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Defence Force Discipline Act 1982
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Administered by
Department of Defence
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C2022C00344 C35
13 December 2022
-
27 November 2023
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Part I—Preliminary
1 Short title
2 Commencement
3 Interpretation
3A Character of service offences
4 Declaration of active service for disciplinary purposes
5 Commanding officers for disciplinary purposes
5A Appointment of superior authority
6 Further provision with respect to certain members of the Defence Force
7 Prisoners of war
8 Extension to external Territories
9 Extra territorial operation of Act
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Part IA—Disciplinary infringements
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Division 1—Introduction
9A Simplified outline of this Part
9B Object of this Part
Division 2—Key provisions
9C Election to be dealt with under the infringement scheme
9CA Prescribed defence member
Division 3—Disciplinary infringement provisions
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Subdivision A—Key concepts
9D When a disciplinary infringement is committed
Subdivision B—Minor disciplinary infringement provisions
9DA Disciplinary infringement provision—absent from duty
9DB Disciplinary infringement provision—absent without leave not exceeding 3 hours
9DC Disciplinary infringement provision—disobeying a lawful command
9DD Disciplinary infringement provision—failing to comply with a general order
9DE Disciplinary infringement provision—member on guard or on watch
9DF Disciplinary infringement provision—failure to perform duty or carry out activity
9DG Disciplinary infringement provision—prejudicial conduct
Subdivision C—Disciplinary infringement provisions only within jurisdiction of senior discipline officers
9DH Disciplinary infringement provision—absent without leave not exceeding 24 hours
9DI Disciplinary infringement provision—insubordinate conduct
9DJ Disciplinary infringement provision—creating a disturbance etc.
9DK Disciplinary infringement provision—insulting or provocative words
9DL Disciplinary infringement provision—unauthorised discharge of weapon
9DM Disciplinary infringement provision—negligent discharge of weapon
9DN Disciplinary infringement provision—intoxicated while on duty etc.
9DO Disciplinary infringement provision—driving a service vehicle for unauthorised purpose
9DP Disciplinary infringement provision—driving without due care or attention etc.
Division 4—Election to be dealt with under the infringement scheme
9E Infringement officer may give infringement notice
9EA Election may be withdrawn
9EB Member is taken to have admitted the infringement only for the purpose of being dealt with under the infringement scheme
9EC Consequence of no election or withdrawing election
Division 5—Dealing with disciplinary infringements
9F Jurisdiction to deal with a disciplinary infringement
9FA Procedure in dealing with disciplinary infringements
9FB Decisions that may be made by discipline officers or senior discipline officers in dealing with disciplinary infringements
9FC Commencement of punishments
Division 6—Command review of decisions of senior discipline officers
9G Command review of decisions of senior discipline officers
Division 7—Discipline officers, senior discipline officers and infringement officers
9H Appointment of discipline officers and senior discipline officers
9HA Appointment of infringement officers
Division 8—Miscellaneous
9J Consequences of punishments
9JA Monthly report by discipline officers and senior discipline officers
9JB Records relating to disciplinary infringements
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Part II—Criminal liability
10 Application of the Criminal Code
11 Recklessness and negligence in relation to a member of the Defence Force
14 Act or omission in execution of law etc.
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Part III—Offences
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Division 1—Offences relating to operations against the enemy
15 Abandoning or surrendering a post etc.
15A Causing the capture or destruction of a service ship, aircraft or vehicle
15B Aiding the enemy while captured
15C Providing the enemy with material assistance
15D Harbouring enemies
15E Offences relating to signals and messages
15F Failing to carry out orders
15G Imperilling the success of operations
16 Communicating with the enemy
16A Failing to report information received from the enemy
16B Offence committed with intent to assist the enemy
17 Leaving a post, abandoning equipment or otherwise failing to perform duty
18 Endangering morale
19 Conduct after capture by the enemy
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Division 2—Mutiny, desertion and unauthorised absence
20 Mutiny
21 Failing to suppress mutiny
22 Desertion
23 Absence from duty
24 Absence without leave
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Division 3—Insubordination and violence
25 Assaulting a superior officer
26 Insubordinate conduct
27 Disobeying a lawful command
28 Failing to comply with a direction in relation to a ship, aircraft or vehicle
29 Failing to comply with a general order
30 Assaulting a guard
31 Obstructing a police member
32 Person on guard or on watch
33 Assault, insulting or provocative words etc.
33A Assault occasioning actual bodily harm
34 Assaulting a subordinate
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Division 4—Offences relating to performance of duty
35 Negligence in performance of a duty
35A Failure to perform duty or carry out activity
36 Dangerous conduct
36A Unauthorised discharge of weapon
36B Negligent discharge of weapon
37 Intoxicated while on duty etc.
38 Malingering
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Division 5—Offences relating to ships, vehicles, aircraft and weapons
39 Loss of, or hazard to, service ship
40 Driving while intoxicated
40A Dangerous driving
40C Driving a service vehicle for unauthorised purpose
40D Driving without due care or attention etc.
