Schedule—The Criminal Code
Chapter 8—Offences against humanity and related offences
Division 268—Genocide, crimes against humanity, war crimes and crimes against the administration of the justice of the International Criminal Court
Subdivision A—Introductory
268.1 Purpose of Division
(1) The purpose of this Division is to create certain offences that are of international concern and certain related offences.
(2) It is the Parliament’s intention that the jurisdiction of the International Criminal Court is to be complementary to the jurisdiction of Australia with respect to offences in this Division that are also crimes within the jurisdiction of that Court.
(3) Accordingly, the International Criminal Court Act 2002 does not affect the primacy of Australia’s right to exercise its jurisdiction with respect to offences created by this Division that are also crimes within the jurisdiction of the International Criminal Court.
268.2 Outline of offences
(1) Subdivision B creates offences each of which is called genocide.
(2) Subdivision C creates offences each of which is called a crime against humanity.
(3) Subdivisions D, E, F, G and H create offences each of which is called a war crime.
(4) Subdivision J creates offences each of which is called a crime against the administration of the justice of the International Criminal Court.
Subdivision B—Genocide
268.3 Genocide by killing
A person (the perpetrator) commits an offence if:
(a) the perpetrator causes the death of one or more persons; and
(b) the person or persons belong to a particular national, ethnical, racial or religious group; and
(c) the perpetrator intends to destroy, in whole or in part, that national, ethnical, racial or religious group, as such.
Penalty: Imprisonment for life.
268.4 Genocide by causing serious bodily or mental harm
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator causes serious bodily or mental harm to one or more persons; and
(b) the person or persons belong to a particular national, ethnical, racial or religious group; and
(c) the perpetrator intends to destroy, in whole or in part, that national, ethnical, racial or religious group, as such.
Penalty: Imprisonment for life.
(2) In subsection (1):
causes serious bodily or mental harm includes, but is not restricted to, commits acts of torture, rape, sexual violence or inhuman or degrading treatment.
268.5 Genocide by deliberately inflicting conditions of life calculated to bring about physical destruction
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator inflicts certain conditions of life upon one or more persons; and
(b) the person or persons belong to a particular national, ethnical, racial or religious group; and
(c) the perpetrator intends to destroy, in whole or in part, that national, ethnical, racial or religious group, as such; and
(d) the conditions of life are intended to bring about the physical destruction of that group, in whole or in part.
Penalty: Imprisonment for life.
(2) In subsection (1):
conditions of life includes, but is not restricted to, intentional deprivation of resources indispensable for survival, such as deprivation of food or medical services, or systematic expulsion from homes.
268.6 Genocide by imposing measures intended to prevent births
A person (the perpetrator) commits an offence if:
(a) the perpetrator imposes certain measures upon one or more persons; and
(b) the person or persons belong to a particular national, ethnical, racial or religious group; and
(c) the perpetrator intends to destroy, in whole or in part, that national, ethnical, racial or religious group, as such; and
(d) the measures imposed are intended to prevent births within that group.
Penalty: Imprisonment for life.
268.7 Genocide by forcibly transferring children
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator forcibly transfers one or more persons; and
(b) the person or persons belong to a particular national, ethnical, racial or religious group; and
(c) the perpetrator intends to destroy, in whole or in part, that national, ethnical, racial or religious group, as such; and
(d) the transfer is from that group to another national, ethnical, racial or religious group; and
(e) the person or persons are under the age of 18 years; and
(f) the perpetrator knows that, or is reckless as to whether, the person or persons are under that age.
Penalty: Imprisonment for life.
(2) In subsection (1):
forcibly transfers one or more persons includes transfers one or more persons:
(a) by threat of force or coercion (such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power) against the person or persons or against another person; or
(b) by taking advantage of a coercive environment.
Subdivision C—Crimes against humanity
268.8 Crime against humanity—murder
A person (the perpetrator) commits an offence if:
(a) the perpetrator causes the death of one or more persons; and
(b) the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for life.
268.9 Crime against humanity—extermination
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator causes the death of one or more persons; and
(b) the perpetrator’s conduct constitutes, or takes place as part of, a mass killing of members of a civilian population; and
(c) the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for life.
(2) In subsection (1):
causes the death of includes causes death by intentionally inflicting conditions of life (such as the deprivation of access to food or medicine) intended to bring about the destruction of part of a population.
268.10 Crime against humanity—enslavement
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator exercises any or all of the powers attaching to the right of ownership over one or more persons (including the exercise of a power in the course of trafficking in persons, in particular women and children); and
(b) the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
exercises any or all of the powers attaching to the right of ownership over a person includes purchases, sells, lends or barters a person or imposes on a person a similar deprivation of liberty and also includes exercise a power arising from a debt incurred or contract made by a person.
268.11 Crime against humanity—deportation or forcible transfer of population
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator forcibly displaces one or more persons, by expulsion or other coercive acts, from an area in which the person or persons are lawfully present to another country or location; and
(b) the forcible displacement is contrary to paragraph 4 of article 12 or article 13 of the Covenant; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances that establish the lawfulness of the presence of the person or persons in the area; and
(d) the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for 17 years.
(2) Strict liability applies to paragraph (1)(b).
(3) In subsection (1):
forcibly displaces one or more persons includes displaces one or more persons:
(a) by threat of force or coercion (such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power) against the person or persons or against another person; or
(b) by taking advantage of a coercive environment.
268.12 Crime against humanity—imprisonment or other severe deprivation of physical liberty
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator imprisons one or more persons or otherwise severely deprives one or more persons of physical liberty; and
(b) the perpetrator’s conduct violates article 9, 14 or 15 of the Covenant; and
(c) the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for 17 years.
(2) Strict liability applies to paragraph (1)(b).
268.13 Crime against humanity—torture
A person (the perpetrator) commits an offence if:
(a) the perpetrator inflicts severe physical or mental pain or suffering upon one or more persons who are in the custody or under the control of the perpetrator; and
(b) the pain or suffering does not arise only from, and is not inherent in or incidental to, lawful sanctions; and
(c) the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for 25 years.
268.14 Crime against humanity—rape
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator sexually penetrates another person without the consent of that person; and
(b) the perpetrator knows of, or is reckless as to, the lack of consent; and
(c) the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for 25 years.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator causes another person to sexually penetrate the perpetrator without the consent of the other person; and
(b) the perpetrator knows of, or is reckless as to, the lack of consent; and
(c) the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for 25 years.
(3) In this section:
consent means free and voluntary agreement.
The following are examples of circumstances in which a person does not consent to an act:
(a) the person submits to the act because of force or the fear of force to the person or to someone else;
(b) the person submits to the act because the person is unlawfully detained;
(c) the person is asleep or unconscious, or is so affected by alcohol or another drug as to be incapable of consenting;
(d) the person is incapable of understanding the essential nature of the act;
(e) the person is mistaken about the essential nature of the act (for example, the person mistakenly believes that the act is for medical or hygienic purposes);
(f) the person submits to the act because of psychological oppression or abuse of power;
(g) the person submits to the act because of the perpetrator taking advantage of a coercive environment.
(4) In this section:
sexually penetrate means:
(a) penetrate (to any extent) the genitalia or anus of a person by any part of the body of another person or by any object manipulated by that other person; or
(b) penetrate (to any extent) the mouth of a person by the penis of another person; or
(c) continue to sexually penetrate as defined in paragraph (a) or (b).
(5) In this section, being reckless as to a lack of consent to sexual penetration includes not giving any thought to whether or not the person is consenting to sexual penetration.
(6) In this section, the genitalia or other parts of the body of a person include surgically constructed genitalia or other parts of the body of the person.
268.15 Crime against humanity—sexual slavery
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator causes another person to enter into or remain in sexual slavery; and
(b) the perpetrator intends to cause, or is reckless as to causing, that sexual slavery; and
(c) the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for 25 years.
(2) For the purposes of this section, sexual slavery is the condition of a person who provides sexual services and who, because of the use of force or threats:
(a) is not free to cease providing sexual services; or
(b) is not free to leave the place or area where the person provides sexual services.
(3) In this section:
threat means:
(a) a threat of force; or
(b) a threat to cause a person’s deportation; or
(c) a threat of any other detrimental action unless there are reasonable grounds for the threat of that action in connection with the provision of sexual services by a person.
268.16 Crime against humanity—enforced prostitution
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator causes one or more persons to engage in one or more acts of a sexual nature without the consent of the person or persons, including by being reckless as to whether there is consent; and
(b) the perpetrator intends that he or she, or another person, will obtain pecuniary or other advantage in exchange for, or in connection with, the acts of a sexual nature; and
(c) the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
consent means free and voluntary agreement.
