Crimes Legislation Amendment (Serious and Organised Crime) Act (No. 2) 2010 (4 of 2010)

Schedule 4 Criminal organisation and association offences

Criminal Code Act 1995

1 At the end of Chapter 9 of the Criminal Code

Add:

Part 9.9 - Criminal associations and organisations

Division 390 - Criminal associations and organisations

Subdivision A - Definitions

390.1 Definitions

(1) In this Division:

ancillary offence , in relation to a State offence (the primary offence ), means:

(a) a State offence of conspiring to commit the primary offence; or

(b) a State offence of aiding, abetting, counselling or procuring, or being in any way knowingly concerned in, the commission of the primary offence; or

associate means meet or communicate (by electronic communication or otherwise).

Australian offence means an offence against a law of the Commonwealth, a State or a Territory.

child : without limiting who is a child of a person for the purposes of this Division, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

close 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

(d) a brother, sister, stepbrother or stepsister of the person; or

(e) a guardian or carer of the person.

Commonwealth place has the same meaning as in the Commonwealth Places (Application of Laws) Act 1970.

constitutionally covered offence punishable by imprisonment for at least 12 months means:

(a) any of the following offences that is punishable on conviction by imprisonment for at least 12 months or for life:

(i) an offence against a law of the Commonwealth;

(ii) a State offence that has a federal aspect;

(iii) an offence against a law of a Territory; or

(b) a foreign offence that is constituted by conduct that, if engaged in in Australia, would constitute an Australian offence punishable on conviction by imprisonment for at least 12 months or for life.

constitutionally covered offence punishable by imprisonment for at least 3 years means:

(a) any of the following offences that is punishable on conviction by imprisonment for at least 3 years or for life:

(i) an offence against a law of the Commonwealth;

(ii) a State offence that has a federal aspect;

(iii) an offence against a law of a Territory; or

de facto partner has the meaning given by the Acts Interpretation Act 1901.

electronic communication means a communication of information:

(a) whether in the form of text; or

(b) whether in the form of data; or

(d) whether in the form of visual images (animated or otherwise); or

(e) whether in any other form; or

(f) whether in any combination of forms;

by means of guided and/or unguided electromagnetic energy.

federal aspect has the meaning given by section 390.2.

foreign offence means an offence against a law of a foreign country or part of a foreign country.

for the benefit of : an offence against any law is, or would if committed be, for the benefit of an organisation if the offence results or is likely to result in:

(a) the organisation receiving directly or indirectly a significant benefit of any kind; or

(b) at least one member of the organisation receiving (in his or her capacity as such a member) directly or indirectly a significant benefit of any kind.

offence against any law means an Australian offence or a foreign offence.

offence against any law punishable by imprisonment for at least 3 years means:

(a) an Australian offence punishable on conviction by imprisonment for at least 3 years or for life; or

(b) a foreign offence punishable on conviction (however described) by imprisonment for at least 3 years or for life or by death.

parent : without limiting who is a parent of a person for the purposes of this Division, someone is the parent of a person if the person is his or her child because of the definition of child in this subsection.

State offence means an offence against a law of a State.

stepchild : without limiting who is a stepchild of a person for the purposes of this Division, someone is the stepchild of a person if he or she would be the person's stepchild except that the person is not legally married to the person's de facto partner.

step-parent : without limiting who is a step-parent of a person for the purposes of this Division, someone who is a de facto partner of a parent of the person is the step-parent of the person, if he or she would be the person's step-parent except that he or she is not legally married to the person's parent.

(2) For the purposes of the definition of close family member in subsection (1), if one person is the child of another person because of the definition of child in that subsection, relationships traced to or through the person are to be determined on the basis that the person is the child of the other person.

(3) To avoid doubt:

(a) a reference in this Division to an organisation is a reference to an organisation however it is organised; and

(b) a reference in this Division to a person includes a reference to a person outside Australia.

390.2 State offences that have a federal aspect

Object

(1) The object of this section is to identify State offences that have a federal aspect because:

(a) they potentially fall within Commonwealth legislative power because of the elements of the State offence; or

(b) they potentially fall within Commonwealth legislative power because of the circumstances in which the State offence is committed (whether or not those circumstances are expressed to be acts or omissions involved in committing the offence).

