includes a reference to:
(i) advocating mutiny even if mutiny does not occur; and
(ii) advocating a specific mutiny; and
(iii) advocating more than one mutiny.
(2)
A mutiny is a combination between persons who are, or at least 2 of whom are, members of the Australian Defence Force:
(a) to overthrow lawful authority in the Australian Defence Force or in a force of another country that is acting in cooperation with the Australian Defence Force; or
(b) to resist such lawful authority in such a manner as to substantially prejudice the operational efficiency of the Australian Defence Force or of, or of a part of, a force of another country that is acting in cooperation with the Australian Defence Force.
(3)
Strict liability applies to subparagraph (1)(d)(iii).
(4)
Section 15.4 (extended geographical jurisdiction - category D) applies to an offence against this section.
A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct assists one or more prisoners of war (within the meaning of Article 4 of the Third Geneva Convention) to escape from custody; and
(c) the custody is controlled wholly or partly by the Commonwealth or the Australian Defence Force; and
(d) the conduct takes place in the context of an international armed conflict.
Penalty: Imprisonment for 15 years.
(2)
Absolute liability applies to paragraph (1)(d).
(3)
Section 15.4 (extended geographical jurisdiction - category D) applies to an offence against this section.
Offence in relation to military-style training
(1)
A person commits an offence if: (a) the person provides, receives, or participates in, training; and (b) the training involves using arms or practising military exercises, movements or evolutions; and (c) any of the following circumstances exists:
(i) the training is provided on behalf of a foreign government principal within the meaning of Part 5.2 (see section 90.3) or a foreign political organisation within the meaning of that Part (see section 90.1);
(ii) the training is directed, funded or supervised by a foreign government principal or foreign political organisation, or a person acting on behalf of a foreign government principal or foreign political organisation.
Penalty: Imprisonment for 20 years.
Defence - foreign work authorisation under the Defence Act 1903
(1A)
Subsection (1) does not apply to an individual in relation to conduct engaged in by the individual as part of work (within the meaning of Part IXAA of the Defence Act 1903) or training (within the meaning of that Part) that is authorised by a foreign work authorisation granted to the individual under section 115C of that Act and that is in force at the time the individual engages in the conduct.
Note:
A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).
Defence - class of individuals who are not foreign work restricted individuals
(1B)
Subsection (1) does not apply to an individual if: (a) the individual provides training (within the meaning of Part IXAA of the Defence Act 1903); and (b) the individual is included in a class of individuals covered by an instrument in force under subsection 115(1) of that Act at the time the individual provides the training; and (c) neither of the following apply:
(i) the training relates to goods, software or technology within the scope of Part 1 of the Defence and Strategic Goods List (within the meaning of the Defence Trade Controls Act 2012);
(d) the training is provided to, or on behalf of:
(ii) the training relates to military tactics, military techniques or military procedures; and
(i) a government body (within the meaning of Part IXAA of the Defence Act 1903) of a foreign country; or
(e) the foreign country is a relevant foreign country (within the meaning of Part IXAA of the Defence Act 1903).
(ii) a military organisation (within the meaning of Part IXAA of the Defence Act 1903) of a foreign country; and
Note:
A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).
Defences - countries that are not relevant foreign countries
(1C)
Subsection (1) does not apply to an individual if: (a) the individual is a foreign work restricted individual (within the meaning of Part IXAA of the Defence Act 1903); and (b) the individual provides training (within the meaning of that Part); and (c) the training is provided to, or on behalf of:
(i) a government body (within the meaning of that Part) of a foreign country; or
(d) the foreign country is covered by an instrument in force under subsection 115(3) of that Act at the time the individual provides the training.
(ii) a military organisation (within the meaning of that Part) of a foreign country; and
Note:
A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).
(1D)
Subsection (1) does not apply to an individual if: (a) the individual is not a foreign work restricted individual (within the meaning of Part IXAA of the Defence Act 1903); and (b) the individual is:
(i) an Australian citizen; or
(c) the individual provides training (within the meaning of that Part); and (d) either:
(ii) a permanent resident of Australia (within the meaning of that Part); and
(i) the training relates to goods, software or technology within the scope of Part 1 of the Defence and Strategic Goods List (within the meaning of the Defence Trade Controls Act 2012); or
(e) the training is provided to, or on behalf of:
(ii) the training relates to military tactics, military techniques or military procedures; and
(i) a government body (within the meaning of Part IXAA of the Defence Act 1903) of a foreign country; or
(f) the foreign country is covered by an instrument in force under subsection 115(3) of the Defence Act 1903 at the time the individual provides the training.
(ii) a military organisation (within the meaning of Part IXAA of the Defence Act 1903) of a foreign country; and
Note:
A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).
Defence - authorised by written agreement
(2)
Subsection (1) does not apply to a person in relation to conduct engaged in by the person that is authorised by a written agreement to which the Commonwealth is a party.
Note:
A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).
Defence - solely for service with armed force
(3)
Subsection (1) does not apply in relation to training a person provides, receives or participates in, if the provision, receipt or participation is solely in the course of, and as part of, the person's service in any capacity in or with: (a) the armed forces of the government of a foreign country; or (b) any other armed force, if a declaration under subsection 119.8(1) covers the person and the circumstances of the person's service in or with the force.
Note:
A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).
Exception to subsection (1B) or (3) - terrorist organisation
(4)
Subsection (1B) or (3) does not apply if: (a) at the time the person engages in the conduct:
(i) the person is in or with an organisation; or
(b) the organisation is:
(ii) the training is funded partly by an organisation; and
(i) a listed terrorist organisation within the meaning of Part 5.3 (see section 100.1); or
(ii) a prescribed organisation within the meaning of Part 5.5 (see section 117.1).
Defence - humanitarian assistance etc.
(4A)
Subsection (1) does not apply to a person in relation to conduct engaged in by the person solely or primarily for one or more of the following purposes: (a) providing aid of a humanitarian nature; (b) performing an official duty for:
(i) the United Nations or an agency of the United Nations; or
(ii) the International Committee of the Red Cross.
Note:
A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).
Geographical jurisdiction
(5)
Section 15.2 (extended geographical jurisdiction - category B) applies to an offence against this section.
A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct involves the use of force or violence, or intimidation, or the making of threats of any kind; and
(c) the conduct results in interference with the exercise or performance, in Australia by any other person, of an Australian democratic or political right or duty; and
(d) the right or duty arises under the Constitution or a law of the Commonwealth.
Note:
The defence in section 80.3 for acts done in good faith applies to this offence.
Penalty: Imprisonment for 3 years.
(2)
Absolute liability applies to paragraph (1)(d).
Proceedings for the commitment of a person for trial for an offence against this Division must not be instituted without the written consent of the Attorney-General.
(2)
However, the following steps may be taken (but no further steps in proceedings may be taken) without consent having been given: (a) a person may be arrested for the offence and a warrant for such an arrest may be issued and executed; (b) a person may be charged with the offence; (c) a person so charged may be remanded in custody or on bail.
(3)
Nothing in subsection (2) prevents the discharge of the accused if proceedings are not continued within a reasonable time.
(4)
In deciding whether to consent, the Attorney-General must consider whether the conduct might be authorised in a way mentioned in: (a) for an offence against section 83.3 - subsection 83.3(1A), (1B), (1C), (1D), (2), (3) or (4A); and (b) for an offence against section 83.1 or 83.4 - section 80.3.
In this Part:
advantage
: conduct will not
advantage
the national security of a foreign country if the conduct will advantage Australia's national security to an equivalent extent.
article
includes any thing, substance or material.
concerns
: information or an article
concerns
Australia's national security if the information or article relates to, or is connected with, or is of interest or importance to, or affects, Australia's national security.
deal
: a person
deals
with information or an article if the person does any of the following in relation to the information or article:
(a) receives or obtains it;
(b) collects it;
(c) possesses it;
(d) makes a record of it;
(e) copies it;
(f) alters it;
(g) conceals it;
(h) communicates it;
(i) publishes it;
(j) makes it available.
Note:
See also the definition of make available in this subsection and subsection (2).
foreign government principal
has the meaning given by section 90.3.
foreign political organisation
includes:
(a) a foreign political party; and
(b) a foreign organisation that exists primarily to pursue political objectives; and
(c) a foreign organisation that exists to pursue militant, extremist or revolutionary objectives.
foreign principal
has the meaning given by section 90.2.
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
(Repealed by No 67 of 2018)
make available
information or an article includes:
(a) place it somewhere it can be accessed by another person; and
(b) give it to an intermediary to give to the intended recipient; and
(c) describe how to obtain access to it, or describe methods that are likely to facilitate access to it (for example, set out the name of a website, an IP address, a URL, a password, or the name of a newsgroup).
national security
has the meaning given by section 90.4.
prejudice
: embarrassment alone is not sufficient to
prejudice
Australia's national security.
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 classification
has the meaning given by section 90.5.
security or defence
(Repealed by No 67 of 2018)
sketch
includes a representation of a place or thing.
the Commonwealth
(Repealed by No 67 of 2018)
(2)
In this Part, dealing with information or an article includes:
(a) dealing with all or part of the information or article; and
(b) dealing only with the substance, effect or description of the information or article.
(3)
(Repealed by No 67 of 2018)
(4)
This Part applies to and in relation to a document or article regardless of who made it and what information it contains.
SECTION 90.2 90.2 Definition of foreign principal
Each of the following is a foreign principal :
(a) a foreign government principal;
(aa) a foreign political organisation;
(b) a public international organisation within the meaning of Division 70 (see section 70.1);
(c) a terrorist organisation within the meaning of Division 102 (see section 102.1);
(d) an entity or organisation owned, directed or controlled by a foreign principal within the meaning of paragraph (aa), (b) or (c);
(e) an entity or organisation owned, directed or controlled by 2 or more foreign principals within the meaning of paragraph (a), (aa), (b) or (c).
Each of the following is a foreign government principal :
(a) the government of a foreign country or of part of a foreign country;
(b) an authority of the government of a foreign country;
(c) an authority of the government of part of a foreign country;
(d) a foreign local government body or foreign regional government body;
(e) a company to which any of the subparagraphs of paragraph (a) of the definition of foreign public enterprise in section 70.1 applies;
(f) a body or association to which either of the subparagraphs of paragraph (b) of the definition of foreign public enterprise in section 70.1 applies;
(h) an entity or organisation owned, directed or controlled:
(i) by a foreign government principal within the meaning of any other paragraph of this definition; or
(ii) by 2 or more such foreign government principals that are foreign government principals in relation to the same foreign country.
The national security of Australia or a foreign country means any of the following:
(a) the defence of the country;
(b) the protection of the country or any part of it, or the people of the country or any part of it, from activities covered by subsection (2);
(c) the protection of the integrity of the country's territory and borders from serious threats;
(d) the carrying out of the country's responsibilities to any other country in relation to the matter mentioned in paragraph (c) or an activity covered by subsection (2);
(e) the country's political, military or economic relations with another country or other countries.
(2)
For the purposes of subsection (1), this subsection covers the following activities relating to a country, whether or not directed from, or committed within, the country:
(a) espionage;
(b) sabotage;
(c) terrorism;
(d) political violence;
(e) activities intended and likely to obstruct, hinder or interfere with the performance by the country's defence force of its functions or with the carrying out of other activities by or for the country for the purposes of its defence or safety;
(f) foreign interference.
Security classification means:
(a) a classification of secret or top secret that is applied in accordance with the policy framework developed by the Commonwealth for the purpose (or for purposes that include the purpose) of identifying information:
(i) for a classification of secret - that, if disclosed in an unauthorised manner, could be expected to cause serious damage to the national interest, organisations or individuals; or
(ii) for a classification of top secret - that, if disclosed in an unauthorised manner, could be expected to cause exceptionally grave damage to the national interest; or
(b) any equivalent classification or marking prescribed by the regulations.
(1A)
For the purposes of a reference, in an element of an offence in this Part, to security classification, strict liability applies to the element that:
(a) a classification is applied in accordance with the policy framework developed by the Commonwealth for the purpose (or for purposes that include the purpose) of identifying the information mentioned in subparagraph (1)(a)(i) or (ii); or
(b) a classification or marking is prescribed by the regulations as mentioned in paragraph (1)(b).
(2)
Before the Governor-General makes regulations for the purposes of subsection (1), the Minister must be satisfied that the regulations are not inconsistent with the policy framework mentioned in paragraph (1)(a).
(3)
Despite subsection 14(2) of the Legislation Act 2003, regulations made for the purposes of subsection (1) of this section may prescribe a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time, if the instrument or other writing is publicly available.
The meaning of an expression in this Part does not affect the meaning of that expression in the Australian Security Intelligence Organisation Act 1979, unless that Act expressly provides otherwise.
Intention as to national security
(1)
A person commits an offence if:
(a) the person deals with information or an article; and
(b) the information or article:
(i) has a security classification; or
(ii) concerns Australia's national security; and
(c) the person intends that the person's conduct will:
(i) prejudice Australia's national security; or
(ii) advantage the national security of a foreign country; and
(d) the conduct results or will result in the information or article being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal.
Note:
An alternative verdict may be available for an offence against this subsection (see section 93.5).
Penalty: Imprisonment for life.
Reckless as to national security
(2)
A person commits an offence if:
(a) the person deals with information or an article; and
(b) the information or article:
(i) has a security classification; or
(ii) concerns Australia's national security; and
(c) the person is reckless as to whether the person's conduct will:
(i) prejudice Australia's national security; or
(ii) advantage the national security of a foreign country; and
(d) the conduct results or will result in the information or article being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal.
Penalty: Imprisonment for 25 years.
Other matters
(4)
For the purposes of subparagraphs (1)(c)(ii) and (2)(c)(ii), the person:
(a) does not need to have in mind a particular foreign country; and
(b) may have in mind more than one foreign country.
(5)
For the purposes of paragraphs (1)(d) and (2)(d), the person:
(a) does not need to have in mind a particular foreign principal; and
(b) may have in mind more than one foreign principal.
Intention as to national security
(1)
A person commits an offence if:
(a) the person deals with information or an article; and
(b) the person intends that the person's conduct will prejudice Australia's national security; and
(c) the conduct results or will result in the information or article being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal.
Note:
An alternative verdict may be available for an offence against this subsection (see section 93.5).
Penalty: Imprisonment for 25 years.
Reckless as to national security
(2)
A person commits an offence if:
(a) the person deals with information or an article; and
(b) the person is reckless as to whether the person's conduct will prejudice Australia's national security; and
(c) the conduct results or will result in the information or article being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal.
Penalty: Imprisonment for 20 years.
Other matters
(3)
For the purposes of paragraphs (1)(c) and (2)(c):
(a) the person does not need to have in mind a particular foreign principal; and
(b) the person may have in mind more than one foreign principal.
A person commits an offence if:
(a) the person deals with information or an article; and
(aa) the person deals with the information or article for the primary purpose of communicating the information or article, or making it available, to a foreign principal or a person acting on behalf of a foreign principal; and
(b) the person's conduct results or will result in the information or article being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal; and
(c) the information or article has a security classification.
Penalty: Imprisonment for 20 years.
(2)
For the purposes of paragraphs (1)(aa) and (b):
(a) the person does not need to have in mind a particular foreign principal; and
(b) the person may have in mind more than one foreign principal.
(3)
Strict liability applies to paragraph (1)(aa).
It is a defence to a prosecution for an offence by a person against this Subdivision that the person dealt with the information or article:
(a) in accordance with a law of the Commonwealth; or
(b) in accordance with an arrangement or agreement to which the Commonwealth is party and which allows for the exchange of information or articles; or
(c) in the person's capacity as a public official.
Note:
A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3).
(2)
It is a defence to a prosecution for an offence by a person against this Subdivision that the information or article the person deals with is information or an article 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 this subsection (see subsection 13.3).
(3)
It is a defence to a prosecution for an offence by a person against section 91.1, in which the prosecution relies on subparagraph 91.1(1)(c)(ii) or (2)(c)(ii), or against section 91.3, if:
(a) the person did not make or obtain the information or article by reason of any of the following:
(i) the person being, or having been, a Commonwealth officer (within the meaning of Part 5.6);
(ii) the person being otherwise engaged to perform work for a Commonwealth entity;
(iii) an arrangement or agreement to which the Commonwealth or a Commonwealth entity is party and which allows for the exchange of information; and
(b) the information or article has already been communicated, or made available, to the public (the prior publication ); and
(c) the person was not involved in the prior publication (whether directly or indirectly); and
(d) at the time the person deals with the information or article, the person believes that doing so will not prejudice Australia's national security; and
(e) having regard to the nature, extent and place of the prior publication, the person has reasonable grounds for that belief.
Note:
A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
In determining the sentence to be passed in respect of a person for an offence against subsection 91.1(1) (punishable by life imprisonment), the court must take into account any circumstances set out in paragraph 91.6(1)(b) that exist in relation to the commission of the offence.
(2)
However, the court need only take the circumstances into account so far as the circumstances are known to the court and relevant.
(3)
The circumstances are in addition to any other matters the court must take into account (for example, the matters mentioned in section 16A of the Crimes Act 1914).
A person commits an offence against this section if:
(a) the person commits an offence against section 91.1 (other than subsection 91.1(1)), 91.2 or 91.3 (the underlying offence ); and
(b) any of the following circumstances exist in relation to the commission of the underlying offence:
(ii) the person dealt with information or an article from a foreign intelligence agency;
(iii) the person dealt with 5 or more records or articles each of which has a security classification;
(iv) the person altered a record or article to remove or conceal its security classification;
(v) at the time the person dealt with the information or article, the person held an Australian Government security clearance allowing access to information that has, or articles that have, a security classification of at least secret.
Penalty:
(a) if the penalty for the underlying offence is imprisonment for 25 years - imprisonment for life; or
(b) if the penalty for the underlying offence is imprisonment for 20 years - imprisonment for 25 years.
(2)
There is no fault element for the physical element in paragraph (1)(a) other than the fault elements (however described), if any, for the underlying offence.
(4)
To avoid doubt, a person does not commit an underlying offence for the purposes of paragraph (1)(a) if the person has a defence to the underlying offence.
(5)
To avoid doubt, the person may be convicted of an offence against this section even if the person has not been convicted of the underlying offence.
Note:
An alternative verdict may be available for an offence against this section (see section 93.5).
Section 15.4 (extended geographical jurisdiction - category D) applies to an offence against this Subdivision.
Intention as to national security
(1)
A person commits an offence if:
(a) the person deals with information or an article; and
(b) the person intends that the person's conduct will:
(i) prejudice Australia's national security; or
(ii) advantage the national security of a foreign country; and
(c) the person is reckless as to whether the conduct involves the commission, by the person or any other person, of an offence against Subdivision A (espionage); and
(d) any of the following circumstances exists:
(i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal;
(ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal.
Note:
An alternative verdict may be available for an offence against this subsection (see section 93.5).
Penalty: Imprisonment for 25 years.
Reckless as to national security
(2)
A person commits an offence if:
(a) the person deals with information or an article; and
(b) the person is reckless as to whether the person's conduct will:
(i) prejudice Australia's national security; or
(ii) advantage the national security of a foreign country; and
(c) the person is reckless as to whether the conduct involves the commission, by the person or any other person, of an offence against Subdivision A (espionage); and
(d) any of the following circumstances exists:
(i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal;
(ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal.
Penalty: Imprisonment for 20 years.
Conduct on behalf of foreign principal
(3)
A person commits an offence if:
(a) the person deals with information or an article; and
(b) the person is reckless as to whether the person's conduct involves the commission, by the person or any other person, of an offence against Subdivision A (espionage); and
(c) any of the following circumstances exists:
(i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal;
(ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal.
Penalty: Imprisonment for 15 years.
Other matters
(4)
For the purposes of subparagraphs (1)(b)(ii) and (2)(b)(ii), the person:
(a) does not need to have in mind a particular foreign country; and
(b) may have in mind more than one foreign country.
(5)
For the purposes of paragraphs (1)(d), (2)(d) and (3)(c), the person:
(a) does not need to have in mind a particular foreign principal; and
(b) may have in mind more than one foreign principal.
It is a defence to a prosecution for an offence by a person against this Subdivision that the person dealt with the information or article:
(a) in accordance with a law of the Commonwealth; or
(b) in accordance with an arrangement or agreement to which the Commonwealth is party and which allows for the exchange of information or articles; or
(c) in the person's capacity as a public official.
Note:
A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).
(2)
It is a defence to a prosecution for an offence by a person against this Subdivision that the information or article the person deals with is information or an article 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 this subsection (see subsection 13.3(3)).
Section 15.4 (extended geographical jurisdiction - category D) applies to an offence against this Subdivision.
A person commits an offence if:
(a) the person engages in conduct in relation to another person (the target ); and
(b) the person engages in the conduct with the intention of soliciting or procuring, or making it easier to solicit or procure, the target to deal with information or an article in a way that would constitute an offence against Subdivision A (espionage) or B (espionage on behalf of foreign principal); and
(c) any of the following circumstances exists:
(i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal;
(ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal.
Penalty: Imprisonment for 15 years.
(2)
For the purposes of paragraph (1)(c):
(a) the person does not need to have in mind a particular foreign principal; and
(b) the person may have in mind more than one foreign principal.
(3)
A person may commit an offence against subsection (1):
(a) even if an offence against Subdivision A or B is not committed; and
(b) even if it is impossible for the target to deal with information or an article in a way that would constitute an offence against Subdivision A or B; and
(c) even if the person does not have in mind particular information or a particular article, or a particular dealing or kind of dealing with information or an article, at the time the person engages in conduct in relation to the target; and
(d) whether it is a single dealing, or multiple dealings, that the person intends to solicit or procure or make it easier to solicit or procure.
(4)
Section 11.1 (attempt) does not apply to an offence against subsection (1).
A person commits an offence if:
(a) the person engages in conduct; and
(b) the person does so with the intention of preparing for, or planning, an offence against Subdivision A (espionage) or B (espionage on behalf of foreign principal).
Penalty: Imprisonment for 15 years.
(2)
Section 11.1 (attempt) does not apply to an offence against subsection (1).
(3)
Subsection (1) applies:
(a) whether or not an offence against Subdivision A or B is committed; and
(b) whether or not the person engages in the conduct in preparation for, or planning, a specific offence against a provision of Subdivision A or B; and
(c) whether or not the person engages in the conduct in preparation for, or planning, more than one offence against Subdivision A or B.
It is a defence to a prosecution for an offence by a person against this Subdivision that the person dealt with the information or article:
(a) in accordance with a law of the Commonwealth; or
(b) in accordance with an arrangement or agreement to which the Commonwealth is party and which allows for the exchange of information or articles; or
(c) in the person's capacity as a public official.
Note:
A defendant bears an evidential burden in relation to the matters in this section (see subsection 13.3(3)).
Section 15.4 (extended geographical jurisdiction - category D) applies to an offence against this Subdivision.
In this Division:
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.
menaces
has the same meaning as in Part 7.5 (see section 138.2).
Interference generally
(1)
A person commits an offence if:
(a) the person engages in conduct; and
(b) any of the following circumstances exists:
(i) the person engages in the conduct on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal;
(ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal; and
(c) the person intends that the conduct will:
(i) influence a political or governmental process of the Commonwealth or a State or Territory; or
(ii) influence the exercise (whether or not in Australia) of an Australian democratic or political right or duty; or
(iii) support intelligence activities of a foreign principal; or
(iv) prejudice Australia's national security; and
(d) any part of the conduct:
(i) is covert or involves deception; or
(ii) involves the person making a threat to cause serious harm, whether to the person to whom the threat is made or any other person; or
(iii) involves the person making a demand with menaces.
Note:
An alternative verdict may be available for an offence against this subsection (see section 93.5).
Penalty: Imprisonment for 20 years.
Interference involving targeted person
(2)
A person commits an offence if:
(a) the person engages in conduct; and
(b) any of the following circumstances exists:
(i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal;
(ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal; and
(c) the person intends that the conduct will influence another person (the target ):
(i) in relation to a political or governmental process of the Commonwealth or a State or Territory; or
(ii) in the target's exercise (whether or not in Australia) of any Australian democratic or political right or duty; and
(d) the person conceals from, or fails to disclose to, the target the circumstance mentioned in paragraph (b).
Note:
An alternative verdict may be available for an offence against this subsection (see section 93.5).
Penalty: Imprisonment for 20 years.
Other matters
(3)
For the purposes of paragraphs (1)(b) and (2)(b):
(a) the person does not need to have in mind a particular foreign principal; and
(b) the person may have in mind more than one foreign principal.
Interference generally
(1)
A person commits an offence if:
(a) the person engages in conduct; and
(b) any of the following circumstances exists:
(i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal;
(ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal; and
(c) the person is reckless as to whether the conduct will:
(i) influence a political or governmental process of the Commonwealth or a State or Territory; or
(ii) influence the exercise (whether or not in Australia) of an Australian democratic or political right or duty; or
(iii) support intelligence activities of a foreign principal; or
(iv) prejudice Australia's national security; and
(d) any part of the conduct:
(i) is covert or involves deception; or
(ii) involves the person making a threat to cause serious harm, whether to the person to whom the threat is made or any other person; or
(iii) involves the person making a demand with menaces.
Penalty: Imprisonment for 15 years.
Interference involving targeted person
(2)
A person commits an offence if:
(a) the person engages in conduct; and
(b) any of the following circumstances exists:
(i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal;
(ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal; and
(c) the person is reckless as to whether the conduct will influence another person (the target ):
(i) in relation to a political or governmental process of the Commonwealth or a State or Territory; or
(ii) in the target's exercise (whether or not in Australia) of any Australian democratic or political right or duty; and
(d) the person conceals from, or fails to disclose to, the target the circumstance mentioned in paragraph (b).
Penalty: Imprisonment for 15 years.
Other matters
(3)
For the purposes of paragraphs (1)(b) and (2)(b):
(a) the person does not need to have in mind a particular foreign principal; and
(b) the person may have in mind more than one foreign principal.
A person commits an offence if:
(a) the person engages in conduct; and
(b) the person does so with the intention of preparing for, or planning, an offence against another provision of this Subdivision (foreign interference).
Penalty: Imprisonment for 10 years.
(2)
Section 11.1 (attempt) does not apply to an offence against subsection (1).
(3)
Subsection (1) applies:
(a) whether or not an offence against this Subdivision is committed; and
(b) whether or not the person engages in the conduct in preparation for, or planning, a specific offence against a provision of this Subdivision; and
(c) whether or not the person engages in the conduct in preparation for, or planning, more than one offence against this Subdivision.
It is a defence to a prosecution for an offence by a person against this Subdivision that the person engaged in the conduct:
(a) in accordance with a law of the Commonwealth; or
(b) in accordance with an arrangement or agreement to which the Commonwealth is party; or
(c) in the person's capacity as a public official.
Note:
A defendant bears an evidential burden in relation to the matters in this section (see subsection 13.3(3)).
Section 15.2 (extended geographical jurisdiction - category B) applies to an offence against this Subdivision.
A person commits an offence if:
(a) the person provides resources, or material support, to an organisation or a person acting on behalf of an organisation; and
(b) the person knows that the organisation is a foreign intelligence agency.
Note:
An alternative verdict may be available for an offence against this section (see section 93.5).
Penalty: Imprisonment for 15 years.
A person commits an offence if:
(a) the person provides resources, or material support, to an organisation or a person acting on behalf of an organisation; and
(b) the organisation is a foreign intelligence agency.
Penalty: Imprisonment for 10 years.
A person commits an offence if:
(a) the person:
(i) directly or indirectly receives or obtains funds from, or directly or indirectly makes funds available to, an organisation or a person acting on behalf of an organisation; or
(ii) directly or indirectly collects funds for or on behalf of an organisation or a person acting on behalf of an organisation; and
(b) the person knows that the organisation is a foreign intelligence agency.
Note:
An alternative verdict may be available for an offence against this section (see section 93.5).
Penalty: Imprisonment for 15 years.
A person commits an offence if:
(a) the person:
(i) directly or indirectly receives or obtains funds from, or directly or indirectly makes funds available to, an organisation or a person acting on behalf of an organisation; or
(ii) directly or indirectly collects funds for or on behalf of an organisation or a person acting on behalf of an organisation; and
(b) the organisation is a foreign intelligence agency.
Penalty: Imprisonment for 10 years.
It is a defence to a prosecution for an offence by a person against this Subdivision that the person engaged in the conduct:
(a) in accordance with a law of the Commonwealth; or
(b) in accordance with an arrangement or agreement to which the Commonwealth is party; or
(c) in the person's capacity as a public official.
Note:
A defendant bears an evidential burden in relation to the matters in this section (see subsection 13.3(3)).
A person commits an offence if:
(a) the person dishonestly receives, obtains, takes, copies or duplicates, sells, buys or discloses information; and
(b) all of the following circumstances exist:
(i) the information is not generally known in trade or business, or in the particular trade or business concerned;
(ii) the information has a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were communicated;
(iii) the owner of the information has made reasonable efforts in the circumstances to prevent the information becoming generally known; and
(c) any of the following circumstances exists:
(i) the conduct is engaged in on behalf of, or in collaboration with, a foreign government principal or a person acting on behalf of a foreign government principal;
(ii) the conduct is directed, funded or supervised by a foreign government principal or a person acting on behalf of a foreign government principal.
Penalty: Imprisonment for 15 years.
(2)
For the purposes of paragraph (1)(a), 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.
(3)
In a prosecution for an offence against this section, the determination of dishonesty is a matter for the trier of fact.
(4)
For the purposes of paragraph (1)(c):
(a) the person does not need to have in mind a particular foreign government principal; and
(b) the person may have in mind more than one foreign government principal.
Section 15.2 (extended geographical jurisdiction - category B) applies to an offence against section 92A.1.
(2)
However, subsections 15.2(2) and 15.2(4) (defences for primary and ancillary offences) do not apply.
Proceedings for the commitment of a person for trial for an offence against this Part must not be instituted without:
(a) the written consent of the Attorney-General; and
(b) for proceedings that relate to information or an article that has a security classification - a certification by the Attorney-General that, at the time of the conduct that is alleged to constitute the offence, it was appropriate that the information or article had a security classification.
(2)
However, the following steps may be taken (but no further steps in proceedings may be taken) without consent or certification having been obtained:
(a) a person may be arrested for the offence and a warrant for such an arrest may be issued and executed;
(b) a person may be charged with the offence;
(c) a person so charged may be remanded in custody or on bail.
(3)
Nothing in subsection (2) prevents the discharge of the accused if proceedings are not continued within a reasonable time.
(4)
In deciding whether to consent, the Attorney-General must consider whether the conduct might be authorised:
(a) for an offence against Subdivision A of Division 91 (espionage) - in a way mentioned in section 91.4; and
(b) for an offence against Subdivision B of Division 91 (espionage on behalf of foreign principal) - in a way mentioned in section 91.9; and
(c) for an offence against Subdivision B of Division 92 (foreign interference) - in a way mentioned in section 92.5; and
(d) for an offence against Subdivision C of Division 92 (foreign interference involving foreign intelligence agencies) - in a way mentioned in section 92.11.
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 interests of Australia's national security:
(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.
SECTION 93.4 93.4 Fault elements for attempted espionage offences
Despite subsection 11.1(3), the fault element, in relation to each physical element of an offence of attempting to commit an offence against a provision of:
(a) Subdivision A of Division 91 (espionage); or
(b) Subdivision B of Division 91 (espionage on behalf of foreign principal);
is the fault element in relation to that physical element of the offence against the provision of Subdivision A or B of Division 91.
If, on a trial of a person for an offence specified in column 1 of an item in the following table, the trier of fact:
(a) is not satisfied that the person is guilty of that offence; and
(b) is satisfied beyond reasonable doubt that the person is guilty of an offence against a provision specified in column 2 of that item;
it may find the person not guilty of the offence specified in column 1 but guilty of the offence specified in column 2.
| Alternative verdicts | ||
| Item | Column 1 For an offence against: | Column 2 The alternative verdict is an offence against: |
| 1 | subsection 91.1(1) | subsection 91.1(2) |
| 2 | subsection 91.2(1) | subsection 91.2(2) |
| 3 | subsection 91.6(1) | the underlying offence mentioned in paragraph 91.6(1)(a) |
| 4 | subsection 91.8(1) | subsection 91.8(2) |
| 5 | subsection 92.2(1) | subsection 92.3(1) |
| 6 | subsection 92.2(2) | subsection 92.3(2) |
| 7 | section 92.7 | section 92.8 |
| 8 | section 92.9 | section 92.10 |
(2)
Subsection (1) only applies if the person has been accorded procedural fairness in relation to the finding of guilt for the offence specified in column 2.
A sketch, article, record or document which is dealt with in contravention of this Part is forfeited to the Commonwealth.
In this Part:
(a) a member of the Australian Federal Police (within the meaning of Australian Federal Police Act 1979; or
(b) a special member of the Australian Federal Police (within the meaning of that Act).
AFP Minister
means the Minister administering the Australian Federal Police Act 1979.
ASIO affiliate
has the same meaning as in the Australian Security Intelligence Organisation Act 1979.
ASIO employee
has the same meaning as in the Australian Security Intelligence Organisation Act 1979.
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.
detained in custody
has the meaning given by subsection (3A).
detained in custody in a prison
has the meaning given by subsection (3B).
detained in non-prison custody
has the meaning given by subsection (3C).
engage in a hostile activity
has the meaning given by subsection 117.1(1).
(a) in relation to a control order - has the meaning given by subsection 104.5B(2); or
(b) in relation to an extended supervision order or an interim supervision order - has the meaning given by subsection 105A.7C(2).
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).
(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.
(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.
immigration detention
has the same meaning as in the Migration Act 1958.
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.
interim post-sentence order
has the meaning given by section 105A.2.
(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 the Federal Court of Australia.
Judge
(Repealed by No 82 of 2016)
lawyer
means a person enrolled as a legal practitioner of a federal court or theSupreme 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.
monitoring 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.
Note:
See also the definition of related monitoring equipment in this subsection.
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.
personal information
has the same meaning as in the Privacy Act 1988.
(a) an AFP member; or
(b) a member (however described) of a police force of a State or Territory.
post-sentence order
has the meaning given by section 105A.2.
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.
related monitoring equipment
, in relation to a monitoring device, means any electronic equipment necessary for operating the monitoring device.
reside
includes reside temporarily.
residence
includes temporary residence.
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.
(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.
specified authority
: a person, or person in a class of persons, is a
specified authority
for a requirement or condition in a control order, an extended supervision order or interim supervision order in relation to another person (the
subject
) if:
(a) the person or class is any of the following:
(i) a police officer, or class of police officer;
(ii) if the requirement or condition relates to electronic monitoring - a person, or class of person, who is involved in electronically monitoring the subject;
(iii) for any requirement or condition in the order - any other person, or class of person; and
(b) the Court making the order is satisfied that the person or class is appropriate in relation to the requirement or condition; and
(c) the person or class is specified in the order.
(a) the High Court; or
(b) the Federal Court of Australia; or
(c) (Repealed by No 82 of 2016)
(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
(Repealed by No 131 of 2021)
Elements of the definition of terrorist act
(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.
Definition of detained in custody etc.
(3A)
A person is detained in custody if the person is detained in custody under a law of the Commonwealth, a State or a Territory.
(3B)
A person is detained in custody in a prison if the person is detained in custody in a gaol, lock-up or remand centre, including under a continuing detention order or interim detention order. However, a person is not detained in custody in a prison if the person is in immigration detention in a gaol, lock-up or remand centre.
(3C)
A person is detained in non-prison custody if the person is detained in custody, but is not detained in custody in a prison.
Note:
An example of a person who is detained in non-prison custody is a person who is in immigration detention (whether in a gaol, lock-up, remand centre or otherwise).
References to person, property or 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.
Note:
A court that is sentencing a person who has been convicted of an offence against this Part, the maximum penalty for which is 7 or more years of imprisonment, or convicted of an offence relating to control orders or extended supervision orders, may be required to warn the person about continuing detention orders and extended supervision orders (see section 105A.23).
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.
SECTION 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)).
SECTION 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:
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 thethreat 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.
SECTION 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.
(3)
Despite subsections (1) and (2), sections 2D, 2E and 2F of the Acts Interpretation Act 1901 apply to this Part.
SECTION 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.
SECTION 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.
SECTION 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 SECTION 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).
SECTION 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 the terrorist act does not occur.
(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.
SECTION 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 the terrorist act does not occur.
(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.
SECTION 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 the terrorist act does not occur.
(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.
SECTION 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 the terrorist act does not occur.
(3)
Section 15.4 (extended geographical jurisdiction - category D) applies to an offence against subsection (1).
Division 102 - Terrorist organisations Subdivision A - Definitions SECTION 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 (the
first person
) means:
(a) the first person's spouse or de facto partner; or
(b) a parent, step-parent or grandparent of the first person; or
(c) any other person who would be a parent, step-parent or grandparent of the first person if the first person were a child (within the meaning of Part VII of the Family Law Act 1975) of the other person or a third person; or
(d) a child, step-child or grandchild of the first person; or
(e) any other person who would be a step-child or grandchild of the first person if the other person were a child (within the meaning of Part VII of the Family Law Act 1975) of a third person; or
(f) a brother, sister, step-brother or step-sister of the first person; or
(g) any other person who would be a brother, sister, step-brother or step-sister of the first person if the other person were a child (within the meaning of Part VII of the Family Law Act 1975) of a third person; or
(h) a guardian or carer of the first person.
Hamas organisation
(Repealed by No 144 of 2005)
Hizballah organisation
(Repealed by No 144 of 2005)
Lashkar-e-Tayyiba organisation
(Repealed by No 144 of 2005)
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.
(a) an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or
(b) an organisation that is specified by the regulations for the purposes of this paragraph (see subsections (2), (2A) and (4B) and section 102.1AA).
(c) (Repealed by No 144 of 2005)
(d) (Repealed by No 144 of 2005)
(e) (Repealed by No 144 of 2005)
(1A) Definition of advocates .
In this Division, an organisation advocates the doing of a terrorist act if:
(a) the organisation directly or indirectly counsels, promotes, encourages 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 substantial risk that such praise might have the effect of leading a person (regardless of his or her age or any mental impairment that the person might suffer) to engage in a terrorist act.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 AFP 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; or (b) advocates the doing of a terrorist act.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 AFP Minister must arrange for the Leader of the Opposition in the House of Representatives to be briefed in relation to the proposed regulation.
(3)
(Repealed by No 113 of 2023)
(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 AFP 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;
(ii) that the organisation advocates the doing of a terrorist act;
the AFP Minister must, by written notice published in the Gazette, make a declaration to the effect that the AFP Minister has ceased to be so satisfied.
(4A)
The declaration must specify the day on which the Minister ceased to be so satisfied.
(4B)
The regulations, to the extent to which they specify the organisation, are taken to cease to have effect on the day specified in the declaration under subsection (4A), even if that day occurred before the day on which the declaration is made.
(5)
To avoid doubt, subsections (4) to (4B) do 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 AFP Minister becomes satisfied as mentioned in subsection (2).
(6)
(Repealed by No 126 of 2015)
(7)
(Repealed by No 144 of 2005)
(8)
(Repealed by No 144 of 2005)
(9)
(Repealed by No 144 of 2005)
(10)
(Repealed by No 144 of 2005)
(10A)
(Repealed by No 144 of 2005)
(10B)
(Repealed by No 144 of 2005)
(10C)
(Repealed by No 144 of 2005)
(10D)
(Repealed by No 144 of 2005)
(11)
(Repealed by No 144 of 2005)
(11A)
(Repealed by No 144 of 2005)
(11B)
(Repealed by No 144 of 2005)
(12)
(Repealed by No 144 of 2005)
(13)
(Repealed by No 144 of 2005)
(14)
(Repealed by No 144 of 2005)
(15)
(Repealed by No 144 of 2005)
(16)
Subsection (17) applies 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 AFP 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 AFP 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; or
as the case requires; and (d) the AFP Minister did not receive an application from any individual or organisation under paragraph (b) of this subsection in relation to the listed organisation during the 12 months ending when the AFP Minister receives the de-listing application.
(ii) advocates the doing of a terrorist act;
(17)
The AFP Minister must, as soon as practicable after receiving the de-listing application, consider whether the listed organisation: (a) is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or (b) advocates the doing of a terrorist act;
as the case requires.
Note:
If the AFP Minister ceases to be satisfied of either of these (as the case requires), the AFP Minister must make a declaration under subsection (4) in relation to the listed organisation.
(18)
Subsections (16) and (17) do not limit the matters that may be considered by the AFP Minister for the purposes of subsection (4).
(19)
(Repealed by No 131 of 2021)
(20)
In this section, a reference to the doing of a terrorist act includes: (a) a reference to the doing of a terrorist act, even if a terrorist act does not occur; and (b) a reference to the doing of a specific terrorist act; and (c) a reference to the doing of more than one terrorist act.
SECTION 102.1AA Including or removing names of prescribed terrorist organisations (1)
This section applies if the AFP Minister is satisfied on reasonable grounds that: (a) an organisation is specified in regulations made for the purposes of paragraph (b) of the definition of terrorist organisation in subsection 102.1(1); and (b) the organisation:
(i) is referred to by another name (the alias ), in addition to, or instead of, a name used to specify the organisation in the regulations; or
(ii) no longer uses a name (the former name ) used in the regulations to specify the organisation.
(2)
The AFP Minister may, by legislative instrument, amend the regulations to do either or both of the following: (a) include the alias in the regulations if the AFP Minister is satisfied as referred to in subparagraph (1)(b)(i); (b) remove the former name from the regulations if the AFP Minister is satisfied as referred to in subparagraph (1)(b)(ii).
(3)
Amendment of regulations under subsection (2) does not prevent the further amendment or repeal of the regulations by regulations made under section 5 of this Act for the purposes of paragraph (b) of the definition of terrorist organisation in subsection 102.1(1).
(4)
The AFP Minister may not, by legislative instrument made under this section, amend the regulations to remove entirely an organisation that has been prescribed.
(5)
To avoid doubt, this section does not affect the power under section 5 of this Act to make regulations for the purposes of paragraph (b) of the definition of terrorist organisation in subsection 102.1(1).
This section applies in relation to the following legislative instruments: (a) a regulation that specifies an organisation for the purposes of paragraph (b) of the definition of terrorist organisation in section 102.1; (b) an instrument made under section 102.1AA.
(2)
The Parliamentary Joint Committee on Intelligence and Security may: (a) review the legislative instrument at any time; and (b) report the Committee's comments and recommendations to each House of the Parliament.
Review of disallowable legislative instrument - extension of disallowance period
(3)
If the Committee's report on a review of a disallowable legislative instrument is tabled in a House of the Parliament under subsection (2): (a) during the applicable disallowance period for that House; and (b) on or after the eighth sitting day of the applicable disallowance period;
then Part 2 of Chapter 3 of the Legislation Act 2003 has effect, in relation to that disallowable legislative instrument and that House, as if each period of 15 sitting days referred to in that Part 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)
The applicable disallowance period for a House of the Parliament means the period of 15 sitting days of that House after the disallowable legislative instrument, or a copy of the disallowable legislative instrument, was laid before that House in accordance with section 38 of the Legislation Act 2003.