The following are examples of circumstances in which a person does not consent to an act:
(a) the person submits to the act because of force or the fear of force to the person or to someone else;
(b) the person submits to the act because the person is unlawfully detained;
(c) the person is asleep or unconscious, or is so affected by alcohol or another drug as to be incapable of consenting;
(d) the person is incapable of understanding the essential nature of the act;
(e) the person is mistaken about the essential nature of the act (for example, the person mistakenly believes that the act is for medical or hygienic purposes);
(f) the person submits to the act because of psychological oppression or abuse of power;
(g) the person submits to the act because of the perpetrator taking advantage of a coercive environment.
threat of force or coercion includes:
(a) a threat of force or coercion such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power; or
(b) taking advantage of a coercive environment.
(3) In subsection (1), being reckless as to whether there is consent to one or more acts of a sexual nature includes not giving any thought to whether or not the person or persons are consenting to engaging in the act or acts of a sexual nature.
268.17 Crime against humanity—forced pregnancy
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator unlawfully confines one or more women forcibly made pregnant; and
(b) the perpetrator intends to affect the ethnic composition of any population or to destroy, wholly or partly, a national, ethnical, racial or religious group, as such; and
(c) the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
forcibly made pregnant includes made pregnant by a consent that was affected by deception or by natural, induced or age‑related incapacity.
(3) To avoid doubt, this section does not affect any other law of the Commonwealth or any law of a State or Territory.
268.18 Crime against humanity—enforced sterilisation
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator deprives one or more persons of biological reproductive capacity; and
(b) the deprivation is not effected by a birth‑control measure that has a non‑permanent effect in practice; and
(c) the perpetrator’s conduct is neither justified by the medical or hospital treatment of the person or persons nor carried out with the consent of the person or persons; and
(d) the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
consent does not include consent effected by deception or by natural, induced or age‑related incapacity.
268.19 Crime against humanity—sexual violence
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator does either of the following:
(i) commits an act or acts of a sexual nature against one or more persons;
(ii) causes one or more persons to engage in an act or acts of a sexual nature;
without the consent of the person or persons, including by being reckless as to whether there is consent; and
(b) the perpetrator’s conduct is of a gravity comparable to the offences referred to in sections 268.14 to 268.18; and
(c) the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for 25 years.
(2) Strict liability applies to paragraph (1)(b).
(3) In subsection (1):
consent means free and voluntary agreement.
The following are examples of circumstances in which a person does not consent to an act:
(a) the person submits to the act because of force or the fear of force to the person or to someone else;
(b) the person submits to the act because the person is unlawfully detained;
(c) the person is asleep or unconscious, or is so affected by alcohol or another drug as to be incapable of consenting;
(d) the person is incapable of understanding the essential nature of the act;
(e) the person is mistaken about the essential nature of the act (for example, the person mistakenly believes that the act is for medical or hygienic purposes);
(f) the person submits to the act because of psychological oppression or abuse of power;
(g) the person submits to the act because of the perpetrator taking advantage of a coercive environment.
threat of force or coercion includes:
(a) a threat of force or coercion such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power; or
(b) taking advantage of a coercive environment.
(4) In subsection (1), being reckless as to whether there is consent to one or more acts of a sexual nature includes not giving any thought to whether or not the person is consenting to the act or acts of a sexual nature.
268.20 Crime against humanity—persecution
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator severely deprives one or more persons of any of the rights referred to in paragraph (b); and
(b) the rights are those guaranteed in articles 6, 7, 8 and 9, paragraph 2 of article 14, article 18, paragraph 2 of article 20, paragraph 2 of article 23 and article 27 of the Covenant; and
(c) the perpetrator targets the person or persons by reason of the identity of a group or collectivity or targets the group or collectivity as such; and
(d) the grounds on which the targeting is based are political, racial, national, ethnic, cultural, religious, gender or other grounds that are recognised in paragraph 1 of article 2 of the Covenant; and
(e) the perpetrator’s conduct is committed in connection with another act that is:
(i) a proscribed inhumane act; or
(ii) genocide; or
(iii) a war crime; and
(f) the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for 17 years.
(2) Strict liability applies to:
(a) the physical element of the offence referred to in paragraph (1)(a) that the rights are those referred to in paragraph (1)(b); and
(b) paragraphs (1)(b) and (d).
268.21 Crime against humanity—enforced disappearance of persons
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator arrests, detains or abducts one or more persons; and
(b) the arrest, detention or abduction is carried out by, or with the authorisation, support or acquiescence of, the government of a country or a political organisation; and
(c) the perpetrator intends to remove the person or persons from the protection of the law for a prolonged period of time; and
(d) the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population; and
(e) after the arrest, detention or abduction, the government or organisation refuses to acknowledge the deprivation of freedom of, or to give information on the fate or whereabouts of, the person or persons.
Penalty: Imprisonment for 17 years.
(2) A person (the perpetrator) commits an offence if:
(a) one or more persons have been arrested, detained or abducted; and
(b) the arrest, detention or abduction was carried out by, or with the authorisation, support or acquiescence of, the government of a country or a political organisation; and
(c) the perpetrator refuses to acknowledge the deprivation of freedom, or to give information on the fate or whereabouts, of the person or persons; and
(d) the refusal occurs with the authorisation, support or acquiescence of the government of the country or the political organisation; and
(e) the perpetrator knows that, or is reckless as to whether, the refusal was preceded or accompanied by the deprivation of freedom; and
(f) the perpetrator intends that the person or persons be removed from the protection of the law for a prolonged period of time; and
(g) the arrest, detention or abduction occurred, and the refusal occurs, as part of a widespread or systematic attack directed against a civilian population; and
(h) the perpetrator knows that the refusal is part of, or intends the refusal to be part of, such an attack.
Penalty: Imprisonment for 17 years.
268.22 Crime against humanity—apartheid
A person (the perpetrator) commits an offence if:
(a) the perpetrator commits against one or more persons an act that is a proscribed inhumane act (as defined by the Dictionary) or an act that is of a nature and gravity similar to any such proscribed inhumane act; and
(b) the perpetrator’s conduct is committed in the context of an institutionalised regime of systematic oppression and domination by one racial group over any other racial group or groups; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances that establish the character of the act; and
(d) the perpetrator intends to maintain the regime by the conduct; and
(e) the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for 17 years.
268.23 Crime against humanity—other inhumane act
A person (the perpetrator) commits an offence if:
(a) the perpetrator causes great suffering, or serious injury to body or to mental or physical health, by means of an inhumane act; and
(b) the act is of a character similar to another proscribed inhumane act as defined by the Dictionary; and
(c) the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for 25 years.
Subdivision D—War crimes that are grave breaches of the Geneva Conventions and of Protocol I to the Geneva Conventions
268.24 War crime—wilful killing
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator causes the death of one or more persons; and
(b) the person or persons are protected under one or more of the Geneva Conventions or under Protocol I to the Geneva Conventions; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are so protected; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
(2) Strict liability applies to paragraph (1)(b).
268.25 War crime—torture
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator inflicts severe physical or mental pain or suffering upon one or more persons; and
(b) the perpetrator inflicts the pain or suffering for the purpose of:
(i) obtaining information or a confession; or
(ii) a punishment, intimidation or coercion; or
(iii) a reason based on discrimination of any kind; and
(c) the person or persons are protected under one or more of the Geneva Conventions or under Protocol I to the Geneva Conventions; and
(d) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are so protected; and
(e) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) Strict liability applies to paragraph (1)(c).
268.26 War crime—inhumane treatment
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator inflicts severe physical or mental pain or suffering upon one or more persons; and
(b) the person or persons are protected under one or more of the Geneva Conventions or under Protocol I to the Geneva Conventions; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are so protected; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) Strict liability applies to paragraph (1)(b).
268.27 War crime—biological experiments
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator subjects one or more persons to a particular biological experiment; and
(b) the experiment seriously endangers the physical or mental health or integrity of the person or persons; and
(c) the perpetrator’s conduct is neither justified by the medical, dental or hospital treatment of the person or persons nor carried out in the interest or interests of the person or persons; and
(d) the person or persons are protected under one or more of the Geneva Conventions or under Protocol I to the Geneva Conventions; and
(e) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are so protected; and
(f) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) Strict liability applies to paragraph (1)(d).
268.28 War crime—wilfully causing great suffering
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator causes great physical or mental pain or suffering to, or serious injury to body or health of, one or more persons; and
(b) the person or persons are protected under one or more of the Geneva Conventions or under Protocol I to the Geneva Conventions; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are so protected; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) Strict liability applies to paragraph (1)(b).
268.29 War crime—destruction and appropriation of property
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator destroys or appropriates property; and
(b) the destruction or appropriation is not justified by military necessity; and
(c) the destruction or appropriation is extensive and carried out unlawfully and wantonly; and
(d) the property is protected under one or more of the Geneva Conventions or under Protocol I to the Geneva Conventions; and
(e) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the property is so protected; and
(f) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 15 years.
(2) Strict liability applies to paragraph (1)(d).