State offences that have a federal aspect

(2) For the purposes of this Act, a State offence has a federal aspect if, and only if:

(a) both:

(i) the State offence is not an ancillary offence; and

(ii) assuming that the provision creating the State offence had been enacted by the Parliament of the Commonwealth instead of by the Parliament of the State - the provision would have been a valid law of the Commonwealth; or

(b) both:

(i) the State offence is an ancillary offence that relates to a particular primary offence; and

(ii) assuming that the provision creating the primary offence had been enacted by the Parliament of the Commonwealth instead of by the Parliament of the State - the provision would have been a valid law of the Commonwealth; or

(c) assuming that the Parliament of the Commonwealth had enacted a provision that created an offence penalising the specific acts or omissions involved in committing the State offence - that provision would have been a valid law of the Commonwealth.

Specificity of acts or omissions

(3) For the purposes of paragraph (2)(c), the specificity of the acts or omissions involved in committing a State offence is to be determined having regard to the circumstances in which the offence is committed (whether or not those circumstances are expressed to be elements of the offence).

State offences covered by paragraph (2)(c)

(4) A State offence is taken to be covered by paragraph (2)(c) if the conduct constituting the State offence:

(a) affects the interests of:

(i) the Commonwealth; or

(ii) an authority of the Commonwealth; or

(iii) a constitutional corporation; or

(b) was engaged in by a constitutional corporation; or

(d) involved the use of a postal service or other like service; or

(e) involved an electronic communication; or

(f) involved 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

(g) involved:

(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

(h) relates to a matter outside Australia; or

(i) relates to a matter in respect of which an international agreement to which Australia is a party imposes obligations to which effect could be given by the creation of an offence against the domestic laws of the parties to the agreement; or

(j) relates to a matter that affects the relations between Australia and another country or countries or is otherwise a subject of international concern.

(5) Subsection (4) does not limit paragraph (2)(c).

Subdivision B - Offences

390.3 Associating in support of serious organised criminal activity

(1) A person (the first person ) commits an offence if:

(a) the first person associates on 2 or more occasions with another person (the second person ); and

(b) the second person engages, or proposes to engage, in conduct (the second person's conduct ) that constitutes, or is part of conduct constituting, an offence against any law; and

(c) the associations facilitate the engagement or proposed engagement by the second person in the second person's conduct; and

(d) the offence against any law mentioned in paragraph (b) involves 2 or more persons; and

(e) the offence against any law mentioned in paragraph (b) is a constitutionally covered offence punishable by imprisonment for at least 3 years.

Penalty: Imprisonment for 3 years.

Repeat offence

(2) A person (the first person ) commits an offence if:

(a) the first person has previously been convicted of an offence against subsection (1); and

(b) the first person associates with another person (the second person ); and

(c) the second person engages, or proposes to engage, in conduct (the second person's conduct ) that constitutes, or is part of conduct constituting, an offence against any law; and

(d) the association facilitates the engagement or proposed engagement by the second person in the second person's conduct; and

(e) the offence against any law mentioned in paragraph (c) involves 2 or more persons; and

(f) the offence against any law mentioned in paragraph (c) is a constitutionally covered offence punishable by imprisonment for at least 3 years.

Penalty: Imprisonment for 3 years.

Knowledge fault element for paragraphs (1)(b) and (2)(c)

(3) The fault element for paragraphs (1)(b) and (2)(c) is knowledge (by the first person).

Intention fault element for paragraphs (1)(c) and (2)(d)

(3A) The fault element for paragraphs (1)(c) and (2)(d) is intention (by the first person).

Absolute liability

(4) Absolute liability applies to paragraphs (1)(e) and (2)(f).

Note: For absolute liability, see section 6.2.

Prosecution need not prove identity of certain persons

(5) In a prosecution for an offence against subsection (1) or (2), it is not necessary to prove the identity of any of the persons mentioned in paragraph (1)(d) or (2)(e).

Defence for certain kinds of associations

(6) This section does not apply to an association 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

(d) the association is only for the purpose of providing legal advice or legal representation in connection with judicial or administrative proceedings under a law of the Commonwealth, a State, a Territory or a foreign country; or

(e) the association is reasonable in the circumstances.

Note: A defendant bears an evidential burden in relation to the matters in subsection (6). See subsection 13.3(3).

(6A) Paragraphs (6)(a), (b), (c), (d) and (e) do not limit one another.

Other limits on this section

(7) A person who is convicted of an offence against subsection (1) or (2) in relation to the person's conduct on 2 or more occasions is not liable to be punished for an offence against subsection (1) or (2) 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.

(8) This section does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication.

390.4 Supporting a criminal organisation

(1) A person commits an offence if:

(a) the person provides material support or resources to an organisation or a member of an organisation; and

(b) either:

(i) the provision of the support or resources aids; or

(ii) there is a risk that the provision of the support or resources will aid;

the organisation to engage in conduct constituting an offence against any law; and

(d) the organisation's aims or activities include facilitating the engagement in conduct, or engaging in conduct, constituting an offence against any law that is, or would if committed be, for the benefit of the organisation; and

(e) the offence against any law mentioned in paragraph (d) is an offence against any law punishable by imprisonment for at least 3 years; and

(f) the offence against any law mentioned in paragraph (b) is a constitutionally covered offence punishable by imprisonment for at least 12 months.