Subdivision B - Offences SECTION 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.
SECTION 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).
SECTION 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.
SECTION 102.5 Training involving a terrorist organisation (1)
A person commits an offence if:
(a) the person does any of the following:
(i) intentionally provides training to an organisation;
(ii) intentionally receives training from an organisation;
(iii) intentionally participates in training with 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 does any of the following:
(i) intentionally provides training to an organisation;
(ii) intentionally receives training from an organisation;
(iii) intentionally participates in training with 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 matters in subsection (4) (see subsection 13.3(3)).
SECTION 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
(aa) legal advice or legal representation in connection with the question of whether the organisation is a terrorist organisation; 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).
SECTION 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.
SECTION 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) the question of whether the organisation 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 SECTION 102.9 102.9 Extended geographical jurisdiction for offences
Section 15.4 (extended geographical jurisdiction - category D) applies to an offence against this Division. SECTION 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 SECTION 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.
(3)
(Repealed by No 144 of 2005)
SECTION 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.
SECTION 103.3 103.3 Extended geographical jurisdiction for offences
Section 15.4 (extended geographical jurisdiction - category D) applies to an offence against this Division.
The objects of this Division are to allow conditions to be imposed on a person by a control order for one or more of the following purposes: (a) protecting the public from a terrorist act; (b) preventing the provision of support for or the facilitation of a terrorist act; (c) preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country.
A senior AFP member must not request an interim control order in relation to a person without the AFP Minister's written consent.
Note:
However, in urgent circumstances, a senior AFP member may request an interim control order without first obtaining the AFP Minister's consent (see Subdivision C).
(2)
A senior AFP member may only seek the AFP Minister's written consent to request an interim control order in relation to a person if the member:
(a) suspects 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:
(i) provided training to, received training from or participated in training with a listed terrorist organisation; or
(ii) engaged in a hostile activity in a foreign country; or
(iii) been convicted in Australia of an offence relating to terrorism, a terrorist organisation (within the meaning of subsection 102.1(1)) or a terrorist act (within the meaning of section 100.1); or
(iv) been convicted in a foreign country of an offence that is constituted by conduct that, if engaged in in Australia, would constitute a terrorism offence (within the meaning of subsection 3(1) of the Crimes Act 1914); or
(c) suspects on reasonable grounds that the order in the terms to be requested would substantially assist in preventing the provision of support for or the facilitation of a terrorist act; or
(d) suspects on reasonable grounds that the person has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country.
(3)
In seeking the AFP Minister's consent, the member must give the AFP Minister:
(a) a draft of the interim control order to be requested; and
(aa) 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
(b) if the person is at least 18 years of age and the member has information about the person's age - that information; and
(ba) if the person is under 18 years of age - information about the person's age; and
(c) a summary of the grounds on which the order should be made.
Note:
An interim control order cannot be requested in relation to a person who is under 14 years of age (see section 104.28).
(3A)
To avoid doubt, paragraph (3)(c) 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 AFP Minister's consent may be made subject to the member making changes required by the AFP Minister to the draft of the interim control order to be requested.
(5)
To avoid doubt, a senior AFP member may seek the AFP Minister's consent to request an interim control order in relation to a person even if:
(a) such a request has previously been made in relation to the person; or
(b) the person is detained in custody.
Note:
An interim control order in relation to a person who is detained in custody in a prison does not begin to be in force until the person ceases to be detained in custody in a prison (see paragraph 104.5(1)(d) and subsection 104.5(1D)).
(6)
In subsection (2), a reference to a terrorist act includes:
(a) a reference to a terrorist act that does not occur; and
(b) a reference to a specific terrorist act; and
(c) a reference to more than one terrorist act.
If the AFP Minister consents to the request under section 104.2, the senior AFP member may request an interim control order by giving an issuing court the following: (a) a request the information in which is sworn or affirmed by the member; (b) all that is required under subsection 104.2(3) (incorporating any change made to the draft of the interim control order under subsection 104.2(4)); (d) the following:
(i) an explanation as to why each of the proposed conditions should be imposed on the person;
(e) the following:
(ii) if the member is aware of any facts relating to why any of those conditions should not be imposed on the person - a statement of those facts;
(i) the outcomes and particulars of all previous requests for interim control orders (including the outcomes of the hearings to confirm the orders), and all previous applications for post-sentence orders or interim post-sentence orders, in relation to the person;
(ii) the outcomes and particulars of all previous applications for variations of control orders or of post-sentence orders made in relation to the person;
(iii) the outcomes and particulars of all previous applications for revocations of control orders made in relation to the person;
(iiia) the outcomes and particulars of all previous applications for revocations of post-sentence orders or interim post-sentence orders made in relation to the person;
(iiib) the particulars of any revocations that occur by operation of this Act of continuing detention orders in relation to the person;
(iiic) the outcomes and particulars of all previous applications for review of post-sentence orders in relation to the person;
(iv) the outcomes and particulars of all previous applications for preventative detention orders in relation to the person;
(f) a copy of the AFP Minister's consent.
(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;
Note:
The member might commit an offence if the draft request is false or misleading (see sections 137.1 and 137.2).
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, received training from or participated in training with a listed terrorist organisation; or
(iii) that the person has engaged in a hostile activity in a foreign country; or
(iv) that the person has been convicted in Australia of an offence relating to terrorism, a terrorist organisation (within the meaning of subsection 102.1(1)) or a terrorist act (within the meaning of section 100.1); or
(v) that the person has been convicted in a foreign country of an offence that is constituted by conduct that, if engaged in in Australia, would constitute a terrorism offence (within the meaning of subsection 3(1) of the Crimes Act 1914); or
(vi) that making the order would substantially assist in preventing the provision of support for or the facilitation of a terrorist act; or
(d) the court is satisfied on the balance of probabilities that:
(vii) that the person has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country; and
(i) each of the conditions; and
to be imposed on the person by the order in accordance with section 104.5A is reasonably necessary, and reasonably appropriate and adapted, for the purpose of:
(ii) the combined effect of all of the conditions;
(iii) protecting the public from a terrorist act; or
(iv) preventing the provision of support for or the facilitation of a terrorist act; or
(v) preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country.
Note:
The issuing court may, in accordance with section 104.5B, specify conditions from which exemptions may be granted.
(2)
For the purposes of paragraph (1)(d), in determining whether: (a) each of the conditions; and (b) the combined effect of all of the conditions;
to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, the court must take into account:
(c) as a paramount consideration in all cases - the objects of this Division (see section 104.1); and (d) as a primary consideration in the case where the person is 14 to 17 years of age - the best interests of the person; and (e) as an additional consideration in all cases - the impact of:
(i) each of those conditions; and
on the person's circumstances (including the person's financial and personal circumstances).
(ii) the combined effect of all of those conditions;
(2A)
In determining what is in the best interests of a person for the purposes of paragraph (2)(d), the court must take into account the following: (a) the age, maturity, sex and background (including lifestyle, culture and traditions) of the person; (b) the physical and mental health of the person; (c) the benefit to the person of having a meaningful relationship with his or her family and friends; (d) the right of the person to receive an education; (e) the right of the person to practise his or her religion; (f) any other matter the court considers relevant.
(3)
(Repealed by No 131 of 2021)
(4)
In paragraphs (1)(c) and (d), a reference to a terrorist act includes: (a) a reference to a terrorist act that does not occur; and (b) a reference to a specific terrorist act; and (c) a reference to more than one terrorist act.
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:
(i) all of the conditions that are to be imposed in accordance with section 104.5A on the person by the order; and
(d) state that the order does not begin to be in force until:
(ii) any exemption conditions that are to be imposed in accordance with section 104.5B on the person by the order; and
(i) it is served personally on the person; and
(e) specify a day on which the person may attend the court for the court to:
(ii) if the order does not begin to be in force under subsection (1D) when it is served personally on the person - the order begins to be in force under subsection (1E); and
(i) confirm (with or without variation) the interim control order; or
(ii) declare the interim control order to be void; or
(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.
(iii) revoke the interim control order; and
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:
If the person is 14 to 17 years of age, then a confirmed control order must not end more than 3 months after the day on which the interim control order is made (see section 104.28).
Attendance of person at court
(1A)
The day specified for the purposes of paragraph (1)(e) must be as soon as practicable, but at least 7 days, after the order is made.
(1B)
In specifying a day for the purposes of paragraph (1)(e), the issuing court must take into account: (a) that the persons mentioned in subsection 104.14(1) may need to prepare in order to adduce evidence or make submissions to the court in relation to the confirmation of the order; and (aa) if the person to whom the order relates is detained in custody - any other matter relating to the person's detention that the court considers relevant; and (b) any other matter the court considers relevant.
(1C)
To avoid doubt, if the person is detained in custody, the person has a right to attend court on the day specified for the purposes of paragraph (1)(e).
Rules relating to the period an interim control order is in force
(1D)
The interim control order does not begin to be in force when it is served personally on the person if, at that time: (a) the person is detained in custody in a prison; or (b) an extended supervision order or interim supervision order is in force in relation to the person.
Note:
An interim control order in relation to a person who is detained in non-prison custody begins to be in force when the order is served personally on the person (see paragraph (1)(d)).
(1E)
The interim control order referred to in subsection (1D) instead begins to be in force when allof the following conditions are met: (a) either of the following events occurs:
(i) the person ceases to be detained in custody in a prison;
(b) when the event occurs:
(ii) the extended supervision order or interim supervision order ceases to be in force in relation to the person;
(i) the interim control order has not been confirmed under section 104.14; and
(ii) the person is in the community without an extended supervision order or interim supervision order being in force in relation to the person.
Note:
Persons detained in non-prison custody are taken to be in the community (see section 105A.18AA).
(1F)
To avoid doubt, the interim control order never comes into force if the condition in subparagraph (1E)(b)(ii) is not met.
(2)
Paragraph (1)(f) does not prevent the making of successive control orders in relation to the same person.
(2AA)
To avoid doubt, if a control order is in force in relation to a person, the control order does not cease to be in force merely because the person is detained in custody.
National security information
(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).
(3)
(Repealed by No 96 of 2023)
(3A)
(Repealed by No 96 of 2023)
(3B)
(Repealed by No 131 of 2021)
(4)
(Repealed by No 96 of 2023)
(5)
(Repealed by No 96 of 2023)
(6)
(Repealed by No 96 of 2023)
SECTION 104.5A Conditions of an interim control order
General conditions
(1)
Without limiting the conditions that the issuing court may impose on the person by the order, those conditions may relate to any of the following: (a) that the person not be present at one or more of the following:
(i) specified areas or places;
(ii) specified classes of areas or places;
(b) that the person reside at specified premises, and not begin to reside at any other premises without the prior permission of a specified authority; (c) that the person remain at specified premises between specified times each day, or on specified days, subject to subsection (5); (d) that the person not leave Australia, or the State or Territory in which the person's residence is located; (e) that the person provide a specified authority with the person's passport (or passports) while the order is in force; (f) that the person not change the person's name, or use any name that is not specified in the order; (g) that the person not apply for one or more of the following:
(iii) any area or place determined by a specified authority;
(i) any Australian travel document;
(ii) any travel document of a foreign country;
(h) that the person not communicate or associate by any means (including through third parties) with one or more of the following:
(iii) any licence to operate equipment, machinery, a heavy vehicle or a weapon, or any licence to possess a weapon;
(i) specified individuals;
(ii)specified classes of individuals;
(i) that the person not access or use specified forms of telecommunication or other technology (including the internet); (j) that the person not possess or use specified articles or substances; (k) that the person not carry out specified activities; (l) that the person not engage in one or more of the following:
(iii) any individuals determined by a specified authority;
(i) specified work;
(ii) specified classes of work;
(m) that the person not engage in any training or education without the prior permission of a specified authority; (n) that the person do any or all of the following:
(iii) specified activities relating to specified work or classes of work;
(i) attend and participate in treatment, rehabilitation or intervention programs or activities;
as specified in the order or as directed by a specified authority; (o) that the person attend and participate in interviews and assessments (including for the purposes of paragraph (n)) as specified in the order or as directed by a specified authority; (p) that the person allow the results of the interviews and assessments referred to in paragraph (o), and any other specified information, to be disclosed to a specified authority; (q) that the person provide specified information to a specified authority within a specified period or before a specified event; (r) that the person comply with any reasonable direction given to the person by a specified authority in relation to any specified condition (whether or not the condition is imposed in accordance with this subsection).
(ii) undertake psychological or psychiatric assessment or counselling;
Note:
See also subsections (9) and (10) and section 100.1 in relation to references to premises, reside or residence, and work.
Conditions relating to monitoring and enforcement
(2)
Without limiting the conditions that the issuing court may impose on the person by the order, those conditions may also relate to any of the following: (a) that the person submit to testing by a specified authority in relation to the possession or use of specified articles or substances; (b) that the person allow themselves to be photographed by a specified authority; (c) that the person allow impressions of the person's fingerprints to be taken by a specified authority; (d) that the person be subject to electronic monitoring (for example, by wearing a monitoring device at all times), and comply with directions given by a specified authority in relation to electronic monitoring; (e) a condition that:
(i) the person carry at all times a specified mobile phone; and
(ii) the person be available to answer any call from a specified authority or, as soon as reasonably practicable, return a call that the person was unable to answer; and
(f) that the person attend at places, and report to persons, at times, specified:
(iii) the person comply with specified directions, or any directions given by a specified authority, in relation to the condition in subparagraph (i) or (ii);
(i) in the order; or
(g) that the person allow visits at specified premises from, and entry to specified premises by, a specified authority at any time for the purpose of ensuring the person's compliance with a condition imposed in accordance with paragraph (1)(c); (h) that the person provide a specified authority with a schedule setting out the person's proposed movements for a specified period and comply with that schedule during the period; (i) that the person allow any police officer to enter specified premises and:
(ii) by a specified authority;
(i) search the person; and
(ii) search the person's residence or any premises which the person intends to be the person's residence; and
(iii) search any other premises under the person's control; and
(j) that the person facilitate access (including by providing passwords or in any other way) to one or more of the following:
(iv) seize any item found during those searches, including to allow the item to be examined forensically;
(i) electronic equipment or technology;
owned or controlled by the person, for the purposes of a police officer searching and seizing any such equipment or accessing such data (or both).
(ii) any data held within, or accessible from, any electronic equipment or technology;
Note 1:
For paragraphs (2)(b) and (c), restrictions apply to the use of photographs or impressions of fingerprints (see section 104.5C).
Note 2:
For paragraph (2)(d), see also section 104.5D (obligations relating to monitoring devices).
(3)
A power exercised under a condition imposed in accordance with subsection (2) (other than a power to give a direction) may be exercised only if the person exercising the power is satisfied that it is reasonably necessary to do so in order to: (a) give effect to the order; or (b) facilitate or monitor compliance with the order.
Directions
(4)
If a condition imposed on the person by the order authorises a specified authority to give a direction, the specified authority may give a direction only if the specified authority is satisfied that the direction is reasonable in all the circumstances to give effect to: (a) the condition; or (b) the object of this Division (see section 104.1).
Limitations
(5)
A condition imposed on the person by the order must not require the person to remain at specified premises for more than 12 hours within any 24 hours.
(6)
If the person is subject to an order under a law of a State or Territory that is equivalent to a control order, the issuing court must consider the conditions under that State or Territory order in imposing conditions on the person by the order.
General rules about conditions
(7)
To avoid doubt, without limiting subsection 33(3A) of the Acts Interpretation Act 1901, a condition imposed on the person by the order may: (a) prohibit or restrict specified conduct of the person, or impose obligations on the person; or (b) impose restrictions and obligations on the person in relation to classes of conduct, and prohibit other classes of that conduct; or (c) impose different restrictions, obligations and prohibitions in relation to different classes of conduct; or (d) for conduct that is prohibited by a condition described in a paragraph of subsection (1) - impose restrictions and obligations on the person in relation to that conduct instead of prohibiting that conduct; or (e) for conduct described in a paragraph of subsection (1) or (2) - impose different restrictions, obligations and prohibitions in relation to that conduct.
Access to lawyers
(8)
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 an individual covered by the condition in paragraph (1)(h). If the person's lawyer is so specified, the person may contact, communicate or associate with any other lawyer who is not so specified.
References to work
(9)
In subsection (1), a reference to work includes a reference to voluntary work.
Meaning of premises
(10)
In this section:
premises
includes a place, an aircraft, a vehicle and a vessel.
The issuing court may specify conditions included in the order that are to be exemption conditions.
(2)
An exemption condition is a condition specified in the order from which the person may apply for a temporary exemption.
(3)
The issuing court may make provision in relation to applications for temporary exemptions.
(4)
The person may apply, in writing, to a specified authority for an exemption from an exemption condition. The application must: (a) include a reason for the exemption; and (b) comply with any other requirements provided for under subsection (3).
(5)
If the person so applies, the specified authority may: (a) require further information to be provided by the person before making a decision in relation to the application; and (b) either:
(i) grant or refuse the exemption; or
(ii) grant the exemption subject to any reasonable directions specified in writing by the specified authority.
If the issuing court, by the order, imposes on the person a condition referred to in paragraph 104.5A(2)(b) or (c), a photograph, or an impression of fingerprints, taken of or from the person in accordance with the order must be used only for the purpose of ensuring compliance with the order.
(2)
If: (a) no control order has been in force in relation to the person for 12 months; and (b) either:
(i) no proceedings relating to a control order relating to the person were on foot in that 12-month period; or
(ii) proceedings relating to a control order relating to the person were discontinued or completed within that 12-month period;
the photograph or the impression must be destroyed as soon as practicable after the end of that 12-month 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.
Additional obligations on person
(1)
If the issuing court, by the order, imposes on the person the condition referred to in paragraph 104.5A(2)(d) (the monitoring condition ) that the person wear a monitoring device, then: (a) the monitoring condition must require the person to wear the monitoring device at all times; and (b) the order must include the condition referred to in paragraph 104.5A(2)(e); and (c) the order must include a condition that the person do all of the following:
(i) allow a specified authority to enter the person's residence at any reasonable time for any purpose relating to the electronic monitoring of the person;
(ii) allow a specified authority to install, repair or fit the monitoring device or any related monitoring equipment;
(iii) take the steps specified in the order (if any) and any other reasonable steps to ensure that the monitoring device and any related monitoring equipment are or remain in good working order;
(iv) if the person becomes aware that the monitoring device and any related monitoring equipment are not in good working order - notify a specified authority as soon as reasonably practicable;
(v) allow a specified authority, police officer or corrective services officer to remove the monitoring device;
(vi) allow a police officer to remove any related monitoring equipment.
Powers of specified authorities and others
(2)
After including the monitoring condition in the order, the issuing court must also include in the order an authorisation for: (a) one or more specified authorities to enter the person's residence as specified in the order at any reasonable time for any purpose relating to the electronic monitoring of the person; and (b) one or more specified authorities to install, repair or fit the monitoring device and any related monitoring equipment; and (c) one or more specified authorities or police officers to take the steps specified in the order to ensure that the device and any related monitoring equipment are or remain in good working order; and (d) one or more specified authorities, police officers or corrective services officers to remove the monitoring device; and (e) one or more police officers to remove any related monitoring equipment.
(3)
If: (a) a monitoring device is installed on the person; and (b) any of the following events occurs:
(i) the monitoring condition is removed from the order;
(ii) the order ceases to be in force;
(iii) the person is detained in custody;
the device and any related monitoring equipment may be removed in accordance with paragraph (2)(d) or (e) even though no authorisation under subsection (2) is in force.
Note:
For the definition of detained in custody , see subsection 100.1(1).
Powers relating to monitoring devices and related electronic equipment
(4)
Before exercising a power referred to in paragraph (2)(a), (b), (d) or (e), or subsection (3), a specified authority, police officer or corrective services officer must inform the person: (a) that the device and equipment are to be installed, repaired, fitted or removed (as the case requires); and (b) of the proposed timing of the taking of the action; and (c) that the person may consent to the taking of the action; and (d) that if consent is not given, reasonable force may be used to take the action, or to enter the person's residence in order to take the action.
(5)
If the person does not give consent, reasonable force may be used by a police officer to take the action, or to enter the person's residence in order to take the action.
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 suspects the matters mentioned in subsection 104.2(2) on reasonable grounds.
(2)
The AFP Minister's consent under section 104.2 is not required before the request is made.
Note:
However, if the AFP Minister's consent is not obtained before the member makes the request, the AFP Minister's consent must be obtained within 8 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 paragraphs 104.3(b) to (e) in respect of an ordinary request for an interim control order;
(b) an explanation as to why the making of the interim control order is urgent;
(c) if the AFP Minister's consent has been obtained before making the request - a copy of the AFP Minister'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.
SECTION 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.
(3) Procedure after urgent interim control order is made.
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 AFP Minister's consent was not obtained before making the request - a copy of the AFP Minister's consent.
(6)
The issuing court must attach to the documents provided under subsection (5) the form of order the court has completed.
SECTION 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 AFP Minister'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 suspects the matters mentioned in subsection 104.2(2) on reasonable grounds.
Note:
The AFP Minister's consent must be obtained within 8 hours of making the request (see section 104.10).
(2)
The request must include the following:
(a) all that is required under paragraphs 104.3(a) to (e) in respect of an ordinary request for an interim control order;
(b) an explanation that is sworn or affirmed as to why the making of the interim control order without first obtaining the AFP Minister'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).
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 AFP Minister's consent to request the order to the court; or
(ii) notify the court in writing that the AFP Minister's consent was not obtained.
Note:
Section 104.10 deals with the AFP Minister's consent.
If the AFP Minister'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 8 hours of making the request.
(2)
In any case, if the AFP Minister:
(a) refuses his or her consent to request the order; or
(b) has not given his or her consent to request the order;
within 8 hours of the request being made, the order immediately ceases to be in force.
Note:
However, the senior AFP member can seek the AFP Minister'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.
Note:
For the personal service of documents on a person detained in custody, see section 104.28B.
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 or 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.
(Repealed by No 96 of 2023)
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 104.5C if appropriate);
(iiia) that the person has a right to obtain legal advice and legal representation;
(iv) that the person may have appeal and review rights in relation to the decision of the issuing court to make the order;
(v) the person's right to attend court on the day specified for the purposes of paragraph 104.5(1)(e);
(vi) the right of the person or one or more representatives of the person, and (if relevant) the right of the Queensland public interest monitor, to adduce evidence or make submissions under subsection 104.14(1) if the order is confirmed;
(vii) that the person may have appeal and review rights in relation to any decision of the issuing court to confirm the order;
(viia) that the order may be varied by consent, in accordance with section 104.22;
(viii) the person's right to apply under section 104.18 for an order revoking or varying the order if it is confirmed;
(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).
(ix) the right of the person or one or more representatives of the person, and (if relevant) the right of the Queensland public interest monitor, to adduce evidence or make submissions under subsection 104.19(3) or 104.23(4) in relation to an application to revoke or vary the order if it is confirmed; and
Note:
For the personal service of documents on a person detained in custody, see section 104.28B.
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.
(3A)
Paragraphs (1)(b) and (c) do not apply if the person in relation to whom the interim control order has been made is detained in custody and it is 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.
If person is resident, or order made, in Queensland
(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.
If person is 14 to 17
(6)
As soon as practicable after an interim control order is made in relation to a person who is 14 to 17 years of age, and at least 48 hours before the day specified as mentioned in paragraph 104.5(1)(e), an AFP member must take reasonable steps to serve a copy of the order personally on at least one parent or guardian of the person.
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)(aa) and 104.3(d); and
(iii) any other written 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); and
(c) if the person is 14 to 17 years of age - take reasonable steps to serve a copy of the documents mentioned in paragraph (a) personally on at least one parent or guardian of the person.
Note:
For the personal service of documents on a person detained in custody, see section 104.28B.
(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) if the order is in force - the order immediately ceases to be in force; and
(b) an AFP member must:
(i) annotate a copy of the order to indicate that it has ceased to be in force or will not come into force (as the case requires); 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; and
(iv) if the person is 14 to 17 years of age - cause reasonable steps to be taken to serve a copy of the annotated order and the notification personally on at least one parent or guardian of the person.
Note:
For the personal service of documents on a person detained in custody, see section 104.28B.
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.
SECTION 104.14 Confirming an interim control order
When this section applies
(1A)
This section applies if: (a) an interim control order is made in relation to a person; and (b) an election is made under section 104.12A to confirm the order; and (c) the issuing court is satisfied on the balance of probabilities that section 104.12 and subsection 104.12A(2) have been complied with in relation to the order.
(1) Who may adduce evidence or make submissions.
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
the Queensland public interest monitor.
(ii) the court made the interim control order in Queensland;
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)
Subject to subsection (3A), 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.
(3A)
To avoid doubt, in proceedings under this section, the issuing court: (a) must take judicial notice of the fact that the original request for the interim control order was made in particular terms; but (b) may only take action on evidence adduced, and submissions made, under subsection (1) in relation to the confirmation of the order.
Note:
The Evidence Act 1995 covers the admissibility of evidence adduced under subsection (1).
(4) Failure of person or representative etc. to attend.
The court may confirm the order without variation if none 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.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 conditions 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.
Void interim control orders
(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.
Revoked interim control orders
(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.
Confirming interim control orders that were in force
(3)
If the court confirms the interim control order (with or without variation) under section 104.14 then (subject to subsection (4) of this section):
(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
Interim control orders that were not in force
(4)
The interim control order never comes into force if: (a) the court confirms the interim control order (with or without variation) under section 104.14 in relation to a person; and (b) the interim control order had not begun to be in force when it was served personally on the person because of subsection 104.5(1D).
(5)
The confirmed control order begins to be in force when all of the following conditions are met: (a) the relevant interim control order did not begin to be in force when it was served personally on the person because of subsection 104.5(1D); (b) either of the following events occurs:
(i) the person is released from custody in a prison into the community;
(c) when the event occurs, the person is in the community without an extended supervision order or interim supervision order being in force in relation to the person.
(ii) the extended supervision order or interim supervision order referred to in paragraph 104.5(1D)(b) ceases to be in force in relation to the person;
Note:
Persons detained in non-prison custody are taken to be in the community (see section 105A.18AA).
(6)
To avoid doubt, the confirmed control order never comes into force if the condition in paragraph (5)(c) is not met.
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 conditions that are to be imposed on the person by the order in accordance with section 104.5A; and (ca) specifies any exemption conditions that are to be imposed in accordance with section 104.5B 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:
If the person is 14 to 17 years of age, then a confirmed control order must not end more than 3 months after the day on which the interim control order is made (see section 104.28).
(2)
Paragraph (1)(d) does not prevent the making of successive control orders in relation to the same person.
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: (a) serve the declaration, the revocation or the confirmed control order personally on the person; and (b) if the court confirms the interim order (with or without variation) - inform the person of the following:
(i) that the person may have appeal and review rights in relation to the decision of the issuing court to confirm the order;
(ii) the person's right to apply under section 104.18 for an order revoking or varying the order;
(iia) that the order may be varied, by consent, in accordance with section 104.22;
(c) if paragraph (b) applies - ensure that the person understands the information provided under that paragraph (taking into account the person's age, language skills, mental capacity and any other relevant factor).
(iii) the right of the person or one or more representatives of the person, and (if relevant) the right of the Queensland public interest monitor, to adduce evidence or make submissions under subsection 104.19(3) or 104.23(4) in relation to an application to revoke or vary the order; and
Note:
For the personal service of documents on a person detained in custody, see section 104.28B.
(2)
Paragraphs (1)(b) and (c) do not apply if the actions of the person in relation to whom the interim control order has been declared void, revoked or confirmed make it impracticable for the AFP member to comply with those paragraphs.
(2A)
Paragraphs (1)(b) and (c) do not apply if the person in relation to whom the interim control order has been declared void, revoked or confirmed is detained in custody and it is impracticable for the AFP member to comply with those paragraphs.
(3)
A failure to comply with paragraph (1)(c) does not make the control order ineffective to any extent.
If person is 14 to 17
(4)
If the person is 14 to 17 years of age, then as soon as practicable after the interim control order is declared to be void, revoked or confirmed (with or without variation) under section 104.14, an AFP member must take reasonable steps to serve a copy of the declaration, revocation or confirmed control order personally on at least one parent or guardian of the person.
If: (a) a control order or interim control order has already been served on a person; and (b) a post-sentence order or interim post-sentence order begins to be in force in relation to the person;
then:
(c) if the control order or interim control order is in force - that order immediately ceases to be in force; and (d) an AFP member must:
(i) annotate a copy of that order to indicate that it has ceased to be in force or will not come into force (as the case requires); and
(ii) cause an annotated copy 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 an annotated copy.
Subdivision E - Rights in respect of a control order
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
the Queensland public interest monitor.
(ii) the court will hear the application in Queensland;
(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.
(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.
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 conditions, if the Commissioner is satisfied that those conditions 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
the Queensland public interest monitor.
(ii) the court will hear the application in Queensland;
(2A)
If the person is 14 to 17 years of age, the Commissioner must cause reasonable steps to be taken to give written notice of both the application and the grounds on which the revocation or variation is sought to at least one parent or guardian of the person.
(3)
The following persons may adduce additional evidence (including by calling witnesses or producing materials), 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.
(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.
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 conditions 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)
As soon as practicable after a confirmed control order in relation to a person is revoked or varied, an AFP member must: (a) serve the revocation or variation personally on the person; and (b) if the person is 14 to 17 years of age - take reasonable steps to serve a copy of the revocation or variation personally on at least one parent or guardian of the person.
Note:
For the personal service of documents on a person detained in custody, see section 104.28B.
If a control order is 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 105.25(d) in order to obtain a copy of the order.
(1A)
If a control order in relation to a person is varied under section 104.22, the person's lawyer may request a copy of the order.
(2)
This section does not: (a) require more than one person to give the lawyer a copy of an order mentioned in subsection (1) or (1A); or (b) entitle the lawyer to request, or be given a copy of, or see, a document other than the order.
(Repealed by No 96 of 2023)
Any of the following persons (the applicant ) may apply to the issuing court to vary a control order in relation to a person: (a) a senior AFP member or a legal representative of the senior AFP member; (b) the person or a legal representative of the person.
(2)
The variation may consist of: (a) varying or removing one or more of the conditions imposed on the person by the order; or (b) imposing one or more additional conditions on the person by the order.
(3)
The application may be withdrawn at any time before the issuing court decides whether or not to vary the order.
(4)
If the person is 14 to 17 years of age, a senior AFP member or a legal representative of the senior AFP member must cause written notice of the application to be given to at least one parent or guardian of the person.
(5)
If the person is 14 to 17 years of age, the issuing court may vary the order if the court is satisfied that: (a) written consent to the variation has been given (and not withdrawn) by:
(i) if the applicant is a senior AFP member or a legal representative of the senior AFP member - a parent or guardian of the person notified of the variation in accordance with subsection (4); or
(b) the variation is in the best interests of the person, having regard to any representations the person makes about the variation and any other matter the court considers relevant; and (c) the variation is appropriate in the circumstances.
(ii) if the applicant is the person or a legal representative of the person - a senior AFP member; and
(6)
If the person is18 years of age or older, the issuing court may vary the order if the court is satisfied that: (a) written consent to the variation has been given (and not withdrawn) by:
(i) if the applicant is a senior AFP member or a legal representative of the senior AFP member - the person; or
(b) the variation is appropriate in the circumstances.
(ii) if the applicant is the person or a legal representative of the person - a senior AFP member; and
(7)
If the issuing court varies the order, the varied order must: (a) state that the court is satisfied of the matters mentioned in subsection (5) or (6) as applicable; and (b) specify the variations to the conditions that are to be made; and (c) state the period during which the order, as varied, is in force; and (d) state that the person's lawyer may request a copy of the order.
(8)
If the issuing court varies the order and the person is 14 to 17 years of age, an AFP member must take reasonable steps to serve a copy of the varied order personally on each parent or guardian of the person notified of the variation in accordance with subsection (4).
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 conditions, in accordance with section 104.5A, to the order, if the Commissioner: (a) suspects on reasonable grounds that the varied order in the terms to be sought would substantially assist in preventing a terrorist act; or (b) suspects on reasonable grounds that the person has:
(i) provided training to, received training from or participated in training with a listed terrorist organisation; or
(ii) engaged in a hostile activity in a foreign country; or
(iii) been convicted in Australia of an offence relating to terrorism, a terrorist organisation (within the meaning of subsection 102.1(1)) or a terrorist act (within the meaning of section 100.1); or
(c) suspects on reasonable grounds that the varied order in the terms to be sought would substantially assist in preventing the provision of support for or the facilitation of a terrorist act; or (d) suspects on reasonable grounds that the person has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country.
(iv) been convicted in a foreign country of an offence that is constituted by conduct that, if engaged in in Australia, would constitute a terrorism offence (within the meaning of subsection 3(1) of the Crimes Act 1914); or
(2)
The Commissioner must cause the court to be given: (a) a copy of the additional conditions to be imposed on the person by the order; and (b) the following:
(i) an explanation as to why each of those conditions should be imposed on the person; and
(c) the outcomes and particulars of all previous applications under this section for variations of the order; and (d) if the person is at least 18 years of age and the Commissioner has information about the person's age - that information; and (e) if the person is under 18 years of age - information about the person's age.
(ii) if the Commissioner is aware of any facts relating to why any of those conditions should not be imposed on the person - a statement of those facts; and
Note 1:
A control order cannot be made in relation to a person who is under 14 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)
As soon as practicable after an application is made under subsection (1), the Commissioner must: (a) cause the documents mentioned in subsection (3AA) to be served personally on the person in relation to whom the order is made; and (b) if the person is a resident of Queensland, or the court will hear the application in Queensland - cause the documents mentioned in subsection (3AA) to be given to the Queensland public interest monitor; and (c) if the person is 14 to 17 years of age - cause reasonable steps to be taken to serve the documents mentioned in subsection (3AA) personally on at least one parent or guardian of the person.
(3AA)
The documents are the following: (a) written notice of the application and the grounds on which the variation is sought; (b) a copy of the documents mentioned in paragraph (2)(b); (c) any other written 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.
(3A)
To avoid doubt, subsections (3) and (3AA) do 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 othe 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.
(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.
(6)
In subsection (1), a reference to a terrorist act includes: (a) a reference to a terrorist act that does not occur; and (b) a reference to a specific terrorist act; and (c) a reference to more than one terrorist act.
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 conditions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of:
(i) protecting the public from a terrorist act; or
(ii) preventing the provision of support for or the facilitation of a terrorist act; or
(ii) preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country.
(2)
For the purposes of paragraph (1)(b), in determining whether each of the additional conditions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, the court must take into account: (a) as a paramount consideration in all cases - the objects of this Division (see section 104.1); and (b) as a primary consideration in the case where the person is 14 to 17 years of age - the best interests of the person; and (c) as an additional consideration in all cases - the impact of the condition on the person's circumstances (including the person's financial and personal circumstances).
(2A)
In determining what is in the best interests of the person for the purposes of paragraph (2)(b), the court must take into account the matters referred to in subsection 104.4(2A).
(3)
(Repealed by No 131 of 2021)
(4)
In paragraph (1)(b), a reference to a terrorist act includes: (a) a reference to a terrorist act that does not occur; and (b) a reference to a specific terrorist act; and (c) a reference to more than one terrorist act.
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 conditions 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.
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 conditions; and (c) must inform the person of the following:
(i) the effect of the additional conditions;
(ii) the effect of sections 104.18, 104.21 and 104.27 (and section 104.5C if appropriate);
(iii) that the person may have appeal and review rights in relation to the decision of the issuing court to vary the order;
(iv) the person's right to apply under section 104.18 for an order revoking or varying the order;
(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).
(v) the right of the person or one or more representatives of the person, and (if relevant) the right of the Queensland public interest monitor, to adduce evidence or make submissions under subsection 104.19(3) or 104.23(4) in relation to an application to revoke or vary the order; and
Note:
For the personal service of documents on a person detained in custody, see section 104.28B.
(3)
Paragraphs (1)(c) and (d) do not apply if the actions of the person in relation to whom the control order has been made make it impracticable for the AFP member to comply with those paragraphs.
(3A)
Paragraphs (1)(b), (c) and (d) do not apply if the person in relation to whom the control order has been made is detained in custody and it is 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.
If person is 14 to 17
(5)
As soon as practicable after a control order in relation to a person who is 14 to 17 years of age is varied under section 104.24, an AFP member must take reasonable steps to serve a copy of the varied order personally on at least one parent or guardian of the person.
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.
Note:
A court that is sentencing a person who has been convicted of an offence against this section may be required to warn the person about continuing detention orders and extended supervision orders (see section 105A.23).
Penalty: Imprisonment for 5 years.
(2)
Subsection (1) does not apply if the person contravenes the order because the person is detained in non-prison custody.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (2). See subsection 13.3(3).
SECTION 104.27A Offence relating to monitoring devices (1)
A person commits an offence if:
(a) a control order is in force in relation to the person; and
(b) the control order requires the person to wear a monitoring device; and
(c) the person engages in conduct; and
(d) the conduct results in interference with, or disruption or loss of, a function of the monitoring device or any related monitoring equipment.
Note:
A court that is sentencing a person who has been convicted of an offence against this subsection may be required to warn the person about continuing detention orders and extended supervision orders (see section 105A.23).
Penalty: Imprisonment for 5 years.
(2)
A person (the perpetrator ) commits an offence if:
(a) the perpetrator knows that, or is reckless as to whether, a control order is in force in relation to another person; and
(b) the perpetrator knows that, or is reckless as to whether, the control order requires the other person to wear a monitoring device; and
(c) the perpetrator engages in conduct; and
(d) the conduct results in interference with, or disruption or loss of, a function of the monitoring device or any related monitoring equipment.
Penalty: Imprisonment for 5 years.
Rule for people under 14
(1)
A control order cannot be requested, made or confirmed in relation to a person who is under 14 years of age.
Rule for people 14 to 17
(2)
If an issuing court is satisfied that a person in relation to whom an interim control order is being made or confirmed is 14 to 17 years of age, 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.
Young person's right to legal representation
(4)
If an issuing court is satisfied, in proceedings relating to a control order, that:
(a) the person to whom the control order relates, or the person in relation to whom the control order is requested, is at least 14 but under 18; and
(b) the person does not have a lawyer acting in relation to the proceedings;
the court must appoint a lawyer to act for the person in relation to the proceedings.
(5)
However, the issuing court is not required to appoint a lawyer if:
(a) the proceedings are ex parte proceedings relating to a request for an interim control order; or
(b) the person refused a lawyer previously appointed under subsection (4) during proceedings relating to:
(i) the control order; or
(ii) if the control order is a confirmed control order - the interim control order that was confirmed.
(6)
The regulations may provide in relation to the appointing of lawyers under subsection (4) (including in relation to lawyers appointed under that subsection).
In proceedings in relation to a control order (including proceedings to vary or revoke a control order), an issuing court must not make an order for costs against the person in relation to whom the control order is sought (or has been made).
(2)
However, subsection (1) does not apply to the extent that the court is satisfied that the person has acted unreasonably in the conduct of the proceedings.
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.
A document that is required under this Division to be given to a person (the detainee ) personally who is detained in custody is taken to have been given to the detainee at the time referred to in paragraph (3)(b) if the document is given to the following person (the recipient ): (a) the legal representative of the detainee; (b) if the detainee does not have a legal representative - the chief executive officer (however described) of the prison or other facility in which the person is detained, or a delegate of the chief executive officer.
Note:
The obligation to inform the detainee of the matters referred to in paragraphs 104.12(1)(b), 104.17(1)(b) and 104.26(1)(b) and (c) might not apply if it is impracticable for an AFP member to comply with the obligation (see subsections 104.12(3A), 104.17(2A) and 104.26(3A)).
(2)
The recipient must, as soon as reasonably practicable, give the document to the detainee personally.
(3)
Once the recipient has done so, the recipient must notify the Court and the person who gave the recipient the document, in writing: (a) that the document has been given to the detainee; and (b) of the day that document was so given.
An AFP member may disclose information (including personal information), to a person employed or engaged by a body covered by an arrangement under subsection 104.28D(1), for the purpose of facilitating: (a) the performance of functions and the exercise of powers relating to the electronic monitoring of persons who are subject to a requirement imposed in accordance with paragraph 104.5A(2)(d); or (b) the performance of any other functions or the exercise of any other powers relating to section 104.5D.
(2)
A person (the first person ) employed or engaged by a body covered by an arrangement under subsection 104.28D(1) may disclose information (including personal information) to another person if the first person reasonably believes that the disclosure is authorised by the arrangement.
(3)
This section applies despite any other law of the Commonwealth, a State or a Territory (whether written or unwritten).
The Commissioner of the Australian Federal Police may make an arrangement with a State or Territory, or any other body, for: (a) the performance of functions and the exercise of powers relating to the electronic monitoring of persons who are subject to a requirement imposed in accordance with paragraph 104.5(3)(d); or (b) the performance of any other functions or the exercise of any other powers relating to section 104.5D.
(2)
Without limiting subsection (1), for the purposes of section 104.28C, the arrangement may authorise a person employed or engaged by a body covered by the arrangement to disclose information (including personal information).
(3)
The Commissioner of the Australian Federal Police may, in writing, delegate to a senior AFP member the Commissioner's powers under subsection (1).
The AFP Minister must, as soon as practicable after each 30 June, cause to be prepared a report about the operation of this Division, Division 5 of Part IAAB of the Crimes Act 1914 (monitoring warrants), and the rest of that Part to the extent that it relates to that 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);
(g) the number of monitoring warrants issued under Division 5 of Part IAAB of the Crimes Act 1914;
(h) the number of such warrants executed under that Division;
(i) the report prepared by the Ombudsman under subsection 3ZZUH(1) of the Crimes Act 1914;
(j) for control orders relating to people who are 14 to 17 years of age - the matters referred to in paragraphs (a) to (i) in so far as those matters specifically relate to those control orders.
(3)
The AFP Minister 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.
The Commissioner must cause:
(a) the AFP Minister 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 AFP Minister to be given a copy of the varied order (if appropriate).
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.
A control order that is in force at the end of 7 December 2026 ceases to be in force at that time.
(2)
A control order cannot be requested, made or confirmed after 7 December 2026.
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 a terrorist act that is capable of being carried out, and could occur, within the next 14 days from 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.
The Attorney-General 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 of the Federal Court of Australia; or
(c) (Repealed by No 13 of 2013) (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.
(e) (Repealed by No 96 of 2023)
(2)
The Attorney-General must not appoint a person unless: (a) the person has, by writing, consented to being appointed; and (b) the consent is in force.
SECTION 105.3 105.3 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).
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:
(a) in the case of an AFP member - the member suspects, on reasonable grounds, 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) in the case of an issuing authority - the issuing authority is satisfied 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
(c) the person is satisfied that making the order would substantially assist in preventing a terrorist act occurring; and
(d) the person is satisfied that 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 (c).