268.30 War crime—compelling service in hostile forces
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator coerces one or more persons, by act or threat:
(i) to take part in military operations against that person’s or those persons’ own country or forces; or
(ii) otherwise to serve in the forces of an adverse power; and
(b) the person or persons are protected under one or more of the Geneva Conventions or under Protocol I to the Geneva Conventions; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are so protected; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 10 years.
(2) Strict liability applies to paragraph (1)(b).
268.31 War crime—denying a fair trial
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator deprives one or more persons of a fair and regular trial by denying to the person any of the judicial guarantees referred to in paragraph (b); and
(b) the judicial guarantees are those defined in articles 84, 99 and 105 of the Third Geneva Convention and articles 66 and 71 of the Fourth Geneva Convention; and
(c) the person or persons are protected under one or more of the Geneva Conventions or under Protocol I to the Geneva Conventions; and
(d) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are so protected; and
(e) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 10 years.
(2) Strict liability applies to:
(a) the physical element of the offence referred to in paragraph (1)(a) that the judicial guarantees are those referred to in paragraph (1)(b); and
(b) paragraphs (1)(b) and (c).
268.32 War crime—unlawful deportation or transfer
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator unlawfully deports or transfers one or more persons to another country or to another location; and
(b) the person or persons are protected under one or more of the Geneva Conventions or under Protocol I to the Geneva Conventions; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are so protected; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 17 years.
(2) Strict liability applies to paragraph (1)(b).
268.33 War crime—unlawful confinement
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator unlawfully confines or continues to confine one or more persons to a certain location; and
(b) the person or persons are protected under one or more of the Geneva Conventions or under Protocol I to the Geneva Conventions; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are so protected; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 17 years.
(2) Strict liability applies to paragraph (1)(b).
268.34 War crime—taking hostages
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator seizes, detains or otherwise holds hostage one or more persons; and
(b) the perpetrator threatens to kill, injure or continue to detain the person or persons; and
(c) the perpetrator intends to compel the government of a country, an international organisation or a person or group of persons to act or refrain from acting as an explicit or implicit condition for either the safety or the release of the person or persons; and
(d) the person or persons are protected under one or more of the Geneva Conventions or under Protocol I to the Geneva Conventions; and
(e) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are so protected; and
(f) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 17 years.
(2) Strict liability applies to paragraph (1)(d).
Subdivision E—Other serious war crimes that are committed in the course of an international armed conflict
268.35 War crime—attacking civilians
A person (the perpetrator) commits an offence if:
(a) the perpetrator directs an attack; and
(b) the object of the attack is a civilian population as such or individual civilians not taking direct part in hostilities; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
268.36 War crime—attacking civilian objects
A person (the perpetrator) commits an offence if:
(a) the perpetrator directs an attack; and
(b) the object of the attack is not a military objective; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 15 years.
268.37 War crime—attacking personnel or objects involved in a humanitarian assistance or peacekeeping mission
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator directs an attack; and
(b) the object of the attack is personnel involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations; and
(c) the personnel are entitled to the protection given to civilians under the Geneva Conventions or Protocol I to the Geneva Conventions; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator directs an attack; and
(b) the object of the attack is installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations; and
(c) the installations, material, units or vehicles are entitled to the protection given to civilian objects under the Geneva Conventions or Protocol I to the Geneva Conventions; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 20 years.
(3) Strict liability applies to paragraphs (1)(c) and (2)(c).
268.38 War crime—excessive incidental death, injury or damage
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator launches an attack; and
(b) the perpetrator knows that the attack will cause incidental death or injury to civilians; and
(c) the perpetrator knows that the death or injury will be of such an extent as to be excessive in relation to the concrete and direct military advantage anticipated; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator launches an attack; and
(b) the perpetrator knows that the attack will cause:
(i) damage to civilian objects; or
(ii) widespread, long‑term and severe damage to the natural environment; and
(c) the perpetrator knows that the damage will be of such an extent as to be excessive in relation to the concrete and direct military advantage anticipated; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty for a contravention of this subsection: Imprisonment for 20 years.
268.39 War crime—attacking undefended places
A person (the perpetrator) commits an offence if:
(a) the perpetrator attacks or bombards one or more towns, villages, dwellings or buildings; and
(b) the towns, villages, dwellings or buildings are open for unresisted occupation; and
(c) the towns, villages, dwellings or buildings do not constitute military objectives; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
268.40 War crime—killing or injuring a person who is hors de combat
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator kills one or more persons; and
(b) the person or persons are hors de combat; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are hors de combat; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator injures one or more persons; and
(b) the person or persons are hors de combat; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are hors de combat; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty for a contravention of this subsection: Imprisonment for 25 years.
268.41 War crime—improper use of a flag of truce
A person (the perpetrator) commits an offence if:
(a) the perpetrator uses a flag of truce; and
(b) the perpetrator uses the flag in order to feign an intention to negotiate when there is no such intention on the part of the perpetrator; and
(c) the perpetrator knows of, or is reckless as to, the illegal nature of such use of the flag; and
(d) the perpetrator’s conduct results in death or serious personal injury; and
(e) the conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
268.42 War crime—improper use of a flag, insignia or uniform of the adverse party
A person (the perpetrator) commits an offence if:
(a) the perpetrator uses a flag, insignia or uniform of the adverse party; and
(b) the perpetrator uses the flag, insignia or uniform while engaged in an attack or in order to shield, favour, protect or impede military operations; and
(c) the perpetrator knows of, or is reckless as to, the illegal nature of such use of the flag, insignia or uniform; and
(d) the perpetrator’s conduct results in death or serious personal injury; and
(e) the conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
268.43 War crime—improper use of a flag, insignia or uniform of the United Nations
A person (the perpetrator) commits an offence if:
(a) the perpetrator uses a flag, insignia or uniform of the United Nations; and
(b) the perpetrator uses the flag, insignia or uniform without the authority of the United Nations; and
(c) the perpetrator knows of, or is reckless as to, the illegal nature of such use of the flag, insignia or uniform; and
(d) the perpetrator’s conduct results in death or serious personal injury; and
(e) the conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
268.44 War crime—improper use of the distinctive emblems of the Geneva Conventions
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator uses an emblem; and
(b) the emblem is one of the distinctive emblems of the Geneva Conventions; and
(c) the perpetrator uses the emblem for combatant purposes to invite the confidence of an adversary in order to lead him or her to believe that the perpetrator is entitled to protection, or that the adversary is obliged to accord protection to the perpetrator, with intent to betray that confidence; and
(d) the perpetrator knows of, or is reckless as to, the illegal nature of such use; and
(e) the perpetrator’s conduct results in death or serious personal injury; and
(f) the conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
(2) Strict liability applies to paragraph (1)(b).
(3) In this section:
emblem means any emblem, identity card, sign, signal, insignia or uniform.
268.45 War crime—transfer of population
A person (the perpetrator) commits an offence if:
(a) the perpetrator:
(i) authorises, organises or directs, or participates in the authorisation, organisation or direction of, or participates in, the transfer, directly or indirectly, of parts of the civilian population of the perpetrator’s own country into territory that the country occupies; or
(ii) authorises, organises or directs, or participates in the authorisation, organisation or direction of, or participates in, the deportation or transfer of all or parts of the population of territory occupied by the perpetrator’s own country within or outside that territory; and
(b) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 17 years.
268.46 War crime—attacking protected objects
(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.
268.47 War crime—mutilation
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator subjects one or more persons to mutilation, such as by permanently disfiguring, or permanently disabling or removing organs or appendages of, the person or persons; and
(b) the perpetrator’s conduct causes the death of the person or persons; and
(c) the conduct is neither justified by the medical, dental or hospital treatment of the person or persons nor carried out in the interest or interests of the person or persons; and
(d) the person or persons are in the power of an adverse party; and
(e) the conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator subjects one or more persons to mutilation, such as by permanently disfiguring, or permanently disabling or removing organs or appendages of, the person or persons; and
(b) the perpetrator’s conduct seriously endangers the physical or mental health, or the integrity, of the person or persons; and
(c) the conduct is neither justified by the medical, dental or hospital treatment of the person or persons nor carried out in the interest or interests of the person or persons; and
(d) the person or persons are in the power of an adverse party; and
(e) the conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty for a contravention of this subsection: Imprisonment for 25 years.
268.48 War crime—medical or scientific experiments
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator subjects one or more persons to a medical or scientific experiment; and
(b) the experiment causes the death of the person or persons; and
(c) the perpetrator’s conduct is neither justified by the medical, dental or hospital treatment of the person or persons nor carried out in the interest or interests of the person or persons; and
(d) the person or persons are in the power of an adverse party; and
(e) the conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator subjects one or more persons to a medical or scientific experiment; and
(b) the experiment seriously endangers the physical or mental health, or the integrity, of the person or persons; and
(c) the perpetrator’s conduct is neither justified by the medical, dental or hospital treatment of the person or persons nor carried out in the interest or interests of the person or persons; and
(d) the person or persons are in the power of an adverse party; and
(e) the conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty for a contravention of this subsection: Imprisonment for 25 years.