Penalty: Imprisonment for 5 years.

(2) Absolute liability applies to paragraphs (1)(e) and (f).

Note: For absolute liability, see section 6.2.

(3) To avoid doubt, a person may be convicted of an offence against subsection (1) because of a risk that the provision of the support or resources will aid the organisation as described in paragraph (1)(b) even if the provision of the support or resources does not actually aid the organisation in that way.

390.5 Committing an offence for the benefit of, or at the direction of, a criminal organisation

Offence committed for the benefit of an organisation

(1) A person commits an offence if:

(a) the person commits an offence against any law (the underlying offence ); and

(b) the underlying offence is for the benefit of an organisation; and

(e) the offence against any law mentioned in paragraph (d) is an offence against any law punishable by imprisonment for at least 3 years; and

(f) the underlying offence is a constitutionally covered offence punishable by imprisonment for at least 12 months.

Penalty: Imprisonment for 7 years.

Offence committed at the direction of an organisation

(2) A person commits an offence if:

(a) the person commits an offence against any law (the underlying offence ); and

(b) the person engaged in the conduct constituting the underlying offence at the direction of an organisation or of a member of an organisation; and

(e) the offence against any law mentioned in paragraph (d) is an offence against any law punishable by imprisonment for at least 3 years; and

(f) the underlying offence is a constitutionally covered offence punishable by imprisonment for at least 12 months.

Penalty: Imprisonment for 7 years.

Fault elements

(3) There is no fault element for the physical elements described in paragraphs (1)(a) and (2)(a) other than the fault elements (however described), if any, for the underlying offence.

Absolute liability

(4) Absolute liability applies to paragraphs (1)(e) and (f) and (2)(e) and (f).

Note: For absolute liability, see section 6.2.

Avoiding multiplicity of proceedings and punishments

(5) To avoid doubt, the person may be convicted of an offence against subsection (1) or (2) even if the person has not:

(a) been convicted of the underlying offence; or

(b) been the subject of an order under section 19B (Discharge of offenders without proceeding to conviction) of the Crimes Act 1914, or a corresponding law of a State, Territory or foreign country, relating to the underlying offence.

(6) If a person has been convicted or acquitted of a foreign offence in respect of conduct, the person cannot be convicted of an offence against this section in respect of that conduct.

Note: If the underlying offence is an Australian offence, section 4C of the Crimes Act 1914 prevents the person from being punished twice under Australian law (once under this section and once under the Commonwealth, State or Territory law creating the underlying offence) for the act or omission constituting the underlying offence.

Likely benefits

(7) To avoid doubt, the person may be convicted of an offence against subsection (1) because the underlying offence is likely to result in the organisation or at least one member receiving benefits as described in the definition of for the benefit of in subsection 390.1(1), even if the organisation or member does not actually receive such a benefit.

390.6 Directing activities of a criminal organisation

(1) A person commits an offence if:

(a) the person directs one or more activities of an organisation; and

(b) either:

(i) the activity or activities directed aid; or

(ii) there is a risk that the activity or activities directed will aid;

the organisation to engage in conduct constituting an offence against any law; and

(e) the offence against any law mentioned in paragraph (d) is an offence against any law punishable by imprisonment for at least 3 years; and

(f) the offence against any law mentioned in paragraph (b) is a constitutionally covered offence punishable by imprisonment for at least 12 months.

Penalty: Imprisonment for 10 years.

(2) A person commits an offence if:

(a) the person directs one or more activities of an organisation; and

(b) the activity or activities directed constitute an offence against any law; and

(e) the offence against any law mentioned in paragraph (d) is an offence against any law punishable by imprisonment for at least 3 years; and

(f) the offence against any law mentioned in paragraph (b) is a constitutionally covered offence punishable by imprisonment for at least 12 months.

Penalty: Imprisonment for 15 years.

(3) Absolute liability applies to paragraphs (1)(e) and (f) and (2)(e) and (f).

Note: For absolute liability, see section 6.2.

(4) To avoid doubt, the person may be convicted of an offence against subsection (1) because of a risk that the activity or activities directed will aid the organisation as described in paragraph (1)(b) even if the activity or activities do not actually aid the organisation in that way.

390.7 Extended geographical jurisdiction - category C

Section 15.3 (extended geographical jurisdiction - category C) applies to an offence against this Division.

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