(5)
A terrorist act referred to in subsection (4) must be one that:
(a) for paragraphs (4)(a) and (c) - the AFP member suspects, on reasonable grounds; or
(b) for paragraphs (4)(b) and (c) - the issuing authority is satisfied there are reasonable grounds to suspect;
is capable of being carried out, and could occur, within 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 reasonably 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.
SECTION 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 office 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.
SECTION 105.5A 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.
(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 paricular 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.
(4) Detention orders under corresponding State preventative detention laws.
(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 custory 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.
SECTION 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 either:
(i) in writing (other than writing by means of an electronic communication); or
(ii) if the AFP member considers it necessary because of urgent circumstances - orally in person or by telephone, or by fax, email or other electronic means of communication; 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), and all previous applications for post-sentence orders or interim post-sentence orders, in relation to the person;
(iii) the outcomes and particulars of all previous applications for variations of control orders or of post-sentence 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;
(v) the outcomes and particulars of all previous applications for revocations of post-sentence orders or interim post-sentence orders made in relation to the person;
(vi) the particulars of any revocations that occur by operation of this Act of continuing detention orders in relation to the person;
(vii) the outcomes and particulars of all previous applications for review of post-sentence 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).
(2B)
If the application is made orally, information given by the AFP member to the issuing authority in connection with the application must be verified or given on oath or affirmation, unless the issuing authority is satisfied that it is not practical to administer an oath or affirmation to the member.
(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)).
SECTION 105.8 Senior AFP member may make initial preventative detention order (1)
On application by an AFP member, an issuing authority may, subject to subsection (1A), 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).
(1A)
If the application is made orally in person or by telephone, or by fax, email or other electronic means of communication, the issuing authority must not make the order unless the issuing authority is satisfied that it is necessary, because of urgent circumstances, to apply for the order by such means.
(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) any of the following:
(i) the true name of the person in relation to whom the order is made;
(ii) if, after reasonable inquiries have been made, the person's true name is not known but an alias is known for the person - the alias of the person in relation to whom the order is made;
(iii) if, after reasonable inquiries have been made, the person's true name is not known and no alias is known for the person - a description sufficient to identify the person in relation to whom the order 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.
(7A)
If the order is made on an application that was made orally (see subparagraph 105.7(2)(a)(ii)), the issuing authority must either:
(a) ensure that there is an audio, or audio-visual, recording of the application; or
(b) as soon as practicable after the order is made, make a written record of the details of the application, including any information given in support of it.
(8)
The senior AFP member nominated under subsection 105.19(5) in relation to the initial preventative detention order must, as soon as reasonably practicable after the order is made:
(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; and
(d) 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.
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.
SECTION 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.
SECTION 105.10A 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).
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 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), and all previous applications for post-sentence orders or interim post-sentence orders, in relation to the person;
(iii) the outcomes and particulars of all previous applications for variations of control orders or of post-sentence 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;
(v) the outcomes and particulars of all previous applications for revocations of post-sentence orders made in relation to the person;
(vi) the particulars of any revocations that occur by operation of this Act of continuing detention orders in relation to the person;
(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.
(vii) the outcomes and particulars of all previous applications for review of post-sentence orders made in relation to the person; and
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.
SECTION 105.12 Judge 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 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. Sections 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) any of the following:
(i) the true name of the person in relation to whom the order is made;
(ii) if, after reasonable inquiries have been made, the person's true name is not known but an alias is known for the person - the alias of the person in relation to whom the order is made;
(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.
(iii) if, after reasonable inquiries have been made, the person's true name is not known and no alias is known for the person - a description sufficient to identify the person in relation to whom the order is made; and
(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 105.29(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, as soon as reasonably practicable after the order is made: (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) notify the Parliamentary Joint Committee on Intelligence and Security in writing of the making of the order.
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 this 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.
SECTION 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.
SECTION 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 or post-sentence 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.
SECTION 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.
(1A)
The application for the prohibited contact order may be made either:
(a) in writing (other than writing by means of an electronic communication); or
(b) if the AFP member considers it necessary because of urgent circumstances - orally in person or by telephone, or by fax, email or other electronic means of communication.
(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) a continued preventative detention order is being applied for; and
(b) the application for the prohibited contact order is made in accordance with paragraph (1A)(a);
the information in the application for the prohibited contact order must be sworn or affirmed by the AFP member.
(3A)
If:
(a) a continued preventative detention order is being applied for; and
(b) the application for the prohibited contact order is made in accordance with paragraph (1A)(b);
the information in the application for the prohibited contact order must be sworn or affirmed by the AFP member unless the issuing authority is satisfied that it is not practical to administer an oath or affirmation to the member.
(4)
If the issuing authority makes the preventative detention order, the issuing authority may, subject to subsection (4A), 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.
(4A)
If the application for the prohibited contact order is made orally in person or by telephone, or by fax, email or other electronic means of communication, the issuing authority must not make the order unless the issuing authority issatisfied that it was necessary, because of urgent circumstances, to apply for the order by such means.
(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; and
(c) notify the Parliamentary Joint Committee on Intelligence and Security in writing of the making of the prohibited contact order.
(7)
If the prohibited contact order is made on an application that was made orally, the issuing authority must either:
(a) ensure there is an audio, or audio-visual, recording of the application; or
(b) as soon as practicable after the order is made, make a written record of the details of the application, including any information given in support of it.
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.
(1A)
The application may be made either:
(a) in writing (other than writing by means of an electronic communication); or
(b) if the AFP member considers it necessary because of urgent circumstances - orally in person or by telephone, or by fax, email or other electronic means of communication.
(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) the preventative detention order is a continued preventative detention order; and
(b) the application for the prohibited contact order is made in accordance with paragraph (1A)(a);
the information in the application for the prohibited contact order must be sworn or affirmed by the AFP member.
(3A)
If:
(a) the preventative detention order is a continued preventative detention order; and
(b) the application for the prohibited contact order is made in accordance with paragraph (1A)(b);
the information in the application for the prohibited contact order must be sworn or affirmed by the AFP member unless the issuing authority is satisfied that it is not practical to administer an oath or affirmation to the member.
(4)
The issuing authority may, subject to subsection (4A), 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.
(4A)
If the application for the prohibited contact order is made orally in person or by telephone, or by fax, email or other electronic means of communication, the issuing authority must not make the order unless the issuing authority is satisfied that it was necessary, because of urgent circumstances, to apply for the order by such means.
(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; and
(c) notify the Parliamentary Joint Committee on Intelligence and Security in writing of the making of the prohibited contact order.
(7)
If the prohibited contact order is made on an application that was made orally, the issuing authority must either:
(a) ensure there is an audio, or audio-visual, recording of the application; or
(b) as soon as practicable after the order is made, make a written record of the details of the application, including any information given in support of it.
(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 office 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.
(4) Prohibited contact order.
(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 thepreventative 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.
(7) Detainee's right to make representations about revocation of preventative detention order.
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.
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 is conferred on the judge in a personal capacity and not as a court or a member of a court.
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):
(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.
(5) Nominated senior AFP member.
If a preventative detention order is made in relation to a 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).
SECTION 105.20 105.20 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.
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.
SECTION 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.
SECTION 105.23 105.23 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.
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.
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 questioned before a prescribed authority under the warrant 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).
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 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, and detained in 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 perosn 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.
SECTION 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
were a person exercising authority under the order or implementing or enforcing the order; and
(ii) any other person involved in the subject's detention at that prison or remand centre;
(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
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.
SECTION 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.
SECTION 105.30 105.30 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)).
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 physical 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.
SECTION105.32 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
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.
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.
SECTION 105.34 105.34 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).
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
that other person or one of those other people; and
(ii) lives with other people and those other people are not family members of the person being detained;
(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 (the
first person
) means:
(a) the first person's spouse or de facto partner; or
(b) a parent, step-parent or grandparent of the first person; or
(c) any other person who would be a parent, step-parent or grandparent of the first person if the first person were a child (within the meaning of Part VII of the Family Law Act 1975) of the other person or a third person; or
(d) a child, step-child or grandchild of the first person; or
(e) any other person who would be a step-child or grandchild of the first person if the other person were a child (within the meaning of Part VII of the Family Law Act 1975) of a third person; or
(f) a brother, sister, step-brother or step-sister of the first person; or
(g) any other person who would be a brother, sister, step-brother or step-sister of the first person if the other person were a child (within the meaning of Part VII of the Family Law Act 1975) of a third person; or
(h) a guardian or carer of the first person.
(4)
(Repealed by No 131 of 2021)
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.
SECTION 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
(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 Australian Government Security Vetting Agency or by another Commonwealth, State or Territory agency that is authorised or approved by the Commonwealth to issue security clearances.
(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).
SECTION 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.
SECTION 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 ASIO employee or an ASIO affiliate.
(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 facts 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 excercising authority under th 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 their 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.
SECTION 105.40 105.40 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.
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.
(2) Lawyer.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 connectin 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.
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.
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).
(5) Interpreter assisting in monitoring contact with detainee.
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.
(6) Passing on improperly disclosed information.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.
(7) Police officer or interpreter monitoring contact with lawyer.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).
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 ASIO employee or an ASIO affiliate 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 ASIO employee or an ASIO affiliate, 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.
SECTION 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 Judge of the Federal Circuit and Family Court of Australia (Division 2) 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 Judge of the Federal Circuit and Family Court of Australia (Division 2) must have regard to:
(a) the age, or any disability, of the person; and
(b) such other matters as the Judge of the Federal Circuit and Family Court of Australia (Division 2) 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 Judge of the Federal Circuit and Family Court of Australia (Division 2) orders that the material be taken.
In deciding whether to make such an order, the Judge of the Federal Circuit and Family Court of Australia (Division 2) 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 ASIO employee or an ASIO affiliate.
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
have not been brought, or have been brought and discontinued or completed, within that period;
(ii) the treatment of the person in connection with the person's detention under the order;
the material must be destroyed as soon as practicable after the end of that period.
SECTION 105.45 105.45 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) or (3); or
(vi) subsection 105.43(1), (4) or (6); or
(vii) subsection 105.44(2).
Penalty: Imprisonment for 2 years.
A function of making an order conferred on a Judge of the Federal Circuit and Family Court of Australia (Division 2) by section 105.43 is conferred on the Judge of the Federal Circuit and Family Court of Australia (Division 2) 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 Judge of the Federal Circuit and Family Court of Australia (Division 2) 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 Judge of the Federal Circuit and Family Court of Australia (Division 2) 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 Circuit and Family Court of Australia (Division 2).
The AFP Minister 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
(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.
(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);
(3)
The AFP Minister 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.
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.
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.
To avoid doubt, this Division does not affect the law relating to legal professional privilege.
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
(b) the proceedings are commenced while the order is in force.
(ii) the treatment of a person in connection with the person's detention under a preventative detention order; and
(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 Schedule1 to the Administrative Decisions (Judicial Review) Act 1977.
(5)
(Repealed by No 39 of 2024)
(6)
(Repealed by No 39 of 2024)
(7)
(Repealed by No 39 of 2024)
(8)
(Repealed by No 39 of 2024)
(9)
(Repealed by No 39 of 2024)
SECTION 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.
SECTION 105.53 Sunset provision (1)
A preventative detention order, or a prohibited contact order, that is in force at the end of 7 December 2026 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 7 December 2026.
The object of this Division is to protect the community from serious Part 5.3 offences by providing that terrorist offenders who pose an unacceptable risk of committing such offences are subject to: (a) a continuing detention order; or (b) an extended supervision order.
In this Division:
Commonwealth law enforcement officer
has the meaning given by Part 7.8.
continuing detention order
means an order made under subsection 105A.7(1).
continuing detention order decision
(Repealed by No 131 of 2021)
continuing detention order proceeding
(Repealed by No 131 of 2021)
exemption condition
(Repealed by No 96 of 2023)
extended supervision order
means an order made under subsection 105A.7A(1).
intelligence or security officer
has the meaning given by Part 10.6.
interim detention order
means an order made under subsection 105A.9(2).
interim post-sentence order
means an interim detention order or an interim supervision order.
interim supervision order
means an order made under subsection 105A.9A(4).
post-sentence order
means a continuing detention order or an extended supervision order.
post-sentence order decision
means:
(a) a decision on an application for a post-sentence order or an interim post-sentence order; or
(b) a decision on an application to vary an extended supervision order or interim supervision order; or
(c) a decision in a review of a post-sentence order to affirm, revoke or vary the order; or
(d) a decision made under section 105A.15A (when a terrorist offender is unable to engage a legal representative).
Note:
See also subsection (2).
post-sentence order proceeding
means a proceeding under Subdivision C, CA, CB or D.
premises
includes a place, an aircraft, a vehicle and a vessel.
prison
includes any gaol, lock-up or remand centre.
relevant expert
means any of the following persons who is competent to assess the risk of a terrorist offender committing a serious Part 5.3 offence:
(a) a person who is:
(i) registered as a medical practitioner under a law of a State or Territory; and
(ii) a fellow of the Royal Australian and New Zealand College of Psychiatrists;
(b) any other person registered as a medical practitioner under a law of a State or Territory;
(c) a person registered as a psychologist under a law of a State or Territory;
(d) any other expert.
serious Part 5.3 offence
means an offence against this Part, the maximum penalty for which is 7 or more years of imprisonment.
(a) has the meaning given by subsection 105A.3(1); and
(b) includes a person who meets the conditions in paragraphs 105A.3(1)(a) and (c) and:
(i) paragraphs 105A.3A(4)(a) and (b); or
(ii) paragraphs 105A.3A(5)(a) to (e).
Note:
This definition is affected by sections 105A.2A and 105A.18.
(2)
To avoid doubt, a decision on an application to a Supreme Court of a State or Territory for a post-sentence order or interim post-sentence order is not made until the Court determines the application in accordance with section 105A.6A or subsection 105A.9(1B) or 105A.9A(3).
SECTION 105A.2A 105A.2A Persons who have escaped from custody
For the purposes of this Division (except section 105A.4) if: (a) a person is detained in custody for a reason (for example, because the person is serving a sentence of imprisonment, on remand or subject to a continuing detention order); and (b) the person escapes from custody;
the person is taken to be detained in custody for that reason until the person is returned to custody.
Note:
For the definition of detained in custody , see subsection 100.1(1).
A post-sentence order may be made under section 105A.7 or 105A.7A in relation to a person (the terrorist offender ) if: (a) the person has been convicted of:
(i) an offence against Subdivision A of Division 72 (international terrorist activities using explosive or lethal devices); or
(ii) a serious Part 5.3 offence; or
(iii) an offence against Part 5.5 (foreign incursions and recruitment), except an offence against subsection 119.7(2) or (3) (publishing recruitment advertisements); or
(b) a subsection of section 105A.3A provides that the order may be made in relation to the person; and (c) the person will be at least 18 years old when the sentence for the conviction referred to in paragraph (a) of this subsection ends.
(iv) an offence against the repealed Crimes (Foreign Incursions and Recruitment) Act 1978, except an offence against paragraph 9(1)(b) or (c) of that Act (publishing recruitment advertisements); and
Note:
Before making the order, a Court must be satisfied of certain matters under section 105A.7 or 105A.7A.
Effect of continuing detention order
(2)
The effect of a continuing detention order is to commit the person to detention in a prison for the period the order is in force.
Note 1:
The period must not be more than 3 years (see subsection 105A.7(5)).
Note 2:
See also:
Effect of an extended supervision order
(3)
The effect of an extended supervision order is to impose on the person, for the period the order is in force, conditions contravention of which is an offence.
Note 1:
The period must not be more than 3 years (see paragraph 105A.7A(4)(d)).
Note 2:
See also section 105A.18C (effect of detention on post-sentence order).
Post-sentence orders - person imprisoned for paragraph 105A.3(1)(a) offence
(1)
A post-sentence order may be made in relation to a person if the person is detained in custody in a prison serving a sentence of imprisonment for an offence referred to in paragraph 105A.3(1)(a).
Post-sentence orders - continuing detention order in force
(2)
A post-sentence order may be made in relation to a person if a continuing detention order or interim detention order is in force in relation to the person.
Post-sentence orders - person imprisoned for other offences
(3)
A post-sentence order may be made in relation to a person if: (a) the person is detained in custody in a prison serving a sentence of imprisonment for an offence other than an offence referred to in paragraph 105A.3(1)(a); and (b) either:
(i) the person has been continuously detained in custody in a prison since being convicted of the offence referred to in paragraph 105A.3(1)(a); or
(ii) the person has been continuously detained in custody in a prison since a continuing detention order or interim detention order was in force in relation to the person.
Note:
For the definition of detained in custody in a prison , see subsection 100.1(1).
(4)
A post-sentence order may be made in relation to a person if: (a) the person is detained in custody in a prison serving a sentence of imprisonment for an offence against section 105A.18A or subsection 105A.18B(1) (offences relating to extended supervision orders and interim supervision orders); and (b) the person was charged with the offence before the later of:
(i) the relevant extended supervision order or interim supervision order ceasing to be in force; and
(c) the Court making the post-sentence order is satisfied, as a result of the offence referred to in paragraph (a), that the person poses an unacceptable risk of committing a serious Part 5.3 offence.
(ii) the end of 6 months after the conduct constituting the offence; and
(5)
A post-sentence order may be made in relation to a person if: (a) the person served a sentence of imprisonment for an offence referred to in paragraph 105A.3(1)(a); and (b) before the person was released from custody in a prison:
(i) the AFP Minister's consent to a request for an interim control order was sought under section 104.2; or
(c) the interim control order was made as a result of the request; and (d) the person is detained in custody in a prison serving a sentence of imprisonment for an offence against section 104.27 or subsection 104.27A(1) (offences relating to control orders) in relation to:
(ii) a request for an interim control order was made under section 104.6; and
(i) the interim control order; or
(e) the person was charged with the offence referred to in paragraph (d) before the later of:
(ii) the control order that resulted from confirming the interim control order; and
(i) the order referred to in that paragraph ceased to be in force; and
(f) the Court making the post-sentence order is satisfied, as a result of the offence referred to in paragraph (d), that the person poses an unacceptable risk of committing a serious Part 5.3 offence.
(ii) the end of 6 months after the conduct constituting the offence; and
Supervision orders - supervision order in force
(6)
An extended supervision order or interim supervision order may be made in relation to a person if an extended supervision order or interim supervision order is in force in relation to the person.
Supervision orders - person imprisoned for other offences
(7)
An extended supervision order or interim supervision order may be made in relation to a person if: (a) the person is detained in custody in a prison serving a sentence of imprisonment for an offence other than the offence referred to in paragraph 105A.3(1)(a); and (b) at the beginning of the person's detention in custody in a prison, an extended supervision order or interim supervision order was in force in relation to the person.
Note:
Paragraph (a) - an offence against section 105A.18A or subsection 105A.18B(1) (relating to an extended supervision order or interim supervision order) is an example of an offence other than the offence referred to in paragraph 105A.3(1)(a).
Supervision orders - control orders requested before commencement
(8)
An extended supervision order or interim supervision order may be made in relation to a person if: (a) the person served a sentence of imprisonment for an offence referred to in paragraph 105A.3(1)(a); and (b) before the person was released from custody in a prison, and before the commencement of this subsection:
(i) the AFP Minister's consent to a request for an interim control order was sought under section 104.2; or
(c) either:
(ii) a request for an interim control order was made under section 104.6; and
(i) the interim control order is in force; or
(ii) the interim control order was confirmed and the confirmed control order is in force.
Interpretation
(9)
To avoid doubt, subsection (3) applies: (a) whether the offence for which the person is serving the sentence of imprisonment is an offence against a law of the Commonwealth, a State or a Territory; and (b) whether the sentence served for the offence referred to in paragraph 105A.3(1)(a) was served concurrently or cumulatively, or both, with:
(i) the sentence referred to in paragraph (3)(a) of this section; or
(c) whether the sentence referred to in paragraph (3)(a) of this section or the other sentences were imposed before or after, or at the same time as, the sentence for the offence referred to in paragraph 105A.3(1)(a); and (d) whether or not the person has been continuously serving a sentence of imprisonment for an offence since being convicted of the offence referred to in paragraph 105A.3(1)(a).
(ii) any of the other sentences served by the person since being convicted of the offence referred to in paragraph 105A.3(1)(a) (the other sentences ); and
(10)
To avoid doubt, subsection (7) applies whether the offence for which the person is serving the sentence of imprisonment is an offence against a law of the Commonwealth, a State or a Territory.
A terrorist offender who is detained in custody in a prison under a continuing detention order must be treated in a way that is appropriate to his or her status as a person who is not serving a sentence of imprisonment, subject to any reasonable requirements necessary to maintain:
(a) the management, security or good order of the prison; and
(b) the safe custody or welfare of the offender or any prisoners; and
(c) the safety and protection of the community.
(2)
The offender must not be accommodated or detained in the same area or unit of the prison as persons who are in prison for the purpose of serving sentences of imprisonment unless:
(a) it is reasonably necessary for the purposes of rehabilitation, treatment, work, education, general socialisation or other group activities; or
(b) it is necessary for the security or good order of the prison or the safe custody or welfare of the offender or prisoners; or
(c) it is necessary for the safety and protection of the community; or
(d) the offender elects to be so accommodated or detained.
(3)
This section does not apply if the offender is serving a sentence of imprisonment.
The AFP Minister, or a legal representative of the AFP Minister, (the applicant ) may apply to a Supreme Court of a State or Territory for either of the following: (a) a continuing detention order in relation to a terrorist offender; (b) an extended supervision order in relation to a terrorist offender.
Note:
The court may make an extended supervision order under section 105A.7A even if a continuing detention order is applied for.
(2)
However, the application may not be made more than 12 months before the end of: (a) a sentence of imprisonment referred to in subsection 105A.3A(1) or paragraph 105A.3A(3)(a), (4)(a), (5)(d) or (7)(a); or (b) if a post-sentence order is in force in relation to the offender - the period for which the order is in force; or (c) if subsection 105A.3A(8) applies in relation to the offender - the period the interim control order referred to in subparagraph 105A.3A(8)(c)(i) or confirmed control order referred to in subparagraph 105A.3A(8)(c)(ii) is in force.
(2AA)
To avoid doubt, if both paragraphs (2)(a) and (b) apply in relation to a terrorist offender, the application may be made in accordance with either paragraph (even though the other paragraph may prevent an application from being made in relation to the offender).
(2A)
The AFP Minister must ensure that reasonable inquiries are made to ascertain any facts known to any Commonwealth law enforcement officer or intelligence or security officer that would reasonably be regarded as supporting a finding that: (a) if the application is for a continuing detention order - neither a continuing detention order nor an extended supervision order should be made in relation to the offender; or (b) if the application is for an extended supervision order - the extended supervision order should not be made in relation to the offender.
Content of application
(3)
The application must: (a) include any report or other document that the applicant intends, at the time of the application, to rely on in relation to the application; and (aa) include:
(i) a copy of any material in the possession of the applicant; and
that would reasonably be regarded as supporting a finding that the order or orders mentioned in paragraph (2A)(a) or (b) (as the case requires) should not be made, except any information, material or facts that are likely to be protected by public interest immunity (whether the claim for public interest immunity is to be made by the AFP Minister or any other person); and (b) include information about the offender's age; and (c) request that the order be in force for a specified period; and (d) if the application is for an extended supervision order - include the following material:
(ii) a statement of any facts that the applicant is aware of;
(i) a copy of the proposed conditions;
(ii) an explanation as to why each of the proposed conditions should be imposed on the offender;
(iii) if the AFP Minister is aware of any facts relating to why any of those conditions should not be imposed on the offender - a statement of those facts, except any facts that are likely to be protected by public interest immunity (whether the claim for public interest immunity is to be made by the AFP Minister or any other person);
(e) if a report was obtained under section 105A.18D in relation to the offender - include a copy of the report.
(iv) if the offender is subject to an order under a law of a State or Territory that is equivalent to a post-sentence order - a copy of that order; and
Note 1:
For paragraph (3)(c), the period must not be more than 3 years (see subsection 105A.7(5) and paragraph 105A.7A(4)(d)).
Note 2:
Evidence may also be adduced later under section 105A.14.
Note 3:
A copy of the application must be given to the terrorist offender under section 105A.14A.
(4)
(Repealed by No 131 of 2021)
(5)
(Repealed by No 131 of 2021)
(6)
(Repealed by No 131 of 2021)
(7)
(Repealed by No 131 of 2021)
(8)
(Repealed by No 131 of 2021)
(9)
(Repealed by No 131 of 2021)
(10)
(Repealed by No 131 of 2021)
If an application for a post-sentence order is made under section 105A.5 to a Supreme Court of a State or Territory in relation to a terrorist offender, the Court must hold a preliminary hearing to determine whether to appoint one or more relevant experts.
(2)
The hearing must be held within 28 days after a copy of the application is given to the offender under subsection 105A.14A(2).
(3)
The Court may, either at the preliminary hearing or at any later time in the proceeding, appoint one or more relevant experts if the Court considers that doing so is likely to materially assist the Court in deciding whether to make a post-sentence order in relation to the offender.
(3A)
The AFP Minister, the offender, or a legal representative of the AFP Minister or offender, may nominate one or more relevant experts for the purposes of subsection (3).
(4)
The relevant expert who is appointed must:
(a) conduct an assessment of the risk of the offender committing a serious Part 5.3 offence; and
(b) provide a report of the expert's assessment to the Court, the AFP Minister and the offender.
Note:
For giving documents to a terrorist offender who is in custody, see section 105A.15.
Attendance and participation at assessment
(5)
The offender must attend the assessment.
Note:
The assessment may be conducted over a number of sessions.
(5A)
The answer to a question or information given at the assessment, and answering a question or giving information at the assessment, are not admissible in evidence against the offender in: (a) any criminal proceedings, except any proceedings relating to sentencing for an offence against Division 104 or this Division (including any appeal in relation to those proceedings); or (b) any civil proceedings against the offender, except proceedings under Division 104 or this Division (including any appeal in relation to those proceedings).
(6)
The Court must ensure that the effect of subsections (5), (5A) and (9) is explained to the offender.
Contents of report
(7)
The expert's report may include any one or more of the following matters:
(a) the expert's assessment of the risk of the offender committing a serious Part 5.3 offence;
(b) reasons for that assessment;
(c) the pattern or progression to date of behaviour on the part of the offender in relation to serious Part 5.3 offences, and an indication of the nature of any likely future behaviour on his or her part in relation to serious Part 5.3 offences;
(d) efforts made to date by the offender to address the causes of his or her behaviour in relation to serious Part 5.3 offences, including whether he or she has actively participated in any rehabilitation or treatment programs;
(e) if the offender has participated in any rehabilitation or treatment programs - whether or not this participation has had a positive effect on him or her;
(f) any relevant background of the offender, including developmental and social factors;
(g) factors that might increase or decrease any risks that have been identified of the offender committing a serious Part 5.3 offence;
(h) any other matters the expert considers relevant.
Other relevant experts
(8)
This section does not prevent the AFP Minister, the offender, or a legal representative of the AFP Minister or offender, from calling his or her own relevant expert as a witness in the proceeding.
Assessments conducted for certain purposes
(9)
Without limiting subsection (5A), an assessment of an offender conducted under paragraph (4)(a), and the report of the assessment, may be taken into account in proceedings to make or vary any post-sentence order or interim post-sentence order, or to review any post-sentence order, in relation to the offender.
Determining applications for continuing detention orders
(1)
If an application is made under section 105A.5 to the Supreme Court of a State or Territory for a continuing detention order in relation to a terrorist offender, the Court may determine the application by: (a) making a continuing detention order under section 105A.7; or (b) making an extended supervision order under section 105A.7A; or (c) dismissing the application.
Determining applications for extended supervision orders
(2)
Ifan application is made under section 105A.5 to the Supreme Court of a State or Territory for an extended supervision order in relation to a terrorist offender, the Court may determine the application by: (a) making an extended supervision order under section 105A.7A; or (b) dismissing the application.
In deciding whether the Court is satisfied as referred to in paragraph 105A.7(1)(b) or 105A.7A(1)(b) in relation to a terrorist offender, a Supreme Court of a State or Territory must have regard to the following matters: (a) the object of this Division; (b) any report of an assessment received from a relevant expert, and the level of the offender's participation in the assessment, under:
(i) section 105A.6; or
(c) the results of any other assessment conducted by a relevant expert of the risk of the offender committing a serious Part 5.3 offence, and the level of the offender's participation in any such assessment; (d) any report, relating to the extent to which the offender can reasonably and practicably be managed in the community, that has been prepared by:
(ii) section 105A.18D;
(i) the relevant State or Territory corrective services; or
(e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, and the level of the offender's participation in any such programs; (f) the level of the offender's compliance with any obligations to which the offender is or has been subject while:
(ii) any other person or body who is competent to assess that extent;
(i) on release on parole for any offence referred to in paragraph 105A.3(1)(a); or
(g) the offender's history of any prior convictions for, and findings of guilt made in relation to, any offence referred to in paragraph 105A.3(1)(a); (h) the views of the sentencing court at the time any sentence for any offence referred to in paragraph 105A.3(1)(a) was imposed on the offender; (ha) whether the offender is subject to any order under a law of a State or Territory that is equivalent to a post-sentence order, and if so, the conditions of the order;
(ii) subject to a post-sentence order, interim post-sentence order or control order;
(2)
Subsection (1) does not prevent the Court from having regard to any other matter the Court considers relevant.
(3)
To avoid doubt, section 105A.13 (civil evidence and procedure rules in relation to post-sentence order proceedings) applies to the Court's consideration of the matters referred to in subsections (1) and (2) of this section.
A Supreme Court of a State or Territory may make a written order under this subsection if: (a) an application is made in accordance with section 105A.5 for a continuing detention order in relation to a terrorist offender; and (b) after having regard to matters in accordance with section 105A.6B, the Court is satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence; and (c) the Court is satisfied that there is no less restrictive measure available under this Part that would be effective in preventing the unacceptable risk.
Note 1:
The rules of evidence and procedure for civil matters apply when the Court has regard to matters in accordance with section 105A.6B, as referred to in paragraph (1)(b) of this section (see subsection 105A.6B(3) and section 105A.13).
Note 2:
For paragraph (1)(c), an example of a less restrictive measure that is available under this Part is an extended supervision order. A court can make an extended supervision order under section 105A.7A even if a continuing detention order was applied for (see subsection 105A.6A(1)).
(2)
If the Court is not satisfied as mentioned in paragraph (1)(b) or (c) (or both), then the Court must: (a) seek the following material from the AFP Minister:
(i) a copy of the proposed conditions that would be sought for an extended supervision order in relation to the offender;
(ii) an explanation as to why each of the proposed conditions should be imposed on the offender;
(b) consider whether to make an extended supervision order under section 105A.7A in relation to the offender.
(iii) if the AFP Minister is aware of any facts relating to why any of those conditions should not be imposed on the offender - a statement of those facts, except any facts that are likely to be protected by public interest immunity (whether the claim for public interest immunity is to be made by the AFP Minister or any other person); and
Note:
A copy of the material must be given to the terrorist offender under section 105A.14A.
Onus of satisfying Court
(3)
The AFP Minister bears the onus of satisfying the Court of the matters referred to in paragraphs (1)(b) and (c).
Period of order
(4)
The order must specify the period during which it is in force.
Note:
The order may be suspended during the period that it is in force if the offender is detained in custody in a prison other than as a result of the order (see section 105A.18C).
(5)
The period must be a period of no more than 3 years that the Court is satisfied is reasonably necessary to prevent the unacceptable risk.
Court may make successive continuing detention orders
(6)
To avoid doubt, subsection (5) does not prevent a Supreme Court of a State or Territory making a continuing detention order in relation to a terrorist offender that begins to be in force immediately after a previous continuing detention order in relation to the offender ceases to be in force.
A Supreme Court of a State or Territory may make a written order under this subsection, in accordance with sections 105A.7B and 105A.7C, if: (a) any of the following applies:
(i) an application is made in accordance with section 105A.5 for an extended supervision order in relation to a terrorist offender;
(ii) an application is made in accordance with section 105A.5 for a continuing detention order in relation to a terrorist offender, and the Court is not satisfied as mentioned in paragraph 105A.7(1)(b) or (c) (or both);
(b) after having regard to matters in accordance with section 105A.6B, the Court is satisfied on the balance of probabilities, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence; and (c) the Court is satisfied on the balance of probabilities that:
(iii) the Court has reviewed under section 105A.12 a continuing detention order in relation to a terrorist offender and the Court is not satisfied as mentioned in paragraph 105A.12(4)(a); and
(i) each of the conditions; and
to be imposed on the offender by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from that unacceptable risk.
(ii) the combined effect of all of the conditions;
Determining whether conditions are reasonably necessary, appropriate and adapted
(2)
For the purposes of paragraph (1)(c), in determining whether each of the conditions to be imposed on the offender by the order is reasonably necessary, and reasonably appropriate and adapted, the Court must take into account, as a paramount consideration in all cases, the object of this Division (see section 105A.1).
Onus of satisfying Court
(3)
The AFP Minister bears the onus of satisfying the Court of the matters referred to in paragraphs (1)(b) and (c).
Content of order
(4)
The order must: (a) state that the Court is satisfied of the matters mentioned in paragraphs (1)(b) and (c); and (b) specify the name of the offender to whom the order relates; and (c) specify all of the conditions, and any exemption conditions, that are to be imposed in accordance with section 105A.7B or 105A.7C on the offender by the order; and (d) specify the period during which the order is to be in force, which must be a period of no more than 3 years that the Court is satisfied is reasonably necessary to prevent the unacceptable risk; and (e) state that the offender's lawyer may request a copy of the order.
Note:
The order may be suspended during the period that it is in force if the offender is detained in custody in a prison (see section 105A.18C).
Court may make successive extended supervision orders
(5)
To avoid doubt, paragraph (4)(d) does not prevent a Supreme Court of a State or Territory making an extended supervision order in relation to a terrorist offender that begins to be in force immediately after a previous extended supervision order, or continuing detention order, in relation to the offender ceases to be in force.
Automatic revocation of continuing detention orders etc.
(6)
A continuing detention order or interim detention order that is in force in relation to a terrorist offender is revoked by force of this subsection if: (a) a Court makes an extended supervision order in relation to the offender; and (b) the continuing detention order or interim detention order is in force immediately before the extended supervision order begins to be in force.
The conditions that a Court may impose on a terrorist offender by an extended supervision order or interim supervision order are: (a) any conditions that the Court is satisfied; and (b) those conditions whose combined effect the Court is satisfied;
on the balance of probabilities, are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious Part 5.3 offence.
Note:
The Court may, under section 105A.7C, specify conditions from which exemptions may be granted.
(1A)
If the terrorist offender is subject to an order under a law of a State or Territory that is equivalent to a post-sentence order, the Court must consider the conditions under that State or Territory order in imposing conditions in accordance with subsection (1).
General rules about conditions
(2)
To avoid doubt, without limiting subsection 33(3A) of the Acts Interpretation Act 1901, a condition imposed under this section may: (a) prohibit or restrict specified conduct of the offender, or impose obligations on the offender; or (b) impose restrictions and obligations on the offender in relation to classes of conduct, and prohibit other classes of that conduct; or (c) impose different restrictions, obligations and prohibitions in relation to different classes of conduct; or (d) for conduct that is prohibited by a condition described in a paragraph of subsection (3) - impose restrictions and obligations on the offender in relation to that conduct instead of prohibiting that conduct; or (e) for conduct described in a paragraph of subsection (3) or (5) - impose different restrictions, obligations and prohibitions in relation to that conduct.
(2A)
A condition imposed under this section must not require the offender to remain at specified premises for more than 12 hours within any 24 hours.
General conditions
(3)
Without limiting this section, the conditions that the Court may impose in accordance with subsection (1) include conditions relating to the following: (a) that the offender not be present at one or more of the following:
(i) specified areas or places;
(ii) specified classes of areas or places;
(b) that the offender reside at specified premises, and not begin to reside at any other premises without the prior permission of a specified authority; (c) that the offender remain at specified premises between specified times each day, or on specified days, subject to subsection (2A); (d) that the offender not leave Australia, or the State or Territory in which the offender's residence is located; (e) that the offender provide a specified authority with the offender's passport (or passports) while the order is in force; (f) that the offender not change the offender's name, or use any name that is not specified in the order; (g) that the offender not apply for one or more of the following:
(iii) any area or place determined by a specified authority;
(i) any Australian travel document;
(ii) any travel document of a foreign country;
(h) that the offender not communicate or associate by any means (including through third parties) with one or more of the following:
(iii) any licence to operate equipment, machinery, a heavy vehicle or a weapon, or any licence to possess a weapon;
(i) specified individuals;
(ii) specified classes of individuals;
(i) that the offender not access or use specified forms of telecommunication or other technology (including the internet); (j) that the offender not possess or use specified articles or substances; (k) that the offender not carry out specified activities; (l) that the offender not engage in one or more of the following:
(iii) any individuals determined by a specified authority;
(i) specified work;
(ii) specified classes of work;
(m) that the offender not in engage in any training or education without the prior permission of a specified authority; (n) that the offender do any or all of the following:
(iii) specified activities relating to specified work or classes of work;
(i) attend and participate in treatment, rehabilitation or intervention programs or activities;
as specified in the order or as directed by a specified authority; (o) that the offender attend and participate in interviews and assessments (including for the purposes of paragraph (n)) as specified in the order or as directed by a specified authority; (p) that the offender allow the results of the interviews and assessments referred to in paragraph (o), and any other specified information, to be disclosed to a specified authority; (q) that the offender provide specified information to a specified authority within a specified period or before a specified event; (r) that the offender comply with any reasonable direction given to the offender by a specified authority in relation to any specified condition (whether or not the condition is imposed in accordance with this subsection).
(ii) undertake psychological or psychiatric assessment or counselling;
Note:
See also subsection (8) and sections 100.1 and 105A.2 in relation to references to premises, reside or residence, and work.
(4)
If a condition of the order authorises a specified authority to give a direction, the specified authority may give a direction only if the specified authority is satisfied that the direction is reasonable in all the circumstances to give effect to: (a) the condition; or (b) the object of this Division (see section 105A.1).
Conditions relating to monitoring and enforcement
(5)
Without limiting this section, the conditions that the Court may impose in accordance with subsection (1) include conditions relating to the following: (a) that the offender submit to testing by a specified authority in relation to the possession or use of specified articles or substances; (b) that the offender allow himself or herself to be photographed by a specified authority; (c) that the offender allow impressions of the offender's fingerprints to be takenby a specified authority; (d) that the offender be subject to electronic monitoring (for example, by wearing a monitoring device at all times), and comply with directions given by a specified authority in relation to electronic monitoring; (e) a condition that:
(i) the person carry at all times a specified mobile phone; and
(ii) the person be available to answer any call from a specified authority or, as soon as reasonably practicable, return a call that the person was unable to answer; and
(f) that the offender attend at places, and report to persons, at times, specified:
(iii) the person comply with specified directions, or any directions given by a specified authority, in relation to the condition in subparagraph (i) or (ii);
(i) in the order; or
(g) that the offender allow visits at specified premises from, and entry to specified premises by, a specified authority at any time for the purpose of ensuring the offender's compliance with a condition imposed in accordance with paragraph (3)(c); (h) that the offender provide a specified authority with a schedule setting out the offender's proposed movements for a specified period and comply with that schedule during the period; (i) that the offender allow any police officer to enter specified premises and:
(ii) by a specified authority;
(i) search the offender; and
(ii) search the offender's residence or any premises which the offender intends to be the offender's residence; and
(iii) search any other premises under the offender's control; and
(j) that the offender facilitate access (including by providing passwords or in any other way) to one or more of the following:
(iv) seize any item found during those searches, including to allow the item to be examined forensically;
(i) electronic equipment or technology;
owned or controlled by the offender, for the purposes of a police officer searching and seizing any such equipment or accessing such data (or both).
(ii) any data held within, or accessible from, any electronic equipment or technology;
Note 1:
For paragraphs (5)(b) and (c), restrictions apply to the use of photographs or impressions of fingerprints (see section 105A.7D).
Note 2:
For paragraph (5)(d), see also section 105A.7E (obligations relating to monitoring devices).
(6)
A power exercised under a condition imposed in accordance with subsection (5) (other than a power to give a direction) may be exercised only if the person exercising the power is satisfied that it is reasonably necessary to do so in order to: (a) give effect to the order; or (b) facilitate or monitor compliance with the order.
Access to lawyers
(7)
This section does not affect the offender's right to contact, communicate or associate with the offender's lawyer unless the offender's lawyer is a specified individual, or an individual in a specified class of individuals, as mentioned in paragraph (3)(h). If the offender's lawyer is so specified, the offender may contact, communicate or associate with any other lawyer who is not so specified.
References to work
(8)
In subsection (3), a reference to work includes a reference to voluntary work.
A Supreme Court of a State or Territory that makes an extended supervision order or interim supervision order in relation to a terrorist offender may specify conditions included in the order that are to be exemption conditions.
(2)
An exemption condition is a condition specified in the order from which the offender may apply for a temporary exemption.
(3)
The Court may make provision in relation to applications for temporary exemptions.
(4)
The offender may apply, in writing, to a specified authority for an exemption from an exemption condition. The application must: (a) include a reason for the exemption; and (b) comply with any other requirements provided for under subsection (3).
(5)
If the offender so applies, the specified authority may: (a) require further information to be provided by the offender before making a decision in relation to the application; and (b) either:
(i) grant or refuse the exemption; or
(ii) grant the exemption subject to any reasonable directions specified in writing by the specified authority.
A photograph, or an impression of fingerprints, taken of or from a terrorist offender as mentioned in paragraph 105A.7B(5)(b) or (c) must be used only for the purpose of ensuring compliance with an extended supervision order or interim supervision order relating to the offender.
(2)
The photograph or the impression must be destroyed if: (a) no extended supervision order or interim supervision order has been in force in relation to the offender for 12 months; and (b) either:
(i) no proceedings relating to an extended supervision order or interim supervision order relating to the offender were on foot in that 12-month period; or
(ii) proceedings relating to an extended supervision order or interim supervision order relating to the offender were discontinued or completed within that 12-month 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.
Additional obligations on terrorist offender
(1)
If the Court imposes a condition under paragraph 105A.7B(5)(d) in an extended supervision order or interim supervision order that a terrorist offender wear a monitoring device, then: (a) the condition must require the offender to wear the monitoring device at all times; and (b) the order must include the condition referred to in paragraph 105A.7B(5)(e); and (c) the order must include a condition that the offender do all of the following:
(i) allow a specified authority to enter the offender's residence at any reasonable time for any purpose relating to the electronic monitoring of the offender;
(ii) allow a specified authority to install, repair or fit the monitoring device or any related monitoring equipment;
(iii) take the steps specified in the order (if any) and any other reasonable steps to ensure that the monitoring device and any related monitoring equipment are or remain in good working order;
(iv) if the offender becomes aware that the monitoring device and any related monitoring equipment are not in good working order - notify a specified authority as soon as reasonably practicable;
(v) allow a specified authority, police officer or corrective services officer to remove the monitoring device;
(vi) allow a police officer to remove any related monitoring equipment.