268.49 War crime—treacherously killing or injuring
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator invites the confidence or belief of one or more persons that the perpetrator is entitled to protection, or that the person or persons are obliged to accord protection to the perpetrator; and
(b) the perpetrator kills the person or persons; and
(c) the perpetrator makes use of that confidence or belief in killing the person or persons; and
(d) the person or persons belong to an adverse party; and
(e) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator invites the confidence or belief of one or more persons that the perpetrator is entitled to protection, or that the person or persons are obliged to accord protection to the perpetrator; and
(b) the perpetrator injures the person or persons; and
(c) the perpetrator makes use of that confidence or belief in injuring the person or persons; and
(d) the person or persons belong to an adverse party; and
(e) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty for a contravention of this subsection: Imprisonment for 25 years.
268.50 War crime—denying quarter
A person (the perpetrator) commits an offence if:
(a) the perpetrator declares or orders that there are to be no survivors; and
(b) the declaration or order is given with the intention of threatening an adversary or conducting hostilities on the basis that there are to be no survivors; and
(c) the perpetrator is in a position of effective command or control over the subordinate forces to which the declaration or order is directed; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
268.51 War crime—destroying or seizing the enemy’s property
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator destroys or seizes certain property; and
(b) the property is property of an adverse party; and
(c) the property is protected from the destruction or seizure under article 18 of the Third Geneva Convention, article 53 of the Fourth Geneva Convention or article 54 of Protocol I to the Geneva Conventions; and
(d) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the property is so protected; and
(e) the destruction or seizure is not justified by military necessity; and
(f) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 15 years.
(2) Strict liability applies to paragraph (1)(c).
268.52 War crime—depriving nationals of the adverse power of rights or actions
A person (the perpetrator) commits an offence if:
(a) the perpetrator effects the abolition, suspension or termination of admissibility in a court of law of certain rights or actions; and
(b) the abolition, suspension or termination is directed at the nationals of an adverse party; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 10 years.
268.53 War crime—compelling participation in military operations
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator coerces one or more persons by act or threat to take part in military operations against that person’s or those persons’ own country or forces; and
(b) the person or persons are nationals of an adverse party; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 10 years.
(2) It is not a defence to a prosecution for an offence against subsection (1) that the person or persons were in the service of the perpetrator at a time before the beginning of the international armed conflict.
268.54 War crime—pillaging
A person (the perpetrator) commits an offence if:
(a) the perpetrator appropriates certain property; and
(b) the perpetrator intends to deprive the owner of the property and to appropriate it for private or personal use; and
(c) the appropriation is without the consent of the owner; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 15 years.
268.55 War crime—employing poison or poisoned weapons
A person (the perpetrator) commits an offence if:
(a) the perpetrator employs a substance or employs a weapon that releases a substance as a result of its employment; and
(b) the substance is such that it causes death or serious damage to health in the ordinary course of events through its toxic properties; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
268.56 War crime—employing prohibited gases, liquids, materials or devices
A person (the perpetrator) commits an offence if:
(a) the perpetrator employs a gas or other analogous substance or device; and
(b) the gas, substance or device is such that it causes death or serious damage to health in the ordinary course of events through its asphyxiating or toxic properties; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
268.57 War crime—employing prohibited bullets
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator employs certain bullets; and
(b) the bullets are such that their use violates the Hague Declaration because they expand or flatten easily in the human body; and
(c) the perpetrator knows that, or is reckless as to whether, the nature of the bullets is such that their employment will uselessly aggravate suffering or the wounding effect; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) Strict liability applies to paragraph (1)(b).
268.58 War crime—outrages upon personal dignity
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator severely humiliates, degrades or otherwise violates the dignity of one or more persons; and
(b) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 17 years.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator severely humiliates, degrades or otherwise violates the dignity of the body or bodies of one or more dead persons; and
(b) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 17 years.
268.59 War crime—rape
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator sexually penetrates another person without the consent of that person; and
(b) the perpetrator knows about, or is reckless as to, the lack of consent; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator causes another person to sexually penetrate the perpetrator without the consent of the other person; and
(b) the perpetrator knows about, or is reckless as to, the lack of consent; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
(3) In this section:
consent means free and voluntary agreement.
The following are examples of circumstances in which a person does not consent to an act:
(a) the person submits to the act because of force or the fear of force to the person or to someone else;
(b) the person submits to the act because the person is unlawfully detained;
(c) the person is asleep or unconscious, or is so affected by alcohol or another drug as to be incapable of consenting;
(d) the person is incapable of understanding the essential nature of the act;
(e) the person is mistaken about the essential nature of the act (for example, the person mistakenly believes that the act is for medical or hygienic purposes);
(f) the person submits to the act because of psychological oppression or abuse of power;
(g) the person submits to the act because of the perpetrator taking advantage of a coercive environment.
(4) In this section:
sexually penetrate means:
(a) penetrate (to any extent) the genitalia or anus of a person by any part of the body of another person or by any object manipulated by that other person; or
(b) penetrate (to any extent) the mouth of a person by the penis of another person; or
(c) continue to sexually penetrate as defined in paragraph (a) or (b).
(5) In this section, being reckless as to a lack of consent to sexual penetration includes not giving any thought to whether or not the person is consenting to sexual penetration.
(6) In this section, the genitalia or other parts of the body of a person include surgically constructed genitalia or other parts of the body of the person.
268.60 War crime—sexual slavery
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator causes another person to enter into or remain in sexual slavery; and
(b) the perpetrator intends to cause, or is reckless as to causing, that sexual slavery; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) For the purposes of this section, sexual slavery is the condition of a person who provides sexual services and who, because of the use of force or threats:
(a) is not free to cease providing sexual services; or
(b) is not free to leave the place or area where the person provides sexual services.
(3) In this section:
threat means:
(a) a threat of force; or
(b) a threat to cause a person’s deportation; or
(c) a threat of any other detrimental action unless there are reasonable grounds for the threat of that action in connection with the provision of sexual services by a person.
268.61 War crime—enforced prostitution
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator causes one or more persons to engage in one or more acts of a sexual nature without the consent of the person or persons, including by being reckless as to whether there is consent; and
(b) the perpetrator intends that he or she, or another person, will obtain pecuniary or other advantage in exchange for, or in connection with, the acts of a sexual nature; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
consent means free and voluntary agreement.
The following are examples of circumstances in which a person does not consent to an act:
(a) the person submits to the act because of force or the fear of force to the person or to someone else;
(b) the person submits to the act because the person is unlawfully detained;
(c) the person is asleep or unconscious, or is so affected by alcohol or another drug as to be incapable of consenting;
(d) the person is incapable of understanding the essential nature of the act;
(e) the person is mistaken about the essential nature of the act (for example, the person mistakenly believes that the act is for medical or hygienic purposes);
(f) the person submits to the act because of psychological oppression or abuse of power;
(g) the person submits to the act because of the perpetrator taking advantage of a coercive environment.
threat of force or coercion includes:
(a) a threat of force or coercion such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power; or
(b) taking advantage of a coercive environment.
(3) In subsection (1), being reckless as to whether there is consent to one or more acts of a sexual nature includes not giving any thought to whether or not the person is consenting to the act or acts of a sexual nature.
268.62 War crime—forced pregnancy
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator unlawfully confines one or more women forcibly made pregnant; and
(b) the perpetrator intends to affect the ethnic composition of any population or to destroy, wholly or partly, a national, ethnical, racial or religious group, as such; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
forcibly made pregnant includes made pregnant by a consent that was effected by deception or by natural, induced or age‑related incapacity.
(3) To avoid doubt, this section does not affect any other law of the Commonwealth or any law of a State or Territory.
268.63 War crime—enforced sterilisation
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator deprives one or more persons of biological reproductive capacity; and
(b) the deprivation is not effected by a birth‑control measure that has a non‑permanent effect in practice; and
(c) the perpetrator’s conduct is neither justified by the medical or hospital treatment of the person or persons nor carried out with the consent of the person or persons; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
consent does not include consent effected by deception or by natural, induced or age‑related incapacity.
268.64 War crime—sexual violence
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator does either of the following:
(i) commits an act or acts of a sexual nature against one or more persons;
(ii) causes one or more persons to engage in an act or acts of a sexual nature;
without the consent of the person or persons, including by being reckless as to whether there is consent; and
(b) the perpetrator’s conduct is of a gravity comparable to the offences referred to in sections 268.59 to 268.63; and
(c) the conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) Strict liability applies to paragraph (1)(b).
(3) In subsection (1):
consent means free and voluntary agreement.