41 Low flying
42 Inaccurate certification in relation to ships, aircraft, vehicles etc.
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Division 5A—Property offences
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Subdivision A—Service property offences
43 Destroying or damaging service property
44 Losing service property
45 Unlawful possession of service property
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Subdivision B—Possession of property suspected of having been unlawfully obtained
46 Possession of property suspected of having been unlawfully obtained
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Subdivision C—Fraudulent conduct
47 When property belongs to a person
47A Dishonesty
47B Determination of dishonesty to be a matter for the trier of fact
47C Theft
47D Special rules about the meaning of dishonesty
47E Appropriation of property
47F Theft of land or things forming part of land
47G Trust property
47H Obligation to deal with property in a particular way
47J Property obtained because of fundamental mistake
47K Property of a corporation sole
47L Property belonging to 2 or more persons
47M Intention of permanently depriving a person of property
47N General deficiency
47P Receiving
47Q Unauthorised use of Commonwealth credit card
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Subdivision D—Looting
48 Looting
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Division 5B—Cyber bullying offences
48A Cyber bullying
48B Failure to comply with removal order
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Division 6—Arrest, custody and proceedings before service tribunals
49 Refusing to submit to arrest
49A Assault against arresting person
50 Delaying or denying justice
51 Escaping from custody
52 Giving false evidence
53 Contempt of service tribunal
54 Unlawful release etc. of person in custody
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Division 6A—Custodial offences
54A Custodial offences
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Division 7—Miscellaneous offences
55 Falsifying service documents
56 False statement in relation to application for a benefit
56A Failure to comply with requirement to notify change in circumstances
57 False statement in relation to appointment or enlistment
58 Unauthorised disclosure of information
59 Dealing in or possession of prohibited drugs
60 Prejudicial conduct
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Division 8—Offences based on Territory offences
61 Offences based on Territory offences
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Division 9—Miscellaneous
62 Commanding or ordering a service offence to be committed
63 Consent for proceedings for certain offences
64 Punishment for ancillary offences
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Part IV—Punishments and orders
66 Punishment or order to be in respect of a particular conviction
68 Scale of punishments
68A Scale of custodial punishments
68C Custodial punishments may be imposed for certain non custodial service offences
69 Punishment not to be more severe than maximum punishment
69A Punishments that may be imposed by a court martial or a Defence Force magistrate
69B Punishments that may be imposed by a superior summary authority
69C Punishments that may be imposed by a commanding officer
70 Sentencing principles
71 Restrictions on power to impose punishments
72 Application of certain provisions of Crimes Act 1914
73 Imposition of fines
74 Concurrent or cumulative punishments
75 Conviction without punishment
76 Breach of undertaking to be of good behaviour
77 Taking other offences into consideration
78 Suspension of detention
79 Suspension of fines
80 Revocation of suspension of punishment
81 Remission of suspended punishment
82 Remission of punishment of detention on imprisonment
83 Restitution orders
84 Reparation orders
84A Removal order—cyber bullying offence
85 Payment of fines
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Part V—Summons, arrest, custody and suspension from duty
86 Interpretation
86A Oaths, affirmations and affidavits
87 Summons and order in the nature of summons
88 Arrest, summons etc. where accused person not present at hearing before service tribunal
89 Arrest without warrant
90 Arrest under warrant
91 Power to enter to make arrest
92 Use of force in making arrest
93 Persons to be informed of grounds of arrest
94 Civil detention of arrested person
95 Avoidance of delay after arrest
95A Search of persons in custody in custodial facilities
96 Time limitation on charges
97 Release from custody
98 Suspension from duty on suspicion of offence etc.
99 Suspension from duty after conviction
100 Effect of custody or suspension from duty
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Part VI—Investigation of service offences
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Division 1—Preliminary
101 Interpretation
101AA Oaths, affirmations and affidavits
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Division 2—Duties of investigating officers when interviewing suspects
101A Interpretation
101B Investigating officer may question persons
101C Questioning and cautioning of person in custody
101D Cautioning once decision to charge or summon has been made
101E Access to friend, relative and legal practitioner
101F Lists of legal officers
101G Exceptions to requirements of section 101E
101H Treatment of persons in custody
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Division 3—Confessions
101J Admissibility of confessional evidence
101JA Tape recording of confessions and admissions
101K Admissibility of oral confessions
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Division 4—Other investigative action
101L Fingerprints, photographs etc.
101M Identification by means of photographs
101N Identification parades
101P Searches of arrested persons
101Q Medical examinations
101QA Offence of refusing to submit to medical examination etc.