Powers of specified authorities and others
(2)
After including the condition under paragraph 105A.7B(5)(d) in the order, the Court must also include in the order an authorisation for: (a) one or more specified authorities to enter the offender's residence as specified in the order at any reasonable time for any purpose relating to the electronic monitoring of the offender; and (b) one or more specified authorities to install, repair or fit the monitoring device and any related monitoring equipment; and (c) one or more specified authoritiesor police officers to take the steps specified in the order to ensure that the device and any related monitoring equipment are or remain in good working order; and (d) one or more specified authorities, police officers or corrective services officers to remove the monitoring device; and (e) one or more police officers to remove any related monitoring equipment.
(3)
If: (a) a monitoring device is installed on the terrorist offender; and (b) any of the following events occurs:
(i) the condition under paragraph 105A.7B(5)(d) is removed from the order;
(ii) the order ceases to be in force;
(iii) the offender is detained in custody;
the device and any related monitoring equipment may be removed in accordance with paragraph (2)(d) or (e) even though:
(c) for subparagraph (b)(i) or (ii) - no authorisation under subsection (2) is in force; or (d) for subparagraph (b)(iii) - the offender is not required to comply with a condition of the order because of section 105A.18C.Note:
For the definition of detained in custody , see subsection 100.1(1).
Powers relating to monitoring devices and related electronic equipment
(4)
Before exercising a power referred to in paragraph (2)(a), (b), (d) or (e), or subsection (3), a specified authority, police officer or corrective services officer must inform the offender: (a) that the device and equipment are to be installed, repaired, fitted or removed (as the case requires); and (b) of the proposed timing of the taking of the action; and (c) that the offender may consent to the taking of the action; and (d) that if consent is not given, reasonable force may be used to take the action, or to enter the offender's residence in order to take the action.
(5)
If the offender does not give consent, reasonable force may be used by a police officer to take the action, or to enter the offender's residence in order to take the action.
A copy of an extended supervision order or interim supervision order that is made in relation to a terrorist offender must be given to the offender's lawyer as soon as practicable after being requested by the lawyer.
(2)
This section does not entitle the lawyer to request, or be given a copy of, a document other than the order.
(Repealed by No 131 of 2021)
The AFP Minister, or a legal representative of the AFP Minister, may apply to a Supreme Court of a State or Territory for an interim detention order in relation to a terrorist offender if an application has been made to the Court for a continuing detention order in relation to the offender.
Determining the application
(1A)
On receiving the application for the interim detention order, the Court must hold a hearing to determine whether to make the order.
(1B)
The Court may determine the application by: (a) making an interim detention order under subsection (2); or (b) making an interim supervision order under section 105A.9A; or (c) dismissing the application.
Making an interim detention order
(2)
The Court may make a written order under this subsection if: (a) the Court is satisfied that any of the following periods will end before the application for the continuing detention order has been determined:
(i) if subsection 105A.3A(1), (3), (4) or (5) applies - the sentence of imprisonment referred to in subsection 105A.3A(1) or paragraph 105A.3A(3)(a), (4)(a) or (5)(d);
(ia) (Repealed by No 131 of 2021)
(b) the Court is satisfied that there are reasonable grounds for considering that a continuing detention order will be made in relation to the offender.
(ii) the period for which a continuing detention order or an interim detention order is in force in relation to the offender; and
Note:
More than one interim detention order can be made in relation to a person (see subsection (6)).
(3)
The effect of the order is to commit the offender to detention in a prison while the order is in force.
Period of order
(4)
The order must specify the period during which it is in force.
Note:
The order may be suspended during the period that it is in force if the offender is detained in custody in a prison other than as a result of the order (see section 105A.18C).
(5)
The period must be a period of no more than 28 days that the Court is satisfied is reasonably necessary to determine the application for the continuing detention order.
(6)
The total period of all interim detention orders made in relation to the offender before the Court makes a decision on the application for the continuing detention order must not be more than 3 months, unless the Court is satisfied that there are exceptional circumstances.
Treatment of certain offenders covered by interim detention orders
(7)
While an interim detention order is in force in relation to the offender, section 105A.4 applies as if a continuing detention order were in force in relation to the offender.
Note:
Section 105A.4 deals with the treatment of a terrorist offender who is in a prison under a continuing detention order.
When Court does not make interim detention order
(8)
If the Court is not satisfied as mentioned in paragraph (2)(b), then the Court must: (a) seek the following material from the AFP Minister:
(i) a copy of the proposed conditions that would be sought for an interim supervision order;
(ii) an explanation as to why each of the proposed conditions should be imposed on the offender;
(b) consider whether to make an interim supervision order under section 105A.9A.
(iii) if the AFP Minister is aware of any facts relating to why any of those conditions should not be imposed on the offender - a statement of those facts, except any facts that are likely to be protected by public interest immunity (whether the claim for public interest immunity is to be made by the AFP Minister or any other person); and
Note:
A copy of the material must be given to the terrorist offender under section 105A.14A.
The AFP Minister, or a legal representative of the AFP Minister, may apply to a Supreme Court of a State or Territory for an interim supervision order in relation to a terrorist offender if an application has been made to the Court for an extended supervision order in relation to the offender.
(2)
On receiving the application for the interim supervision order, the Court must hold a hearing to determine whether to make the order.
Determining the application
(3)
The Court may determine the application by: (a) making an interim supervision order under subsection (4); or (b) dismissing the application.
Making an interim supervision order
(4)
The Court may make a written order under this subsection, in accordance with sections 105A.7B and 105A.7C, if: (a) either:
(i) an application is made in accordance with subsection (1) for an interim supervision order in relation to a terrorist offender; or
(b) the Court is satisfied that any of the following relating to the offender will end before the application for the continuing detention order or extended supervision order has been determined:
(ii) an application is made in accordance with section 105A.9 for an interim detention order in relation to a terrorist offender and the Court is not satisfied as mentioned in paragraph 105A.9(2)(b); and
(i) a sentence of imprisonment referred to in subsection 105A.3A(1) or paragraph 105A.3A(3)(a), (4)(a), (5)(d) or (7)(a);
(ii) the period for which a post-sentence order or interim post-sentence order is in force;
(c) the Court is satisfied that there are reasonable grounds for considering that an extended supervision order will be made in relation to the offender; and (d) the Court is satisfied that there are reasonable grounds for considering that each of the conditions to be imposed on the offender by the order under this subsection is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the terrorist offender committing a serious Part 5.3 offence.
(iii) the period for which the interim control order referred to in subparagraph 105A.3A(8)(c)(i) or confirmed control order referred to in subparagraph 105A.3A(8)(c)(ii) is in force; and
Note:
A series of interim supervision orders can be made in relation to a person (see subsection (8)).
(5)
For the purposes of paragraph (4)(d), in determining whether each of the conditions to be imposed on the offender by the order is reasonably necessary, and reasonably appropriate and adapted, the Court must take into account, as a paramount consideration in all cases, the object of this Division (see section 105A.1).
Effect of an interim supervision order
(6)
The effect of an interim supervision order is to impose on the offender, for the period the order is in force, conditions contravention of which may be an offence.
Content of order
(7)
The order must specify: (a) that the Court is satisfied of the matters mentioned in paragraphs (4)(b) to (d); and (b) the matters mentioned in paragraphs 105A.7A(4)(b), (c) and (e); and (c) the period during which the order is in force, which must be a period of no more than 28 days that the Court is satisfied is reasonably necessary to determine the application for the continuing detention order or extended supervision order.
Note:
The order may be suspended during the period that it is in force if the offender is detained in custody in a prison (see section 105A.18C).
(8)
The total period of all interim supervision orders made in relation to the offender before the Court makes a decision on the application for the continuing detention order or extended supervision order must not be more than 3 months, unless the Court is satisfied that there are exceptional circumstances.
Requirement to apply for variation
(1A)
If the AFP Minister is satisfied that a condition in an extended supervision order or interim supervision order in relation to a terrorist offender is no longer reasonably necessary, or reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious Part 5.3 offence, the Minister or a legal representative of the Minister must apply to a Supreme Court of a State or Territory to vary, under section 105A.9C, the order by: (a) removing the condition; or (b) varying the condition.
Note 1:
The AFP Minister or legal representative may also apply under subsection (1) for other variations of the order, including adding conditions.
Note 2:
A copy of the application must be given to the offender under section 105A.14A.
Who may otherwise apply
(1)
Any of the following persons (the applicant ) may (subject to subsection (1A)) apply to a Supreme Court of a State or Territory to vary, under section 105A.9C, an extended supervision order or interim supervision order in relation to a terrorist offender, by adding, varying or removing one or more conditions mentioned in section 105A.7B: (a) the AFP Minister or a legal representative of the AFP Minister; (b) the terrorist offender or a legal representative of the terrorist offender.
Note:
If the application is made by or on behalf of the AFP Minister, a copy of the application must be given to the offender under section 105A.14A.
(2)
An application under subsection (1A) or (1) must be made to the Supreme Court of the State or Territory where the offender resides.
Note:
See section 100.1 for the definition of reside .
Contents of application
(3)
An application under subsection (1A) or (1) must include: (a) a copy of the conditions as sought to be varied; and (b) if the applicant is the AFP Minister or a legal representative or the AFP Minister - the following material:
(i) an explanation as to why each condition that is sought to be added or varied should be added or varied;
(ii) if the AFP Minister is aware of any facts relating to why any of those conditions should not be added or varied - a statement of those facts, except any facts that are likely to be protected by public interest immunity (whether the claim for public interest immunity is to be made by the AFP Minister or any other person);
(c) if the applicant is the terrorist offender or a legal representative of the terrorist offender - the outcomes and particulars of all previous applications made under this section by or on behalf of the terrorist offender for variations of the order; and (d) if a report was obtained under section 105A.18D in relation to the terrorist offender for the purposes of determining whether to apply for the variation - a copy of the report.
(iii) the outcomes and particulars of all previous applications made under this section (whether by or on behalf of the AFP Minister or the terrorist offender) for variations of the order; and
(4)
If the applicant is the terrorist offender or a legal representative of the terrorist offender, the applicant: (a) may also include in the application an explanation as to why each condition that is sought to be varied or removed should be varied or removed; and (b) must cause a copy of the application to be served on the AFP Minister within 2 business days after the application is made.
Adducing additional evidence
(5)
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 AFP Minister; (b) one or more AFP members; (c) the terrorist offender; (d) one or more representatives of the offender.
(6)
Subsection (5) does not otherwise limit the power of the Court to control proceedings in relation to an application to vary an extended supervision order.
If an application is made in accordance with subsection 105A.9B(1A) or (1), and subsection (2), to a Supreme Court of a State or Territory to vary an extended supervision order or interim supervision order in relation to a terrorist offender, the Court may vary the order, but only if: (a) for an application for the order to be varied by adding or varying conditions - the Court is satisfied on the balance of probabilities that each of the conditions being added or varied is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious Part 5.3 offence; and (b) for an application for the order to be varied by removing conditions - the Court is not satisfied on the balance of probabilities that each of the conditions being removed is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious Part 5.3 offence.
Note:
See section 105A.9E for the terms of a varied extended supervision order or interim supervision order.
(2)
For the purposes of subsection (1), in determining whether each of the conditions to be added, varied or removed by the order is reasonably necessary, and reasonably appropriate and adapted, the Court must take into account, as a paramount consideration in all cases, the object of this Division (see section 105A.1).
(3)
The AFP Minister bears the onus of satisfying the Court of the matters referred to in subsection (1).
Relevant experts
(4)
The Court may appoint one or more relevant experts for the purposes of the proceedings relating to the application. If the Court does so, subsections 105A.6(4) to (7) apply in relation to the proceedings.
(5)
The AFP Minister, the offender, or a legal representative of the AFP Minister or offender, may nominate one or more relevant experts for the purposes of subsection (4).
(6)
Subsection (4) does not prevent the AFP Minister, the offender, or a legal representative of the AFP Minister or offender, from calling another relevant expert as a witness in the proceedings.
Any of the following persons (the applicant ) may apply to a Supreme Court of a State or Territory to vary an extended supervision order or interim supervision order in relation to a terrorist offender by varying or removing one or more conditions mentioned in section 105A.7B: (a) the AFP Minister or a legal representative of the AFP Minister; (b) the terrorist offender or a legal representative of the terrorist offender.
(2)
The application must be made to the Court of the State or Territory where the offender resides.
Note:
See section 100.1 for the definition of reside .
(3)
The Court may vary the order if the Court is satisfied that: (a) written consent to the variation has been given by:
(i) if the applicant is the AFP Minister or a legal representative of the AFP Minister - the offender; or
(b) the variation does not involve adding any conditions to the order; and (c) the variation is appropriate in the circumstances.
(ii) if the applicant is the terrorist offender or a legal representative of the terrorist offender - the AFP Minister; and
An extended supervision order or interim supervision order in relation to a person that is varied under section 105A.9C, 105A.9D or 105A.12A must: (a) state that the Court is satisfied:
(i) for a variation under subsection 105A.9C(1) or 105A.9D(3) - of the matters mentioned in that subsection; or
(b) specify the variations to the conditions that are to be made; and (c) state the period during which the order, as varied, is in force; and (d) state that the offender's lawyer may request a copy of the order.
(ii) for a variation under section 105A.12A - of the matters mentioned in subsection 105A.12A(1), (3) or (4) (as the case requires); and
When application for review must be made
(1A)
The AFP Minister, or a legal representative of the AFP Minister, must, before the end of the period referred to in subsection (1B), apply to a Supreme Court of a State or Territory for a review of a post-sentence order that is in force in relation to a terrorist offender.
Note 1:
For when an application is not required to be made, see subsection (2).
Note 2:
A copy of the application must be given to the terrorist offender under section 105A.14A.
(1B)
The application must be made: (a) before the end of 12 months after the order began to be in force (unless paragraph (b) or (c) applies); or (b) if the order has been reviewed under this Subdivision by a Supreme Court of a State or Territory - before the end of 12 months after the most recent review ended (unless paragraph (c) applies); or (c) if paragraph (a) or (b) would otherwise apply and, at the time described in that paragraph, the post-sentence order is suspended under section 105A.18C because the offender is detained in custody in a prison - on or before the day the offender's detention in a prison ends.
(1C)
Despite subsection (1A), an application for a review is not required if an application for a new post-sentence order in relation to the offender has been made and not withdrawn.
Review must be conducted before end of period
(1)
On receiving the application, the Court must begin the review of the order before the end of that period.
Note:
For the process for reviewing a post-sentence order, see section 105A.12.
(2)
(Repealed by No 131 of 2021)
Where application must be made
(3)
The application must be made to the Court of the State or Territory where: (a) for a continuing detention order - the prison in which the offender is detained is located; or (b) for an extended supervision order - the offender resides.
Note:
See section 100.1 for the definition of reside .
Order ceases to be in force if application not made
(4)
If an application is not made in accordance with this section, the order ceases to be in force at the end of the period referred to in subsection (1B).
The following persons may apply to a Supreme Court of a State or Territory for review of a post-sentence order: (a) the AFP Minister or a legal representative of the AFP Minister; (b) a terrorist offender, or a legal representative of a terrorist offender, in relation to whom the post-sentence order is in force.
Note 1:
For the process for reviewing a post-sentence order, see section 105A.12.
Note 2:
A copy of the application must be given to the terrorist offender under section 105A.14A.
(1A)
The application must include a copy of any report obtained under section 105A.18D for the purposes of determining whether an application for a review of the extended supervision order should be made.
(2)
The Court may review the order if the Court is satisfied that: (a) there are new facts or circumstances which would justify reviewing the order; or (b) it would be in the interests of justice, having regard to the purposes of the order and the manner and effect of its implementation, to review the order.
(3)
Otherwise, the Court must dismiss the application.
(4)
The application must be made to the Court of the State or Territory where: (a) for a continuing detention order - the prison in which the offender is detained is located; or (b) for an extended supervision order - the offender resides.
Note:
See section 100.1 for the definition of reside .
This section applies if, under section 105A.10 or 105A.11, a Supreme Court of a State or Territory reviews a post-sentence order that is in force in relation to a terrorist offender.
Parties to the review
(2)
The parties to the review are:
(a) the AFP Minister; and
(b) the offender.
Relevant experts
(3)
The Court may appoint one or more relevant experts for the purposes of the review. If the Court does so, subsections 105A.6(4) to (7) apply in relation to the review.
(3A)
The AFP Minister, the offender, or a legal representative of the AFP Minister or offender, may nominate one or more relevant experts for the purposes of subsection (3).
(3B)
Subsection (3) does not prevent the AFP Minister, the offender, or a legal representative of the AFP Minister or offender, from calling his or her own relevant expert as a witness in the review.
Affirming or revoking the order
(4)
The Court may affirm the order (including affirm the order with variations made under section 105A.12A) if, after having regard to the matters in section 105A.6B, the Court is satisfied that the Court: (a) for a continuing detention order - could have made the order under section 105A.7; or (b) for an extended supervision order - could have made the order under section 105A.7A, or could have made the order disregarding paragraph 105A.7A(1)(c).
Note:
The rules of evidence and procedure for civil matters apply when the Court has regard to matters in accordance with section 105A.6B, as referred to in subsection (4) of this section (see subsection 105A.6B(3) and section 105A.13).
(5)
If the review is of a continuing detention order, and the Court does not affirm the order under subsection (4), the Court must: (a) consider making an extended supervision order in relation to the offender under section 105A.7A; and (b) seek the following material from the AFP Minister:
(i) a copy of the proposed conditions that would be sought for an extended supervision order;
(ii) an explanation as to why each of the proposed conditions should be imposed on the offender;
(c) if the court does not make an extended supervision order in relation to the offender - revoke the continuing detention order.
(iii) if the AFP Minister is aware of any facts relating to why any of those conditions should not be imposed on the offender - a statement of those facts, except any facts that are likely to be protected by public interest immunity (whether the claim for public interest immunity is to be made by the AFP Minister or any other person); and
Note:
If the Court makes an extended supervision order in relation to the offender, the continuing detention order is revoked under subsection 105A.7A(6).
(5AA)
If the Court does not affirm an extended supervision order under subsection (4), the Court must revoke the order.
Onus of satisfying Court
(5A)
The AFP Minister must ensure that reasonable inquiries are made to ascertain any facts known to any Commonwealth law enforcement officer or intelligence or security officer that would reasonably be regarded as supporting a finding that the order should not be affirmed.
(6)
The AFP Minister bears the onus of satisfying the Court of the matters referred to in section 105A.7 or 105A.7A.
(6A)
The AFP Minister, or the legal representative of the AFP Minister, must present to the Court: (a) a copy of any material in the possession of the AFP Minister or legal representative; and (b) a statement of any facts that the AFP Minister or legal representative is aware of;
that would reasonably be regarded as supporting a finding that:
(c) the order should not be affirmed, or should not be affirmed in the terms in which the order is made; or (d) if the court is considering making an extended supervision order under subsection (5) - an extended supervision order should not be made.(7)
(Repealed by No 131 of 2021)
Varying the period specified by a post-sentence order
(1)
A Supreme Court of a State or Territory must vary a post-sentence order in relation to a terrorist offender to specify a shorter period for which the order will be in force if: (a) the Court affirms the order under subsection 105A.12(4); and (b) the Court is not satisfied that the period currently specified is reasonably necessary to prevent the unacceptable risk of the offender committing a serious Part 5.3 offence.
The shorter period must be a period that the Court is satisfied is reasonably necessary to prevent the unacceptable risk.
Note:
See section 105A.9E for the terms of a varied extended supervision order.
Varying or removing conditions
(2)
A Supreme Court of a State or Territory must vary, or remove, a condition imposed by an extended supervision order if: (a) the Court affirms the order under subsection 105A.12(4); and (b) the Court is not satisfied that the condition is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious Part 5.3 offence.
(3)
The Court must be satisfied that a condition that is varied under subsection (2) is (after the variation) reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious Part 5.3 offence.
Varying to add conditions
(4)
The Court may vary an extended supervision order to add one or more conditions if the Court is satisfied that the conditions are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from the unacceptable risk of the offender committing a serious Part 5.3 offence.
Object of this Division
(5)
For the purposes of subsections (3) and (4), in determining whether a condition to be varied or imposed on the offender by the order is reasonably necessary, and reasonably appropriate and adapted, the Court must take into account, as a paramount consideration in all cases, the object of this Division (see section 105A.1).
Onus of satisfying court
(6)
The AFP Minister bears the onus of satisfying the Court of the matters referred to in subsection (1), (3) or (4).
A Supreme Court of a State or Territory must, subject to subsection (2), apply the rules of evidence and procedure for civil matters during a post-sentence order proceeding.
(2)
Despite anything in the rules of evidence and procedure, the Court may receive in evidence in the proceeding evidence of: (a) the level of the offender's compliance with any conditions (however described) to which he or she is or has been subject while:
(i) on release on parole for any offence; or
(b) the offender's history of any prior convictions for, and findings of guilt made in relation to, any offence.
(ii) subject to an extended supervision order, interim supervision order or control order; and
A party to a post-sentence order proceeding in a Supreme Court of a State or Territory may adduce evidence (including by calling witnesses or producing material), or make submissions, to the Court in relation to the proceeding.
This section applies if the AFP Minister, or a legal representative of the AFP Minister, (the applicant ) applies to a Supreme Court of a State or Territory for: (a) a post-sentence order or interim post-sentence order; or (b) a variation of an extended supervision order or interim supervision order under section 105A.9B; or (c) a review of a post-sentence order;
in relation to a terrorist offender.
(2)
Within 2 business days after the application is made, the applicant must (subject to sections 105A.14B to 105A.14D) give a copy of the application to the offender personally, and to the offender's legal representative.
Note:
For giving documents to a terrorist offender who is in prison, see section 105A.15.
(3)
If the Court seeks material from the AFP Minister under paragraph 105A.7(2)(a), 105A.9(8)(a) or 105A.12(5)(b), within 2 business days after the material is provided to the Court, the applicant must (subject to sections 105A.14B to 105A.14D) give a copy of the material to the offender personally, and to the offender's legal representative.
(4)
If: (a) the post-sentence order or interim post sentence order is made or varied; and (b) neither the offender nor a legal representative of the offender is present during the proceedings in which the order is made or varied;
the applicant must (subject to sections 105A.14B to 105A.14D), within 2 business days after the order is made or varied, give to the offender personally, and the offender's legal representative, a copy of the order that is made, or of the order as varied.
This section applies if the AFP Minister, or a legal representative of the AFP Minister, (the applicant ) gives a copy of an application or material to a terrorist offender, or a terrorist offender's legal representative, (the recipient ) under subsection 105A.14A(2) or (3).
(2)
The applicant is not required to include any information in the application or material if a Minister (the decision-maker ) is likely to take: (a) any actions in relation to the information under the National Security Information (Criminal and Civil Proceedings) Act 2004; or (b) seek an order of a court preventing or limiting disclosure of the information.
(3)
However, the applicant must (subject to subsection (4)) give the recipient personally a complete copy of the application or material if any of the following events occurs: (a) the decision-maker decides not to take any of the actions referred to in paragraph (2)(a) or (b); (b) a Minister gives a certificate under Subdivision C of Division 2 of Part 3A of the National Security Information (Criminal and Civil Proceedings) Act 2004; (c) a court makes an order in relation to any action taken by the decision-maker under paragraph (2)(a) or (b).
(4)
Subsection (3) is subject to: (a) the certificate referred to in paragraph (3)(b); or (b) any order made by a court.
(5)
The copy of the application or material must be given under subsection (3): (a) within 2 business days of the event referred to in subsection (3); and (b) within a reasonable period before:
(i) if the application is for a post-sentence order - the preliminary hearing referred to in section 105A.6; or
(ii) if the application is for an interim detention order - the hearing referred to in subsection 105A.9(1A); or
(iii) if the application is for an interim supervision order - the hearing referred to in subsection 105A.9A(2); or
(iv) if the application is for a variation or review of a post-sentence order, or for a variation of an interim post-sentence order - the hearing on the application.
This section applies if: (a) the AFP Minister, or a legal representative of the AFP Minister, (the applicant ) gives a copy of an application or material to a terrorist offender, or a terrorist offender's legal representative, under subsection 105A.14A(2) or (3); and (b) information (however described) is excluded from the application or material on the basis of public interest immunity.
(2)
The applicant must give written notice to the offender, and the offender's legal representative, personally stating that the information has been excluded on the basis of public interest immunity. The notice must be given at the time that a copy of the application or material is given to the offender or legal representative.
(3)
To avoid doubt, nothing in this section imposes an obligation on the offender to satisfy the Court that a claim of public interest immunity should not be upheld.
Note:
The offender may seek to access any information, material or facts that are likely to be protected by public interest immunity (for example, through a subpoena). Under the law of public interest immunity, the person claiming the immunity must make and substantiate the claim, and satisfy the Court that the claim should be upheld.
This section applies if: (a) the AFP Minister, or a legal representative of the AFP Minister, (the applicant ) is required to give a copy of an application or material to a terrorist offender, or a terrorist offender's legal representative, under subsection 105A.14A(2) or (3); and (b) the application or material contains other material ( terrorism material ) that:
(i) advocates support for engaging in any terrorist acts or violent extremism; or
(ii) relates to planning or preparing for, or engaging in, any terrorist acts or violent extremism; or
(iii) advocates joining or associating with a terrorist organisation.
(2)
The applicant may apply to the Supreme Court of a State or Territory referred to in subsection 105A.14A(1) for an order in relation to the manner in which the terrorism material is to be dealt with.
(3)
The Court may make an order in relation to the manner in which the terrorism material is to be dealt with, including that the terrorism material: (a) be provided to the offender's legal representative; or (b) be available for inspection by the offender at specified premises.
A document that is required to be given under this Division to a terrorist offender who is detained in custody is taken to have been given to the offender at the time referred to in paragraph (3)(b) if the document is given to the following person (the recipient ): (a) the legal representative of the offender; (b) if the offender does not have a legal representative - the chief executive officer (however described) of the prison or other facility in which the offender is detained, or a delegate of the chief executive officer.
(2)
The recipient must, as soon as reasonably practicable, give the document to the offender personally.
(3)
Once the recipient has done so, he or she must notify the Court and the person who gave the recipient the document, in writing: (a) that the document has been given to the offender; and (b) of the day that document was so given.
This section applies if:
(a) a post-sentence order proceeding relating to a terrorist offender is before a Supreme Court of a State or Territory; and
(b) the offender, due to circumstances beyond the offender's control, is unable to engage a legal representative in relation to the proceeding.
(2)
The Court may make either or both of the following orders:
(a) an order staying the proceeding for such period and subject to such conditions as the Court thinks fit;
(b) an order requiring the Commonwealth to bear, in accordance with the regulations (if any), all or part of the reasonable costs and expenses of the offender's legal representation for the proceeding.
(3)
The regulations may prescribe matters that the Court may, must or must not take into account in determining either or both of the following:
(a) whether circumstances are beyond the offender's control;
(b) reasonable costs and expenses of the offender's legal representation for the proceeding.
(4)
This section does not limit any other power of the Court.
A Supreme Court of a State or Territory that makes a post-sentence order decision in a post-sentence order proceeding must:
(a) state the reasons for its decision; and
(b) cause those reasons to be entered in the records of the Court; and
(c) cause a copy of any order it made to be provided to each party to the proceeding.
Note:
See also subsection 105A.2(2) for when a Court makes a post-sentence order decision.
An appeal lies to the court of appeal (however described) of a State or Territory if: (a) the Supreme Court of the State or Territory makes a post-sentence order decision; and (b) the court of appeal has jurisdiction to hear appeals from the Supreme Court in relation to civil matters.
(2)
The appeal is to be by way of rehearing. In particular, in relation to the appeal, the court of appeal: (a) subject to this subsection, has all the powers, functions and duties that the Supreme Court has in relation to the relevant post-sentence order proceedings; and (b) (Repealed by No 131 of 2021) (c) may receive further evidence as to questions of fact (orally in court, by affidavit or in any other way) if the court of appeal is satisfied that there are special grounds for doing so.
(3)
The appeal against the decision of the Supreme Court may be made: (a) as of right, within 28 days after the day on which the decision was made; or (b) by leave, within such further time as the court of appeal allows.
(4)
The making of the appeal does not stay the operation of the order.
(5)
This section does not limit any other right of appeal that exists apart from this section.
This section applies in relation to a post-sentence order proceeding if: (a) the proceeding is any of the following:
(i) a proceeding on an application for a post-sentence order in relation to a terrorist offender;
(ii) an appeal against a decision to dismiss such an application;
(iii) an appeal against a decision to revoke a post-sentence order in relation to a terrorist offender;
(iv) an appeal against a decision (including in a review of such an order) to specify a particular period for which such an order will be in force;
(b) before the application or appeal is determined (whether before or after the appeal is made)one of the following events occurs:
(v) an appeal against a decision under section 105A.15A to stay a post-sentence order proceeding in relation to a terrorist offender (including a decision under that section to stay a proceeding for a specified period or to impose a specified condition); and
(i) a sentence of imprisonment referred to in subsection 105A.3A(1) or paragraph 105A.3A(3)(a), (4)(a), (5)(d) or (7)(a) ends;
(ia) (Repealed by No 131 of 2021)
(ii) a post-sentence order or interim post-sentence order in relation to the offender ceases to be in force;
(iia) the interim control order referred to in subparagraph 105A.3A(8)(c)(i) or confirmed control order referred to in subparagraph 105A.3A(8)(c)(ii) in relation to the offender ceases to be in force;
(iii) a post-sentence order in force in relation to the offender was revoked as referred to in subparagraph (a)(iii) of this subsection.
(2)
For the purposes of the post-sentence order proceeding, the offender is taken to remain a terrorist offender: (a) who is detained in custody in a prison serving a sentence of imprisonment; or (b) in relation to whom a post-sentence order, interim post-sentence order or control order is in force;
despite the event in subsection (1) occurring.
Power of police officer to detain terrorist offender
(3)
If a continuing detention order or interim detention order is in force in relation to the offender at any time after the offender is released as mentioned in paragraph (1)(b):
(a) any police officer may take the offender into custody; and
(b) any police officer may detain the offender;
for the purpose of giving effect to the order.
(4)
A police officer, in:
(a) taking the offender into custody; or
(b) detaining the offender;
under subsection (3) has the same powers and obligations as the police officer would have if the police officer were arresting the offender, or detaining the offender, for an offence.
(5)
In subsection (4):
(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.
A person who is detained in non-prison custody is, for the purposes of this Part, taken to be in the community.
A person commits an offence if: (a) an extended supervision order or an interim supervision order is in force in relation to the person, and not suspended under section 105A.18C; and (b) the person engages in conduct; and (c) the conduct contravenes a condition the order imposes; and (d) if the condition is an exemption condition - there is no exemption in force at the time the conduct is engaged in that exempts the offender from the application of the condition.
Note:
A court that is sentencing a person who has been convicted of an offence against this section may be required to warn the person about continuing detention orders and extended supervision orders (see section 105A.23).
Penalty: Imprisonment for 5 years.
(2)
A person commits an offence if: (a) an extended supervision order or an interim supervision order is in force in relation to the person, and not suspended under section 105A.18C; and (b) the order includes an exemption condition; and (c) an exemption is in force in relation to the condition; and (d) a direction is specified in relation to the exemption condition under subparagraph 105A.7C(5)(b)(ii); and (e) the person engages in conduct; and (f) the conduct contravenes the direction.
Note:
A court that is sentencing a person who has been convicted of an offence against this section may be required to warn the person about continuing detention orders and extended supervision orders (see section 105A.23).
Penalty: Imprisonment for 5 years.
(3)
Subsection (1) or (2) does not apply if the contravention of the condition or direction occurs because the person is detained in non-prison custody.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (3). See subsection 13.3(3).
A person commits an offence if: (a) an extended supervision order or interim supervision order is in force in relation to the person, and not suspended under section 105A.18C; and (b) the order requires the person to wear a monitoring device; and (c) the person engages in conduct; and (d) the conduct results in interference with, or disruption or loss of, a function of the monitoring device or any related monitoring equipment.
Note:
A court that is sentencing a person who has been convicted of an offence against this subsection may be required to warn the person about continuing detention orders and extended supervision orders (see section 105A.23).
Penalty: Imprisonment for 5 years.
(2)
A person (the perpetrator ) commits an offence if: (a) the perpetrator knows that, or is reckless as to whether, an extended supervision order or interim supervision order is in force in relation to another person; and (b) the order is not suspended under section 105A.18C; and (c) the perpetrator knows that, or is reckless as to whether, the order requires the other person to wear a monitoring device; and (d) the perpetrator engages in conduct; and (e) the conduct results in interference with, or disruption or loss of, a function of the monitoring device or any related monitoring equipment.
Penalty: Imprisonment for 5 years.
(3)
Strict liability applies in relation to paragraph (2)(b).
Effect of prison detention on post-sentence orders
(1)
A continuing detention order or interim detention order in relation to a terrorist offender is suspended during the period that the offender is detained in custody in a prison other than as a result of the order.
Note:
For the definition of detained in custody in a prison , see subsection 100.1(1).
(2)
An extended supervision order or interim supervision order in relation to a terrorist offender is suspended during the period that the offender is detained in custody in a prison.
Effect of suspension
(3)
A post-sentence order or interim post-sentence order continues to be in force during the period in which the order is suspended.
(4)
However, the offender is not required to comply with any condition in an extended supervision order or interim supervision order during the period that the order is suspended.
The AFP Minister may direct any of the following terrorist offenders to be subject to an assessment of the risk of the person committing a serious Part 5.3 offence: (a) a terrorist offender in relation to whom an application for a post-sentence order could be made; (b) a terrorist offender in relation to whom a post-sentence order is in force.
(2)
The AFP Minister may appoint a relevant expert to conduct the assessment, and provide a report, for the purposes of determining whether: (a) an application for a post-sentence order or interim post-sentence order in relation to the offender should be made; or (b) an application for a variation or review of a post-sentence order or interim post-sentence order in relation to the offender should be made.
(3)
The relevant expert who is appointed must: (a) conduct an assessment of the risk of the offender committing a serious Part 5.3 offence; and (b) provide a report of the expert's assessment to the AFP Minister.
Note:
For giving documents to a terrorist offender who is in prison, see section 105A.15.
Attendance and participation at assessment
(4)
The offender must attend the assessment.
Note:
The assessment may be conducted over a number of sessions.
(5)
The answer to a question or information given at the assessment, and answering a question or giving information at the assessment, are not admissible in evidence against the offender in: (a) any criminal proceedings, except any proceedings relating to sentencing for an offence against Division 104 or this Division (including any appeal in relation to those proceedings); or (b) any civil proceedings against the offender, except proceedings under Division 104 or this Division (including any appeal in relation to those proceedings).
(6)
The AFP Minister must ensure that the effect of subsections (4), (5) and (8) is explained to the offender.
Contents of report
(7)
The expert's report may include any one or more of the following matters: (a) the expert's assessment of the risk of the offender committing a serious Part 5.3 offence; (b) reasons for that assessment; (c) the pattern or progression to date of behaviour on the part of the offender in relation to serious Part 5.3 offences, and an indication of the nature of any likely future behaviour on the offender's part in relation to serious Part 5.3 offences; (d) efforts made to date by the offender to address the causes of the offender's behaviour in relation to serious Part 5.3 offences, including whether the offender has actively participated in any rehabilitation or treatment programs; (e) if the offender has participated in any rehabilitation or treatment programs - whether or not this participation has had a positive effect on the offender; (f) any relevant background of the offender, including developmental and social factors; (g) factors that might increase or decrease any risks that have been identified of the offender committing a serious Part 5.3 offence; (h) any other matters the expert considers relevant.
Assessments conducted for certain purposes
(8)
Without limiting subsection (5), an assessment of an offender conducted under paragraph (3)(a), and the report of the assessment, may be taken into account: (a) by the Minister in determining whether to make any application for a post-sentence order or interim post-sentence order, or any application for a variation or review of a post-sentence order or interim post-sentence order, in relation to the offender; and (b) by the Court in proceedings to make or vary any post-sentence order or interim post-sentence order, or to review any post-sentence order, in relation to the offender.
Requesting information
(1)
The AFP Minister may request a person prescribed by the regulations for the purposes of this subsection to give the AFP Minister information (including personal information) that the AFP Minister reasonably believes to be relevant to the administration or execution of this Division.
(2)
The request need not be in writing.
(2A)
Despite any law of the Commonwealth, a State or a Territory (whether written or unwritten), the person may provide the information to the AFP Minister.
Disclosing information
(3)
The AFP Minister may disclose information to a person prescribed by the regulations for the purposes of this subsection if:
(a) the information was acquired by any of the following in the exercise of a power under, or the performance of a function or duty in connection with, this Division:
(i) the AFP Minister;
(ii) a legal representative of the AFP Minister;
(iii) the Secretary of the Department administered by the AFP Minister;
(iv) an APS employee in the Department administered by the AFP Minister; and
(b) the AFP Minister reasonably believes that the disclosure is necessary to enable the person to exercise the person's powers, or to perform the person's functions or duties; and
(c) if the regulations provide that information may be disclosed to the person only if specified circumstances are met - those circumstances are met.
(4)
Subsection (3) applies despite any other law of the Commonwealth, a State or a Territory (whether written or unwritten).
An AFP member may disclose information (including personal information), to a person employed or engaged by a body covered by an arrangement under subsection 105A.21A(1), for the purpose of facilitating the performance of any functions or the exercise of any powers in relation to extended supervision orders or interim supervision orders.
(2)
A person (the first person ) employed or engaged by a body covered by an arrangement under subsection 105A.21A(1) may disclose information (including personal information) to another person if the first person reasonably believes that the disclosure is authorised by the arrangement.
(3)
This section applies despite any other law of the Commonwealth, a State or a Territory (whether written or unwritten).
The AFP Minister may, in writing, delegate any of his or her powers or functions under section 105A.19 to any of the following persons:
(a) the Secretary of the Department administered by the AFP Minister;
(b) any APS employee in that Department who performs duties in connection with the administration or execution of this Division.
View history note
The AFP Minister may arrange for a terrorist offender in relation to whom a continuing detention order or interim detention order is in force to be detained in a prison of a State or Territory.
(2)
If an arrangement is made under subsection (1), the continuing detention order or interim detention order is taken to authorise the chief executive officer (however described) of the prison to detain the offender in the prison while the order is in force.
The Commissioner of the Australian Federal Police may make an arrangement with a State or Territory, or any other body, for the performance of any functions or the exercise of any powers in relation to extended supervision orders or interim supervision orders.
(2)
Without limiting subsection (1), for the purposes of section 105A.19A, the arrangement may authorise a person employed or engaged by a body covered by the arrangement to disclose information (including personal information).
(3)
The Commissioner of the AustralianFederal Police may, in writing, delegate to a senior AFP member the Commissioner's powers under subsection (1).
The AFP Minister must, as soon as practicable after each 30 June, cause a report to be prepared about the operation of this Division during the year ended on that 30 June.
Information to be included in report
(2)
Without limiting subsection (1), a report relating to a year must include the number of each of the following: (a) applications for each kind of post-sentence order made during the year; (b) applications for each kind of interim post-sentence order made during the year; (c) each kind of post-sentence order made during the year; (d) each kind of interim post-sentence order made during the year; (e) applications for review of each kind of post-sentence order made by terrorist offenders during the year; (ea) applications for review of each kind of post-sentence order made by the AFP Minister, or a legal representative of the AFP Minister, during the year; (f) each kind of post-sentence order affirmed during the year; (g) each kind of post-sentence order varied during the year; (h) post-sentence orders revoked (including by operation of this Act) during the year.
(2A)
Without limiting subsection (1), a report relating to a year must also include information about: (a) the detention arrangements that applied, during the year, to terrorist offenders who were subject to a continuing detention order at any time during the year; and (b) the rehabilitation or treatment programs that were made available, during the year, to terrorist offenders who were subject to a post-sentence order at any time during the year; and (c) funding for the administration of this Division during the year.
Limitations
(2B)
Despite subsection (2A), a report under this section must not include information of a kind mentioned in that subsection if: (a) the information is given to the AFP Minister, or an officer or employee of the Commonwealth, by a person who is a Minister, or an officer or employee, of a State or Territory; and (b) that person has not consented, in writing, to the information being included in the report.
(2C)
If information is not included in a report under this section because of subsection (2B), the report must include a statement to that effect.
Report to be tabled in Parliament
(3)
The AFP Minister 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.
This section applies if: (a) a court is sentencing a person who has been convicted of:
(i) an offence referred to in paragraph 105A.3(1)(a); or
(b) both of the following apply:
(ii) an offence against section 105A.18A or subsection 105A.18B(1) if paragraph 105A.3A(4)(b) applies in relation to the person; or
(i) a court is sentencing a person who has been convicted of an offence referred to in section 104.27 or subsection 104.27A(1);
(ii) the Director of Public Prosecutions informs the court that a warning must be given under this section.
(1A)
The court must: (a) warn the person that an application may be made under this Division for:
(i) a continuing detention order requiring the person to be detained in custody in a prison after the end of the person's sentence; or
(b) inform the person that the application may be made:
(ii) an extended supervision order imposing conditions on the person after the end of the person's sentence, a contravention of which is an offence; and
(i) if paragraph (1)(a) applies - before the end of the sentence for that offence, or before the end of any later sentence if the person is continuously detained in custody in a prison; or
(ii) if paragraph (1)(b) applies - before the end of the sentence for the offence referred to in that paragraph.
(2)
A failure by the court to comply with subsection (1) does not: (a) affect the validity of the sentence for the offence; or (b) prevent an application from being made under this Division in relation to the person.
A person in relation to whom a continuing detention order or an interim detention order is in force is not eligible to be released on bail or parole until the order ceases to be in force.
(2)
Subsection (1) does not prevent the person from applying, before the order ceases to be in force, to be released on bail if the person is charged with an offence while the order is in force.
Note:
Although the person can apply to be released on bail, as a result of subsection (1), the person cannot be released on bail until the continuing detention order ceases to be in force.
(3)
This section applies despite any law of the Commonwealth, a State or a Territory.
A post-sentence order, and an interim post-sentence order, cannot be applied for, affirmed or made, after 7 December 2026.
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.
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.
SECTION 106.3 106.3 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.
An appointment that is in force immediately before the commencement day under subsection 105.2(1) in respect of a Judge of the Federal Circuit Court of Australia continues in force, on and after that day, as an appointment in respect of a Judge of the Federal Circuit and Family Court of Australia (Division 2) under that subsection.
(2)
A consent that is in force immediately before the commencement day under subsection 105.2(2) in respect of a Judge of the Federal Circuit Court of Australia continues in force, on and after that day, as a consent in respect of a Judge of the Federal Circuit and Family Court of Australia (Division 2).
A thing done by, or in relation to, a Judge of the Federal Circuit Court of Australia, as an issuing authority for continued preventative detention orders, under Division 105 before the commencement day has effect, on and after that day, as if it had been done by, or in relation to, a Judge of the Federal Circuit and Family Court of Australia (Division 2), as an issuing authority for continued preventative detention orders, under that Division.