The following are examples of circumstances in which a person does not consent to an act:
(a) the person submits to the act because of force or the fear of force to the person or to someone else;
(b) the person submits to the act because the person is unlawfully detained;
(c) the person is asleep or unconscious, or is so affected by alcohol or another drug as to be incapable of consenting;
(d) the person is incapable of understanding the essential nature of the act;
(e) the person is mistaken about the essential nature of the act (for example, the person mistakenly believes that the act is for medical or hygienic purposes);
(f) the person submits to the act because of psychological oppression or abuse of power;
(g) the person submits to the act because of the perpetrator taking advantage of a coercive environment.
threat of force or coercion includes:
(a) a threat of force or coercion such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power; or
(b) taking advantage of a coercive environment.
(4) In subsection (1), being reckless as to whether there is consent to one or more acts of a sexual nature includes not giving any thought to whether or not the person is consenting to the act or acts of a sexual nature.
268.65 War crime—using protected persons as shields
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator uses the presence of one or more civilians, prisoners of war, medical or religious personnel or persons who are hors de combat; and
(b) the perpetrator intends the perpetrator’s conduct to render a military objective immune from attack or to shield, favour or impede military operations; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty:
(a) if the conduct results in the death of any of the persons referred to in paragraph (a)—imprisonment for life; or
(b) otherwise—imprisonment for 17 years.
(2) In this section:
religious personnel includes non‑confessional, non‑combatant military personnel carrying out a similar function to religious personnel.
268.66 War crime—attacking persons or objects using the distinctive emblems of the Geneva Conventions
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator attacks one or more persons; and
(b) the person or persons are using, in conformity with the Geneva Conventions or the Protocols to the Geneva Conventions, any of the distinctive emblems of the Geneva Conventions; and
(c) the perpetrator intends the persons so using such an emblem to be the object of the attack; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator attacks one or more buildings, medical units or transports or other objects; and
(b) the buildings, units or transports or other objects are using, in conformity with the Geneva Conventions or the Protocols to the Geneva Conventions, any of the distinctive emblems of the Geneva Conventions; and
(c) the perpetrator intends the buildings, units or transports or other objects so using such an emblem to be the object of the attack; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 20 years.
(3) Strict liability applies to paragraphs (1)(b) and (2)(b).
268.67 War crime—starvation as a method of warfare
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator uses as a method of warfare:
(i) any intentional deprivation of civilians of objects indispensable to their survival; or
(ii) without limiting subparagraph (i)—the wilful impeding of relief supplies for civilians; and
(b) if subparagraph (a)(ii) applies—the relief supplies are provided for under the Geneva Conventions; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) Strict liability applies to paragraph (1)(b).
268.68 War crime—using, conscripting or enlisting children
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 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 for a contravention of this subsection: Imprisonment for 10 years.
Subdivision F—War crimes that are serious violations of article 3 common to the Geneva Conventions and are committed in the course of an armed conflict that is not an international armed conflict
268.69 Definition of religious personnel
In this Subdivision:
religious personnel includes non‑confessional, non‑combatant military personnel carrying out a similar function to religious personnel.
268.70 War crime—murder
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator causes the death of one or more persons; and
(b) the person or persons are 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.
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.
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.
268.73 War crime—torture
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator inflicts severe physical or mental pain or suffering upon one or more persons; and
(b) the perpetrator inflicts the pain or suffering for the purpose of:
(i) obtaining information or a confession; or
(ii) a punishment, intimidation or coercion; or
(iii) a reason based on discrimination of any kind; and
(c) the person or persons are not taking an active part in the hostilities; and
(d) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are not taking an active part in the hostilities; and
(e) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) To avoid doubt, a reference in subsection (1) to a person or persons who are not taking an active part in the hostilities includes a reference to:
(a) a person or persons who are hors de combat; or
(b) civilians, medical personnel or religious personnel who are not taking an active part in the hostilities.
268.74 War crime—outrages upon personal dignity
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator severely humiliates, degrades or otherwise violates the dignity of one or more persons (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.
268.75 War crime—taking hostages
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator seizes, detains or otherwise holds hostage one or more persons; and
(b) the perpetrator threatens to kill, injure or continue to detain the person or persons; and
(c) the perpetrator intends to compel the government of a country, an international organisation or a person or group of persons to act or refrain from acting as an explicit or implicit condition for either the safety or the release of the person or persons; and
(d) the person or persons are not taking an active part in the hostilities; and
(e) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are not taking an active part in the hostilities; and
(f) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 17 years.
(2) To avoid doubt, a reference in subsection (1) to a person or persons who are not taking an active part in the hostilities includes a reference to:
(a) a person or persons who are hors de combat; or
(b) civilians, medical personnel or religious personnel who are not taking an active part in the hostilities.
268.76 War crime—sentencing or execution without due process
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator passes a sentence on one or more persons; and
(b) the person or persons are not taking an active part in the hostilities; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are not taking an active part in the hostilities; and
(d) either of the following applies:
(i) there was no previous judgment pronounced by a court;
(ii) the court that rendered judgment did not afford the essential guarantees of independence and impartiality or other judicial guarantees; and
(e) if the court did not afford other judicial guarantees—those guarantees are guarantees set out in articles 14, 15 and 16 of the Covenant; and
(f) the perpetrator knows of:
(i) if subparagraph (d)(i) applies—the absence of a previous judgment; or
(ii) if subparagraph (d)(ii) applies—the failure to afford the relevant guarantees and the fact that they are indispensable to a fair trial; and
(g) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 10 years.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator executes one or more persons; and
(b) the person or persons are not taking an active part in the hostilities; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are not taking an active part in the hostilities; and
(d) either of the following applies:
(i) there was no previous judgment pronounced by a court;
(ii) the court that rendered judgment did not afford the essential guarantees of independence and impartiality or other judicial guarantees; and
(e) if the court did not afford other judicial guarantees—those guarantees are guarantees set out in articles 14, 15 and 16 of the Covenant; and
(f) the perpetrator knows of:
(i) if subparagraph (d)(i) applies—the absence of a previous judgment; or
(ii) if subparagraph (d)(ii) applies—the failure to afford the relevant guarantees and the fact that they are indispensable to a fair trial; and
(g) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for life.
(3) Strict liability applies to paragraphs (1)(e) and (2)(e).
(4) To avoid doubt, a reference in subsection (1) or (2) to a person or persons who are not taking an active part in the hostilities includes a reference to:
(a) a person or persons who are hors de combat; or
(b) civilians, medical personnel or religious personnel who are not taking an active part in the hostilities.
Subdivision G—War crimes that are other serious violations of the laws and customs applicable in an armed conflict that is not an international armed conflict
268.77 War crime—attacking civilians
A person (the perpetrator) commits an offence if:
(a) the perpetrator directs an attack; and
(b) the object of the attack is a civilian population as such or individual civilians not taking direct part in hostilities; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for life.
268.78 War crime—attacking persons or objects using the distinctive emblems of the Geneva Conventions
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator attacks one or more persons; and
(b) the person or persons are using, in conformity with the Geneva Conventions or the Protocols to the Geneva Conventions, any of the distinctive emblems of the Geneva Conventions; and
(c) the perpetrator intends the persons so using such an emblem to be the object of the attack; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator attacks one or more buildings, medical units or transports or other objects; and
(b) the buildings, units or transports or other objects are using, in conformity with the Geneva Conventions or the Protocols to the Geneva Conventions, any of the distinctive emblems of the Geneva Conventions; and
(c) the perpetrator intends the buildings, units or transports or other objects so using such an emblem to be the object of the attack; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 20 years.
(3) Strict liability applies to paragraphs (1)(b) and (2)(b).
268.79 War crime—attacking personnel or objects involved in a humanitarian assistance or peacekeeping mission
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator directs an attack; and
(b) the object of the attack is personnel involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations; and
(c) the personnel are entitled to the protection given to civilians under the Geneva Conventions or Protocol II to the Geneva Conventions; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator directs an attack; and
(b) the object of the attack is installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations; and
(c) the installations, material, units or vehicles are entitled to the protection given to civilian objects under the Geneva Conventions and Protocol II to the Geneva Conventions; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 20 years.
(3) Strict liability applies to paragraphs (1)(c) and (2)(c).
268.80 War crime—attacking protected objects
(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.
268.81 War crime—pillaging
A person (the perpetrator) commits an offence if:
(a) the perpetrator appropriates certain property; and
(b) the perpetrator intends to deprive the owner of the property and to appropriate it for private or personal use; and
(c) the appropriation is without the consent of the owner; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 20 years.
268.82 War crime—rape
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator sexually penetrates another person without the consent of that person; and
(b) the perpetrator knows of, or is reckless as to, the lack of consent; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator causes another person to sexually penetrate the perpetrator without the consent of the other person; and
(b) the perpetrator knows of, or is reckless as to, the lack of consent; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 25 years.
(3) In this section:
consent means free and voluntary agreement.