101R Application of Division
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Division 5—Rights of persons charged with service offences
101S Persons to be cautioned
101T Questioning of persons charged with service offences
101U Persons charged with same service offence
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Division 6—Search and seizure
101V Interpretation
101W Search and seizure
101X Search warrants
101Y Search warrants may be granted by telephone
101Z Searches in emergencies
101ZA Consent to search
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Division 6A—Investigation under the Regulatory Powers Act
101ZAA Simplified outline of this Division
101ZAB Basic investigation powers under Part 3 of the Regulatory Powers Act
101ZAC Modifications of Part 3 of the Regulatory Powers Act
101ZAD Appointment of persons under this Division
101ZAE No limit on other powers
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Division 7—Exclusion of evidence
101ZB Exclusion of evidence illegally obtained
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Division 8—Application of Part
101ZC Application of Part
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Part VII—Service tribunals
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Division 1—Director of Military Prosecutions
103 Courses open to Director of Military Prosecutions
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Division 2—Summary authorities
104 Interpretation
105 Appointment of superior summary authorities
105A Referral of charge to Director of Military Prosecutions before dealing with charge under section 109 or 110
106 Jurisdiction of superior summary authority
107 Jurisdiction of commanding officer
108A Disqualification of summary authority from trying a charge
109 Dealing with a charge by superior summary authority
110 Dealing with a charge by commanding officer
111A Proceedings by way of dealing with a charge
111B Accused person may elect to be tried by a court martial or Defence Force magistrate—election before commencement of trial
111C Decision by accused person whether to elect to be tried by a court martial or Defence Force magistrate—decision before commencement of trial
112 Discontinuance
113 Powers of officer in command of detachment
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Division 3—Courts martial
114 Types of court martial
115 Jurisdiction of court martial
116 Eligibility to be member of court martial
117 Eligibility to be judge advocate
118 Remuneration of judge advocate of court martial
119 Convening order
120 Convening order to be notified to accused person
121 Objection on ground of ineligibility etc.
122 Notification of belief of bias
123 Substitution of members etc.
124 Replacement of members etc.
125 Dissolution of court martial
126 Inability to attend after plea
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Division 4—Defence Force magistrates
127 Appointment of Defence Force magistrates
127A Remuneration of Defence Force magistrate
128 Oath or affirmation of Defence Force magistrate
129 Jurisdiction and powers of Defence Force magistrate
129A Discontinuance of proceedings before Defence Force magistrate etc.
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Division 5—Nomination of Defence Force magistrates and members of courts martial
129B Appointment of members of courts martial
129C Judge Advocate General to nominate Defence Force magistrates
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Part VIII—Procedure of service tribunals
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Division 1—Trial by summary authority
129D Time within which trial must be commenced
130 Trial by summary authority
131 Accused person may elect to be tried by a court martial or Defence Force magistrate—election during trial
131AA Decision by accused person whether to elect to be tried by a court martial or Defence Force magistrate—decision during trial
131A Reference of charge to Director of Military Prosecutions
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Division 2—Trial by court martial or Defence Force magistrate
132 Trial by court martial
133 Determination of questions by court martial
134 Powers of judge advocate
135 Trial by Defence Force magistrate
136 Representatives of parties before court martial or Defence Force magistrate
137 Representation of accused person
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Division 3—General
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Subdivision A—General provisions relating to trials
138 Procedural powers
139 Accused person to be present at hearing
140 Public hearings
141 Applications and objections
141A Amendment of charges
142 Alternative offences
143 Condonation no bar to proceedings
144 Previous acquittal or conviction
145 Unsoundness of mind
145A Notice of alibi
146 Rules of evidence
146A Evidence etc. in proceedings before a summary authority
147 Judicial notice of service matters
148 Record of proceedings to be kept
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Subdivision B—Use of video links and audio links by courts martial and Defence Force Magistrates
148A Testimony by video link or audio link
148B Appearance of persons or submissions made by video link or audio link
148C Conditions for use of video links and audio links
148D Putting documents to a person by video link or audio link
148E Administration of oaths and affirmations
148EA Powers conferred on President
148F New Zealand proceedings
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Subdivision C—Rules of procedure for service tribunals
149 The Summary Authority Rules
149A The Court Martial and Defence Force Magistrate Rules
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Part VIIIA—Review of proceedings of service tribunal
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Division 1—Appointment of reviewing authorities
150 Appointment of reviewing authorities
150A Meaning of competent reviewing authority
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Division 2—Review by reviewing authority
152 Automatic review by reviewing authority
153 Review on petition to reviewing authority
154 Report to be obtained before commencement of review
155 Further review
156 Effect on reviews of appeals to Defence Force Discipline Appeal Tribunal
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Division 3—Action on review of proceedings that have resulted in a conviction