(4)
In this section:
commencement day
means the day Schedule 2 to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 commences.
The amendments of section 102.1, made by Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014, do not affect the continuity of any regulations that are in force for the purposes of that section immediately before the commencement of this section.
(2)
Section 104.2, as amended by Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014, applies to requests for interim control orders made after the commencement of this section, where the conduct in relation to which the request is made occurs before or after that commencement.
(3)
Section 104.4, as amended by Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014, applies to the making of orders requested after the commencement of this section, where the conduct in relation to which the request is made occurs before or after that commencement.
(4)
Sections 104.6 and 104.8, as amended by Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014, apply to the making of requests after the commencement of this section, where the conduct in relation to which the request is made occurs before or after that commencement.
(4A)
Section 104.23, as amended by Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014, applies to variations of control orders, where the relevant interim control order is requested after that commencement.
(5)
Section 105.4, as amended by Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014, applies in relation to applications for preventative detention orders made after the commencement of this section.
(6)
Section 105.7, as amended by Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014, applies in relation to applications for initial preventative detention orders made after the commencement of this section.
(7)
Section 105.8, as amended by Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014, applies in relation to initial preventative detention orders made after the commencement of this section.
(8)
Section 105.12, as amended by Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014, applies in relation to continued preventative detention orders made after the commencement of this section, regardless of when the initial preventative detention order to which the continued order relates was made.
(9)
Section 105.15, as amended by Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014, applies in relation to applications for prohibited contact orders made after the commencement of this section, regardless of when the application for the preventative detention order to which the prohibited contact order relates was made.
(10)
Section 105.16, as amended by Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014, applies in relation to applications for prohibited contact orders made after the commencement of this section, regardless of when the preventative detention order to which the prohibited contact order relates was made.
Section 104.1, as amended by Schedule 1 to the Counter-Terrorism Legislation Amendment Act (No 1) 2014, applies in relation to control orders, where the relevant interim control order is requested after the commencement of this section.
(2)
Sections 104.2, 104.3, 104.10 and 104.12A, as amended by Schedule 1 to the Counter-Terrorism Legislation Amendment Act (No 1) 2014, apply to requests for interim control orders made after the commencement of this section, where the conduct in relation to which the request is made occurs before or after that commencement.
(3)
Section 104.4 and subsection 104.5(1B), as amended by Schedule 1 to the Counter-Terrorism Legislation Amendment Act (No 1) 2014, apply to the making of orders requested after the commencement of this section, where the conduct in relation to which the request is made occurs before or after that commencement.
(4)
Sections 104.6 and 104.8, as amended by Schedule 1 to the Counter-Terrorism Legislation Amendment Act (No 1) 2014, apply to the making of requests after the commencement of this section, where the conduct in relation to which the request is made occurs before or after that commencement.
(5)
Section 104.14, as amended by Schedule 1 to the Counter-Terrorism Legislation Amendment Act (No 1) 2014, applies to confirmations of control orders, where the relevant interim control order is requested after that commencement.
(6)
Sections 104.20, 104.23 and 104.24, as amended by Schedule 1 to the Counter-Terrorism Legislation Amendment Act (No1) 2014, apply to variations of control orders, where the relevant interim control order is requested after that commencement.
Division 104, as amended by Schedules 2 and 3 to the Counter-Terrorism Legislation Amendment Act (No 1) 2016, applies to an order made under that Division after the commencement of this section, where:
(a) the order is requested (however described) after that commencement; and
(b) the conduct in relation to which that request is made occurs before or after that commencement.
(2)
Despite the amendment made by Schedule 4 to the Counter-Terrorism Legislation Amendment Act (No 1) 2016, Division 104 continues to apply in relation to:
(a) a request for an interim control order, where the request was made before the commencement of this section; and
(b) the making of an interim control order in response to such a request; and
(c) the making of a declaration in relation to such an interim control order; and
(d) the revocation of such an interim control order; and
(e) the confirmation of such an interim control order (with or without variation); and
(f) the making of a confirmed control order that corresponds to such an interim control order that has been so confirmed; and
(g) the revocation or variation of such a confirmed control order; and
(h) any other proceedings under that Division that are associated with, or incidental to, a matter covered by any of the above paragraphs;
as if the amendment had not been made.
(3)
Section 104.29, as amended by Schedule 8 to the Counter-Terrorism Legislation Amendment Act (No 1) 2016, applies in relation to any year that ends on 30 June after the commencement of this section.
(4)
Division 105, as amended by Schedule 5 to the Counter-Terrorism Legislation Amendment Act (No 1) 2016, applies in relation to an application for the following made after the commencement of this section:
(a) a preventative detention order;
(b) an initial preventative detention order;
(c) an extension of an initial preventative detention order;
(d) a continued preventative detention order;
(e) an extension of a continued preventative detention order.
The amendments of section 104.2 made by the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 apply in relation to any control order, whether made before or after this section commences.
(2)
The amendments of subsections 104.5(1) and (1B) and section 104.12 made by that Act apply in relation to a control order if the request for the control order is made after this section commences.
(3)
Subsections 104.5(1C) and (2AA), as inserted by that Act, apply in relation to any control order, whether made before or after this section commences.
(4)
The amendments of section 104.17 made by that Act apply in relation to any interim control order that is declared to be void, revoked or confirmed after this section commences.
(5)
The amendments of section 104.26 made by that Act apply in relation to any control order varied after this section commences.
(6)
Section 104.28B, as inserted by that Act, applies in relation to the giving of documents after this section commences.
(7)
Division 105A (except section 105A.23), as inserted by that Act, applies in relation to:
(a) any person who, on the day this section commences, is detained in custody and serving a sentence of imprisonment for an offence referred to in paragraph 105A.3(1)(a) of this Code; and
(b) any person who, on or after that day, begins a sentence of imprisonment for such an offence (whether the conviction for the offence occurred before, on or after that day).
(8)
Section 105A.23, as inserted by that Act, applies in relation to any sentence imposed on a person after this section commences, whether the offence in relation to which the sentence is imposed was committed before or after that commencement.
The amendment of subsection 104.5(1A) made by the Counter Terrorism Legislation Amendment Act (No. 1) 2018 (the amending Act ) applies in relation to an interim control order made on or after the day (the commencement day ) this section commences, including such an order that was requested before the commencement day.
Note 1: Section 104.5 deals with the terms of an interim control order.
Note 2: This section was inserted by the amending Act.
(2)
Subdivision CA of Division 104 of this Act, as inserted by the amending Act, applies in relation to an interim control order made before, on or after the commencement day.
Note: Subdivision CA of Division 104 deals with the variation of an interim control order.
(3)
Subsection 104.14(3A) of this Act, as inserted by the amending Act, applies in relation to proceedings for the confirmation of an interim control order:
(a) if the proceedings start on or after the commencement day; and
(b) whether the original request for the interim control order was made before, on or after the commencement day.
Note: Subsection 104.14(3A) deals with the evidentiary status in confirmation proceedings of such an original request.
(4)
Section 104.28AA of this Act, as inserted by the amending Act, applies in relation to the proceedings in relation to a control order (including proceedings to vary or revoke a control order) if:
(a) the proceedings start on or after the commencement day; or
(b) the proceedings had started, but not ended, immediately before the commencement day.
Note: Section 104.28AA deals with costs in control order proceedings.
(5)
Subsections 119.3(5A) and (6) of this Act, as substituted by the amending Act, apply in relation to a declaration of the Foreign Affairs Minister made under subsection 119.3(1) before, on or after the commencement day.
Note: Subsections 119.3(5A) and (6) deal with the revocation of declarations made under subsection 119.3(1).
SECTION 106.10 Application - Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Act 2019 (1)
The amendments of Division 105A made by Part 1 of Schedule 2 to the Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Act 2019 apply in relation to:
(a) any person who, on the day this section commences, is detained in custody; and
(b) any person who, on or after that day, begins a sentence of imprisonment for an offence referred to in paragraph 105A.3(1)(a) (whether the conviction for the offence occurred before, on or after that day).
(2)
To avoid doubt, the amendments of Division 105A made by Part 1 of Schedule 2 to the Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Act 2019 apply in relation to a person referred to in paragraph(1)(a) of this section whose sentence of imprisonment for an offence referred to in paragraph 105A.3(1)(a) ended before the day this section commences.
(3)
The amendments of section 105A.5 made by Part 2 of Schedule 2 to the Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Act 2019 apply in relation to any application for a continuing detention order made after the commencement of this section.
Amendments relating to control orders
(1)
The following apply in relation to any interim control order or confirmed control order (whether in force before or after this section commences): (a) the amendments of subsections 104.5(3), (3A) and (3B) made by Schedule 1 to the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Act 2021; (b) sections 104.5A, 104.28C and 104.28D as inserted by that Schedule.
(1A)
The amendments of section 104.27 made by Schedule 1 to the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Act 2021 apply in relation to conduct occurring after this section commences.
Arrangements for electronic monitoring
(2)
Section 104.28D does not affect the validity of: (a) any agreement in relation to the electronic monitoring of persons under control orders that was in force immediately before this section commences; or (b) any actions taken under or for the purposes of such an agreement before this section commences.
(3)
The amendments of Division 105A made by Schedule 1 to the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Act 2021 apply (subject to this section) in relation to: (a) any person who, on the day this section commences, is detained in custody in a prison; and (b) any person who, on or after that day, begins a sentence of imprisonment for an offence referred to in:
(i) paragraph 105A.3(1)(a) of this Code; or
(whether the conviction for the offence occurred before, on or after that day); and (c) any person who meets the conditions in subsection 105A.3A(8) of thisCode on the day this section commences.
(ii) paragraph 105A.3A(5)(d) of this Code;
Note:
For the definition of detained in custody in a prison , see subsection 100.1(1).
(4)
To avoid doubt, the amendments of Division 105A made by Schedule 1 to the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Act 2021 apply in relation to a person referred to in paragraph (3)(a) or (c), or subparagraph (3)(b)(ii), of this section whose sentence of imprisonment for an offence referred to in paragraph 105A.3(1)(a) of this Code ended before the day this section commences.
Continuing applications on foot at commencement
(5)
An application for: (a) a continuing detention order or interim detention order; or (b) a review of a continuing detention order;
made under Division 105A before this section commences that has not been finally determined at that time is taken to be an application made under that Division as amended by the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Act 2021.
Assessments of terrorist offenders
(6)
Subsection 105A.6(5A), as in force immediately after this section commences, applies in relation to assessments undertaken after that time.
(7)
Subsection 105A.6(9), as in force immediately after this section commences, applies in relation to assessments undertaken before or after that time.
Photographs and impressions of fingerprints
(8)
Section 105A.7D applies in relation to photographs and impressions of fingerprints taken after this section commences.
Providing applications and material
(9)
Sections 105A.14A to 105A.14D apply in relation to applications made after this section commences.
AFP Minister may direct terrorist offenders to be assessed
(10)
Section 105A.18D applies in relation to any terrorist offender who is described in subsection 105A.18D(1) at the time, or any time after, this section commences.
Annual reports
(11)
The amendments of section 105A.22 apply in relation to any 30 June that occurs after this section commences.
Sentencing warning
(12)
Section 105A.23 applies in relation to any sentence imposed after this section commences.
Other amendments
(13)
The amendments of sections 105A.11, 105A.12 and 105A.12A, and section 105A.18C, apply in relation to: (a) any post-sentence order that is in force when this section commences; or (b) any post-sentence order that is made after that time.
The amendments made by Part 1 of Schedule 4 to the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Act 2023 apply in relation to: (a) regulations made before the commencement of this section that were not repealed, and did not cease to have effect, before that commencement; or (b) regulations made on or after that commencement.
(2)
The amendments made by Part 2 of Schedule 4 to the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Act 2023 apply in relation to a declaration made under subsection 102.1(4) of this Code on or after the commencement of this section.
(3)
The amendments made by Part 3 of Schedule 4 to the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Act 2023 apply in relation to a de-listing application received on or after the commencement of this section.
(4)
A reference in paragraph 102.1(16)(d) of this Code to an application made under paragraph (b) of subsection 102.1(16) is taken to include a reference to an application made under paragraph 102.1(17)(b) of this Code during the 12 months ending immediately before the commencement of this section.
(5)
The amendments made by Part 4 of Schedule 4 to the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Act 2023 apply in relation to: (a) a legislative instrument made before the commencement of this section that was not repealed, and did not cease to have effect, before that commencement; or (b) a legislative instrument made on or after that commencement.
Control orders
(1)
The amendments of Division 104 of Part 5.3 made by the Counter-Terrorism and Other Legislation Amendment Act 2023 do not apply in relation to: (a) an interim control order made before the commencement of this section; or (b) a confirmed control order made before the commencement of this section; or (c) a confirmed control order made on or after the commencement of this section if the interim control order that is confirmed by the confirmed control order was made before the commencement of this section.
Issuing court
(2)
The amendment of subsection 100.1(1) made by the Counter-Terrorism and Other Legislation Amendment Act 2023 does not apply in relation to an order made by the Federal Circuit and Family Court of Australia (Division 2) before the commencement of this section.
Appointment as an issuing authority for continued preventative detention orders
(3)
If: (a) a person held an appointment under subsection 105.2(1) immediately before the commencement of this section; and (b) the person is covered by a paragraph of subsection 105.2(1) immediately after the commencement of this section;
the amendments of subsection 105.2(1) made by the Counter-Terrorism and Other Legislation Amendment Act 2023 do not affect the continuity of the person's appointment.
(4)
If: (a) a person held an appointment under subsection 105.2(1) immediately before the commencement of this section; and (b) the person is not covered by a paragraph of subsection 105.2(1) immediately after the commencement of this section;
then:
(c) the person's appointment lapses immediately after the commencement of this section; and (d) the amendments of subsection 105.2(1) made by the Counter-Terrorism and Other Legislation Amendment Act 2023 do not affect the continuity of an order made by the person under Division 105 before the commencement of this section.A person commits an offence if:
(a) the person engages in conduct outside Australia (whether before or after 1 October 2002 or the commencement of this Code); 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; and
(e) if the conduct was engaged in before 1 October 2002 - at the time the conduct was engaged in, the conduct constituted an offence against a law of the foreign country, or the part of the foreign country, in which the conduct was engaged.
Note:
This section commenced on 1 October 2002.
(1A)
If the conduct constituting an offence against subsection (1) was engaged in before 1 October 2002, the offence is punishable on conviction by:
(a) if, at the time the conduct was engaged in, the offence mentioned in paragraph (1)(e) was punishable on conviction by a term of imprisonment (other than imprisonment for life) - a maximum penalty of imprisonment for a term of not more than that term; or
(b) otherwise - a maximum penalty of imprisonment for life.
(1B)
If the conduct constituting an offence against subsection (1) was engaged in on or after 1 October 2002, the offence is punishable on conviction by a maximum penalty of imprisonment for life.
(2)
Absolute liability applies to paragraphs (1)(c) and (e).
(3)
If:
(a) a person has been convicted or acquitted of an offence in respect of conduct under a law of a foreign country or a part of a foreign country; and
(b) the person engaged in the conduct before 1 October 2002;
the person cannot be convicted of an offence against this section in respect of that conduct.
A person commits an offence if:
(a) the person engages in conduct outside Australia (whether before or after 1 October 2002 or the commencement of this Code); 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; and
(e) if the conduct was engaged in before 1 October 2002 - at the time the conduct was engaged in, the conduct constituted an offence against a law of the foreign country, or the part of the foreign country, in which the conduct was engaged.
Note:
This section commenced on 1 October 2002.
(1A)
If the conduct constituting an offence against subsection (1) was engaged in before 1 October 2002, the offence is punishable on conviction by:
(a) if, at the time the conduct was engaged in, the offence mentioned in paragraph (1)(e) was punishable on conviction by imprisonment for a term of less than 25 years - a maximum penalty of imprisonment for a term of not more than that term; or
(b) otherwise - a maximum penalty of imprisonment for a term of not more than 25 years.
(1B)
If the conduct constituting an offence against subsection (1) was engaged in on or after 1 October 2002, the offence is punishable on conviction by a maximum penalty of imprisonment for a term of not more than 25 years.
(2)
Absolute liability applies to paragraphs (1)(b), (c) and (e).
(3)
If:
(a) a person has been convicted or acquitted of an offence in respect of conduct under a law of a foreign country or a part of a foreign country; and
(b) the person engaged in the conduct before 1 October 2002;
the person cannot be convicted of an offence against this section in respect of that conduct.
A person commits 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).
SECTION 115.4 Recklessly causing serious harm to an Australian citizen or a resident of Australia (1)
A person commits 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).
SECTION 115.5 115.5 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.
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.
SECTION 115.7 Ministerial certificates relating to proceedings (1)
A Minister who administers one or more of the following Acts:
(a) the Australian Citizenship Act 2007;
(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.
SECTION 115.8 115.8 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.
In this Division, a person's conduct causes death or harm if it substantially contributes to the death or harm.
In this Part:
AFP Minister
means the Minister administering the Australian Federal Police Act 1979.
armed force
does not include an armed force forming part of the Australian Defence Force.
Defence Minister
means the Minister administering the Defence Force Discipline Act 1982.
engage in a hostile activity
: a person
engages in a hostile activity
in a foreign country if the person engages in conduct in that country with the intention of achieving one or more of the following objectives (whether or not such an objective is achieved):
(a) the overthrow by force or violence of the government of that or any other foreign country (or of a part of that or any other foreign country);
(b) the engagement, by that or any other person, in action that:
(i) falls within subsection 100.1(2) but does not fall within subsection 100.1(3); and
(ii) if engaged in in Australia, would constitute a serious offence;
(c) intimidating the public or a section of the public of that or any other foreign country;
(d) causing the death of, or bodily injury to, a person who is the head of state of that or any other foreign country, or holds, or performs any of the duties of, a public office of that or any other foreign country (or of a part of that or any other foreign country);
(e) unlawfully destroying or damaging any real or personal property belonging to the government of that or any other foreign country (or of a part of that or any other foreign country).
Foreign Affairs Minister
means the Minister administering the Diplomatic Privileges and Immunities Act 1967.
government
of a foreign country or a part of a foreign country means the authority exercising effective governmental control in that foreign country or that part of that foreign country.
listed terrorist organisation
has the meaning given by subsection 100.1(1).
military training
means training in the use of arms or explosives, or the practice of military exercises or movements.
(a) an organisation that is prescribed by the regulations for the purposes of this paragraph; or
(b) an organisation referred to in paragraph (b) of the definition of terrorist organisation in subsection 102.1(1).
recruit
includes induce, incite or encourage.
serious offence
means an offence against a law of the Commonwealth, a State or a Territory that is punishable by imprisonment for 2 years or more.
Prescribing organisations
(2)
Before the Governor-General makes a regulation prescribing an organisation for the purposes of paragraph (a) of the definition of prescribed organisation in subsection (1), the AFP Minister must be satisfied on reasonable grounds that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering:
(a) a serious violation of human rights; or
(b) the engagement, in Australia or a foreign country allied or associated with Australia, in action that falls within subsection 100.1(2) but does not fall within subsection 100.1(3); or
(c) a terrorist act (within the meaning of section 100.1); or
(d) an act prejudicial to the security, defence or international relations (within the meaning of section 10 of the National Security Information (Criminal and Civil Proceedings) Act 2004) of Australia.
Note:
A court that is sentencing a person who has been convicted of an offence against this Part (except subsection 119.7(2) or (3)) must warn the person about continuing detention orders and extended supervision orders (see section 105A.23).
Section 15.4 (extended geographical jurisdiction - category D) applies (subject to this Part) to an offence against this Part.
Offence for entering foreign countries with the intention of engaging in hostile activities
(1)
A person commits an offence if:
(a) the person enters a foreign country with the intention of engaging in a hostile activity in that or any other foreign country; and
(b) when the person enters the country, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(iv) has voluntarily put himself or herself under the protection of Australia.
Penalty: Imprisonment for life.
Offence for engaging in a hostile activity in a foreign country
(2)
A person commits an offence if:
(a) the person engages in a hostile activity in a foreign country; and
(b) when the person engages in the activity, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(iv) has voluntarily put himself or herself under the protection of Australia.
Penalty: Imprisonment for life.
Absolute liability element
(3)
Absolute liability applies to paragraphs (1)(b) and (2)(b).
Note:
For absolute liability, see section 6.2.
Exception
(4)
Subsections (1) and (2) do not apply to an act done by a person in the course of, and as part of, the person's service in any capacity in or with:
(a) the armed forces of the government of a foreign country; or
(b) any other armed force if a declaration under subsection 119.8(1) covers the person and the circumstances of the person's service in or with the force.
Note 1:
A defendant bears an evidential burden in relation to the matter in subsection (4): see subsection 13.3(3).
Note 2:
For conduct for the defence or international relations of Australia, see section 119.9.
(5)
Paragraph (4)(a) does not apply if:
(a) the person intends to engage, or engages, in a hostile activity in a foreign country while in or with an organisation; and
(b) the organisation is a prescribed organisation at the following time:
(i) for subsection (1) - the time of the entry referred to in that subsection;
(ii) for subsection (2) - the time the person engages in the hostile activity referred to in that subsection.
A person commits an offence if: (a) the person enters, or remains in, an area in a foreign country; and (b) the area is an area declared by the Foreign Affairs Minister under section 119.3; and (c) when the person enters the area, or at any time when the person is in the area, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(iv) has voluntarily put himself or herself under the protection of Australia.
Penalty: Imprisonment for 10 years.
Absolute liability element
(2)
Absolute liability applies to paragraph (1)(c).
Note:
For absolute liability, see section 6.2.
Exception - entering or remaining solely for legitimate purposes
(3)
Subsection (1) does not apply if the person enters, or remains in, the area solely for one or more of the following purposes: (a) providing aid of a humanitarian nature; (b) satisfying an obligation to appear before a court or other body exercising judicial power; (c) performing an official duty for the Commonwealth, a State or a Territory; (d) performing an official duty for the government of a foreign country or the government of part of a foreign country (including service in the armed forces of the government of a foreign country), where that performance would not be a violation of the law of the Commonwealth, a State or a Territory; (e) performing an official duty for:
(i) the United Nations, or an agency of the United Nations; or
(f) making a news report of events in the area, where the person is working in a professional capacity as a journalist or is assisting another person working in a professional capacity as a journalist; (g) making a bona fide visit to a family member; (h) any other purpose prescribed by the regulations.
(ii) the International Committee of the Red Cross;
Note:
A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3).
Exception - entering or remaining solely for service with armed force other than prescribed organisation
(4)
Subsection (1) does not apply if the person enters, or remains in, the area solely in the course of, and as part of, the person's service in any capacity in or with: (a) the armed forces of the government of a foreign country; or (b) any other armed force if a declaration under subsection 119.8(1) covers the person and the circumstances of the person's service in or with the force.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (4): see subsection 13.3(3).
(5)
However, subsection (4) does not apply if: (a) the person enters, or remains in, an area in a foreign country while in or with an organisation; and (b) the organisation is a prescribed organisation at the time the person enters or remains in the area as referred to in paragraph (1)(a).
Note 1:
For conduct for the defence or international relations of Australia, see section 119.9.
Note 2:
Sections 10.1 and 10.3 also provide exceptions to subsection (1) of this section (relating to intervening conduct or event and sudden or extraordinary emergency respectively).
Sunset provision
(6)
This section ceases to have effect at the end of 7 September 2027.
The Foreign Affairs Minister may, by legislative instrument, declare an area in a foreign country for the purposes of section 119.2 if he or she is satisfied that a listed terrorist organisation is engaging in a hostile activity in that area of the foreign country.
(2)
A single declaration may cover areas in 2 or more foreign countries if the Foreign Affairs Minister is satisfied that one or more listed terrorist organisations are engaging in a hostile activity in each of those areas.
(2A)
A declaration must not cover an entire country.
Requirement to brief Leader of the Opposition
(3)
Before making a declaration, the Foreign Affairs Minister must arrange for the Leader of the Opposition in the House of Representatives to be briefed in relation to the proposed declaration.
Cessation of declaration
(4)
A declaration ceases to have effect on the third anniversary of the day on which it takes effect. To avoid doubt, this subsection does not prevent: (a) the revocation of the declaration; or (b) the making of a new declaration the same in substance as the previous declaration (whether the new declaration is made or takes effect before or after the previous declaration ceases to have effect because of this subsection).
Note:
An offence committed in relation to the declared area before the cessation can be prosecuted after the cessation: see section 7 of the Acts Interpretation Act 1901 as it applies because of paragraph 13(1)(a) of the Legislation Act 2003.
(5)
If: (a) an area is declared under subsection (1); and (b) the Foreign Affairs Minister ceases to be satisfied that a listed terrorist organisation is engaging in a hostile activity in the area;
the Foreign Affairs Minister must revoke the declaration.
Note:
The Foreign Affairs Minister may, for example, cease to be satisfied that a listed terrorist organisation is engaging in a hostile activity in the area if the organisation ceases to be specified in the regulations.
(5A)
Even if paragraph (5)(b) does not apply in relation to a declaration, the Foreign Affairs Minister may revoke the declaration if that Minister considers it necessary or desirable to do so.
(6)
To avoid doubt, if a declaration of an area is revoked under subsection (5) or (5A), the revocation of the declaration does not prevent the area from being subsequently declared under subsection (1) if the Foreign Affairs Minister becomes, or remains, satisfied as mentioned in subsection (1).
Review of declaration
(7)
The Parliamentary Joint Committee on Intelligence and Security may: (a) review a declaration; 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.
(8)
In addition, at any time while a declaration is in effect, the Parliamentary Joint Committee on Intelligence and Security may: (a) review the declaration; and (b) report the Committee's comments and recommendations to each House of the Parliament.
Sunset provision
(9)
This section ceases to have effect at the end of 7 September 2027.
Preparatory acts
(1)
A person commits an offence if:
(a) the person engages in conduct (whether within or outside Australia); and
(b) the conduct is preparatory to the commission of an offence against section 119.1 (whether by that or any other person); and
(c) when the person engages in the conduct, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(iv) has voluntarily put himself or herself under the protection of Australia; or
(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.
Penalty: Imprisonment for life.
Accumulating weapons etc.
(2)
A person commits an offence if:
(a) the person (whether within or outside Australia) accumulates, stockpiles or otherwise keeps arms, explosives, munitions, poisons or weapons; and
(b) the person engages in that conduct with the intention that an offence against section 119.1 will be committed (whether by that or any other person); and
(c) when the person engages in the conduct, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(iv) has voluntarily put himself or herself under the protection of Australia; or
(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.
Penalty: Imprisonment for life.
Providing or participating in training
(3)
A person commits an offence if:
(a) the person engages in any of the following conduct (whether within or outside Australia):
(i) providing military training to another person;
(ii) participating in providing military training to another person;
(iii) being present at a meeting or assembly of persons, where the person intends at that meeting or assembly to provide, or participate in providing, military training to another person; and
(b) the person engages in the conduct intending to prepare the other person to commit an offence against section 119.1; and
(c) when the person engages in the conduct, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(iv) has voluntarily put himself or herself under the protection of Australia; or
(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.
Penalty: Imprisonment for life.
(4)
A person commits an offence if:
(a) the person engages in conduct of either of the following kinds (whether within or outside Australia):
(i) allowing military training to be provided to himself or herself;
(ii) allowing himself or herself to be present at a meeting or assembly of persons intending to allow military training to be provided to himself or herself; and
(b) the person engages in the conduct with the intention of committing an offence against section 119.1; and
(c) when the person engages in the conduct, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(iv) has voluntarily put himself or herself under the protection of Australia; or
(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.
Penalty: Imprisonment for life.
Giving or receiving goods and services to promote the commission of an offence
(5)
A person commits an offence if:
(a) the person engages in any of the following conduct (whether within or outside Australia):
(i) giving money or goods to, or performing services for, any other person, body or association;
(ii) receiving or soliciting money or goods, or the performance of services; and
(b) the person engages in the conduct with the intention of supporting or promoting the commission of an offence against section 119.1; and
(c) when the person engages in the conduct, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(iv) has voluntarily put himself or herself under the protection of Australia; or
(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.
Penalty: Imprisonment for life.
Absolute liability element
(6)
Absolute liability applies to paragraphs (1)(c), (2)(c), (3)(c), (4)(c) and (5)(c).
Note:
For absolute liability, see section 6.2.
Exception
(7)
This section does not apply if the person engages in conduct solely 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 (7): see subsection 13.3(3).
Note 2:
For conduct for the defence or international relations of Australia, see section 119.9.
Disregarding paragraphs 119.1(1)(b) and (2)(b)
(8)
A reference in this section to the commission of an offence against section 119.1 includes a reference to doing an act that would constitute an offence against section 119.1 if paragraphs 119.1(1)(b) and (2)(b) were disregarded.
Use of buildings
(1)
A person commits an offence if:
(a) the person is an owner, lessee, occupier, agent or superintendent of any building, room, premises or other place; and
(b) the person permits a meeting or assembly of persons to be held in that place (whether the person or the place is within or outside Australia); and
(c) by permitting the meeting or assembly to be so held, the person intends to commit, or support or promote the commission of, an offence against section 119.4; and
(d) when the person permits the meeting to be so held, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(iv) has voluntarily put himself or herself under the protection of Australia; or
(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.
Penalty: Imprisonment for life.
Use of vessels or aircraft
(2)
A person commits an offence if:
(a) the person is:
(i) an owner, charterer, lessee, operator, agent or master of a vessel; or
(ii) an owner, charterer, lessee, operator or pilot in charge of an aircraft; and
(b) the person permits the vessel or aircraft to be used (whether the person, vessel or aircraft is within or outside Australia); and
(c) by permitting the use, the person intends to commit, or support or promote the commission of, an offence against section 119.4; and
(d) when the person permits the use, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(iv) has voluntarily put himself or herself under the protection of Australia; or
(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.
Penalty: Imprisonment for life.
Absolute liability element
(3)
Absolute liability applies to paragraphs (1)(d) and (2)(d).
Note:
For absolute liability, see section 6.2.
Exception
(4)
This section does not apply if the person engages in conduct solely 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 (4): see subsection 13.3(3).
Note 2:
For conduct for the defence or international relations of Australia, see section 119.9.
A person commits an offence if:
(a) the person recruits, in Australia, another person to become a member of, or to serve in any capacity with, a body or association of persons; and
(b) the objectives of the body or association include any one or more of the objectives referred to in the definition of engage in a hostile activity in subsection 117.1(1).
Note:
For conduct for the defence or international relations of Australia, see section 119.9.
Penalty: Imprisonment for 25 years.
Recruiting others to serve with foreign armed forces
(1)
A person commits an offence if the person recruits, in Australia, another person to serve in any capacity in or with an armed force in a foreign country.
Penalty: Imprisonment for 10 years.
Publishing recruitment advertisements
(2)
A person commits an offence if:
(a) the person publishes in Australia:
(i) an advertisement; or
(ii) an item of news that was procured by the provision or promise of money or any other consideration; and
(b) the person is reckless as to the fact that the publication of the advertisement or item of news is for the purpose of recruiting persons to serve in any capacity in or with an armed force in a foreign country.
Penalty: Imprisonment for 10 years.
(3)
A person commits an offence if:
(a) the person publishes in Australia:
(i) an advertisement; or
(ii) an item of news that was procured by the provision or promise of money or any other consideration; and
(b) the advertisement or item of news contains information:
(i) relating to the place at which, or the manner in which, persons may make applications to serve, or obtain information relating to service, in any capacity in or with an armed force in a foreign country; or
(ii) relating to the manner in which persons may travel to a foreign country for the purpose of serving in any capacity in or with an armed force in a foreign country.
Penalty: Imprisonment for 10 years.
Facilitating recruitment
(4)
A person commits an offence if:
(a) the person engages in conduct in Australia; and
(b) the person engages in the conduct intending to facilitate or promote the recruitment of persons to serve in any capacity in or with an armed force in a foreign country.
Penalty: Imprisonment for 10 years.
Exception
(5)
This section does not apply in relation to service of a person in or with an armed force in circumstances if a declaration under subsection 119.8(2) covers the person and the circumstances of the person's service in or with the armed force.
Note 1:
A defendant bears an evidential burden in relation to the matter in subsection (5): see subsection 13.3(3).
Note 2:
For conduct for the defence or international relations of Australia, see section 119.9.
Armed forces that are not part of the government of a foreign country
(6)
A reference in this section to an armed force in a foreign country includes any armed force in a foreign country, whether or not the armed force forms part of the armed forces of the government of that foreign country.
(7)
Without limiting this section, a person recruits another person to serve in or with an armed force in a foreign country if the other person enters a commitment or engagement to serve in any capacity in or with an armed force, whether or not the commitment or engagement is legally enforceable or constitutes legal or formal enlistment in that force.
Service
(1)
The AFP Minister may, by legislative instrument, declare that section 119.1 or 119.2 does not apply to a specified person or class of persons in any circumstances or specified circumstances if the AFP Minister is satisfied that it is in the interests of the defence or international relations of Australia to permit the service of that person or class of persons in those circumstances in or with:
(a) a specified armed force in a foreign country; or
(b) a specified armed force in a foreign country in a specified capacity.
Recruitment
(2)
The AFP Minister may, by legislative instrument, declare that section 119.7 does not apply to a specified person or class of persons in any circumstances or specified circumstances if the AFP Minister is satisfied that it is in the interests of the defence or international relations of Australia to permit the recruitment in Australia of that person or class of persons to serve in those circumstances in or with:
(a) a specified armed force in a foreign country; or
(b) a specified armed force in a foreign country in a specified capacity.
This Division does not apply in relation to conduct engaged in by a person acting in the course of the person's duty to the Commonwealth in relation to the defence or international relations of Australia.
Note 1:
A defendant bears an evidential burden in relation to the matter in this section: see subsection 13.3(3).
Note 2:
See also section 119.12 (declarations for the purposes of proceedings).
A prosecution for any of the following offences is (subject to subsection (2)) to be on indictment:
(a) an offence against this Division;
(b) an offence against section 6 of the Crimes Act 1914, or an ancillary offence, that relates to an offence against this Division.
(2)
If the law of a State or Territory provides for a person who pleads guilty to a charge in proceedings for the person's commitment for trial on indictment to be committed to a higher court and dealt with otherwise than on indictment, a person charged in that State or Territory with an offence referred to in subsection (1) may be dealt with in accordance with that law.
Proceedings for the commitment of a person for the following must not be instituted without the written consent of the Attorney-General:
(a) the trial on indictment for an offence against the following provisions:
(i) this Division;
(ii) section 6 of the Crimes Act 1914 to the extent that it relates to an offence against this Division;
(b) the summary trial of a person for an offence referred to in paragraph (a).
(2)
However, the following steps may be taken (but no further steps in proceedings may be taken) without consent having been given:
(a) a person may be charged with an offence referred to in paragraph (1)(a);
(b) a person may be arrested for an offence referred to in paragraph (1)(a), and a warrant for such an arrest may be issued and executed;
(c) a person so charged may be remanded in custody or on bail.
(3)
Nothing in subsection (2) prevents the discharge of the accused if proceedings are not continued within a reasonable time.
The Foreign Affairs Minister may, in writing, declare that:
(a) a specified authority is in effective governmental control in a specified foreign country or part of a foreign country; or
(b) a specified organisation is not an armed force, or part of an armed force, of the government of a foreign country.
(2)
The Defence Minister may, in writing, declare that if a specified person had done a specified act (being an act alleged to constitute an offence) the person would not have been acting in the course of the person's duty to the Commonwealth in relation to the defence or international relations of Australia.
(3)
Without limiting subsection (1) or (2), a declaration under that subsection may be made in relation to a specified day or period.
(4)
In proceedings for an offence referred to in paragraph 119.11(1)(a), a certificate under this section is prima facie evidence of the matters stated in the certificate.
In this Part:
cause harm to Australia's interests
means to:
(a) interfere with or prejudice the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of the Commonwealth; or
(b) interfere with or prejudice the performance of functions of the Australian Federal Police under:
(i) paragraph 8(1)(be) of the Australian Federal Police Act 1979 (protective and custodial functions); or
(ii) the Proceeds of Crime Act 2002; or
(c) harm or prejudice Australia's international relations in relation to information that was communicated in confidence:
(i) by, or on behalf of, the government of a foreign country, an authority of the government of a foreign country or an international organisation; and
(ii) to the Government of the Commonwealth, to an authority of the Commonwealth, or to a person receiving the communication on behalf of the Commonwealth or an authority of the Commonwealth; or
(f) harm or prejudice the health or safety of the Australian public or a section of the Australian public; or
(g) harm or prejudice the security or defence of Australia.
Commonwealth officer
means any of the following:
(a) an APS employee;
(b) an individual appointed or employed by the Commonwealth otherwise than under the Public Service Act 1999;
(c) a member of the Australian Defence Force;
(d) a member or special member of the Australian Federal Police;
(e) an officer or employee of a Commonwealth authority;
(f) an individual who is a contracted service provider for a Commonwealth contract;
(g) an individual who is an officer or employee of a contracted service provider for a Commonwealth contract and who provides services for the purposes (whether direct or indirect) of the Commonwealth contract;
but does not include an officer or employee of, or a person engaged by, the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation.
deal
has the same meaning as in Part 5.2.
Note:
For the meaning of deal in that Part, see subsections 90.1(1) and (2).
domestic intelligence agency
means:
(a) the Australian Secret Intelligence Service; or
(b) the Australian Security Intelligence Organisation; or
(c) the Australian Geospatial-Intelligence Organisation; or
(d) the Defence Intelligence Organisation; or
(e) the Australian Signals Directorate; or
(f) the Office of National Intelligence.
foreign military organisation
means:
(a) the armed forces of the government of a foreign country; or
(b) the civilian component of:
(i) the Department of State of a foreign country; or
that is responsible for the defence ofthe country.
(ii) a government agency in a foreign country;
information
has the meaning given by section 90.1.
inherently harmful information
means information that is any of the following:
(a) security classified information;
(c) information that was obtained by, or made by or on behalf of, a domestic intelligence agency or a foreign intelligence agency in connection with the agency's functions;
(e) information relating to the operations, capabilities or technologies of, or methods or sources used by, a domestic or foreign law enforcement agency.
international relations
has the meaning given by section 10 of the National Security Information (Criminal and Civil Proceedings) Act 2004.
proper place of custody
has the meaning given by section 121.2.
Regulatory Powers Act
means the Regulatory Powers (Standard Provisions) Act 2014.
security classification
has the meaning given by section 90.5.
security classified information
means information that has a security classification.
security or defence of Australia
includes the operations, capabilities or technologies of, or methods or sources used by, domestic intelligence agencies or foreign intelligence agencies.
(2)
To avoid doubt, communicate includes publish and make available.
(3)
For the purposes of a reference, in an element of an offence in this Part, to security classified information or security classification, strict liability applies to the element that:
(a) a classification is applied in accordance with the policy framework developed by the Commonwealth for the purpose (or for purposes that include the purpose) of identifying the information mentioned in subparagraph 90.5(1)(a)(i) or (ii); or
(b) a classification or marking is prescribed by the regulations as mentioned in paragraph 90.5(1)(b).
Note:
See the definitions of security classified information in subsection (1) and security classification in section 90.5.
Proper place of custody has the meaning prescribed by the regulations.
(2)
Despite subsection 14(2) of the Legislation Act 2003, regulations made for the purposes of subsection (1) of this section may prescribe a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time, if the instrument or other writing is publicly available.
Communication of inherently harmful information
(1)
A person commits an offence if:
(a) the person communicates information; and
(b) the information is inherently harmful information; and
(c) the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.
Note 1:
For exceptions to the offences in this section, see section 122.5.
Note 2:
The fault elements for this offence are intention for paragraph (1)(a) and recklessness for paragraphs (1)(b) and (c) (see section 5.6).
Penalty: Imprisonment for 7 years.
Other dealings with inherently harmful information
(2)
A person commits an offence if:
(a) the person deals with information (other than by communicating it); and
(b) the information is inherently harmful information; and
(c) the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.
Note:
The fault elements for this offence are intention for paragraph (2)(a) and recklessness for paragraphs (2)(b) and (c) (see section 5.6).
Penalty: Imprisonment for 3 years.
Information removed from, or held outside, proper place of custody
(3)
A person commits an offence if:
(a) the person:
(i) removes information from a proper place of custody for the information; or
(ii) holds information outside a proper place of custody for the information; and
(b) the information is inherently harmful information; and
(c) the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.
Note:
The fault elements for this offence are intention for paragraph (3)(a) and recklessness for paragraphs (3)(b) and (c) (see section 5.6).
Penalty: Imprisonment for 3 years.
Failure to comply with direction regarding information
(4)
A person commits an offence if:
(a) the person is given a direction; and
(b) the direction is a lawful direction regarding the retention, use or disposal of information; and
(c) the person fails to comply with the direction; and
(ca) the failure to comply with the direction results in a risk to the security of the information; and
(d) the information is inherently harmful information; and
(e) the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.
Note:
The fault elements for this offence are intention for paragraph (4)(c) and recklessness for paragraphs (4)(a), (b), (ca), (d) and (e) (see section 5.6).
Penalty: Imprisonment for 3 years.
Communication causing harm to Australia's interests
(1)
A person commits an offence if:
(a) the person communicates information; and
(b) either:
(i) the communication causes harm to Australia's interests; or
(ii) the communication will or is likely to cause harm to Australia's interests; and
(c) the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.
Note 1:
For the definition of cause harm to Australia's interests , see section 121.1.
Note 2:
For exceptions to the offences in this section, see section 122.5.
Penalty: Imprisonment for 7 years.
Other conduct causing harm to Australia's interests
(2)
A person commits an offence if:
(a) the person deals with information (other than by communicating it); and
(b) either:
(i) the dealing causes harm to Australia's interests; or
(ii) the dealing will or is likely to cause harm to Australia's interests; and
(c) the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.
Penalty: Imprisonment for 3 years.
Information removed from, or held outside, proper place of custody
(3)
A person commits an offence if:
(a) the person:
(i) removes information from a proper place of custody for the information; or
(ii) holds information outside a proper place of custody for the information; and
(b) either:
(i) the removal or holding causes harm to Australia's interests; or
(ii) the removal or holding will or is likely to cause harm to Australia's interests; and
(c) the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.
Penalty: Imprisonment for 3 years.
Failure to comply with direction regarding information
(4)
A person commits an offence if:
(a) the person is given a direction; and
(b) the direction is a lawful direction regarding the retention, use or disposal of information; and
(c) the person fails to comply with the direction; and
(d) either:
(i) the failure to comply causes harm to Australia's interests; or
(ii) the failure to comply will or is likely to cause harm to Australia's interests; and
(e) the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.
Penalty: Imprisonment for 3 years.
A person commits an offence against this section if:
(a) the person commits an offence against section 122.1 or 122.2 (the underlying offence ); and
(b) any of the following circumstances exist in relation to the commission of the underlying offence:
(ii) if the commission of the underlying offence involves a record - the record is marked with a code word, "for Australian eyes only" or as prescribed by the regulations for the purposes of this subparagraph;
(iii) the commission of the underlying offence involves 5 or more records each of which has a security classification;
(iv) the commission of the underlying offence involves the person altering a record to remove or conceal its security classification;
(v) at the time the person committed the underlying offence, the person held an Australian Government security clearance allowing the person to access information that has a security classification of at least secret.