The following are examples of circumstances in which a person does not consent to an act:
(a) the person submits to the act because of force or the fear of force to the person or to someone else;
(b) the person submits to the act because the person is unlawfully detained;
(c) the person is asleep or unconscious, or is so affected by alcohol or another drug as to be incapable of consenting;
(d) the person is incapable of understanding the essential nature of the act;
(e) the person is mistaken about the essential nature of the act (for example, the person mistakenly believes that the act is for medical or hygienic purposes);
(f) the person submits to the act because of psychological oppression or abuse of power;
(g) the person submits to the act because of the perpetrator taking advantage of a coercive environment.
(4) In this section:
sexually penetrate means:
(a) penetrate (to any extent) the genitalia or anus of a person by any part of the body of another person or by any object manipulated by that other person; or
(b) penetrate (to any extent) the mouth of a person by the penis of another person; or
(c) continue to sexually penetrate as defined in paragraph (a) or (b).
(5) In this section, being reckless as to a lack of consent to sexual penetration includes not giving any thought to whether or not the person is consenting to sexual penetration.
(6) In this section, the genitalia or other parts of the body of a person include surgically constructed genitalia or other parts of the body of the person.
268.83 War crime—sexual slavery
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator causes another person to enter into or remain in sexual slavery; and
(b) the perpetrator intends to cause, or is reckless as to causing, that sexual slavery; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) For the purposes of this section, sexual slavery is the condition of a person who provides sexual services and who, because of the use of force or threats:
(a) is not free to cease providing sexual services; or
(b) is not free to leave the place or area where the person provides sexual services.
(3) In this section:
threat means:
(a) a threat of force; or
(b) a threat to cause a person’s deportation; or
(c) a threat of any other detrimental action unless there are reasonable grounds for the threat of that action in connection with the provision of sexual services by a person.
268.84 War crime—enforced prostitution
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator causes one or more persons to engage in one or more acts of a sexual nature without the consent of the person or persons, including by being reckless as to whether there is consent; and
(b) the perpetrator intends that he or she, or another person, will obtain pecuniary or other advantage in exchange for, or in connection with, the acts of a sexual nature; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
consent means free and voluntary agreement.
The following are examples of circumstances in which a person does not consent to an act:
(a) the person submits to the act because of force or the fear of force to the person or to someone else;
(b) the person submits to the act because the person is unlawfully detained;
(c) the person is asleep or unconscious, or is so affected by alcohol or another drug as to be incapable of consenting;
(d) the person is incapable of understanding the essential nature of the act;
(e) the person is mistaken about the essential nature of the act (for example, the person mistakenly believes that the act is for medical or hygienic purposes);
(f) the person submits to the act because of psychological oppression or abuse of power;
(g) the person submits to the act because of the perpetrator taking advantage of a coercive environment.
threat of force or coercion includes:
(a) a threat of force or coercion such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power; or
(b) taking advantage of a coercive environment.
(3) In subsection (1), being reckless as to whether there is consent to one or more acts of a sexual nature includes not giving any thought to whether or not the person is consenting to the act or acts of a sexual nature.
268.85 War crime—forced pregnancy
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator unlawfully confines one or more women forcibly made pregnant; and
(b) the perpetrator intends to affect the ethnic composition of any population or to destroy, wholly or partly, a national, ethnical, racial or religious group as such; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
forcibly made pregnant includes made pregnant by a consent that was affected by deception or by natural, induced or age‑related incapacity.
(3) To avoid doubt, this section does not affect any other law of the Commonwealth or any law of a State or Territory.
268.86 War crime—enforced sterilisation
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator deprives one or more persons of biological reproductive capacity; and
(b) the deprivation is not effected by a birth‑control measure that has a non‑permanent effect in practice; and
(c) the perpetrator’s conduct is neither justified by the medical or hospital treatment of the person or persons nor carried out with the consent of the person or persons; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
consent does not include consent effected by deception or by natural, induced or age‑related incapacity.
268.87 War crime—sexual violence
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator does either of the following:
(i) commits an act or acts of a sexual nature against one or more persons;
(ii) causes one or more persons to engage in an act or acts of a sexual nature;
without the consent of the person or persons, including by being reckless as to whether there is consent; and
(b) the perpetrator’s conduct is of a gravity comparable to the offences referred to in sections 268.82 to 268.87; and
(c) the conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) Strict liability applies to paragraph (1)(b).
(3) In subsection (1):
consent means free and voluntary agreement.
The following are examples of circumstances in which a person does not consent to an act:
(a) the person submits to the act because of force or the fear of force to the person or to someone else;
(b) the person submits to the act because the person is unlawfully detained;
(c) the person is asleep or unconscious, or is so affected by alcohol or another drug as to be incapable of consenting;
(d) the person is incapable of understanding the essential nature of the act;
(e) the person is mistaken about the essential nature of the act (for example, the person mistakenly believes that the act is for medical or hygienic purposes);
(f) the person submits to the act because of psychological oppression or abuse of power;
(g) the person submits to the act because of the perpetrator taking advantage of a coercive environment.
threat of force or coercion includes:
(a) a threat of force or coercion such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against the person or another person; or
(b) taking advantage of a coercive environment.
(4) In subsection (1), being reckless as to whether there is consent to one or more acts of a sexual nature includes not giving any thought to whether or not the person is consenting to the act or acts of a sexual nature.
268.88 War crime—using, conscripting or enlisting children
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
(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
(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
(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.
268.89 War crime—displacing civilians
A person (the perpetrator) commits an offence if:
(a) the perpetrator orders a displacement of a civilian population; and
(b) the order is not justified by the security of the civilians involved or by imperative military necessity; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 17 years.
268.90 War crime—treacherously killing or injuring
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator invites the confidence or belief of one or more persons that the perpetrator is entitled to protection, or that the person or persons are obliged to accord protection to the perpetrator; and
(b) the perpetrator kills the person or persons; and
(c) the perpetrator makes use of that confidence or belief in killing the person or persons; and
(d) the person or persons belong to an adverse party; and
(e) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator invites the confidence or belief of one or more persons that the perpetrator is entitled to protection, or that the person or persons are obliged to accord protection to the perpetrator; and
(b) the perpetrator injures the person or persons; and
(c) the perpetrator makes use of that confidence or belief in injuring the person or persons; and
(d) the person or persons belong to an adverse party; and
(e) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty for a contravention of this subsection: Imprisonment for 25 years.
268.91 War crime—denying quarter
A person (the perpetrator) commits an offence if:
(a) the perpetrator declares or orders that there are to be no survivors; and
(b) the declaration or order is given with the intention of threatening an adversary or conducting hostilities on the basis that there are to be no survivors; and
(c) the perpetrator is in a position of effective command or control over the subordinate forces to which the declaration or order is directed; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for life.
268.92 War crime—mutilation
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator subjects one or more persons to mutilation, such as by permanently disfiguring, or permanently disabling or removing organs or appendages of, the person or persons; and
(b) the perpetrator’s conduct causes the death of the person or persons; and
(c) the conduct is neither justified by the medical, dental or hospital treatment of the person or persons nor carried out in the interest or interests of the person or persons; and
(d) the person or persons are in the power of another party to the conflict; and
(e) the conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator subjects one or more persons to mutilation, such as by permanently disfiguring, or permanently disabling or removing organs or appendages of, the person or persons; and
(b) the perpetrator’s conduct seriously endangers the physical or mental health, or the integrity, of the person or persons; and
(c) the conduct is neither justified by the medical, dental or hospital treatment of the person or persons nor carried out in the interest or interests of the person or persons; and
(d) the person or persons are in the power of another party to the conflict; and
(e) the conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty for a contravention of this subsection: Imprisonment for 25 years.
268.93 War crime—medical or scientific experiments
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator subjects one or more persons to a medical or scientific experiment; and
(b) the experiment causes the death of the person or persons; and
(c) the perpetrator’s conduct is neither justified by the medical, dental or hospital treatment of the person or persons nor carried out in the interest or interests of the person or persons; and
(d) the person or persons are in the power of another party to the conflict; and
(e) the conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator subjects one or more persons to a medical or scientific experiment; and
(b) the experiment seriously endangers the physical or mental health, or the integrity, of the person or persons; and
(c) the perpetrator’s conduct is neither justified by the medical, dental or hospital treatment of the person or persons nor carried out in the interest or interests of the person or persons; and
(d) the person or persons are in the power of another party to the conflict; and
(e) the conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty for a contravention of this subsection: Imprisonment for 25 years.
268.94 War crime—destroying or seizing an adversary’s property
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator destroys or seizes certain property; and
(b) the property is property of an adversary; and
(c) the property is protected from the destruction or seizure under article 14 of Protocol II to the Geneva Conventions; and
(d) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the property is so protected; and
(e) the destruction or seizure is not justified by military necessity; and
(f) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 15 years
(2) Strict liability applies to paragraph (1)(c).