157 Interpretation
158 Quashing of conviction etc.
159 Person deemed to have been acquitted
160 New trial
161 Substitution of conviction of alternative offence
162 Review of action under Part IV
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Division 4—Action on review of proceedings that have resulted in an acquittal on the ground of unsoundness of mind
163 Interpretation
164 Quashing of prescribed acquittal etc.
165 Person deemed to have been acquitted
166 New trial
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Division 5—Action on review of certain punishments and orders that are subject to approval by reviewing authority
167 Interpretation
168 Approved punishment or order to take effect as determined
169 Punishments or orders not approved to be quashed or revoked
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Part X—Execution and enforcement of punishments and orders
170 Warrants of commitment
171 Commencement of punishments and orders
172 Punishments and orders subject to approval
173 Suspension of operation of restitution orders and reparation orders
174 Recovery of fines etc.
175 Evidence of fine etc.
176 Stay of execution of punishment
177 Unlawful absence
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Part XA—Detainees and detention centres
178 Interpretation
178A Search of detainees
178B Fingerprints, photographs etc. of detainees
178C Leave of absence of detainees
178D Regulations relating to detention centres
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Part XI—Judge Advocate General, Deputy Judge Advocates General, Chief Judge Advocate, and Registrar of Military Justice
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Division 1—Judge Advocate General and Deputy Judge Advocates General
179 Judge Advocate General and Deputy Judge Advocates General
180 Qualifications for appointment
181 Appointment of Judge Advocate General or Deputy Judge Advocate General not to affect tenure etc.
182 Arrangement for appointment of the holder of a judicial office of a State or of the Northern Territory
183 Terms and conditions of appointment etc.
184 Oath or affirmation of Judge Advocate General and Deputy Judge Advocate General
185 Remuneration etc.
186 Termination of appointment
187 Resignation
188 Acting Judge Advocate General or Deputy Judge Advocate General
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Division 2—Chief Judge Advocate
188A Chief Judge Advocate
188AA Terms and conditions of appointment
188B Role of the Chief Judge Advocate
188C Eligibility requirements
188CA Oath or affirmation
188D Resignation
188E Remuneration
188EA Termination of appointment
188EB Acting appointments
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Division 2A—Deputy Chief Judge Advocate
188EC Deputy Chief Judge Advocate
188ED Terms and conditions of appointment
188EE Role of Deputy Chief Judge Advocate
188EF Eligibility requirements
188EG Oath or affirmation
188EH Resignation
188EI Remuneration
188EJ Termination of appointment
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Division 3—The Registrar of Military Justice
188F Registrar of Military Justice
188FA Functions of the Registrar
188FB Appointment of the Registrar
188FC Qualifications for appointment
188FD Tenure
188FE Resignation
188FF Oath or affirmation
188FG Remuneration
188FH Leave of absence
188FI Outside employment
188FJ Termination of appointment
188FK Standing obligation to disclose interests
188FL Acting appointments
188FM Delegation
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Part XIA—Director of Military Prosecutions
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Division 1—Establishment and functions of the Director of Military Prosecutions
188G Director of Military Prosecutions
188GA Functions of the Director of Military Prosecutions
188GB Appearances by and on behalf of Director of Military Prosecutions
188GC Right of Director of Military Prosecutions and staff to practise in their official capacity
188GD Undertakings by the Director of Military Prosecutions
188GE Directions and guidelines by the Director of Military Prosecutions
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Division 2—Administrative provisions about the Director of Military Prosecutions
188GF Appointment of the Director of Military Prosecutions
188GG Qualifications for appointment
188GH Tenure
188GI Resignation
188GJ Oath or affirmation
188GK Remuneration
188GL Leave of absence
188GM Outside employment
188GN Termination of appointment
188GO Standing obligation to disclose interests
188GP Acting appointments
188GQ Staff
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Division 3—Other matters
188GR Delegation
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Part XII—Miscellaneous
189 Royal prerogative of mercy
190 Jurisdiction of civil courts in relation to offences
190A Disclosing certain convictions of service offences by a court martial or a Defence Force magistrate
190B Disclosing certain convictions by a summary authority, a court martial or a Defence Force magistrate
191 Evidentiary certificate
192 Evidence of warrant of commitment
193 Protection of members of courts martial etc.
194 Persons found to be of unsound mind
194A Persons required as witnesses before service tribunals
195 Supply of record of proceedings
196 Judge advocates’ panel
196AA Termination of appointment to judge advocates’ panel
196AB Resignation
196A Annual report relating to Defence Force discipline law
196B Annual report relating to the operations of the Director of Military Prosecutions
197 Regulations
Schedule 1A—Certain disciplinary offences
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Schedule 6—Alternative offences
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Endnotes
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