Penalty:
(a) if the penalty for the underlying offence is imprisonment for 7 years - imprisonment for 10 years; or
(b) if the penalty for the underlying offence is imprisonment for 3 years - imprisonment for 5 years.
(2)
There is no fault element for the physical element in paragraph (1)(a) other than the fault elements (however described), if any, for the underlying offence.
(4)
To avoid doubt:
(a) a person does not commit an underlying offence for the purposes of paragraph (1)(a) if the person has a defence to the underlying offence; and
(b) a person may be convicted of an offence against this section even if the person has not been convicted of the underlying offence.
A person commits an offence if: (a) the person communicates information; and (b) the person made or obtained the information by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity; and (c) the person is under a duty not to disclose the information; and (d) the duty arises under a law of the Commonwealth.
Penalty: Imprisonment for 2 years.
(2)
Absolute liability applies in relation to paragraph (1)(d).
Sunset provision
(3)
This section does not apply in relation to any communication of information that occurs after the end of 29 June 2026.
Communication of information
(1)
A person commits an offence if:
(a) the person communicates information; and
(b) the information was not made or obtained by the person by reason of the person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity; and
(c) the information was made or obtained by another person by reason of that other person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity; and
(d) any one or more of the following applies:
(i) the information has a security classification of secret or top secret;
(ii) the communication of the information damages the security or defence of Australia;
(iii) the communication of the information interferes with or prejudices the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of the Commonwealth;
(iv) the communication of the information harms or prejudices the health or safety of the Australian public or a section of the Australian public.
Note 1:
For exceptions to the offences in this section, see section 122.5.
Note 2:
The fault elements for this offence are intention for paragraph (1)(a) and recklessness for paragraphs (1)(b) to (d) (see section 5.6).
Penalty: Imprisonment for 5 years.
Other dealings with information
(2)
A person commits an offence if:
(a) the person deals with information (other than by communicating it); and
(b) the information was not made or obtained by the person by reason of the person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity; and
(c) the information was made or obtained by another person by reason of that other person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity; and
(d) any one or more of the following applies:
(i) the information has a security classification of secret or top secret;
(ii) the dealing with the information damages the security or defence of Australia;
(iii) the dealing with the information interferes with or prejudices the prevention, detection, investigation, prosecution or punishment of a criminal offence against of a law of the Commonwealth;
(iv) the dealing with the information harms or prejudices the health or safety of the Australian public or a section of the Australian public.
Note:
The fault elements for this offence are intention for paragraph (2)(a) and recklessness for paragraphs (2)(b) to (d) (see section 5.6).
Penalty: Imprisonment for 2 years.
Proof of identity not required
(3)
In proceedings for an offence against this section, the prosecution is not required to prove the identity of the other person referred to in paragraph (1)(c) or (2)(c).
Powers, functions and duties in a person's capacity as a public official etc. or under arrangement
(1)
It is a defence to a prosecution for an offence by a person against this Division that: (a) the person was exercising a power, or performing a function or duty, in the person's capacity as a public official or a person who is otherwise engaged to perform work for a Commonwealth entity; or (b) the person communicated, removed, held or otherwise dealt with the information in accordance with an arrangement or agreement to which the Commonwealth or a Commonwealth entity is party and which allows for the exchange of information.
Note:
A defendant may bear an evidential burden in relation to the matters in this subsection (see subsection (12) of this section and subsection 13.3(3)).
Information that is already public
(2)
It is a defence to a prosecution for an offence by a person against this Division that the relevant information 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 this subsection (see subsection 13.3(3)).
Information communicated etc. to integrity agency
(3)
It is a defence to a prosecution for an offence by a person against this Division that the person communicated the relevant information, or removed, held or otherwise dealt with the relevant information for the purpose of communicating it: (a) to any of the following:
(i) the Inspector-General of Intelligence and Security, or a person covered by subsection 32(1) of the Inspector-General of Intelligence and Security Act 1986;
(ii) the Commonwealth Ombudsman, or another officer within the meaning of subsection 35(1) of the Ombudsman Act 1976;
(iia) the Australian Information Commissioner, a member of the staff of the Office of the Australian Information Commissioner, or a consultant engaged under the Australian Information Commissioner Act 2010;
(iii) the National Anti-Corruption Commissioner or another staff member of the NACC (within the meaning of the National Anti-Corruption Commission Act 2022);
(b) for the purpose of the Inspector-General, the Ombudsman, the Australian Information Commissioner, the National Anti-Corruption Commissioner or the Inspector of the National Anti-Corruption Commission (as the case requires) exercising a power, or performing a function or duty.
(iv) the Inspector of the National Anti-Corruption Commission or a person assisting the Inspector (within the meaning of the National Anti-Corruption Commission Act 2022); and
Note:
A person mentioned in paragraph (3)(a) does not bear an evidential burden in relation to the matters in this subsection (see subsection (12)).
Information communicated etc. in accordance with the Public Interest Disclosure Act 2013 or the Freedom of Information Act 1982
(4)
It is a defence to a prosecution for an offence by a person against this Division that the person communicated the relevant information, or removed, held or otherwise dealt with the relevant information for the purpose of communicating it, in accordance with: (a) the Public Interest Disclosure Act 2013; or (b) the Freedom of Information Act 1982.
Note:
A defendant may bear an evidential burden in relation to the matters in this subsection (see subsection (12) of this section and subsection 13.3(3)).
Information communicated etc. for the purpose of reporting offences and maladministration
(4A)
It is a defence to a prosecution for an offence by a person against this Division that the person communicated, removed, held or otherwise dealt with the relevant information for the primary purpose of reporting, to an appropriate agency of the Commonwealth, a State or a Territory: (a) a criminal offence, or alleged criminal offence, against a law of the Commonwealth; or (b) maladministration relating to the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of the Commonwealth; or (c) maladministration relating to the performance of functions of the Australian Federal Police under:
(i) the Australian Federal Police Act 1979; or
(ii) the Proceeds of Crime Act 2002.
Note:
A defendant may bear an evidential burden in relation to the matters in this subsection (see subsection (12) of this section and subsection 13.3(3)).
Information communicated etc. to a court or tribunal
(5)
It is a defence to a prosecution for an offence by a person against this Division that the person communicated the relevant information, or removed, held or otherwise dealt with the relevant information for the purpose of communicating it, to a court or tribunal (whether or not as a result of a requirement).
Note:
A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
Information communicated etc. for the purposes of obtaining or providing legal advice
(5A)
It is a defence to a prosecution for an offence by a person against this Division that the person communicated, removed, held or otherwise dealt with the relevant information for the primary purpose of obtaining or providing, in good faith, legal advice in relation to: (a) an offence against this Part; or (b) the application of any right, privilege, immunity or defence (whether or not in this Part) in relation to such an offence;
whether that advice was obtained or provided before or after the person engaged in the conduct constituting the offence.
Note:
A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
Information communicated etc. by persons engaged in business of reporting news etc.
(6)
It is a defence to a prosecution for an offence by a person against this Division that the person communicated, removed, held or otherwise dealt with the relevant information in the person's capacity as a person engaged in the business of reporting news, presenting current affairs or expressing editorial or other content in news media, and: (a) at that time, the person reasonably believed that engaging in that conduct was in the public interest (see subsection (7)); or (b) the person:
(i) was, at that time, a member of the administrative staff of an entity that was engaged in the business of reporting news, presenting current affairs or expressing editorial or other content in news media; and
(ii) acted under the direction of a journalist, editor or lawyer who was also a member of the staff of the entity, and who reasonably believed that engaging in that conduct was in the public interest (see subsection (7)).
Note:
A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
(7)
Without limiting paragraph (6)(a) or (b), a person may not reasonably believe that communicating, removing, holding or otherwise dealing with information is in the public interest if: (a) engaging in that conduct would be an offence under section 92 of the Australian Security Intelligence Organisation Act 1979 (making public the identity of ASIO employees and ASIO affiliates) or section 92A of that Act (disclosing the identity of ASIO employees and ASIO affiliates); or (b) engaging in that conduct would be an offence under section 41 of the Intelligence Services Act 2001 (publication of identity of staff); or (c) engaging in that conduct would be an offence under section 22, 22A or 22B of the Witness Protection Act 1994 (offences relating to Commonwealth, Territory, State participants or information about the national witness protection program); or (d) that conduct was engaged in for the purpose of directly or indirectly assisting a foreign intelligence agency or a foreign military organisation.
Information that has been previously communicated
(8)
It is a defence to a prosecution for an offence by a person against this Division if: (a) the person did not make or obtain the relevant information by reason of any of the following:
(i) his or her being, or having been, a Commonwealth officer;
(ii) his or her being otherwise engaged to perform work for a Commonwealth entity;
(b) the information has already been communicated, or made available, to the public (the prior publication ); and (c) the person was not involved in the prior publication (whether directly or indirectly); and (d) at the time of the communication, removal, holding or dealing, the person believes that engaging in that conduct will not cause harm to Australia's interests or the security or defence of Australia; and (e) having regard to the nature, extent and place of the prior publication, the person has reasonable grounds for that belief.
(iii) an arrangement or agreement to which the Commonwealth or a Commonwealth entity is party and which allows for the exchange of information; and
Note:
A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
Information relating to a person etc.
(9)
It is a defence to a prosecution for an offence by a person against this Division if: (a) the person did not make or obtain the relevant information by reason of any of the following:
(i) his or her being, or having been, a Commonwealth officer;
(ii) his or her being otherwise engaged to perform work for a Commonwealth entity;
(b) at the time of the communication, removal, holding or dealing, the person believes that the making or obtaining of the information by the person was required or authorised by law; and (c) having regard to the circumstances of the making or obtaining of the information, the person has reasonable grounds for that belief; and (d) any of the following apply:
(iii) an arrangement or agreement to which the Commonwealth or a Commonwealth entity is party and which allows for the exchange of information; and
(i) the person communicates the information to the person to whom the information relates;
(ii) the person is the person to whom the information relates;
(iii) the communication, removal, holding or dealing is in accordance with the express or implied consent of the person to whom the information relates.
Note:
A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
(10)
To avoid doubt, a defence to an offence may constitute an authorisation for the purposes of paragraph (9)(b).
Removing, holding or otherwise dealing with information for the purposes of communicating information
(11)
For the purposes of subsection (3), (4), (5) or (5A), it is not necessary to prove that information, that was removed, held or otherwise dealt with for the purposes of communicating it, was actually communicated.
Burden of proof for integrity agency officials
(12)
Despite subsection 13.3(3), in a prosecution for an offence against this Division, a person mentioned in subparagraph (3)(a)(i), (ii), (iia) or (iii) does not bear an evidential burden in relation to the matter in: (a) subsection (1), (4) or (4A); or (b) either of the following:
(i) subparagraph (3)(a)(i), (ii), (iia) or (iii);
(ii) paragraph (3)(b), to the extent that that paragraph relates to the Inspector-General of Intelligence and Security, the Ombudsman, the Australian Information Commissioner, the National Anti-Corruption Commissioner or the Inspector of the National Anti-Corruption Commission.
Defences do not limit each other
(13)
No defence in this section limits the operation of any other defence in this section.
Enforceable provisions
(1)
The provisions of Division 122 are enforceable under Part 7 of the Regulatory Powers Act.
Note:
Part 7 of the Regulatory Powers Act creates a framework for using injunctions to enforce provisions.
Authorised person and relevant court
(2)
For the purposes of Part 7 of the Regulatory Powers Act, as that Part applies to the provisions of Division 122 of this Act: (a) the Minister is an authorised person; and (b) each of the following is a relevant court:
(i) the Federal Court of Australia;
(ii) the FederalCircuit and Family Court of Australia (Division 2);
(iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.
Extension to external Territories
(3)
Part 7 of the Regulatory Powers Act, as that Part applies to the provisions of Division 122 of this Act, extends to every external Territory.
A sketch, article, record or document which is made, obtained, recorded, retained, possessed or otherwise dealt with in contravention of this Part is forfeited to the Commonwealth.
(2)
In subsection (1), sketch , article and record have the same respective meanings as in Part 5.2.
Section 15.4 (extended geographical jurisdiction - category D) applies to an offence against this Part.
Nothing in this Part limits or affects any other right, privilege, immunity or defence existing apart from this Part.
Proceedings for the commitment of a person for trial for an offence against this Part must not be instituted without:
(a) the written consent of the Attorney-General; and
(b) for proceedings that relate to security classified information - a certification by the Attorney-General that, at the time of the conduct that is alleged to constitute the offence, it was appropriate that the information had a security classification.
(2)
However, the following steps may be taken (but no further steps in proceedings may be taken) without consent or certification having been obtained:
(a) a person may be arrested for the offence and a warrant for such an arrest may be issued and executed;
(b) a person may be charged with the offence;
(c) a person so charged may be remanded in custody or on bail.
(3)
Nothing in subsection (2) prevents the discharge of the accused if proceedings are not continued within a reasonable time.
(4)
In deciding whether to consent, the Attorney-General must consider whether the conduct might be authorised in a way mentioned in section 122.5.
In this Chapter:
(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 isa 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.
(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.
(a) obtaining for another person; and
(b) inducing a third person to do something that results in another person obtaining.
(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.
(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 subsection 2C(1) of the Acts Interpretation Act 1901 (which provides that person includes a body politic or corporate), and the definition of person in the Dictionary.
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).
SECTION 130.3 130.3 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 :
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 SECTION 131.1 Theft (1)
A person commits 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.
SECTION 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.
SECTION 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.
SECTION 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.
SECTION 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.
SECTION 131.6 131.6 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.
SECTION 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.
SECTION 131.8 131.8 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. SECTION 131.9 131.9 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. SECTION 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).
SECTION 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 SECTION 132.1 Receiving (1)
A person commits 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.
SECTION 132.2 Robbery (1)
A person commits an offence if the person commits theft and:
(a) immediately before committing theft, the person:
(i) uses force on another person; or
with intent to commit theft or to escape from the scene; or
(ii) threatens to use force then and there on another person;
(b) at the time of committing theft, or immediately after committing theft, the person:
(i) uses force on another person; or
with intent to commit theft or to escape from the scene.
(ii) threatens to use force then and there on another person;
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.
SECTION 132.3 Aggravated robbery (1)
A person commits 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:
(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.
SECTION 132.4 Burglary (1)
A person commits 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 commits 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 commits 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:
(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.
SECTION 132.5 Aggravated burglary (1)
A person commits 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:
(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.
SECTION 132.6 Making off without payment (1)
A person commits 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.
SECTION 132.7 Going equipped for theft or a property offence (1)
A person commits 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:
(a) robbery; or
(b) aggravated robbery; or
(c) burglary; or
(d) aggravated burglary; or
(e) an offence against subsection 132.8(1) or 132.8A(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.
SECTION 132.8 Dishonest taking or retention of property
Taking
(1)
A person commits 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 commits 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.
SECTION 132.8A Damaging Commonwealth property (1)
A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in damage to, or the destruction of, property; and
(c) the property belongs to a Commonwealth entity.
Penalty: Imprisonment for 10 years.
(2)
Absolute liability applies to paragraph (1)(c).
Section 15.4 (extended geographical jurisdiction - category D) applies to each offence against this Division. Part 7.3 - Fraudulent conduct Division 133 - Preliminary SECTION 133.1 133.1 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 SECTION 134.1 Obtaining property by deception (1)
A person commits 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.
SECTION 134.2 Obtaining a financial advantage by deception (1)
A person commits 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.
SECTION 134.3 134.3 Geographical jurisdiction
Section 15.4 (extended geographical jurisdiction - category D) applies to each offence against this Division. Division 135 - Other offences involving fraudulent conduct SECTION 135.1 General dishonesty
Obtaining a gain
(1)
A person commits 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 10 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 commits 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 10 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 commits an offence if:
(a) the person dishonestly causes a loss, or dishonestly causes a risk of loss, to another person; and
(b) thefirst-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 10 years.
(6)
Absolute liability applies to the paragraph (5)(c) element of the offence.
Influencing a Commonwealth public official
(7)
A person commits 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 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.
SECTION 135.2 Obtaining financial advantage (1)
A person commits 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 commits 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.
SECTION 135.4 Conspiracy to defraud
Obtaining a gain
(1)
A person commits 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 commits 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 commits 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 commits 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.
SECTION 135.5 135.5 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 SECTION 136.1 False or misleading statements in applications
Knowledge
(1)
A person commits 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
(iv) (Repealed by No 170 of 2012)
(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 commits 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
(iv) (Repealed by No 170 of 2012)
(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).
Definitions
(9)
In this section:
benefit
includes any advantage and is not limited to property.
wheat export accreditation scheme
(Repealed by No 170 of 2012)
Division 137 - False or misleading information or documents SECTION 137.1 False or misleading information (1)
A person commits 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".
SECTION 137.1A Aggravated offence for giving false or misleading information (1)
A person commits an offence if:
(a) the person commits an offence against subsection 137.1(1) (the underlying offence ); and
(b) the information given in committing the underlying offence was given in relation to an application for, or the maintenance of, an Australian Government security clearance.
Penalty: Imprisonment for 5 years.
(2)
There is no fault element for the physical element in paragraph (1)(a) other than the fault elements (however described) for the underlying offence.
(3)
To avoid doubt:
(a) a person does not commit an underlying offence for the purposes of paragraph (1)(a) if the person has a defence to the underlying offence; and
(b) a person may be convicted of an offence against subsection (1) even if the person has not been convicted of the underlying offence.
Alternative verdicts
(4)
If, on a trial of a person for an offence against subsection (1), the trier of fact:
(a) is not satisfied that the person is guilty of that offence; and
(b) is satisfied beyond reasonable doubt that the person is guilty of the underlying offence;
it may find the person not guilty of the offence against subsection (1) but guilty of the underlying offence.
(5)
Subsection (4) only applies if the person has been accorded procedural fairness in relation to the finding of guilt for the underlying offence.
References to section 137.1
(6)
A reference in any law to section 137.1 is taken to include a reference to this section.
A person commits 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).
SECTION 137.3 137.3 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 SECTION 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.
SECTION 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 SECTION 139.1 139.1 Unwarranted demands of a Commonwealth public official
A person commits 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.
SECTION 139.2 139.2 Unwarranted demands made by a Commonwealth public officialA Commonwealth public official commits 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.
SECTION 139.3 139.3 Geographical jurisdictionSection 15.3 (extended geographical jurisdiction - category C) applies to each offence against this Division. Part 7.6 - Bribery and related offences Division 140 - Preliminary SECTION 140.1 140.1 Definition
In this Part:
benefit
includes any advantage and is not limited to property.
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 SECTION 141.1 Bribery of a Commonwealth public official
Giving a bribe
(1)
A person commits 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.
(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 commits 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.
Geographical jurisdiction
(4)
Section 15.4 (extended geographical jurisdiction - category D) applies to an offence against subsection (1) or (3).
Penalty for individual
(5)
An offence against subsection (1) or (3) committed by an individual is punishable on conviction by imprisonment for not more than 10 years, a fine not more than 10,000 penalty units, or both.
Penalty for body corporate
(6)
An offence against subsection (1) or (3) committed by a body corporate is punishable on conviction by a fine not more than the greatest of the following:
(a) 100,000 penalty units;
(b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the conduct constituting the offence - 3 times the value of that benefit;
(c) if the court cannot determine the value of that benefit - 10% of the annual turnover of the body corporate during the period (the turnover period ) of 12 months ending at the end of the month in which the conduct constituting the offence occurred.
(7)
For the purposes of this section, the annual turnover of a body corporate, during the turnover period, is the sum of the values of all the supplies that the body corporate, and any body corporate related to the body corporate, have made, or are likely to make, during that period, other than the following supplies:
(a) supplies made from any of those bodies corporate to any other of those bodies corporate;
(b) supplies that are input taxed;
(c) supplies that are not for consideration (and are not taxable supplies under section 72-5 of the A New Tax System (Goods and Services Tax) Act 1999);
(d) supplies that are not made in connection with an enterprise that the body corporate carries on.
(8)
Expressions used in subsection (7) that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning in that subsection as they have in that Act.
(9)
The question whether 2 bodies corporate are related to each other is to be determined for the purposes of this section in the same way as for the purposes of the Corporations Act 2001.
Division 142 - Offences relating to bribery SECTION 142.1 Corrupting benefits given to, or received by, a Commonwealth public official
Giving a corrupting benefit
(1)
A person commits 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 commits 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.
SECTION 142.2 Abuse of public office (1)
A Commonwealth public official commits 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 commits 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.
SECTION 142.3 142.3 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 SECTION 143.1 Definitions (1)
In this Part:
(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.
SECTION 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.
SECTION 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.
SECTION 143.4 143.4 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 SECTION 144.1 Forgery (1)
A person commits 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 commits 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 commits 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 commits 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 SECTION 145.1 Using forged document (1)
A person commits 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 commits 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 commits 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 commits 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.
SECTION 145.2 Possession of forged document (1)
A person commits 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 commits 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 commits 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 commits 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.
SECTION 145.3 Possession, making or adaptation of devices etc. for making forgeries (1)
A person commits 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 commits 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 commits 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 commits 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).
SECTION 145.4 Falsification of documents etc. (1)
A person commits 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 commits 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.
SECTION 145.5 Giving information derived from false or misleading documents (1)
A person commits 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 commits 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.
SECTION 145.6 145.6 Geographical jurisdiction
Section 15.4 (extended geographical jurisdiction - category D) applies to each offence against this Division. Part 7.8 - Causing harm to or obstructing Commonwealth public officials and impersonating Commonwealth public officials or bodies
In this Part:
Commonwealth frontline worker
has the meaning given by subsection (2).
Commonwealth law enforcement officer
means a person who is:
(a) a member or special member of the Australian Federal Police; or
(aa) the National Anti-Corruption Commissioner; or
(ab) another staff member of the NACC (within the meaning of the National Anti-Corruption Commission Act 2022); 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 Australian Border Force Commissioner (within the meaning of the Australian Border Force Act 2015); or
(da) (Repealed by No 139 of 2013)
(e) a person who is an APS employee in the Department administered by the Minister administering the Australian Border Force Act 2015 and who is in the Australian Border Force (within the meaning of that Act).
(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).
(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.
(2)
A Commonwealth frontline worker is a person: (a) who is a Commonwealth public official; and (b) who performs work requiring the person to deal directly (whether or not in person) with the public, or a class of the public, as a primary function of their role; and (c) who is not a Commonwealth judicial officer or a Commonwealth law enforcement officer.
(3)
Without limiting paragraph (2)(b), the regulations may prescribe one or more categories of persons who, for the purposes of that paragraph, are taken to perform work requiring the persons to deal directly with the public, or a class of the public, as a primary function of their role.
SECTION 146.2 146.2 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 SECTION 147.1 Causing harm to a Commonwealth public official etc.
Causing harm to a Commonwealth public official
(1)
A person (the first person ) commits 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
(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.
(ii) any conduct engaged in by the official in the official's capacity as a public official; and
Penalty:
(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, a Commonwealth law enforcement officer or a Commonwealth frontline worker;
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 ) commits 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.
SECTION 147.2 Threatening to cause harm to a Commonwealth public official etc.
Threatening to cause serious harm
(1)
A person (the first person ) commits 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
(d) the first person makes the threat because of:
(ii) is reckless as to causing the second person to fear that the threat will be carried out; and
(i) the official's status as a public official; or
(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.
(ii) any conduct engaged in by the official in the official's capacity as a public official; and
Penalty:
(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 ) commits 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
(d) the first person makes the threat because of:
(ii) is reckless as to causing the second person to fear that the threat will be carried out; and
(i) the official's status as a public official; or
(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.
(ii) any conduct engaged in by the official in the official's capacity as a public official; and
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 ) commits 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
(d) the first person makes the threat because of:
(ii) is reckless as to causing the second person to fear that the threat will be carried out; and
(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.
SECTION 147.3 147.3 Geographical jurisdiction
Section 15.3 (extended geographical jurisdiction - category C) applies to each offence against this Division. Division 148 - Impersonation of Commonwealth public officials SECTION 148.1 Impersonation of an official by a non-official (1)
A person other than a Commonwealth public official commits 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 commits 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 commits 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.
SECTION 148.2 Impersonation of an official by another official (1)
A Commonwealth public official commits 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 commits 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 commits 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.
SECTION 148.3 148.3 Geographical jurisdiction
Section 15.3 (extended geographical jurisdiction - category C) applies to each offence against this Division. Division 149 - Obstruction of Commonwealth public officials SECTION 149.1 Obstruction of Commonwealth public officials (1)
A person commits 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:
(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.
Division 150 - False representations in relation to a Commonwealth body
A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in, or is reasonably capable of resulting in, a representation that the person:
(i) is a Commonwealth body; or
(ii) is acting on behalf of, or with the authority of, a Commonwealth body; and
(c) the person is not:
(i) the Commonwealth body; or
(ii) acting on behalf of, or with the authority of, the Commonwealth body.
Penalty: Imprisonment for 2 years.
(2)
A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in, or is reasonably capable of resulting in, a representation that the person:
(i) is a Commonwealth body; or
(ii) is acting on behalf of, or with the authority of, a Commonwealth body; and
(c) the person engages in the conduct 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
(d) the person is not:
(i) the Commonwealth body; or
(ii) acting on behalf of, or with the authority of, the Commonwealth body.
Penalty: Imprisonment for 5 years.
(3)
For the purposes of this section, it is immaterial whether the Commonwealth body exists or is fictitious.
(4)
If the Commonwealth body is fictitious, subsection (1) or (2) does not apply unless a person would reasonably believe that the Commonwealth body exists.
(5)
Without limiting section 15A of the Acts Interpretation Act 1901, this section does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication.
(6)
Section 15.3 (extended geographical jurisdiction - category C) applies to each offence against this section.
(7)
In this section:
(a) a Commonwealth entity; or
(b) a Commonwealth company (within the meaning of the Public Governance, Performance and Accountability Act 2013); or
(c) a service, benefit, program or facility for some or all members of the public that is provided by or on behalf of the Commonwealth, whether under a law of the Commonwealth or otherwise.
conduct
does not include conduct engaged in solely for genuine satirical, academic or artistic purposes.
Enforceable provisions
(1)
Section 150.1 is enforceable under Part 7 of the Regulatory Powers Act.
Note:
Part 7 of the Regulatory Powers Act creates a framework for using injunctions to enforce provisions.
Authorised person
(2)
For the purposes of Part 7 of the Regulatory Powers Act, any person whose interests have been, or would be, affected by conduct mentioned in subsection 150.1(1) or (2) is an authorised person in relation to section 150.1.
Relevant court
(3)
For the purposes of Part 7 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to section 150.1: (a) the Federal Court of Australia; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) the Supreme Court of a State or Territory; (d) the District Court (or equivalent) of a State or Territory.
Extension to external Territories etc.
(4)
Part 7 of the Regulatory Powers Act, as that Part applies in relation to section 150.1, extends to: (a) every external Territory; and (b) conduct outside Australia; and (c) conduct that results in, or is reasonably capable of resulting in, a representation outside Australia; and (d) conduct that is intended to result in a gain, a loss or influence outside Australia.
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. SECTION 261.2 261.2 Contempt of court
This Chapter does not limit the power of a court to punish a contempt of the court. SECTION 261.3 261.3 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 SECTION 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.
SECTION 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 SECTION 268.3 268.3 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.
SECTION 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.
SECTION 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.
SECTION 268.6 268.6 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.
SECTION 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 SECTION 268.8 268.8 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.
SECTION 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.
SECTION 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.
SECTION 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.
SECTION 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).
SECTION 268.13 268.13 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.
SECTION 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:
(4)
In this section:
(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.
SECTION 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
(Repealed by No 6 of 2013)
(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.
SECTION 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:
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.
SECTION 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.
SECTION 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.
SECTION 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;
without the consent of the person or persons, including by being reckless as to whether there is consent; and
(ii) causes one or more persons to engage in an act or acts of a sexual nature;
(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:
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.
SECTION 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).
SECTION 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.
SECTION 268.22 268.22 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.
SECTION 268.23 268.23 Crime against humanity - other inhumane actA 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 SECTION 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).
SECTION 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).
SECTION 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).
SECTION 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).
SECTION 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).
SECTION 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).
SECTION 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).
SECTION 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).
SECTION 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).
SECTION 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).
SECTION 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 SECTION 268.35 268.35 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.
SECTION 268.36 268.36 War crime - attacking civilian objectsA 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.
SECTION 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) theperpetrator 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).
SECTION 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.
SECTION 268.39 268.39 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.
SECTION 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 thatestablish 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.
SECTION 268.41 268.41 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.
SECTION 268.42 268.42 War crime - improper use of a flag, insignia or uniform of the adverse partyA 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.
SECTION 268.43 268.43 War crime - improper use of a flag, insignia or uniform of the United NationsA 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.
SECTION 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.
SECTION 268.45 268.45 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.
SECTION 268.46 War crime - attacking protected objects (1)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.
(2)
The definitions of charitable purpose in subsection 12(1) of the Charities Act 2013 and section 2B of the Acts Interpretation Act 1901 do not apply to this section.
SECTION 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.
SECTION 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 placein 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.
SECTION 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.
SECTION 268.50 268.50 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.
SECTION 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).
SECTION 268.52 268.52 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.
SECTION 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.
SECTION 268.54 268.54 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.
SECTION 268.55 268.55 War crime - employing poison or poisoned weaponsA 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.
SECTION 268.56 268.56 War crime - employing prohibited gases, liquids, materials or devicesA 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.
SECTION 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).
SECTION 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.
SECTION 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:
(4)
In this section:
(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.
SECTION 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
(Repealed by No 6 of 2013)
(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.
SECTION 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:
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.
SECTION 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.
SECTION 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.
SECTION 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;
without the consent of the person or persons, including by being reckless as to whether there is consent; and
(ii) causes one or more persons to engage in an act or acts of a sexual nature;
(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:
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.
SECTION 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, 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:
(2)
In this section:
religious personnel
includes non-confessional, non-combatant military personnel carrying out a similar function to religious personnel.
SECTION 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).
SECTION 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).
SECTION 268.68 War crime - using, conscripting or enlisting children
National armed forces
(1)
A person (the perpetrator ) commits an offence if:
(a) the perpetrator uses one or more persons to participate actively in hostilities as members of 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 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: Imprisonment for 10 years.
Other armed forces and groups
(4)
A person (the perpetrator ) commits an offence if:
(a) the perpetrator uses one or more persons to participate actively in hostilities other than as members of the national armed forces; and
(b) the person or persons are under the age of 18 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.
(5)
A person (the perpetrator ) commits an offence if:
(a) the perpetrator conscripts one or more persons into an armed force or group other than the national armed forces; and
(b) the person or persons are under the age of 18 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.
(6)
A person (the perpetrator ) commits an offence if:
(a) the perpetrator enlists oneor more persons into an armed force or group other than the national armed forces; and
(b) the person or persons are under the age of 18 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 SECTION 268.69 268.69 Definition of religious personnel
In this Subdivision:
religious personnel
includes non-confessional, non-combatant military personnel carrying out a similar function to religious personnel.
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 neither taking an active part in the hostilities nor are members of an organised armed group; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; 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.
(1A)
Subsection (1) does not apply if:
(a) the death of the person or persons occurs in the course of, or as a result of, an attack on a military objective; and
(b) at the time the attack was launched:
(i) the perpetrator did not expect that the attack would result in the incidental death of, or injury to, civilians that would have been excessive in relation to the concrete and direct military advantage anticipated; and
(ii) it was reasonable in all the circumstances that the perpetrator did not have such an expectation.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (1A). See subsection 13.3(3).
(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.
(3)
For the purposes of this section, the expression members of an organised armed group does not include members of an organised armed group who are hors de combat.
SECTION 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 neither taking an active part in the hostilities nor are members of an organised armed group; and
(e) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; 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.
(1A)
Subsection (1) does not apply if:
(a) the death of the person or persons occurs in the course of, or as a result of, an attack on a military objective; and
(b) at the time the attack was launched:
(i) the perpetrator did not expect that the attack would result in the incidental death of, or injury to, civilians that would have been excessive in relation to the concrete and direct military advantage anticipated; and
(ii) it was reasonable in all the circumstances that the perpetrator did not have such an expectation.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (1A). See subsection 13.3(3).
(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 neither taking an active part in the hostilities nor are members of an organised armed group; and
(e) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; 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.
(2A)
Subsection (2) does not apply if:
(a) the serious endangerment of the physical or mental health, or integrity, of the person or persons occurs in the course of, or as a result of, an attack on a military objective; and
(b) at the time the attack was launched:
(i) the perpetrator did not expect that the attack would result in the incidental death of, or injury to, civilians that would have been excessive in relation to the concrete and direct military advantage anticipated; and
(ii) it was reasonable in all the circumstances that the perpetrator did not have such an expectation.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (2A). See subsection 13.3(3).
(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.
(4)
For the purposes of this section, the expression members of an organised armed group does not include members of an organised armed group who are hors de combat.
SECTION 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 neither taking an active part in the hostilities nor are members of an organised armed group; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; 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.
(1A)
Subsection (1) does not apply if:
(a) the infliction of the severe physical or mental pain or suffering on the person or persons occurs in the course of, or as a result of, an attack on a military objective; and
(b) at the time the attack was launched:
(i) the perpetrator did not expect that the attack would result in the incidental death of, or injury to, civilians that would have been excessive in relation to the concrete and direct military advantage anticipated; and
(ii) it was reasonable in all the circumstances that the perpetrator did not have such an expectation.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (1A). See subsection 13.3(3).
(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.
(3)
For the purposes of this section, the expression members of an organised armed group does not include members of an organised armed group who are hors de combat.
SECTION 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.
SECTION 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 (whether or not the person or persons are alive); 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)
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 person or persons who:
(a) are hors de combat; or
(b) are civilians, medical personnel or religious personnel who are not taking an active part in the hostilities; or
(c) are dead.
(3)
(Repealed by No 153 of 2015)
SECTION 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 thehostilities.
SECTION 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 SECTION 268.77 268.77 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.
SECTION 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).
SECTION 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).
SECTION 268.80 War crime - attacking protected objects (1)
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.
(2)
The definitions of charitable purpose in subsection 12(1) of the Charities Act 2013 and section 2B of the Acts Interpretation Act 1901 do not apply to this section.
SECTION 268.81 268.81 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.
SECTION 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:
(4)
In this section:
(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.
SECTION 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
(Repealed by No 6 of 2013)
(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.
SECTION 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:
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 ofa 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.
SECTION 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.
SECTION 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.
SECTION 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;
without the consent of the person or persons, including by being reckless as to whether there is consent; and
(ii) causes one or more persons to engage in an act or acts of a sexual nature;
(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:
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.
SECTION 268.88 War crime - using, conscripting or enlisting children
National armed forces
(1)
A person (the perpetrator ) commits an offence if:
(a) the perpetrator uses one or more persons to participate actively in hostilities as members of the national armed forces; and
(b) the person or persons are under the age of 15 years; and
(c) (Repealed by No 129 of 2005)
(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 the national armed forces; and
(b) the person or persons are under the age of 15 years; and
(c) (Repealed by No 129 of 2005)
(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 the national armed forces; and
(b) the person or persons are under the age of 15 years; and
(c) (Repealed by No 129 of 2005)
(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 10 years.
Other armed forces and groups
(4)
A person (the perpetrator ) commits an offence if:
(a) the perpetrator uses one or more persons to participate actively in hostilities other than as members of the national armed forces; and
(b) the person or persons are under the age of 18 years; 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.
(5)
A person (the perpetrator ) commits an offence if:
(a) the perpetrator conscripts one or more persons into an armed force or group other than the national armed forces; and
(b) the person or persons are under the age of 18 years; 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 15 years.
(6)
A person (the perpetrator ) commits an offence if:
(a) the perpetrator enlists one or more persons into an armed force or group other than the national armed forces; and
(b) the person or persons are under the age of 18 years; 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 for a contravention of this subsection: Imprisonment for 10 years.
SECTION 268.89 268.89 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.
SECTION 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.
SECTION 268.91 268.91 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.
SECTION 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.
SECTION 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.
SECTION 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 liabilityapplies to paragraph (1)(c).
Subdivision H - War crimes that are grave breaches of Protocol I to the Geneva Conventions SECTION 268.95 268.95 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.
SECTION 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.
SECTION 268.97 268.97 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.
SECTION 268.98 268.98 War crime - attacking undefended places or demilitarized zonesA 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.
SECTION 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).
SECTION 268.100 268.100 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.
SECTION 268.101 268.101 War crime - attacking protected objectsA 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 SECTION 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.
SECTION 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.
SECTION 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.
SECTION 268.105 268.105 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.
SECTION 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.
SECTION 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.
SECTION 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.
SECTION 268.109 268.109 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.
SECTION 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:
(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.
SECTION 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.
SECTION 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.
SECTION 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.
SECTION 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 SECTION 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.
SECTION 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).
SECTION 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.
SECTION 268.118 268.118 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. SECTION 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.
SECTION 268.120 268.120 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. SECTION 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.
SECTION 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.
SECTION 268.123 268.123 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. SECTION 268.124 268.124 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.
SECTION 268.125 268.125 Meaning of civilianIn this Division, the expression civilian does not include a person who is a member of an organised armed group.
In this Division:
coercion
includes coercion by any of the following:
(a) force;
(b) duress;
(c) detention;
(d) psychological oppression;
(e) abuse of power;
(f) taking advantage of a person's vulnerability.
conducting a business
includes:
(a) taking any part in the management of the business; and
(b) exercising control or direction over the business; and
(c) providing finance for the business.
debt b@ndage
is the condition of a person (the
first person
) if:
(a) the condition arises from a pledge:
(i) by the first person of the personal services of the first person; or
(ii) by another person of the personal services of the first person, and the first person is under the other person's control; or
(iii) by the first person of the personal services of another person who is under the first person's control; and
(b) the pledge is made as security for a debt owed, or claimed to be owed, (including any debt incurred, or claimed to be incurred, after the pledge is given) by the person making the pledge; and
(c) any of the following apply:
(i) the debt owed or claimed to be owed is manifestly excessive;
(ii) the reasonable value of those services is not applied toward the liquidation of the debt or purported debt;
(iii) the length and nature of those services are not respectively limited and defined.
deceive
has the same meaning as in Division 271 (see section 271.1).
Note:
Deception has a corresponding meaning (see section 18A of the Acts Interpretation Act 1901).
forced labour
has the meaning given by section 270.6.
forced marriage
has the meaning given by section 270.7A.
servitude
has the meaning given by section 270.4.
slavery
has the meaning given by section 270.1.
slavery-like offence
means an offence against any of the following provisions:
(a) section 270.5 (servitude offences);
(b) section 270.6A (forced labour offences);
(c) section 270.7 (deceptive recruiting for labour or services);
(d) section 270.7B (forced marriage offences);
(e) section 270.7C (debt b@ndage).
(a) a threat of coercion; or
(b) a threat to cause a person's deportation or removal from Australia; 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.
Note:
Threat includes a threat made by any conduct, whether express or implied and whether conditional or unconditional (see the definition in the Dictionary).
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. SECTION 270.2 270.2 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. SECTION 270.3 Slavery offences (1)
A person who, whether within or outside Australia, intentionally:
(aa) reduces a person to slavery; or
(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;
commits 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, slave trading or the reduction of a person to slavery;
commits an offence.
Penalty: Imprisonment for 17 years.
(3)
In this section:
(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.
commercial transaction involving a slave
includes a commercial transaction by which a person is reduced to slavery.
(4)
A person who engages in any conduct with the intention of securing the release of a person from slavery does not commit an offence against this section.
(5)
The defendant bears a legal burden of proving the matter mentioned in subsection (4).
SECTION 270.3A 270.3A Slavery offences - geographical jurisdiction
Section 15.4 (extended geographical jurisdiction - category D) applies to an offence against section 270.3.
Proceedings for an offence against section 270.3, where the conduct constituting the alleged offence occurs wholly outside Australia, must not take place except with the consent in writing of the Attorney-General.
(2)
Even though a consent in accordance with subsection (1) has not been given in relation to an offence against section 270.3:
(a) a person may be arrested for the offence, and a warrant for the arrest of a person for the offence may be issued and executed; and
(b) a person may be charged with the offence; and
(c) a person so charged may be remanded in custody or on bail;
but no further step in proceedings referred to in subsection (1) is to be taken until such a consent has been given.
(3)
Subsection (2) does not prevent the discharge of the accused if proceedings are not continued within a reasonable time.
For the purposes of this Division, servitude is the condition of a person (the victim ) who provides labour or services, if, because of the use of coercion, threat or deception:
(a) a reasonable person in the position of the victim would not consider himself or herself to be free:
(i) to cease providing the labour or services; or
(ii) to leave the place or area where the victim provides the labour or services; and
(b) the victim is significantly deprived of personal freedom in respect of aspects of his or her life other than the provision of the labour or services.
(2)
Subsection (1) applies whether the coercion, threat or deception is used against the victim or another person.
(3)
The victim may be in a condition of servitude whether or not:
(a) escape from the condition is practically possible for the victim; or
(b) the victim has attempted to escape from the condition.
View history note
Causing a person to enter into or remain in servitude
(1)
A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct causes another person to enter into or remain in servitude.
Penalty:
(a) in the case of an aggravated offence (see section 270.8) - imprisonment for 20 years; or
(b) in any other case - imprisonment for 15 years.
Conducting a business involving servitude
(2)
A person commits an offence if:
(a) the person conducts any business; and
(b) the business involves the servitude of another person (or persons).
Penalty:
(a) in the case of an aggravated offence (see section 270.8) - imprisonment for 20 years; or
(b) in any other case - imprisonment for 15 years.
Alternative verdict of forced labour
(3)
Subsection (4) applies if, in a prosecution for an offence (the servitude offence ) against a provision listed in column 1 of the following table, the trier of fact:
(a) is not satisfied that the defendant is guilty of that offence; but
(b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence (the forced labour offence ) against the corresponding provision listed in column 2 of the table.
| Servitude and forced labour offences | ||
| Item | Column 1 | Column 2 |
| Servitude offences | Forced labour offences | |
| 1 | Subsection (1) of this section | Subsection 270.6A(1) |
| 2 | Subsection (2) of this section | Subsection 270.6A(2) |
(4)
The trier of fact may find the defendant not guilty of the servitude offence, but guilty of the forced labour offence, so long as the defendant has been afforded procedural fairness in relation to that finding of guilt.
For the purposes of this Division, forced labour is the condition of a person (the victim ) who provides labour or services if, because of the use of coercion, threat or deception, a reasonable person in the position of the victim would not consider himself or herself to be free:
(a) to cease providing the labour or services; or
(b) to leave the place or area where the victim provides the labour or services.
(2)
Subsection (1) applies whether the coercion, threat or deception is used against the victim or another person.