Subdivision H—War crimes that are grave breaches of Protocol I to the Geneva Conventions
268.95 War crime—medical procedure
A person (the perpetrator) commits an offence if:
(a) the perpetrator subjects one or more persons to a medical procedure; and
(b) the procedure seriously endangers the physical or mental health, or the integrity, of the person or persons; and
(c) the perpetrator’s conduct is not justified by the state of health of the person or persons; and
(d) the perpetrator knows that, or is reckless as to whether, the conduct is consistent with generally accepted medical standards that would be applied under similar medical circumstances to persons who are of the same nationality as the perpetrator and are in no way deprived of liberty; and
(e) the person or persons are in the power of, or are interned, detained or otherwise deprived of liberty by, the country of the perpetrator as a result of an international armed conflict; and
(f) the conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
268.96 War crime—removal of blood, tissue or organs for transplantation
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator removes from one or more persons blood, tissue or organs for transplantation; and
(b) in the case of the removal of blood—the removal:
(i) is not for transfusion; or
(ii) is for transfusion without the consent of the person or persons; and
(c) in the case of the removal of skin—the removal:
(i) is not for grafting; or
(ii) is for grafting without the consent of the person or persons; and
(d) the intent of the removal is non‑therapeutic; and
(e) the removal is not carried out under conditions consistent with generally accepted medical standards and controls designed for the benefit of the person or persons and of the recipient; and
(f) the person or persons are in the power of, or are interned, detained or otherwise deprived of liberty by, an adverse party as a result of an international armed conflict; and
(g) the conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
consent means consent given voluntarily and without any coercion or inducement.
268.97 War crime—attack against works or installations containing dangerous forces resulting in excessive loss of life or injury to civilians
A person (the perpetrator) commits an offence if:
(a) the perpetrator launches an attack against works or installations containing dangerous forces; and
(b) the attack is such that it will cause loss of life, injury to civilians, or damage to civilian objects, to such an extent as to be excessive in relation to the concrete and direct military advantage anticipated; and
(c) the perpetrator knows that the attack will cause loss of life, injury to civilians, or damage to civilian objects, to such an extent; and
(d) the attack results in death or serious injury to body or health; and
(e) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
268.98 War crime—attacking undefended places or demilitarized zones
A person (the perpetrator) commits an offence if:
(a) the perpetrator attacks one or more towns, villages, dwellings, buildings or demilitarized zones; and
(b) the towns, villages, dwellings or buildings are open for unresisted occupation; and
(c) the attack results in death or serious injury to body or health; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
268.99 War crime—unjustifiable delay in the repatriation of prisoners of war or civilians
(1) A person (the perpetrator) commits an offence if:
(a) one or more persons are in the power of, or are interned, detained or otherwise deprived of liberty by, an adverse party as a result of an international armed conflict; and
(b) the perpetrator unjustifiably delays the repatriation of the person or persons to the person’s own country or the persons’ own countries; and
(c) the delay is in violation of Part IV of the Third Geneva Convention or Chapter XII of Section IV of Part III of the Fourth Geneva Convention.
Penalty: Imprisonment for 10 years.
(2) Strict liability applies to paragraph (1)(c).
268.100 War crime—apartheid
A person (the perpetrator) commits an offence if:
(a) the perpetrator commits against one or more persons an act that is a proscribed inhumane act or is of a nature and gravity similar to any proscribed inhumane act; and
(b) the perpetrator knows of, or is reckless at to, the factual circumstances that establish the character of the act; and
(c) the perpetrator’s conduct is committed in the context of an institutionalised regime of systematic oppression and domination by one racial group over any other racial group or groups; and
(d) the perpetrator intends to maintain the regime by the conduct; and
(e) the conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 17 years.
268.101 War crime—attacking protected objects
A person (the perpetrator) commits an offence if:
(a) the perpetrator directs an attack; and
(b) the object of the attack is any one or more of the following that are not used in support of the military effort and are not located in the immediate proximity of military objectives:
(i) clearly recognised historic monuments;
(ii) works of art;
(iii) places of worship; and
(c) the monuments, works of art and places of worship constitute the cultural or spiritual heritage of peoples and have been given special protection by special arrangement (for example, within the framework of a competent international organisation); and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 20 years.
Subdivision J—Crimes against the administration of the justice of the International Criminal Court
268.102 Perjury
(1) A person commits the offence of perjury if:
(a) the person makes a sworn statement in or for the purposes of a proceeding before the International Criminal Court; and
(b) the statement is false.
Penalty: Imprisonment for 10 years.
(2) A person who is an interpreter commits the offence of perjury if:
(a) the person, by a sworn statement, gives an interpretation of a statement or other thing in or for the purposes of a proceeding before the International Criminal Court; and
(b) the interpretation is false or misleading.
Penalty: Imprisonment for 10 years.
268.103 Falsifying evidence
(1) A person commits an offence if the person makes false evidence with the intention of:
(a) influencing a decision on the institution of a proceeding before the International Criminal Court; or
(b) influencing the outcome of such a proceeding.
Penalty: Imprisonment for 7 years.
(2) A person commits an offence if the person:
(a) uses evidence that is false evidence and that the person believes is false evidence; and
(b) is reckless as to whether or not the use of the evidence could:
(i) influence a decision on the institution of a proceeding before the International Criminal Court; or
(ii) influence the outcome of such a proceeding.
Penalty: Imprisonment for 7 years.
(3) For the purposes of this section, making evidence includes altering evidence, but does not include perjury.
268.104 Destroying or concealing evidence
(1) A person commits an offence if the person destroys or conceals evidence with the intention of:
(a) influencing a decision on the institution of a proceeding before the International Criminal Court; or
(b) influencing the outcome of such a proceeding.
Penalty: Imprisonment for 7 years.
(2) For the purposes of this section, destroying evidence includes making the evidence illegible, indecipherable or otherwise incapable of being identified.
268.105 Deceiving witnesses
A person commits an offence if the person deceives another person with the intention that the other person or a third person will:
(a) give false evidence in a proceeding before the International Criminal Court; or
(b) withhold true evidence at such a proceeding.
Penalty: Imprisonment for 5 years.
268.106 Corrupting witnesses or interpreters
(1) A person commits an offence if the person provides, or offers or promises to provide, a benefit to another person with the intention that the other person or a third person will:
(a) not attend as a witness at a proceeding before the International Criminal Court; or
(b) give false evidence at such a proceeding; or
(c) withhold true evidence at such a proceeding.
Penalty: Imprisonment for 5 years.
(2) A person commits an offence if the person asks for, or receives or agrees to receive, a benefit for himself, herself or another person with the intention that he, she or another person will:
(a) not attend as a witness at a proceeding before the International Criminal Court; or
(b) give false evidence at such a proceeding; or
(c) withhold true evidence at such a proceeding.
Penalty: Imprisonment for 5 years.
(3) A person commits an offence if the person provides, or offers or promises to provide, a benefit to another person with the intention that the other person or a third person will:
(a) not attend as an interpreter at a proceeding before the International Criminal Court; or
(b) give a false or misleading interpretation as an interpreter at such a proceeding.
Penalty: Imprisonment for 5 years.
268.107 Threatening witnesses or interpreters
(1) A person commits an offence if the person causes or threatens to cause any detriment to another person with the intention that the other person or a third person will:
(a) not attend as a witness at a proceeding before the International Criminal Court; or
(b) give false evidence at such a proceeding; or
(c) withhold true evidence at such a proceeding.
Penalty: Imprisonment for 7 years.
(2) A person commits an offence if the person causes or threatens to cause any detriment to another person with the intention that the other person or a third person will:
(a) not attend as an interpreter at a proceeding before the International Criminal Court; or
(b) give a false or misleading interpretation as an interpreter in such a proceeding.
Penalty: Imprisonment for 7 years.
268.108 Preventing witnesses or interpreters
(1) A person commits an offence if the person, by his or her conduct, intentionally prevents another person from attending as a witness or interpreter at a proceeding before the International Criminal Court.
Penalty: Imprisonment for 5 years.
(2) This section does not apply to conduct that constitutes an offence against section 268.105, 268.106, 268.107, 268.109 or 268.110.
268.109 Preventing production of things in evidence
A person commits an offence if the person, by his or her conduct, intentionally prevents another person from producing in evidence at a proceeding before the International Criminal Court a thing that is legally required to be produced.
Penalty: Imprisonment for 5 years.
268.110 Reprisals against witnesses
(1) A person commits an offence if the person causes or threatens to cause any detriment to another person who was a witness in a proceeding before the International Criminal Court:
(a) because of anything done by the other person in or for the purposes of the proceeding; and
(b) in the belief that the other person was a witness who had done that thing.
Penalty: Imprisonment for 5 years.
(2) It is a defence to a prosecution for an offence against subsection (1) that:
(a) the detriment to the witness was not (apart from this section) an offence; and
(b) the witness committed perjury in the proceeding before the International Criminal Court.