(3)
The victim may be in a condition of forced labour whether or not:
(a) escape from the condition is practically possible for the victim; or
(b) the victim has attempted to escape from the condition.
Causing a person to enter into or remain in forced labour
(1)
A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct causes another person to enter into or remain in forced labour.
Penalty:
(a) in the case of an aggravated offence (see section 270.8) - imprisonment for 12 years; or
(b) in any other case-imprisonment for 9 years.
Conducting a business involving forced labour
(2)
A person commits an offence if:
(a) the person conducts any business; and
(b) the business involves the forced labour of another person (or persons).
Penalty:
(a) in the case of an aggravated offence (see section 270.8) - imprisonment for 12 years; or
(b) in any other case - imprisonment for 9 years.
Note:
On a trial for an offence against section 270.5 (servitude offences), the trier of fact may find a defendant not guilty of that offence but guilty of the corresponding offence under this section (see subsections 270.5(3) and (4)).
A person (the recruiter ) commits an offence if:
(a) the recruiter engages in conduct; and
(b) the recruiter engages in the conduct with the intention of inducing another person (the victim ) to enter into an engagement to provide labour or services; and
(c) the conduct causes the victim to be deceived about:
(i) the extent to which the victim will be free to leave the place or area where the victim provides the labour or services; or
(ii) the extent to which the victim will be free to cease providing the labour or services; or
(iii) the extent to which the victim will be free to leave his or her place of residence; or
(iv) if there is or will be a debt owed or claimed to be owed by the victim in connection with the engagement - the quantum, or the existence, of the debt owed or claimed to be owed; or
(v) the fact that the engagement will involve exploitation, or the confiscation of the victim's travel or identity documents; or
(vi) if the engagement is to involve the provision of sexual services - that fact, or the nature of sexual services to be provided (for example, whether those services will require the victim to have unprotected sex).
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.
A marriage is a forced marriage if:
(a) either party to the marriage (the victim ) entered into the marriage without freely and fully consenting:
(i) because of the use of coercion, threat or deception; or
(ii) because the victim was incapable of understanding the nature and effect of the marriage ceremony; or
(b) when the marriage was entered into, either party to the marriage (the victim ) was under 16.
(2)
For the purposes of subsection (1), marriage includes the following:
(a) a registered relationship within the meaning of section 2E of the Acts Interpretation Act 1901;
(b) a marriage recognised under a law of a foreign country;
(c) a relationship registered (however that process is described) under a law of a foreign country, if the relationship is of the same, or a similar, type as any registered relationship within the meaning of section 2E of the Acts Interpretation Act 1901;
(d) a marriage (including a relationship or marriage mentioned in paragraph (a), (b) or (c)) that is void, invalid, or not recognised by law, for any reason, including the following:
(i) a party to the marriage has not freely or fully consented to the marriage (for example, because of natural, induced or age related incapacity);
(ii) a party to the marriage is married (within the meaning of this subsection) to more than one person.
Note:
Section 2E of the Acts Interpretation Act 1901 covers relationships registered under a law of a State or Territory that are prescribed by regulations under that Act.
(3)
Subparagraph (1)(a)(i) applies whether the coercion, threat or deception is used against the victim or another person.
(4)
(Repealed by No 72 of 2019)
Causing a person to enter into a forced marriage
(1)
A person (the first person ) commits an offence if:
(a) the first person engages in conduct; and
(b) the conduct causes another person to enter into a forced marriage as the victim of the marriage.
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.
Being a party to a forced marriage
(2)
A person commits an offence if:
(a) the person is a party to a marriage (within the meaning of section 270.7A); and
(b) the marriage is a forced marriage; and
(c) the person is not a victim of the forced marriage.
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.
(3)
Strict liability applies to paragraph (2)(c).
Note:
For strict liability, see section 6.1.
(4)
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 (4) (see subsection 13.3(3)).
Consent to commence proceedings if defendant under 18
(5)
Proceedings for an offence against subsection (1) or (2) must not be commenced without the consent of the Attorney-General if the defendant was under 18 at the time the defendant allegedly engaged in the conduct constituting the offence.
(6)
However, a person may be arrested for, charged with or remanded in custody or on bail in connection with, such an offence before the necessary consent has been given.
A person commits anoffence of debt b@ndage if:
(a) the person engages in conduct that causes another person to enter into debt b@ndage; and
(b) the person intends to cause the other person to enter into debt b@ndage.
Penalty:
(a) in the case of an aggravated offence (see section 270.8) - imprisonment for 7 years; or
(b) in any other case - imprisonment for 4 years.
For the purposes of this Division, a slavery-like offence committed by a person (the offender ) against another person (the victim ) is an aggravated offence if any of the following applies:
(a) the victim is under 18;
(b) the offender, in committing the offence, subjects the victim to cruel, inhuman or degrading treatment;
(c) the offender, in committing the offence:
(i) engages in conduct that gives rise to a danger of death or serious harm to the victim or another person; and
(ii) is reckless as to that danger.
Note:
In the case of a slavery-like offence against section 270.7B involving a marriage that is a forced marriage because the victim was under 16 when the marriage was entered into (see paragraph 270.7A(1)(b)), the offence is also an aggravated offence because of paragraph (a) of this subsection.
(2)
If the prosecution intends to prove an aggravated offence, the charge must allege the relevant aggravated offence.
(3)
If, on a trial for an aggravated offence, the trier of fact is not satisfied that the defendant is guilty of the aggravated offence, but is otherwise satisfied that the defendant is guilty of the corresponding slavery-like offence, it may find the defendant not guilty of the aggravated offence, but guilty of the corresponding slavery-like offence.
(4)
Subsection (3) only applies if the defendant has been afforded procedural fairness in relation to the finding of guilt for the corresponding slavery-like offence.
Section 15.2 (extended geographical jurisdiction - category B) applies to a slavery like offence.
For the purposes of proceedings for a slavery-like offence, the trier of fact may have regard to any of the matters covered by subsection (2) in determining whether, in relation to a person (the alleged victim ) against whom the offence is alleged to have been committed:
(a) in the case of an offence against this Subdivision - the alleged victim has been coerced, threatened or deceived; or
(b) in the case of an offence against section 270.5 - the alleged victim was significantly deprived of personal freedom; or
(c) in the case of an offence against section 270.7B - the alleged victim was incapable of understanding the nature and effect of a marriage ceremony; or
(d) in the case of an offence against section 270.7C - another person has caused the alleged victim to enter into debt b@ndage.
(2)
The following matters are covered by this subsection:
(a) the economic relationship between the alleged victim, the alleged offender or a family member of the alleged victim or alleged offender, and any other person;
(b) the terms of any written or oral contract or agreement between the alleged victim, the alleged offender or a family member of the alleged victim or alleged offender, and any other person;
(c) the personal circumstances of the alleged victim, including but not limited to:
(i) whether he or she is entitled to be in Australia under the Migration Act 1958; and
(ii) his or her ability to speak, write and understand English or another language; and
(iii) the extent of his or her social and physical dependence on the alleged offender or any other person.
(3)
Subsection (1) does not:
(a) prevent the leading of any other evidence in the relevant proceedings; or
(b) limit the manner in which evidence may be given or the admissibility of evidence.
(4)
In this section:
family member
of a person means:
(a) the person's spouse or de facto 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.
(5)
For the purposes of this section, the family members of a person are taken to include the following (without limitation):
(a) a de facto partner of the person;
(b) someone who is the child of the person, or of whom the person is the child, because of the definition of child in the Dictionary;
(c) anyone else who would be a member of the person's family if someone mentioned in paragraph (a) or (b) is taken to be a family member of the person.
To avoid doubt, it is not a defence in a proceeding for an offence against this Division that a person against whom the offence is alleged to have been committed consented to, or acquiesced in, conduct constituting any element of the offence.
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.
Note:
Division 279 (video link evidence) applies to a proceeding for an offence against this Division.
(2)
Without limiting subsection (1), this Division is not intended to exclude or limit the concurrent operation of any other law of the Commonwealth, or a law of a State or Territory, that makes:
(a) an act or omission that is an offence against a provision of this Division; or
(b) a similar act or omission;
an offence against the law of the Commonwealth, State or Territory.
(3)
Subsection (2) applies even if the other law of the Commonwealth, or 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 Division;
(b) provides for a fault element in relation to the offence that differs from the fault elements applicable to the offence under this Division;
(c) provides for a defence in relation to the offence that differs from the defences applicable to the offence under this Division.
SECTION 270.13 270.13 Offences against Division 270 - 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. SECTION 270.14 270.14 External Territories
(Repealed by No 6 of 2013)
In this Division:
coercion
has the same meaning as in Division 270 (see section 270.1A).
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.
Note:
Deception has a corresponding meaning (see section 18A of the Acts Interpretation Act 1901).
exploitation
has the meaning given by section 271.1A.
threat
has the same meaning as in Division 270 (see section 270.1A).
For the purposes of this Division, exploitation , of one person (the victim ) by another person, occurs if the other person's conduct causes the victim to enter into any of the following conditions:
(a) slavery, or a condition similar to slavery;
(b) servitude;
(c) forced labour;
(d) forced marriage;
(e) debt b@ndage.
Note:
Division 270 (slavery and slavery-like offences) deals with slavery, servitude, forced labour, forced marriage and debt b@ndage.
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 coercion, threat or deception; and
(c) that use of coercion, threat or deception 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 coercion, threat or deception; and
(c) that use of coercion, threat or deception 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 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 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).
SECTION 271.3 Trafficking in persons - aggravated offence (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; or
(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 or another person; 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.
(3)
Subsection (2) only applies if the defendant has been afforded procedural fairness in relation to the finding of guilt for the offence against section 271.2.
Note:
Section 271.2 provides for offences of trafficking in persons.
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)
(Repealed by No 6 of 2013)
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 coercion, threat or deception; and
(c) that use of fcoercion, threat or deception 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 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 anyof 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).
SECTION 271.6 Domestic trafficking in persons - aggravated offence (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 or another person; 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.
(3)
Subsection (2) only applies if the defendant has been afforded procedural fairness in relation to the finding of guilt for the offence against section 271.5.
Note:
Section 271.5 provides for offences of domestic trafficking in persons.
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.
(Repealed by No 6 of 2013)
The removal of a person's organ is contrary to this Subdivision if:
(a) the removal, or entering into an agreement for the removal, would be contrary to the law of the State or Territory where it is, or is to be, carried out; or
(b) neither the victim, nor the victim's guardian, consents to the removal, and it would not meet a medical or therapeutic need of the victim.
Entry into Australia
(1)
A person (the offender ) commits an offence of organ trafficking if:
(a) the offender engages in conduct consisting of the organisation or facilitation of the entry or proposed entry, or the receipt, of another person (the victim ) into Australia; and
(b) the offender is reckless as to whether the conduct will result in the removal of an organ of the victim contrary to this Subdivision, by the offender or another person, after or in the course of that entry or receipt.
Penalty: Imprisonment for 12 years.
Note:
For when the removal of an organ is contrary to this Subdivision, see section 271.7A.
Exit from Australia
(2)
A person (the offender ) commits an offence of organ trafficking if:
(a) the offender engages in conduct consisting of the organisation or facilitation of the exit or proposed exit of another person (the victim ) from Australia; and
(b) the offender is reckless as to whether the conduct will result in the removal of an organ of the victim contrary to this Subdivision, by the offender or another person, after or in the course of that exit.
Penalty: Imprisonment for 12 years.
Note:
For when the removal of an organ is contrary to this Subdivision, see section 271.7A.
A person (the offender ) commits an aggravated offence of organ trafficking if the offender commits an offence of organ trafficking in relation to another person (the victim ) and any of the following applies:
(a) the victim is under 18;
(b) the offender commits the offence intending that an organ of the victim will be removed contrary to this Subdivision, either by the offender or another person:
(i) if the offence of organ trafficking is an offence against subsection 271.7B(1) - after or in the course of entry into Australia; or
(ii) if the offence of organ trafficking is an offence against subsection 271.7B(2) - after or in the course of exit from Australia;
(c) the offender, in committing the offence, subjects the victim to cruel, inhuman or degrading treatment;
(d) the offender, in committing the offence:
(i) engages in conduct that gives rise to a danger of death or serious harm to the victim or another person; and
(ii) is reckless as to that danger.
Penalty:
(a) if this subsection applies because the victim is under 18 - imprisonment for 25 years; or
(b) in any other case - imprisonment for 20 years.
Note:
For when the removal of an organ is contrary to this Subdivision, see section 271.7A.
(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 271.7B, it may find the defendant not guilty of the aggravated offence but guilty of an offence against that section.
(3)
Subsection (2) only applies if the defendant has been afforded procedural fairness in relation to the finding of guilt for the offence against section 271.7B.
Note:
Section 271.7B provides for offences of organ trafficking.
A person (the offender ) commits an offence of domestic organ trafficking if:
(a) the offender engages in conduct consisting of the organisation, or facilitation, of the transportation or proposed transportation of another person (the victim) from one place in Australia to another place in Australia; and
(b) the offender is reckless as to whether the conduct will result in the removal of an organ of the victim contrary to this Subdivision, by the offender or another person, after or in the course of that transportation.
Penalty: Imprisonment for 12 years.
Note:
For when the removal of an organ is contrary to this Subdivision, see section 271.7A.
A person (the offender ) commits an aggravated offence of domestic organ trafficking if the offender commits an offence of domestic organ trafficking in relation to another person (the victim ) and any of the following applies:
(a) the victim is under 18;
(b) the offender commits the offence intending that an organ of the victim will be removed contrary to this Subdivision, either by the offender or another person, after arrival at the place to which the person has been transported, or in the course of transportation;
(c) the offender, in committing the offence, subjects the victim to cruel, inhuman or degrading treatment;
(d) the offender, in committing the offence:
(i) engages in conduct that gives rise to a danger of death or serious harm to the victim or another person; and
(ii) is reckless as to that danger.
Penalty:
(a) if this subsection applies because the victim is under 18 - imprisonment for 25 years; or
(b) in any other case - imprisonment for 20 years.
Note:
For when the removal of an organ is contrary to this Subdivision, see section 271.7A.
(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 271.7D, it may find the defendant not guilty of the aggravated offence, but guilty of an offence against that section.
(3)
Subsection (2) only applies if the defendant has been afforded procedural fairness in relation to the finding of guilt for the offence against section 271.7D.
Note:
Section 271.7D provides for offences of domestic organ trafficking.
A person (the offender ) commits an offence of harbouring a victim if:
(a) the offender harbours, receives or conceals another person (the victim ); and
(b) the harbouring, receipt or concealing of the victim:
(i) assists a third person in connection with any offence committed by the third person (the third person offence ); or
(ii) furthers a third person's purpose in relation to any offence committed by the third person (the third person offence ); and
(c) the third person offence is an offence against this Division (apart from this section) or Division 270.
Penalty: Imprisonment for 4 years.
(2)
Recklessness applies in relation to paragraph (1)(b).
(3)
Absolute liability applies in relation to paragraph (1)(c).
(4)
A person may be found guilty of an offence against subsection (1) even if the third person has not been prosecuted for, or has not been found guilty, of any other offence.
A person (the offender ) commits an aggravated offence of harbouring a victim if:
(a) the offender commits an offence of harbouring a victim in relation to another person (the victim ); and
(b) the victim is under 18.
Penalty: Imprisonment for 7 years.
(2)
If, on a trial for an offence against this section, the trier of fact is not satisfied that the defendant is guilty of the aggravated offence, but is satisfied that the defendant is guilty of an offence against section 271.7F, it may find the defendant not guilty of the aggravated offence, but guilty of an offence against that section.
(3)
Subsection (2) only applies if the defendant has been afforded procedural fairness in relation to the finding of guilt for the offence against section 271.7F.
Note:
Section 271.7F provides for the offence of harbouring a victim.
(Repealed by No 34 of 2018)
(Repealed by No 34 of 2018)
Section 15.2 (extended geographical jurisdiction - category B) applies to an offence against section 271.2, 271.3, 271.4, 271.7B, 271.7C, 271.7F or 271.7G.
A person commits an offence against section 271.5, 271.6, 271.7, 271.7D or 271.7E 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 proceedings for an offence against this Division, the trier of fact may have regard to any of the matters covered by subsection (2) in determining whether, in relation to a person (the alleged victim ) against whom the offence is alleged to have been committed:
(a) in the case of an offence against Subdivision B - the alleged victim has been coerced, threatened or deceived; or
(b) in the case of an offence against Subdivision BA - the alleged victim, or the alleged victim's guardian, has consented to the removal of an organ of the alleged victim.
(c) (Repealed by No 34 of 2018)
(2)
The following matters are covered by this subsection:
(a) the economic relationship between the alleged victim, the alleged offender or a family member of the alleged victim or alleged offender, and any other person;
(b) the terms of any written or oral contract or agreement between the alleged victim, the alleged offender or a family member of the alleged victim or alleged offender, and any other person;
(c) the personal circumstances of the alleged victim, including but not limited to:
(i) whether he or she is entitled to be in Australia under the Migration Act 1958; and
(ii) his or her ability to speak, write and understand English or another language; and
(iii) the extent of his or her social and physical dependence on the alleged offender or any other person.
(3)
If subsection (1) applies in relation to the consent of an alleged victim's guardian to the removal of an organ of the alleged victim, a reference in subsection (2) to the alleged victim is taken to include a reference to the alleged victim's guardian.
(4)
Subsection (1) does not:
(a) prevent the leading of any other evidence in the relevant proceedings; or
(b) limit the manner in which evidence may be given or the admissibility of evidence.
(5)
In this section:
family member
of a person means:
(a) the person's spouse or de facto 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.
(6)
For the purposes of this section, the family members of a person are taken to include the following (without limitation):
(a) a de facto partner of the person;
(b) someone who is the child of the person, or of whom the person is the child, because of the definition of child in the Dictionary;
(c) anyone else who would be a member of the person's family if someone mentioned in paragraph (a) or (b) is taken to be a family member of the person.
To avoid doubt, it is not a defence in a proceeding for an offence against this Division that a person against whom the offence is alleged to have been committed consented to, or acquiesced in, conduct constituting any element of the offence.
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.
Note:
Division 279 (video link evidence) applies to a proceeding for an offence against this Division.
(2)
Without limiting subsection (1), this Division is not intended to exclude or limit the concurrent operation of any other law of the Commonwealth, or a law of a State or Territory, that makes:
(a) an act or omission that is an offence against a provision of this Division; or
(b) a similar act or omission;
an offence against the law of the Commonwealth, State or Territory.
(3)
Subsection (2) applies even if the other law of the Commonwealth, or 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 Division;
(b) provides for a fault element in relation to the offence that differs from the fault elements applicable to the offence under this Division;
(c) provides for a defence in relation to the offence that differs from the defences applicable to the offence under this Division.
SECTION 271.13 271.13 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.
A person commits an offence if:
(a) the person is an Australian citizen; and
(b) the person's name is entered on a child protection offender register (however described) of a State or Territory; and
(c) the person has reporting obligations (however described) in connection with that entry on the register; and
(d) the person leaves Australia.
Penalty: Imprisonment for 5 years.
(2)
Absolute liability applies to paragraph (1)(a).
Note:
For absolute liability, see section 6.2.
(3)
Subsection (1) does not apply if:
(a) a competent authority (within the meaning of section 12 of the Australian Passports Act 2005 or section 13 of the Foreign Passports (Law Enforcement and Security) Act 2005) has given permission (however described) for the person to leave Australia; or
(b) the reporting obligations of the person are suspended at the time the person leaves Australia.
Note:
The defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3).
In this Division:
cause
a person to engage in sexual intercourse or other sexual activity has the meaning given by section 272.2.
offence
, in the case of a reference to an offence against this Division or against a particular provision of it, has a meaning affected by section 272.5.
position of trust or authority
has the meaning given by subsection 272.3(1).
sexual intercourse
has the meaning given by section 272.4.
For the purposes of this Division, a person's conduct causes another person to engage in sexual intercourse or other sexual activity if it substantially contributes to the other person engaging in sexual intercourse or other sexual activity.
For the purposes of this Code, a person is in a position of trust or authority in relation to another person if:
(a) the person is the other person's parent, step-parent, or grandparent; or
(b) the person is the other person's foster parent, guardian or carer; or
(c) the person is a teacher engaged in the education of the other person; or
(d) the person is a religious official or spiritual leader (however described) providing pastoral care or religious instruction to the other person; or
(e) the person is the other person's sports coach; or
(f) the person is a medical practitioner, nurse, psychologist, other health professional (however described), counsellor or social worker providing professional services to the other person; or
(g) the person is a member of a police force or police service, or a person employed or providing services in a correctional institution (however described), performing duties in relation to the other person; or
(h) the person:
(i) is an employer of the other person; or
(ii) has the authority to determine significant aspects of the other person's terms and conditions of employment; or
(iii) has the authority to terminate the other person's employment (whether the other person is being paid in respect of that employment or is working in a voluntary capacity).
(2)
Without limiting who is a grandparent of a person for the purposes of this section, a person (the first person ) is the grandparent of another person if the first person is a parent or step-parent of a parent or step-parent of the other person.
(3)
(Repealed by No 127 of 2010)
SECTION 272.4
Meaning of
sexual intercourse
(1)
In this Code, sexual intercourse means:
(a) the penetration, to any extent, of the vagina or anus of a person by any part of the body of another person; or
(b) the penetration, to any extent, of the vagina or anus of a person, by an object, carried out by another person; or
(c) fellatio; or
(d) cunnilingus; or
(e) the continuation of any activity mentioned in paragraph (a), (b), (c) or (d).
(2)
In this Code, sexual intercourse does not include an act of penetration that:
(a) is carried out for a proper medical or hygienic purpose; or
(b) is carried out for a proper law enforcement purpose.
(3)
For the purposes of this section, vagina includes:
(a) any part of a female person's genitalia; and
(b) a surgically constructed vagina.
A reference in this Division (except section 272.19, which deals with encouraging an offence against this Division) to an offence against this Division, or against a particular provision of it, includes:
(a) a reference to:
(i) an offence against section 6 of the Crimes Act 1914 (accessory after the fact); or
that relates to an offence against this Division or against that provision of it; and
(ii) an offence against section 11.1 (attempt), 11.5 (conspiracy) or 272.19 of this Code;
(b) a reference to an offence against this Division, or against that provision of it, because section 11.2 (complicity and common purpose), 11.2A (joint commission) or 11.3 (commission by proxy).
(2)
Areference in section 272.19 (encouraging offence against this Division) to an offence against this Division or against a particular provision of it does not include a reference to such an offence because of section 11.2 (complicity and common purpose) or 11.2A (joint commission).
(3)
Section 11.1 (attempt) does not apply to an offence against:
(a) section 272.14 (procuring child to engage in sexual activity outside Australia); or
(b) section 272.15 ("grooming" child to engage in sexual activity outside Australia); or
(ba) section 272.15A ("grooming" person to make it easier to engage in sexual activity with a child outside Australia); or
(c) section 272.20 (preparing for or planning offence against this Division).
(4)
Section 11.4 (incitement) does not apply to an offence against this Division.
(5)
Section 11.5 (conspiracy) does not apply to an offence against section 272.19 (encouraging offence against this Division).
A person must not be charged with an offence against this Division that the person allegedly committed wholly outside Australia unless, at the time of the offence, the person was:
(a) an Australian citizen; or
(b) a resident of Australia; or
(c) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or
(d) any other body corporate that carries on its activities principally in Australia.
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.
Note:
Division 279 (video link evidence) applies to a proceeding for an offence against this Division.
Engaging in sexual intercourse with child
(1)
A person commits an offence if:
(a) the person engages in sexual intercourse with another person (the child ); and
(b) the child is under 16; and
(c) the sexual intercourse is engaged in outside Australia.
Penalty: Imprisonment for 25 years.
Causing child to engage in sexual intercourse in presence of defendant
(2)
A person commits an offence if:
(a) the person engages in conduct in relation to another person (the child ); and
(b) that conduct causes the child to engage in sexual intercourse in the presence of the person; and
(c) the child is under 16 when the sexual intercourse is engaged in; and
(d) the sexual intercourse is engaged in outside Australia.
Penalty: Imprisonment for 25 years.
(3)
The fault element for paragraph (2)(b) is intention.
(4)
Absolute liability applies to paragraphs (1)(b) and (c) and (2)(c) and (d).
Note 1:
For absolute liability, see section 6.2.
Note 2:
For a defence based on belief about age, see section 272.16.
Engaging in sexual activity with child
(1)
A person commits an offence if:
(a) the person engages in sexual activity (other than sexual intercourse) with another person (the child ); and
(b) the child is under 16; and
(c) the sexual activity is engaged in outside Australia.
Note:
A person is taken to engage in sexual activity if the person is in the presence of another person (including by a means of communication that allows the person to see or hear the other person) while the other person engages in sexual activity: see the definition of engage in sexual activity in the Dictionary.
Penalty: Imprisonment for 20 years.
Causing child to engage in sexual activity in presence of defendant
(2)
A person commits an offence if:
(a) the person engages in conduct in relation to another person (the child ); and
(b) that conduct causes the child to engage in sexual activity (other than sexual intercourse) in the presence of the person; and
(c) the child is under 16 when the sexual activity is engaged in; and
(d) the sexual activity is engaged in outside Australia.
Penalty: Imprisonment for 20 years.
(3)
The fault element for paragraph (2)(b) is intention.
(4)
Absolute liability applies to paragraphs (1)(b) and (c) and (2)(c) and (d).
Note:
For absolute liability, see section 6.2.
Defence - child present but defendant does not intend to derive gratification
(5)
It is a defence to a prosecution for an offence against subsection (1) or (2) if:
(a) the conduct constituting the offence consists only of the child being in the presence of the defendant while sexual activity is engaged in; and
(b) the defendant proves that he or she did not intend to derive gratification from the presence of the child during that activity.
Note 1:
A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.
Note 2:
For a defence based on belief about age, see section 272.16.
A person commits an offence against this section (the aggravated offence ) if:
(a) the person commits an offence (the underlying offence ) against one of the following provisions in relation to another person (the child ):
(i) subsection 272.8(1) (engaging in sexual intercourse with child outside Australia);
(ii) subsection 272.8(2) (causing child to engage in sexual intercourse in presence of defendant outside Australia);
(iii) subsection 272.9(1) (engaging in sexual activity (other than sexual intercourse) with child outside Australia);
(iv) subsection 272.9(2) (causing child to engage in sexual activity (other than sexual intercourse) in presence of defendant outside Australia); and
(b) one or more of the following apply:
(i) the child has a mental impairment at the time the person commits the underlying offence;
(ii) the person is in a position of trust or authority in relation to the child, or the child is otherwise under the care, supervision or authority of the person, at the time the person commits the underlying offence;
(iii) the child is subjected to cruel, inhuman or degrading treatment in connection with the sexual activity referred to in subsection 272.8(1) or (2) or 272.9(1) or (2);
(iv) the child dies as a result of physical harm suffered in connection with the sexual activity referred to in subsection 272.8(1) or (2) or 272.9(1) or (2).
Penalty: Imprisonment for life.
(2)
There is no fault element for the physical element described in paragraph (1)(a) other than the fault elements (however described), if any, for the underlying offence.
(3)
To avoid doubt, a person does not commit the underlying offence for the purposes of paragraph (1)(a) if the person has a defence to the underlying offence.
(4)
Absolute liability applies to subparagraph (1)(b)(i).
Note:
For absolute liability, see section 6.2.
(5)
Strict liability applies to subparagraph (1)(b)(ii).
Note:
For strict liability, see section 6.1.
Defence - belief that child did not have mental impairment
(6)
Subparagraph (1)(b)(i) does not apply if the defendant proves that, at the time he or she committed the underlying offence, he or she believed that the child did not have a mental impairment.
Note:
A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.
(7)
In determining whether the defendant had the belief mentioned in subsection (6), the trier of fact may take into account whether the alleged belief was reasonable in the circumstances.
A person commits an offence against this section if the person commits an offence (the underlying offence ) against one or more of the following provisions in relation to the same person (the child ) on 2 or more separate occasions during any period:
(a) subsection 272.8(1) (engaging in sexual intercourse with child outside Australia);
(b) subsection 272.8(2) (causing child to engage in sexual intercourse in presence of defendant outside Australia);
(c) subsection 272.9(1) (engaging in sexual activity (other than sexual intercourse) with child outside Australia);
(d) subsection 272.9(2) (causing child to engage in sexual activity (other than sexual intercourse) in presence of defendant outside Australia).
Penalty: Imprisonment for 30 years.
(2)
There is no fault element for any of the physical elements described in subsection (1) other than the fault elements (however described), if any, for the underlying offence.
(3)
To avoid doubt, a person does not commit the underlying offence for the purposes of subsection (1) if the person has a defence to the underlying offence.
Offence or conduct need not be the same
(4)
For the purposes of subsection (1), it is immaterial whether the underlying offence, or the conduct constituting the underlying offence, is the same on each occasion.
Certain matters need not be proved
(5)
In proceedings for an offence against this section, it is not necessary to specify or to prove the dates or exact circumstances of the occasions on which the conduct constituting the offence against this section occurred.
Content of charge
(6)
A charge of an offence against this section:
(a) must specify with reasonable particularity the period during which the offence against this section occurred; and
(b) must describe the nature of the separate offences alleged to have been committed by the person during that period.
Trier of fact to be satisfied of certain matters
(7)
In order for the person to be found guilty of an offence against this section:
(a) the trier of fact must be satisfied beyond reasonable doubt that the evidence establishes at least 2 separate occasions during the period concerned on which the person engaged in conduct constituting an offence against subsection 272.8(1) or (2) or 272.9(1) or (2), of a nature described in the charge, in relation to the child; and
(b) the trier of fact must be so satisfied about the material facts of the 2 such occasions, although the trier of fact need not be so satisfied about the dates or the order of those occasions; and
(c) if the trier of fact is a jury and more than 2 such occasions are relied on as evidence of the commission of an offence against this section - all the members of the jury must be so satisfied about the same 2 occasions.
(8)
In proceedings for an offence against this section, the judge must warn the jury (if any) of the requirements of subsection (7).
Double jeopardy etc
(9)
A person who has been convicted or acquitted of an offence against this section may not be convicted of another offence against section 272.8, 272.9 or 272.10 that is alleged to have been committed in relation to the child in the period during which the person was alleged to have committed the offence against this section.
(10)
However, subsection (9) does not prevent an alternative verdict under section 272.28.
(11)
A person who has been convicted or acquitted of an offence against section 272.8, 272.9 or 272.10 in relation to a person (the child ) may not be convicted of an offence against this section in relation to the child if any of the occasions relied on as evidence of the commission of the offence against this section includes the conduct that constituted the offence of which the person was convicted or acquitted.
Engaging in sexual intercourse with young person
(1)
A person commits an offence if:
(a) the person engages in sexual intercourse with another person (the young person ); and
(b) the young person is at least 16 but under 18; and
(c) the person is in a position of trust or authority in relation to the young person; and
(d) the sexual intercourse is engaged in outside Australia.
Penalty: Imprisonment for 10 years.
Causing young person to engage in sexual intercourse in presence of defendant
(2)
A person commits an offence if:
(a) the person engages in conduct in relation to another person (the young person ); and
(b) that conduct causes the young person to engage in sexual intercourse in the presence of the person; and
(c) the young person is at least 16 but under 18 when the sexual intercourse is engaged in; and
(d) the person is in a position of trust or authority in relation to the young person; and
(e) the sexual intercourse is engaged in outside Australia.
Penalty: Imprisonment for 10 years.
(3)
The fault element for paragraph (2)(b) is intention.
(4)
Absolute liability applies to paragraphs (1)(b) and (d) and (2)(c) and (e).
Note 1:
For absolute liability, see section 6.2.
Note 2:
For a defence based on belief about age, see section 272.16.
(5)
Strict liability applies to paragraphs (1)(c) and (2)(d).
Note:
For strict liability, see section 6.1.
Engaging in sexual activity with young person
(1)
A person commits an offence if:
(a) the person engages in sexual activity (other than sexual intercourse) with another person (the young person ); and
(b) the young person is at least 16 but under 18; and
(c) the person is in a position of trust or authority in relation to the young person; and
(d) the sexual activity is engaged in outside Australia.
Note:
A person is taken to engage in sexual activity if the person is in the presence of another person (including by a means of communication that allows the person to see or hear the other person) while the other person engages in sexual activity: see the definition of engage in sexual activity in the Dictionary.
Penalty: Imprisonment for 7 years.
Causing young person to engage in sexual activity in presence of defendant
(2)
A person commits an offence if:
(a) the person engages in conduct in relation to another person (the young person ); and
(b) that conduct causes the young person to engage in sexual activity (other than sexual intercourse) in the presence of the person; and
(c) the young person is at least 16 but under 18 when the sexual activity is engaged in; and
(d) the person is in a position of trust or authority in relation to the young person; and
(e) the sexual activity is engaged in outside Australia.
Penalty: Imprisonment for 7 years.
(3)
The fault element for paragraph (2)(b) is intention.
(4)
Absolute liability applies to paragraphs (1)(b) and (d) and (2)(c) and (e).
Note 1:
For absolute liability, see section 6.2.
Note 2:
For a defence based on belief about age, see section 272.16.
(5)
Strict liability applies to paragraphs (1)(c) and (2)(d).
Note:
For strict liability, see section 6.1.
Defence - young person present but defendant does not intend to derive gratification
(6)
It is a defence to a prosecution for an offence against subsection (1) or (2) if:
(a) the conduct constituting the offence consists only of the young person being in the presence of the defendant while sexual activity is engaged in; and
(b) the defendant proves that he or she did not intend to derive gratification from the presence of the young person during that activity.
Note 1:
A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.
Note 2:
For a defence based on belief about age, see section 272.16.
A person commits an offence if:
(a) the person engages in conduct in relation to another person (the child ); and
(b) the person does so with the intention of procuring the child to engage in sexual activity (whether or not with the person) outside Australia; and
(c) the child is someone:
(i) who is under 16; and
(ii) who the person believes to be under 16; and
(d) one or more of the following apply:
(i) the conduct referred to in paragraph (a) occurs wholly or partly outside Australia;
(ii) the child is outside Australia when the conduct referred to in paragraph (a) occurs;
(iii) the conduct referred to in paragraph (a) occurs wholly in Australia and the child is in Australia when that conduct occurs.
Penalty: Imprisonment for 15 years.
(2)
Absolute liability applies to subparagraph (1)(c)(i) and paragraph (1)(d).
Note 1:
For absolute liability, see section 6.2.
Note 2:
For a defence based on belief about age, see section 272.16.
(3)
A person may be found guilty of an offence against subsection (1) even if it is impossible for the sexual activity referred to in that subsection to take place.
(4)
For the purposes of subsection (1), it does not matter that the child is a fictitious person represented to the person as a real person.
A person commits an offence if:
(a) the person engages in conduct in relation to another person (the child ); and
(b) the person does so with the intention of making it easier to procure the child to engage in sexual activity (whether or not with the person) outside Australia; and
(c) the child is someone:
(i) who is under 16; or
(ii) who the person believes to be under 16; and
(d) one or more of the following apply:
(i) the conduct referred to in paragraph (a) occurs wholly or partly outside Australia;
(ii) the child is outside Australia when the conduct referred to in paragraph (a) occurs;
(iii) the conduct referred to in paragraph (a) occurs wholly in Australia and the child is in Australia when that conduct occurs.
Penalty: Imprisonment for 15 years.
(2)
Absolute liability applies to subparagraph (1)(c)(i) and paragraph (1)(d).
Note 1:
For absolute liability, see section 6.2.
Note 2:
For a defence based on belief about age, see section 272.16.
(3)
A person may be found guilty of an offence against subsection (1) even if it is impossible for the sexual activity referred to in that subsection to take place.
(4)
For the purposes of subsection (1), it does not matter that the child is a fictitious person represented to the person as a real person.
A person (the defendant ) commits an offence if:
(a) the defendant engages in conduct in relation to another person (the third party ); and
(b) the defendant does so with the intention of making it easier to procure a person (the child ) to engage in sexual activity (whether or not with the defendant) outside Australia; and
(c) the child is someone:
(i) who is under 16; or
(ii) who the defendant believes to be under 16; and
(d) one or more of the following apply:
(i) the conduct referred to in paragraph (a) occurs wholly or partly outside Australia;
(ii) the third party or the child (or both) is outside Australia when the conduct referred to in paragraph (a) occurs;
(iii) the conduct referred to in paragraph (a) occurs wholly in Australia and both the third party and the child are in Australia when that conduct occurs.
Penalty: Imprisonment for 15 years.
(2)
Absolute liability applies to subparagraph (1)(c)(i) and paragraph (1)(d).
Note 1:
For absolute liability, see section 6.2.
Note 2:
For a defence based on belief about age, see section 272.16.
(3)
A person may be found guilty of an offence against subsection (1) even if it is impossible for the sexual activity referred to in that subsection to take place.
(4)
For the purposes of subsection (1), it does not matter that the third party or the child is a fictitious person represented to the person as a real person.
Offences involving sexual intercourse or other sexual activity with a child - belief that child at least 16
(1)
It is a defence to a prosecution for an offence against section 272.8 or 272.9 if the defendant proves that, at the time of the sexual intercourse or sexual activity, he or she believed that the child was at least 16.
Note:
A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.
Offences involving sexual intercourse or other sexual activity with young person - belief that young person at least 18
(2)
It is a defence to a prosecution for an offence against section 272.12 or 272.13 if the defendant proves that, at the time of the sexual intercourse or sexual activity, he or she believed that the young person was at least 18.
Note:
A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.
Procuring and "grooming" offences - belief that child at least 16
(3)
It is a defence to a prosecution for an offence against section 272.14, 272.15 or 272.15A if the defendant proves that, at the time the defendant engaged in the conduct constituting the offence, he or she believed that the child was at least 16.
Note:
A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.
Trier of fact may take into account whether belief reasonable
(4)
In determining whether the defendant had the belief mentioned in subsection (1), (2) or (3), the trier of fact may take into account whether the alleged belief was reasonable in the circumstances.
It is a defence to a prosecution for an offence against subsection 272.12(1) or 272.13(1) if the defendant proves that:
(a) at the time of the sexual intercourse or sexual activity, there existed between the defendant and the young person a marriage that was valid, or recognised as valid, under the law of:
(i) the place where the marriage was solemnised; or
(ii) the place where the sexual intercourse or sexual activity is alleged to have taken place; or
(iii) the place of the defendant's residence or domicile; and
(b) when the marriage was solemnised:
(i) the marriage was genuine; and
(ii) the young person had attained the age of 16 years.
Note 1:
A defendant bears a legal burden in relation to the matter in this section: see section 13.4.
Note 2:
Subsection 272.12(1) deals with engaging in sexual intercourse with a young person outside Australia. Subsection 272.13(1) deals with engaging in sexual activity (other than sexual intercourse) with a young person outside Australia. Both offences apply to defendants in a position of trust or authority in relation to the young person concerned.
A person commits an offence if:
(a) the person engages in conduct; and
(b) the person does so with the intention of benefiting from an offence against this Division; and
(c) the conduct is reasonably capable of resulting in the person benefiting from such an offence.
Penalty: Imprisonment for 25 years.
(2)
Subsection (1) applies:
(a) whether the conduct is engaged in within or outside Australia; and
(b) whether or not the person intends to benefit financially from an offence against this Division; and
(c) whether or not an offence against this Division is in fact committed.
(3)
Absolute liability applies to paragraph (1)(c).
Note:
For absolute liability, see section 6.2.
A person commits an offence if:
(a) the person engages in conduct; and
(b) the person does so with the intention of encouraging an offence against this Division (other than this section or section 272.20); and
(c) the conduct is reasonably capable of encouraging such an offence.
Penalty: Imprisonment for 25 years.
(2)
Subsection (1) applies:
(a) whether the conduct is engaged in within or outside Australia; and
(b) whether or not an offence against this Division is in fact committed.
(3)
Absolute liability applies to paragraph (1)(c).
Note:
For absolute liability, see section 6.2.
(4)
In this section, encourage means:
(a) encourage, incite to, or urge, by any means whatever, (including by a written, electronic or other form of communication); or
(b) aid, facilitate, or contribute to, in any way whatever.
Offences involving sexual intercourse or other sexual activity with child, and benefiting offence
(1)
A person commits an offence if:
(a) the person does an act; and
(b) the person does so with the intention of preparing for, or planning, an offence against section 272.8, 272.9, 272.10, 272.11 or 272.18.
Penalty: Imprisonment for 10 years.
Offences involving sexual intercourse or other sexual activity with young person
(2)
A person commits an offence if:
(a) the person does an act; and
(b) the person does so with the intention of preparing for, or planning, an offence against section 272.12 or 272.13.
Penalty: Imprisonment for 5 years.
(3)
Subsections (1) and (2) apply:
(a) whether the act is done within or outside Australia; and
(b) whether or not an offence against a provision referred to in paragraph (1)(b) or (2)(b) is in fact committed; and
(c) whether or not the act is done in preparation for, or planning, a specific offence against a provision referred to in paragraph (1)(b) or (2)(b); and
(d) whether or not the act is done in preparation for, or planning, more than one offence against a provision referred to in paragraph (1)(b) or (2)(b).
(Repealed by No 74 of 2013)
(Repealed by No 74 of 2013)
(Repealed by No 74 of 2013)
(Repealed by No 74 of 2013)
(Repealed by No 74 of 2013)
(Repealed by No 74 of 2013)
For the purposes of this Division, evidence that a person was represented to the defendant as being under or of a particular age is, in the absence of evidence to the contrary, proof that the defendant believed that person to be under or of that age.
(2)
In determining for the purposes of this Division 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.
(3)
Subsection (2) 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.
(4)
If, on a trial for an offence against this Division, evidence may be treated as admissible because of subsection (2), the court must warn the jury that it must be satisfied beyond reasonable doubt in determining the question.
If, on a trial for an offence (the column 1 offence ) against a provision referred to in column 1 of an item in the following table, the trier of fact:
(a) is not satisfied that the defendant is guilty of the column 1 offence; but
(b) is satisfied beyond reasonable doubt that he or she is guilty of an offence (the column 2 offence ) against a provision referred to in column 2 of that item;
it may find the defendant not guilty of the column 1 offence but guilty of the column 2 offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
| Alternative verdicts | ||
| Item | Column 1 | Column 2 |
| 1 | subsection 272.8(1) | subsection 272.9(1) |
| 2 | subsection 272.8(2) | subsection 272.9(2) |
| 3 | subsection 272.9(1) | subsection 272.8(1) |
| 4 | subsection 272.9(2) | subsection 272.8(2) |
| 5 | subsection 272.10(1) | subsection 272.8(1), 272.8(2), 272.9(1) or 272.9(2) |
| 6 | subsection 272.11(1) | subsection 272.8(1), 272.8(2), 272.9(1), 272.9(2) or 272.10(1) |
| 7 | subsection 272.12(1) | subsection 272.13(1) |
| 8 | subsection 272.12(2) | subsection 272.13(2) |
| 9 | subsection 272.13(1) | subsection 272.12(1) |
| 10 | subsection 272.13(2) | subsection 272.12(2) |
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.
In determining the sentence to be passed, or the order to be made, in respect of a person for an offence against Subdivision B of this Division, the court must take into account the following matters:
(a) the age and maturity of the person in relation to whom the offence was committed;
(b) if that person was under 10 when the offence was committed - that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates;
(c) the number of people involved in the commission of the offence.
(1A)
However, the court need only take into account a matter mentioned in subsection (1) so far as the matter is known to the court and, for a matter mentioned in paragraph (1)(a) or (c), relevant.
(2)
The matters mentioned in subsection (1) are in addition to any other matters the court must take into account (for example, the matters mentioned in section 16A of the Crimes Act 1914).
Proceedings for an offence against this Division must not be commenced without the consent of the Attorney-General if the defendant was under 18 at the time he or she allegedly engaged in the conduct constituting the offence.
(2)
However, a person may be arrested for, charged with, or remanded in custody or on bail in connection with, such an offence before the necessary consent has been given.
Subject to subsections (2) and (3), an expression used in this Division that is defined in Part 10.6 has the same meaning in this Division as it has in that Part.
Note:
One of those expressions is child abuse material .
(2)
A reference in this Division to a person having possession or control of material includes a reference to the person:
(a) having possession of a computer or data storage device that holds or contains the material; or
(b) having possession of a document in which the material is recorded; or
(c) having control of material held in a computer that is in the possession of another person (whether inside or outside Australia).
(3)
A reference in this Division to a person producing, distributing or obtaining material includes a reference to the person:
(a) producing, distributing or obtaining material held or contained in a computer or data storage device; or
(b) producing, distributing or obtaining a document in which the material is recorded.
(4)
Section 473.4 applies in relation to this Division as if the reference in that section to Part 10.6 were a reference to this Division.
Note:
Section 473.4 sets out matters that may be taken into account in deciding whether particular material is offensive.
A person must not be charged with an offence against this Division that the person allegedly committed outside Australia unless, at the time of the offence, the person was:
(a) an Australian citizen; or
(b) a resident of Australia; or
(c) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or
(d) any other body corporate that carries on its activities principally in Australia.
Proceedings for an offence against this Division must not be commenced without the consent of the Attorney-General if the defendant was under 18 at the time he or she allegedly engaged in the conduct constituting the offence.
(2)
However, a person may be arrested for, charged with, or remanded in custody or on bail in connection with, such an offence before the necessary consent has been given.
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.
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.
Note:
Division 279 (video link evidence) applies to a proceeding for an offence against this Division.
(Repealed by No 72 of 2019)
A person commits an offence if:
(a) the person:
(i) has possession or control of material; or
(ii) produces, distributes or obtains material; or
(iii) facilitates the production or distribution of material; and
(b) the material is child abuse material; and
(c) the conduct referred to in paragraph (a) occurs outside Australia.
Penalty: Imprisonment for 15 years.
(2)
Absolute liability applies to paragraph (1)(c).
Note:
For absolute liability, see section 6.2.
A person commits an offence against this section if:
(a) the person commits an offence against section 273.6 (possessing etc. child abuse material outside Australia) on 3 or more separate occasions; and
(b) the commission of each such offence involves 2 or more people.
Penalty: Imprisonment for 30 years.
(2)
There is no fault element for any of the physical elements described in paragraph (1)(a) other than the fault elements (however described), if any, for the offence against section 273.6.
(3)
To avoid doubt, a person does not commit an offence against section 273.6 for the purposes of paragraph (1)(a) if the person has a defence to that offence.
Offence or conduct need not be the same
(4)
For the purpose of subsection (1), it is immaterial whether the offence, or the conduct constituting the offence, is the same on each occasion.
Double jeopardy etc
(5)
A person who has been convicted or acquitted of an offence (the aggravated offence ) against this section may not be convicted of an offence against section 273.6 in relation to the conduct that constituted the aggravated offence.
(6)
Subsection (5) does not prevent an alternative verdict under section 273.8.
(7)
A person who has been convicted or acquitted of an offence (the underlying offence ) against section 273.6 may not be convicted of an offence against this section in relation to the conduct that constituted the underlying offence.
If, on a trial for an offence (the aggravated offence ) against subsection 273.7(1), the trier of fact:
(a) is not satisfied that the defendant is guilty of the aggravated offence; but
(b) is satisfied beyond reasonable doubt that he or she is guilty of an offence against section 273.6;
it may find the defendant not guilty of the aggravated offence but guilty of the offence against section 273.6, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
A person is not criminally responsible for an offence against section 273.6 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 theoffence, 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 Territory, or a foreign country; or (b) monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or Territory or a foreign country; or (c) the administration of justice (whether within or outside Australia); or (d) conducting scientific, medical or educational research.
(3)
Paragraph (2)(d) only applies if the person's conduct was, in all the circumstances, reasonable having regard to the purpose mentioned in that paragraph.
(4)
A person is not criminally responsible for an offence against section 273.6 if: (a) the person is, at the time of the offence:
(i) a law enforcement officer; or
(ii) an intelligence or security officer; or
(b) the person is acting in the course of his or her duties; and (c) the conduct of the person is reasonable in the circumstances for the purpose of performing that duty.
(iii) an officer or employee of the government of a foreign country performing similar duties to an intelligence or security officer; and
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 section 273.6 if the person engages in the conduct ingood faith for the sole purpose of: (a) assisting the eSafety Commissioner to perform the functions, or exercise the powers, conferred on the eSafety Commissioner by Part 9 of the Online Safety Act 2021; or (b) manufacturing or developing, or updating, content filtering technology (including software) in accordance with:
(i) an industry code registered under Division 7 of Part 9 of the Online Safety Act 2021; or
(ii) an industry standard registered under Division 7 of Part 9 of the Online Safety Act 2021.
Note:
A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
(Repealed by No 74 of 2013)
(Repealed by No 74 of 2013)
(Repealed by No 74 of 2013)
(Repealed by No 74 of 2013)
(Repealed by No 74 of 2013)
(Repealed by No 74 of 2013)
A person commits an offence if:
(a) the person possesses a doll or other object; and
(b) the doll or other object resembles:
(i) a person who is, or appears to be, under 18 years of age; or
(ii) a part of the body of such a person; and
(c) a reasonable person would consider it likely that the doll or other object is intended to be used by a person to simulate sexual intercourse.
Penalty: Imprisonment for 15 years.
A person is not criminally responsible for an offence against this Division 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 AFP Minister in writing for the purposes of this section.
(3)
A person is not criminally responsible for an offence against this Division 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 the officer's 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)
An expression used in this section that is defined in Part 10.6 has the same meaning in this section as it has in that Part.
Note:
These expressions include AFP Minister , intelligence or security officer and law enforcement officer .
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.
In this Division:
child sexual abuse offence
means:
(a) a Commonwealth child sex offence within the meaning of the Crimes Act 1914; or
(b) a State or Territory registrable child sex offence.
Commonwealth officer
means any of the following:
(a) a Minister;
(b) a Parliamentary Secretary;
(c) an individual who holds an appointment under section 67 of the Constitution;
(d) an APS employee;
(e) an individual employed by the Commonwealth otherwise than under the Public Service Act 1999;
(f) a member of the Australian Defence Force;
(g) a member or special member of the Australian Federal Police;
(h) an individual (other than an official of a registered industrial organisation) who holds or performs the duties of an office established by or under a law of the Commonwealth, other than:
(i) the Corporations (Aboriginal and Torres Strait Islander) Act 2006; or
(ii) the Australian Capital Territory (Self-Government) Act 1988; or
(iii) the Corporations Act 2001; or
(iv) the Northern Territory (Self-Government) Act 1978;
(i) an officer or employee of a Commonwealth authority;
(j) an individual who is:
(i) a contractor or subcontractor of the Commonwealth or a Commonwealth authority; or
(ii) an officer or employee of a contractor or subcontractor of the Commonwealth or a Commonwealth authority; or
(iii) assigned to work for the Commonwealth or a Commonwealth authority under a labour hire arrangement;
(k) an individual (other than an official of a registered industrial organisation) who exercises powers, or performs functions, conferred on the person by or under a law of the Commonwealth, other than:
(i) the Corporations (Aboriginal and Torres Strait Islander) Act 2006; or
(ii)the Australian Capital Territory (Self-Government) Act 1988; or
(iii) the Corporations Act 2001; or
(iv) the Northern Territory (Self-Government) Act 1978; or
(v) a provision specified in the regulations;
(l) an individual who exercises powers, or performs functions, conferred on the individual by or under a law in force in Norfolk Island, the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands (whether the law is a law of the Commonwealth or a law of the Territory concerned).
State or Territory registrable child sex offence
means an offence:
(a) that a person becomes, or may at any time have become, a person whose name is entered on a child protection offender register (however described) of a State or Territory for committing; and
(b) in respect of which:
(i) a person under 18 was a victim or an intended victim; or
(ii) the offending involved child abuse material.
Section 15.2 (extended geographical jurisdiction - category B) applies to each offence against this Division.
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.
Failing to protect child at risk of child sexual abuse offence
(1)
A person (the defendant ) commits an offence if:
(a) the defendant is a Commonwealth officer; and
(b) there is another person aged under 18 (the child ) under the defendant's care, supervision or authority, in the defendant's capacity as a Commonwealth officer; and
(c) the defendant knows there is a substantial risk that a person (the potential offender ) will engage in conduct in relation to the child; and
(d) such conduct, if engaged in, would constitute a child sexual abuse offence; and
(e) the defendant, because of the defendant's position as a Commonwealth officer, has the actual or effective responsibility to reduce or remove the risk mentioned in paragraph (c); and
(f) the defendant negligently fails to reduce or remove that risk.
Penalty: Imprisonment for 5 years.
Absolute liability
(2)
Absolute liability applies to paragraph (1)(d).
Note:
For absolute liability, see section 6.2.
Certain matters not required to be proved
(3)
Subsection (1) applies:
(a) whether or not the child can be identified as a specific person; and
(b) whether or not the potential offender can be identified as a specific person; and
(c) whether or not a child sexual abuse offence is or was actually committed in relation to the child.
Offence based on reasonable belief
(1)
A person (the defendant ) commits an offence if:
(a) the defendant is a Commonwealth officer; and
(b) there is another person aged under 18 (the child ) under the care or supervision of the defendant, in the defendant's capacity as a Commonwealth officer; and
(c) the defendant knows of information that would lead a reasonable person to believe that a person (the potential offender ):
(i) has engaged in conduct in relation to the child; or
(ii) will engage in conduct in relation to the child; and
(d) such conduct, if engaged in, would constitute a child sexual abuse offence; and
(e) the defendant fails to disclose the information, as soon as practicable after coming to know it, to:
(i) the police force or police service of a State or Territory; or
(ii) the Australian Federal Police.
Penalty: Imprisonment for 3 years.
Offence based on reasonable suspicion
(2)
A person (the defendant ) commits an offence if:
(a) the defendant is a Commonwealth officer; and
(b) there is another person aged under 18 (the child ) under the care or supervision of the defendant, in the defendant's capacity as a Commonwealth officer; and
(c) the defendant knows of information that would lead a reasonable person to suspect that a person (the potential offender ):
(i) has engaged in conduct in relation to the child; or
(ii) will engage in conduct in relation to the child; and
(d) such conduct, if engaged in, would constitute a child sexual abuse offence; and
(e) the defendant fails to disclose the information, as soon as practicable after coming to know it, to:
(i) the police force or police service of a State or Territory; or
(ii) the Australian Federal Police.
Penalty: Imprisonment for 2 years.
Absolute liability
(3)
Absolute liability applies to paragraphs (1)(d) and (2)(d).
Note:
For absolute liability, see section 6.2.
Defences
(4)
Subsection (1) or (2) does not apply if:
(a) the defendant reasonably believes that the information is already known:
(i) to the police force or police service of a State or Territory; or
(ii) to the Australian Federal Police; or
(iii) to a person or body to which disclosure of such information is required by a scheme established under, or for the purposes of, a law of a State or Territory, or of a foreign country (or part of a foreign country); or
(b) the defendant has disclosed the information to a person or body for the purposes of a scheme mentioned in subparagraph (a)(iii); or
(c) the defendant reasonably believes that the disclosure of the information would put at risk the safety of any person, other than the potential offender; or
(d) the information is in the public domain.
Note:
A defendant bears an evidential burden in relation to a matter in this subsection: see subsection 13.3(3).
(5)
An individual is not excused from failing to disclose information as mentioned in paragraph (1)(e) or (2)(e) on the ground that disclosing the information might tend to incriminate the individual or otherwise expose the individual to a penalty or other liability.
Note:
For the admissibility in evidence of such information if disclosed in the course of protected conduct, and any information obtained as an indirect consequence, see subsections 273B.9(10) and (11).
Certain matters not required to be proved
(6)
Subsection (1) or (2) applies:
(a) whether or not the child can be identified as a specific person; and
(b) whether or not any person actually believes or suspects the matter mentioned in paragraph (1)(c) or (2)(c); and
(c) whether or not the potential offender can be identified as a specific person; and
(d) whether or not a child sexual abuse offence is or was actually committed in relation to the child.
Alternative verdict
(7)
If, on a trial of a person for an offence against subsection (1), the trier of fact:
(a) is not satisfied that the person is guilty of the offence against that subsection; and
(b) is satisfied beyond reasonable doubt that the person is guilty of an offence against subsection (2);
it may find the person not guilty of the offence against subsection (1) but guilty of the offence against subsection (2).
(8)
Subsection (7) only applies if the person has been accorded procedural fairness in relation to the finding of guilt for the offence against subsection (2).
Proceedings for an offence against this Division must not be commenced without the consent of the Attorney-General.
(2)
However, a person may be arrested for, charged with, or remanded in custody or on bail in connection with, such an offence before the necessary consent has been given.
In determining for the purposes of this Division how old a person is or was at a particular time, the trier of fact may have regard to any of the following matters:
(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.
(2)
Subsection (1) does not make any other kind of evidence inadmissible, and does not affect a prosecutor's duty to do all the prosecutor can to adduce the best possible evidence for determining the question.
(3)
If, on a trial by jury for an offence against this Division, regard may be had to a matter because of subsection (1), the court must warn the jury that it must be satisfied beyond reasonable doubt in determining the question.
This Division applies to the exclusion of a law, or a provision of a law, of a State or Territory that has the effect of making a person liable to be prosecuted for an offence against any law for failing to:
(a) reduce or remove a risk of a child being subjected to conduct constituting a child sexual abuse offence; or
(b) disclose to a police force or a police service information relating to whether a person has engaged, or will engage, in conduct constituting a child sexual abuse offence;
to the extent that the law or provision would otherwise apply in relation to conduct in which the person engages in the person's capacity as a Commonwealth officer.
Scope
(1)
A person engages in protected conduct if the person:
(a) engages in conduct in avoidance, or purported avoidance, of liability for an offence against this Division; and
(b) the conduct is genuine and proportionate for that purpose.
(2)
This section does not apply to liability in any civil, criminal or administrative proceedings (including disciplinary proceedings) ( relevant proceedings ) for knowingly making a statement that is false or misleading.
(3)
Without limiting subsection (2), this section does not apply to liability for an offence against any of the following provisions:
(a) section 137.1 (false or misleading information);
(b) section 137.2 (false or misleading documents);
(c) section 144.1 (forgery);
(d) section 145.1 (using forged document).
(4)
This section does not prevent a person from being liable in any relevant proceedings for conduct of the person that is revealed by a disclosure of information.
Protection against liability for engaging in protected conduct
(5)
If a person engages in protected conduct:
(a) the person is not subject to any liability in relevant proceedings for engaging in the protected conduct; and
(b) no contractual or other remedy may be enforced, and no contractual or other right may be exercised, against the person on the basis of the protected conduct being engaged in; and
(c) the person is not to be considered to have breached any professional ethics in respect of the protected conduct.
(6)
Professional ethics includes the following (without limitation):
(a) rules of professional conduct;
(b) rules of professional etiquette;
(c) a code of ethics;
(d) standards of professional conduct.
(7)
Without limiting subsection (5):
(a) if the person engages in protected conduct by disclosing information, the person:
(i) has qualified privilege in proceedings for defamation relating to the disclosure; and
(ii) is not liable to an action for defamation at the suit of another person relating to the disclosure; and
(b) a contract to which the person is a party may not be terminated on the basis that the protected conduct constitutes a breach of the contract.
(8)
Paragraphs (5)(a) and (7)(a) do not affect any other right, privilege or immunity the person has as a defendant in proceedings, or an action, for defamation.
(9)
Without limiting paragraphs (5)(b) and (7)(b), if a court is satisfied that:
(a) a person (the employee ) is employed in a particular position under a contract of employment with another person (the employer ); and
(b) the employee engages in protected conduct; and
(c) the employer purports to terminate the contract of employment on the basis of the person engaging in protected conduct being engaged in;
the court may:
(d) order that the employee be reinstated in that position or a position at a comparable level; or
(e) order the employer to pay the employee an amount instead of reinstating the employee, if the court considers it appropriate to make the order.
Admissibility of evidence
(10)
If an individual engages in protected conduct by disclosing information, the information is not admissible in evidence against the individual in relation to liability in any relevant proceedings.
(11)
To avoid doubt, this section does not affect the admissibility of evidence in any relevant proceedings of any information obtained as an indirect consequence of a disclosure of information that constitutes protected conduct.
In this Division:
Convention
means the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted by the General Assembly of the United Nations at New York on 10 December 1984.
Note:
The text of the Convention is set out in Australian Treaty Series 1989 No 21 ([1989] ATS 21). In 2010, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
(2)
An expression that is used both in this Division and in the Convention (whether or not a particular meaning is given to it by the Convention) has, in this Division, the same meaning as it has in the Convention.
A person (the perpetrator ) commits an offence if the perpetrator:
(a) engages in conduct that inflicts severe physical or mental pain or suffering on a person (the victim ); and
(b) the conduct is engaged in:
(i) for the purpose of obtaining from the victim or from a third person information or a confession; or
(ii) for the purpose of punishing the victim for an act which the victim or a third person has committed or is suspected of having committed; or
(iii) for the purpose of intimidating or coercing the victim or a third person; or
(iv) for a purpose related to a purpose mentioned in subparagraph (i), (ii) or (iii); and
(c) the perpetrator engages in the conduct:
(i) in the capacity of a public official; or
(ii) acting in an official capacity; or
(iii) acting at the instigation, or with the consent or acquiescence, of a public official or other person acting in an official capacity.
Penalty: Imprisonment for 20 years.
(2)
A person (the perpetrator ) commits an offence if the perpetrator:
(a) engages in conduct that inflicts severe physical or mental pain or suffering on a person; and
(b) the conduct is engaged in for any reason based on discrimination of any kind; and
(c) the perpetrator engages in the conduct:
(i) in the capacity of a public official; or
(ii) acting in an official capacity; or
(iii) acting at the instigation, or with the consent or acquiescence, of a public official or other person acting in an official capacity.
Penalty: Imprisonment for 20 years.
(3)
Absolute liability applies to paragraphs (1)(c) and (2)(c).
Note:
For absolute liability, see section 6.2.
(4)
Subsections (1) and (2) do not apply to conduct arising only from, inherent in or incidental to lawful sanctions that are not inconsistent with the Articles of the International Covenant on Civil and Political Rights (a copy of the English text of which is set out in Schedule 2 to the Australian Human Rights Commission Act 1986).
(5)
Section 15.4 (extended geographical jurisdiction - category D) applies to an offence against subsection (1) or (2).
Proceedings for an offence against this Division, where the conduct constituting the alleged offence occurs wholly outside Australia, must not take place except with the consent in writing of the Attorney-General.
(2)
Even though a consent in accordance with subsection (1) has not been given in relation to an offence against this Division:
(a) a person may be arrested for the offence, and a warrant for the arrest of a person for the offence may be issued and executed; and
(b) a person may be charged with the offence; and
(c) a person so charged may be remanded in custody or on bail;
but no further step in proceedings referred to in subsection (1) is to be taken until such a consent has been given.
(3)
Subsection (2) does not prevent the discharge of the accused if proceedings are not continued within a reasonable time.
It is not a defence in a proceeding for an offence under this Division that:
(a) the conduct constituting the offence was done out of necessity arising from the existence of a state of war, a threat of war, internal political instability, a public emergency or any other exceptional circumstance; or
(b) in engaging in the conduct constituting the offence the accused acted under orders of a superior officer or public authority;
but the circumstances referred to in paragraphs (a) and (b) may, if the accused is convicted of the offence, be taken into account in determining the proper sentence.
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.
This Division is not intended to exclude or limit the concurrent operation of any other law of the Commonwealth or any law of a State or Territory.
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 under this Division in respect of that conduct.
This Division applies to a proceeding for an offence against any of the following Divisions of this Chapter:
(a) Division 270 (slavery and slavery-like offences);
(b) Division 271 (trafficking in persons);
(c) Division 272 (child sex offences outside Australia);
(d) Division 273 (offences involving child abuse material outside Australia);
(e) Division 273B (protection of children).
In a proceeding, the court may, on application by a party to the proceeding, direct that a witness give evidence by video link if:
(a) the witness will give the evidence from outside Australia; and
(b) the witness is not a defendant in the proceeding; and
(c) the facilities required by section 279.3 are available or can reasonably be made available; and
(d) the court is satisfied that attendance of the witness at the court to give the evidence would:
(i) cause unreasonable expense or inconvenience; or
(ii) cause the witness psychological harm or unreasonable distress; or
(iii) cause the witness to become so intimidated or distressed that his or her reliability as a witness would be significantly reduced; and
(e) the court is satisfied that it is consistent with the interests of justice that the evidence be taken by video link.
A witness can give evidence under a direction only if:
(a) the courtroom or other place in Australia where the court is sitting (the Australian location ); and
(b) the place where the evidence is given (the overseas location );
are equipped with video facilities that:
(c) enable appropriate persons at the Australian location to see and hear the witness give the evidence; and
(d) enable appropriate persons at the overseas location to see and hear appropriate persons at the Australian location.
(2)
In subsection (1):
appropriate persons
means such persons as the court considers appropriate.
A person who gives evidence under a direction is taken to give it at the courtroom or other place in Australia where the court is sitting.
Note:
This section has effect, for example, for the purposes of laws relating to evidence, procedure, contempt of court and perjury.
An oath or affirmation to be sworn or made by a witness who is to give evidence under a direction may be administered either:
(a) by means of the video link, in as nearly as practicable the same way as if the witness were to give the evidence at the courtroom or other place in Australia where the court is sitting; or
(b) as follows:
(i) on behalf of the court and as directed by it;
(ii) by a person (whether an Australian official or not) authorised by the court;
(iii) at the place where the witness is to give the evidence.
A court may make such orders as are just for payment of expenses incurred in connection with giving evidence under a direction by the court under this Division.
This Division does not prevent any other law about taking evidence of a witness outside Australia from applying for the purposes of a proceeding.
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 (the TINDAPS Convention ).
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 through that Department's website.
(2)
Subsection (1) does not limit the legislative powers of the Parliament in relation to this Part.
SECTION 300.2 300.2 Definitions
In this Part:
AFP Minister
means the Minister administering the Australian Federal Police Act 1979.
aggravated offence
has the meaning given by section 310.4.
(a) means a substance that is a border controlled drug within the meaning of subsection 301.4(1); and
(b) to avoid doubt, includes a substance that is, under subsection 301.4(2), (3) or 301.13(1A), taken, for the purposes of this Part, to be a border controlled drug only in relation to particular offences against this Part or particular elements of those offences.
(a) means a growing plant that is a border controlled plant within the meaning of subsection 301.5(1); and
(b) to avoid doubt, includes a growing plant that is, under subsection 301.5(2) or 301.13(1A), taken, for the purposes of this Part, to be a border controlled plant only in relation to particular offences against this Part or particular elements of those offences.
(a) means a substance that is a border controlled precursor within the meaning of subsection 301.6(1); and
(b) to avoid doubt, includes a substance that is, under subsection 301.6(1A), (1B) or 301.14(1A), taken, for the purposes of this Part, to be a border controlled precursor only in relation to particular offences against this Part or particular elements of those offences.
child
means an individual who is under 18 years of age.
commercial quantity
of a serious drug, controlled precursor or border controlled precursor has the meaning given by 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
has the meaning given by section 301.1.
controlled plant
has the meaning given by section 301.2.
controlled precursor
has the meaning given by section 301.3.
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.
determined
, in relation to a serious drug, controlled precursor or border controlled precursor, means:
(a) for a serious drug - determined by the AFP Minister under section 301.13; or
(b) for a precursor - determined by the AFP Minister under section 301.14.
drug analogue
has the meaning given by section 301.9.
export
includes take from Australia.
import
, in relation to a substance, means import the substance into Australia and includes:
(a) bring the substance into Australia; and
(b) deal with the substance in connection with its importation.
listed
, in relation to a serious drug, means:
(a) for a controlled drug - listed by a regulation made for the purposes of paragraph 301.1(a); or
(b) for a controlled plant - listed by a regulation made for the purposes of paragraph 301.2(a); or
(c) for a border controlled drug - listed by a regulation made for the purposes of paragraph 301.4(1)(a); or
(d) for a border controlled plant - listed by a regulation made for the purposes of paragraph 301.5(1)(a).
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
of a serious drug, controlled precursor or border controlled precursor has the meaning given by section 301.11.
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).
(a) barter or exchange;
(b) agree to sell.
serious drug
means one of the following:
(a) a controlled drug;
(b) a controlled plant;
(c) a border controlled drug;
(d) a border controlled plant.
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.
TINDAPS Convention
has the meaning given by section 300.1.
trafficable quantity
of a controlled drug, or a controlled plant, has the meaning given by section 301.12.
traffics
has the meaning given by section 302.1.
Section 15.2 (extended geographical jurisdiction - category B) applies to each offence against this Part.
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.
SECTION 300.5 300.5 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.
Note:
This section applies to a prosecution of an ancillary offence relating to this Part as well as to prosecution of a primary offence against this Part. This is because of:
Despite subsection 11.1(3), for the offence of attempting to commit an offence against this Part, recklessness is the fault element in relation to any of the following physical elements of the offence attempted:
(a) that a substance is a controlled drug (a physical element of an offence against Division 302 or 305 or section 308.1, 309.2, 309.3, 309.4, 309.7 or 309.8);
(b) that a plant is a controlled plant (a physical element of an offence against Division 303 or 304);
(c) that a substance is a controlled precursor (a physical element of an offence against Division 306 or section 308.2, 309.10 or 309.11);
(d) that a substance is a border controlled drug or border controlled plant (a physical element of an offence against Subdivision A, B or C of Division 307 or section 309.12 or 309.13);
(e) that a substance is a border controlled precursor (a physical element of an offence against Subdivision D of Division 307 or section 309.14 or 309.15).
Note:
Proof of intention, knowledge or recklessness will satisfy a fault element of recklessness: see subsection 5.4(4).
For the purposes of this Part, a controlled drug is a substance, other than a growing plant, that is:
(a) listed by a regulation as a controlled drug; or
(b) a drug analogue of a listed controlled drug; or
(c) determined by the AFP Minister as a controlled drug under section 301.13 (which deals with emergency determinations of serious drugs).
Note:
Some conditions must be satisfied before:
(2)
The purpose of subsection (1) is to permit certain substances that are covered by the TINDAPS Convention, or drug analogues of such substances, to be treated as controlled drugs for the purposes of this Part (see also section 300.1).
Note:
For the meaning of drug analogue , see section 301.9.
SECTION 301.2 Meaning of controlled plant (1)
For the purposes of this Part, a controlled plant is a growing plant that is:
(a) listed by a regulation as a controlled plant; or
(b) determined by the AFP Minister as a controlled plant under section 301.13 (which deals with emergency determinations of serious drugs).
Note:
Some conditions must be satisfied before:
(2)
The purpose of subsection (1) is to permit growing plants that are covered by the TINDAPS Convention to be treated as controlled plants for the purposes of this Part (see also section 300.1).
For the purposes of this Part, a controlled precursor is a substance (including a growing plant) that is:
(a) listed by a regulation as a controlled precursor; or
(b) a salt or ester of a controlled precursor that is so listed; or
(c) determined by the AFP Minister as a controlled precursor under section 301.14 (which deals with emergency determinations of serious drug precursors).
Note:
Some conditions must be satisfied before:
(2)
The purpose of subsection (1) is to permit certain substances that are covered by the TINDAPS Convention, or salts or esters of such substances, to be treated as controlled precursors for the purposes of this Part (see also section 300.1).
A border controlled drug is a substance, other than a growing plant, that is: (a) listed by a regulation as a border controlled drug; or (b) a drug analogue of a listed border controlled drug; or (c) determined by the AFP Minister as a border controlled drug under section 301.13 (which deals with emergency determinations of serious drugs).
Note 1:
Some conditions must be satisfied before:
Note 2:
For the meaning of drug analogue , see section 301.9.
(2)
However: (a) the regulations may provide that a listed border controlled drug is taken, for the purposes of this Part, to be a border controlled drug only in relation to particular offences against this Part, or particular elements of those offences; and (b) if the regulations so provide, then the listed border controlled drug is taken, for the purposes of this Part, to be a border controlled drug only in relation to those offences or elements.
(3)
To avoid doubt, if a listed border controlled drug is taken, for the purposes of this Part, to be a border controlled drug only in relation to particular offences against this Part, or particular elements of those offences, then a drug analogue of the listed border controlled drug is taken, for the purposes of this Part, to be a border controlled drug only in relation to those offences or elements.
SECTION 301.5 Meaning of border controlled plant (1)
A border controlled plant is a growing plant: (a) listed by a regulation as a border controlled plant; or (b) determined by the AFP Minister as a border controlled plant under section 301.13 (which deals with emergency determinations of serious drugs).
Note:
Some conditions must be satisfied before:
(2)
However: (a) the regulations may provide that a listed border controlled plant is taken, for the purposes of this Part, to be a border controlled plant only in relation to particular offences against this Part, or particular elements of those offences; and (b) if the regulations so provide, then the listed border controlled plant is taken, for the purposes of this Part, to be a border controlled plant only in relation to those offences or elements.
SECTION 301.6 Meaning of border controlled precursor (1)
A border controlled precursor is a substance (including a growing plant) that is: (a) listed by a regulation as a border controlled precursor; or (b) a salt or ester of a precursor that is so listed; or (c) an immediate precursor of a precursor that is so listed; or (d) determined by the AFP Minister as a border controlled precursor under section 301.14 (which deals with emergency determinations of serious drug precursors).
Note:
Some conditions must be satisfied before:
(1A)
However: (a) the regulations may provide that a listed border controlled precursor is taken, for the purposes of this Part, to be a border controlled precursor only in relation to particular offences against this Part, or particular elements of those offences; and
(1B)
To avoid doubt, if a listed border controlled precursor is taken, for the purposes of this Part, to be a border controlled precursor only in relation to particular offences against this Part, or particular elements of those offences, then a salt, ester or immediate precursor of the listed border controlled precursor is taken, for the purposes of this Part, to be a border controlled precursor only in relation to those offences or elements.
Definition of immediate precursor
(2)
In this section:
immediate precursor
of a precursor listed for the purposes of paragraph (1)(a) means a chemical or compound (other than another precursor that is so listed) that is an immediate precursor in the manufacture by a chemical process of the listed precursor.
Before a regulation is made listing a substance or plant as a serious drug for the purposes of this Part, the AFP Minister must be satisfied that:
(a) the substance or plant is likely to be taken without appropriate medical supervision; and
(b) one or more of the following conditions is met:
(i) taking the substance or plant would create a risk of death or serious harm;
(ii) taking the substance or plant would have a physical or mental effect substantially similar to that caused by taking a serious drug that is already listed;
(iii) the substance or plant has the capacity to cause physiological dependence;
(iv) possession or conduct in relation to the substance or plant is proscribed under a law of a State, a Territory or a foreign country that has purposes similar to those of this Part;
(v) the substance or plant poses a substantial risk to the health or safety of the public.
Before a regulation is made listing a substance as a controlled precursor or a border controlled precursor, the AFP Minister must be satisfied that there is a risk that the substance will be used to unlawfully manufacture a controlled drug (other than a determined controlled drug).
A substance is a drug analogue of a listed controlled drug, or a listed border controlled drug, if the substance is any of the following in relation to the listed drug (or in relation to a primary analogue of the listed drug), however the substance is obtained: (a) one of the following (a primary analogue ):
(i) a stereoisomer;
(ii) a structural isomer having the same constituent groups;
(iii) an alkaloid;
(b) (Repealed by No 15 of 2016) (c) 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 or atoms specified in subsection (2) with one or more of the other groups or atoms specified in that subsection;
(d) any other homologue, analogue, chemical derivative or substance substantially similar in chemical structure.
(iv) by the conversion of a carboxyl or an ester group into an amide group;
Note:
Some substances are taken, for the purposes of this Part, to be drug analogues only in relation to particular offences against this Part, or particular elements of those offences: see subsection 301.4(3).
(2)
The following groups and atoms are specified: (a) alkoxy, cyclic diether, acyl, acyloxy, mono-amino or dialkylamino groups with up to 6 carbon atoms in any alkyl residue; (b) 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; (c) halogen, hydroxy, nitro or amino groups; (d) hydrogen atoms.
(3)
However: (a) a drug analogue of a listed controlled drug does not include a substance that is itself a listed controlled drug; and (b) a drug analogue of a listed border controlled drug does not include a substance that is itself a listed border controlled drug.
(4)
In this section:
addition
has its ordinary meaning.
replacement
has its ordinary meaning.
For the purposes of this Part, a commercial quantity of a serious drug, controlled precursor or border controlled precursor is a quantity not less than that provided by the following table:
| Commercial quantities of serious drugs and precursors | ||
| Item | Serious drug or precursor | Commercial quantity (minimum) |
| 1 | A serious drug (other than a drug analogue), controlled precursor or border controlled precursor | Either:
(a) the quantity listed as a commercial quantity of the drug or precursor in a regulation made for the purposes of this section; or (b) the quantity determined as a commercial quantity of the drug or precursor by the AFP Minister under section 301.15 (which deals with emergency determinations of quantities). |
| 2 | A drug analogue of 1 or more listed controlled drugs | Either:
(a) for a drug analogue of a single listed controlled drug - the commercial quantity of the listed drug; or (b) for a drug analogue of 2 or more listed controlled drugs - the smallest commercial quantity of any of the listed drugs. |
| 3 | A drug analogue of 1 or more listed border controlled drugs | Either:
(a) for a drug analogue of a single listed border controlled drug - the commercial quantity of the listed drug; or (b) for a drug analogue of 2 or more listed border controlled drugs - the smallest commercial quantity of any of the listed drugs. |
Note:
A drug analogue of a listed controlled drug, or a listed border controlled drug, is itself a controlled drug or border controlled drug (see paragraphs 301.1(b) and 301.4(1)(b), and the definition of drug analogue in section 301.9).
For the purposes of this Part, a marketable quantity of a serious drug, controlled precursor or border controlled precursor is a quantity not less than that provided by the following table:
| Marketable quantities of serious drugs and precursors | ||
| Item | Serious drug or precursor | Marketable quantity (minimum) |
| 1 | A serious drug (other than a drug analogue), controlled precursor or border controlled precursor | Either:
(a) the quantity listed as a marketable quantity of the drug or precursor in a regulation made for the purposes of this section; or (b) the quantity determined as a marketable quantity of the drug or precursor by the AFP Minister under section 301.15 (which deals with emergency determinations of quantities). |
| 2 | A drug analogue of 1 or more listed controlled drugs | Either:
(a) for a drug analogue of a single listed controlled drug - the marketable quantity of the listed drug; or (b) for a drug analogue of 2 or more listed controlled drugs - the smallest marketable quantity of any of the listed drugs. |
| 3 | A drug analogue of 1 or more listed border controlled drugs | Either:
(a) for a drug analogue of a single listed border controlled drug - the marketable quantity of the listed drug; or (b) for a drug analogue of 2 or more listed border controlled drugs - the smallest marketable quantity of any of the listed drugs. |
Note:
A drug analogue of a listed controlled drug, or a listed border controlled drug, is itself a controlled drug or border controlled drug (see paragraphs 301.1(b) and 301.4(1)(b), and the definition of drug analogue in section 301.9).
For the purposes of this Part, a trafficable quantity of a controlled drug or a controlled plant is a quantity not less than that provided by the following table:
| Trafficable quantities of controlled drugs and plants | ||
| Item | Controlled drug or plant | Trafficable quantity (minimum) |
| 1 | A controlled drug (other than a drug analogue) or a controlled plant | Either:
(a) the quantity listed as a trafficable quantity of the drug or plant in a regulation made for the purposes of this section; or (b) the quantity determined as a trafficable quantity of the drug or plant by the AFP Minister under section 301.15 (which deals with emergency determinations of quantities). |
| 2 | A drug analogue of 1 or more listed controlled drugs | Either:
(a) for a drug analogue of a single listed controlled drug - the trafficable quantity of the listed drug; or (b) for a drug analogue of 2 or more listed controlled drugs - the smallest trafficable quantity of any of the listed drugs. |
Note:
A drug analogue of a listed controlled drug is itself a controlled drug (see paragraph 301.1(b) and the definition of drug analogue in section 301.9).
The AFP Minister may, by legislative instrument, determine that: (a) a substance, other than a growing plant, is a controlled drug or a border controlled drug; or (b) a growing plant is a controlled plant or a border controlled plant.
(1A)
However: (a) a determination made under subsection (1) may provide that:
(i) a determined border controlled drug is taken, for the purposes of this Part, to be a border controlled drug; or
only in relation to particular offences against this Part, or particular elements of those offences; and (b) if such a determination so provides, then:
(ii) a determined border controlled plant is taken, for the purposes of this Part, to be a border controlled plant;
(i) the determined border controlled drug is taken, for the purposes of this Part, to be a border controlled drug; or
only in relation to those offences or elements.
(ii) the determined border controlled plant is taken, for the purposes of this Part, to be a border controlled plant;
Conditions on making a determination
(2)
The AFP Minister must not make a determination under subsection (1) unless he or she is satisfied: (a) that there is an imminent and substantial risk that the substance or plant will be taken without appropriate medical supervision; and (b) one or more of the following conditions is met:
(i) taking the substance or plant may create a risk of death or serious harm;
(ii) taking the substance or plant may have a physical or mental effect substantially similar to that caused by taking a listed serious drug;
(iii) there is limited or no known lawful use of the substance or plant in Australia, and the substance or plant has been found by a public official in the course of the performance of the official's duties;
(3)
The AFP Minister must not make more than one determination under this section in relation to a particular substance or plant.
The AFP Minister may, by legislative instrument, determine that a substance (including a growing plant) is a controlled precursor or a border controlled precursor.
(1A)
However: (a) a determination made under subsection (1) may provide that a determined border controlled precursor is taken, for the purposes of this Part, to be a border controlled precursor only in relation to particular offences against this Part, or particular elements of those offences; and (b) if such a determination so provides, then the determined border controlled precursor is taken, for the purposes of this Part, to be a border controlled precursor only in relation to those offences or elements.
Conditions on making a determination
(2)
The AFP 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 used to unlawfully manufacture a controlled drug.
(3)
The AFP Minister must not make more than one determination under this section in relation to a particular substance or plant.
The AFP Minister may, by legislative instrument, determine:
(a) a quantity of a serious drug as a commercial or marketable quantity of the drug; or
(b) a quantity of a controlled drug or a controlled plant as a trafficable quantity of the drug or plant; or
(c) a quantity of a controlled precursor or a border controlled precursor as a commercial or marketable quantity of the precursor.
(2)
However, the AFP Minister may only make a determination of a commercial, marketable or trafficable quantity of a serious drug, controlled precursor or border controlled precursor under subsection (1) if there is no regulation currently in force listing such a quantity of the drug or precursor.
Note:
The definitions of commercial quantity , marketable quantity and trafficable quantity in Subdivision B allow for regulations to list such quantities of serious drugs and precursors.
A determination under this Subdivision in relation to a substance (including a growing plant) or a quantity of such a substance has effect:
(a) from the time the determination is registered (within the meaning of the Legislation Act 2003); and
(b) for the period of 12 months from that registration, or such shorter period as is specified in the determination, as extended (if at all) under subsection (2).
(2)
If exceptional circumstances prevent the listing (by regulation) of the substance or quantity, to the same effect, the AFP Minister may, by legislative instrument, extend the period during which the determination is in force by a further period or periods.
(3)
The AFP Minister must not extend the period under subsection (2) with the effect that the determination would stay in force for longer than 18 months after the time the determination is registered (within the meaning of the Legislation Act 2003).
(4)
A determination made under this Subdivision has no effect to the extent that it is inconsistent with a regulation made for the purposes of Subdivision A.
The AFP Minister must, on or before the day on which a determination under this Subdivision is registered (within the meaning of the Legislation Act 2003):
(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.
(2)
An announcement made under subsection (1) is not a legislative instrument.
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.
SECTION 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).
SECTION 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).
SECTION 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.
SECTION 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)).
SECTION 302.6 302.6 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 11.2A; 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)).
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.
SECTION 303.2 303.2 Meaning of product of a plant
For the purposes of this Part, theproduct 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.
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.
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).
SECTION 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).
SECTION 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.
SECTION 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
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).
SECTION 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).
SECTION 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
For the purposes of this Part, manufacture means:
(a) any process by which a substance is produced (other than the cultivation of a plant), and includes the following:
(i) the process of extracting or refining a substance;
(ii) the process of transforming a substance into a different substance; or
(b) any process by which a substance is converted from one form to another, including the process of extracting or refining a 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.
SECTION 305.2 305.2 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.
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).
SECTION 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:
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).
SECTION 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:
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.
SECTION 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 tohave 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
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.
A person commits an offence if:
(a) the person pre-traffics ina substance; and
(b) the substance is a controlled precursor; and
(c) the quantity pre-trafficked is a commercial quantity.
Penalty:
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).
SECTION 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:
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).
SECTION 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 acontrolled precursor.
Penalty:
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.
SECTION 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).
SECTION 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 (3) (see section 13.4).
SECTION 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).
SECTION 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
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 quantityimported 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).
SECTION 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).
SECTION 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 13.4).
SECTION 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, other than a determined border controlled drug or a determined 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
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).
SECTION 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).
SECTION 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, other than a determined border controlled drug or a determined 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
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 liabilty 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).
SECTION 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).
SECTION 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, other than a determined border controlled drug or a determined 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
A person commits an offence if:
(a) the person imports or exports a substance; and
(b) (Repealed by No 153 of 2015)
(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).
SECTION 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) (Repealed by No 153 of 2015)
(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)
(Repealed by No 153 of 2015)
A person commits an offence if:
(a) the person imports or exports a substance; and
(b) (Repealed by No 153 of 2015)
(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)
(Repealed by No 153 of 2015)
(Repealed by No 153 of 2015)
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, other than a determined controlled drug.
(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.
SECTION 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).
SECTION 308.3 308.3 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.
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
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).
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.
SECTION 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).