Note: A defendant bears an evidential burden in relation to the matters in subsection (2). See subsection 13.3(3).
(3) In this section:
witness includes:
(a) a person who attends at a proceeding before the International Criminal Court as a witness but is not called as a witness; or
(b) an interpreter.
268.111 Reprisals against officials of the International Criminal Court
(1) A person commits an offence if the person causes or threatens to cause any detriment to another person who is an official of the International Criminal Court:
(a) because of anything done by the other person; and
(b) in the belief that the other person was an official of that Court who had done that thing for the purposes of a proceeding before that Court.
Penalty: Imprisonment for 5 years.
(2) A person commits an offence if the person causes or threatens to cause any detriment to another person who is an official of the International Criminal Court:
(a) because of anything done by a third person who is an official of that Court; and
(b) in the belief that the third person was an official of that Court who had done that thing for the purposes of a proceeding before that Court.
Penalty: Imprisonment for 5 years.
268.112 Perverting the course of justice
(1) A person commits an offence if the person, by his or her conduct, intentionally perverts the course of justice in respect of the International Criminal Court.
Penalty: Imprisonment for 5 years.
(2) This section does not apply to conduct that constitutes the publication of any matter.
(3) In this section:
perverts includes obstructs, prevents or defeats.
268.113 Receipt of a corrupting benefit by an official of the International Criminal Court
(1) A person who is an official of the International Criminal Court commits an offence if:
(a) the person:
(i) asks for a benefit for himself, herself or another person; or
(ii) receives or obtains a benefit for himself, herself or another person; or
(iii) agrees to receive or obtain a benefit for himself, herself or another person; and
(b) the person does so with the intention that the exercise of the person’s duties as an official of the International Criminal Court will be influenced.
Penalty: Imprisonment for 10 years.
(2) For the purposes of subsection (1), it is immaterial whether the benefit is in the nature of a reward.
268.114 Subdivision not to apply to certain conduct
(1) This Subdivision does not apply to a person in respect of:
(a) conduct that results in a failure or refusal to issue a certificate under section 22 or 29 of the International Criminal Court Act 2002; or
(b) a failure or refusal to issue such a certificate; or
(c) conduct engaged in reliance on the absence of such a certificate.
(2) In this section:
conduct includes any one or more acts or omissions.
Subdivision K—Miscellaneous
268.115 Responsibility of commanders and other superiors
(1) The criminal responsibility imposed by this section is in addition to other grounds of criminal responsibility under the law in force in Australia for acts or omissions that are offences under this Division.
(2) A military commander or person effectively acting as a military commander is criminally responsible for offences under this Division committed by forces under his or her effective command and control, or effective authority and control, as the case may be, as a result of his or her failure to exercise control properly over those forces, where:
(a) the military commander or person either knew or, owing to the circumstances at the time, was reckless as to whether the forces were committing or about to commit such offences; and
(b) the military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
(3) With respect to superior and subordinate relationships not described in subsection (2), a superior is criminally responsible for offences against this Division committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over those subordinates, where:
(a) the superior either knew, or consciously disregarded information that clearly indicated, that the subordinates were committing or about to commit such offences; and
(b) the offences concerned activities that were within the effective responsibility and control of the superior; and
(c) the superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
268.116 Defence of superior orders
(1) The fact that genocide or a crime against humanity has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, does not relieve the person of criminal responsibility.
(2) Subject to subsection (3), the fact that a war crime has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, does not relieve the person of criminal responsibility.
(3) It is a defence to a war crime that:
(a) the war crime was committed by a person pursuant to an order of a Government or of a superior, whether military or civilian; and
(b) the person was under a legal obligation to obey the order; and
(c) the person did not know that the order was unlawful; and
(d) the order was not manifestly unlawful.
Note: A defendant bears an evidential burden in establishing the elements in subsection (3). See subsection 13.3(3).
268.117 Geographical jurisdiction
(1) Section 15.4 (extended geographical jurisdiction—Category D) applies to genocide, crimes against humanity and war crimes.
(2) Section 15.3 (extended geographical jurisdiction—Category C) applies to crimes against the administration of the justice of the International Criminal Court.
268.118 Double jeopardy
A person cannot be tried by a federal court or a court of a State or Territory for an offence under this Division if the person has already been convicted or acquitted by the International Criminal Court for an offence constituted by substantially the same conduct as constituted the offence under this Division.
268.119 Offences related to exercise of jurisdiction of International Criminal Court
(1) A person must not:
(a) intentionally contravene an order that the International Criminal Court makes while sitting in Australia; or
(b) otherwise intentionally hinder the International Criminal Court in performing its functions while sitting in Australia.
Penalty: Imprisonment for 2 years.
(2) In this section:
Australia includes all the external Territories.
268.120 Saving of other laws
This Division is not intended to exclude or limit any other law of the Commonwealth or any law of a State or Territory.
268.121 Bringing proceedings under this Division
(1) Proceedings for an offence under this Division must not be commenced without the Attorney‑General’s written consent.
(2) An offence against this Division may only be prosecuted in the name of the Attorney‑General.
(3) However, a person may be arrested, charged, remanded in custody, or released on bail, in connection with an offence under this Division before the necessary consent has been given.
268.122 Attorney‑General’s decisions in relation to consents to be final
(1) Subject to any jurisdiction of the High Court under the Constitution, a decision by the Attorney‑General to give, or to refuse to give, a consent under section 268.121:
(a) is final; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari.
(2) The reference in subsection (1) to a decision includes a reference to the following:
(a) a decision to vary, suspend, cancel or revoke a consent that has been given;
(b) a decision to impose a condition or restriction in connection with the giving of, or a refusal to give, a consent or to remove a condition or restriction so imposed;
(c) a decision to do anything preparatory to the making of a decision to give, or to refuse to give, a consent or preparatory to the making of a decision referred to in paragraph (a) or (b), including a decision for the taking of evidence or the holding of an inquiry or investigation;
(d) a decision doing or refusing to do anything else in connection with a decision to give, or to refuse to give, a consent or a decision referred to in paragraph (a), (b) or (c);
(e) a failure or refusal to make a decision whether or not to give a consent or a decision referred to in a paragraph (a), (b), (c) or (d).
(3) Any jurisdiction of the High Court referred to in subsection (1) is exclusive of the jurisdiction of any other court.
268.123 Legal representation
The provisions of section 12 (other than subsection 12(2)) of the Geneva Conventions Act 1957 apply in relation to the trial of a person for an offence against this Division in the same way as they apply in relation to the trial of a protected prisoner of war.
268.124 Proof of application of Geneva Conventions or Protocol I to the Geneva Conventions
If, in proceedings under this Division in respect of a grave breach of any of the Geneva Conventions or of Protocol I to the Geneva Conventions, a question arises under:
(a) Article 2 of the Geneva Convention concerned (which relates to the circumstances in which the Convention applies); or
(b) Article 1 of that Protocol (which relates to the circumstances in which the Protocol applies);
a certificate signed by the Minister responsible for legislation relating to foreign affairs certifying to any matter relevant to that question is prima facie evidence of the matter so certified.
268.125 Meaning of civilian
In this Division, the expression civilian does not include a person who is a member of an organised armed group.
Division 270—Slavery and slavery‑like offences
Subdivision A—Preliminary
270.1A Definitions for Division 270
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 bondage 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 bondage).
threat means:
(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).
Subdivision B—Slavery
270.1 Definition of slavery
For the purposes of this Division, slavery is the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including where such a condition results from a debt or contract made by the person.
270.2 Slavery is unlawful
Slavery remains unlawful and its abolition is maintained, despite the repeal by the Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999 of Imperial Acts relating to slavery.
270.3 Slavery offences
(1) A person who, whether within or outside Australia, intentionally:
(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:
commercial transaction involving a slave includes a commercial transaction by which a person is reduced to slavery.
slave trading includes:
(a) the capture, transport or disposal of a person with the intention of reducing the person to slavery; or
(b) the purchase or sale of a slave.
(4) A person who engages in any conduct with the intention of securing the release of a person from slavery does not commit an offence against this section.
(5) The defendant bears a legal burden of proving the matter mentioned in subsection (4).
270.3A Slavery offences—geographical jurisdiction
Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against section 270.3.
270.3B Prosecutions
(1) 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.
Subdivision C—Slavery‑like offences
270.4 Definition of servitude
(1) 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.
270.5 Servitude offences
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 Servitude offences | Column 2 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.
270.6 Definition of forced labour
(1) 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.
270.6A Forced labour offences
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)).
270.7 Deceptive recruiting for labour or services
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.
270.7A Definition of forced marriage
(1) 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.
270.7B Forced marriage offences
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.
270.7C Offence of debt bondage
A person commits an offence of debt bondage if:
(a) the person engages in conduct that causes another person to enter into debt bondage; and
(b) the person intends to cause the other person to enter into debt bondage.
Penalty:
(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.
270.8 Slavery‑like offences—aggravated offences
(1) 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.
270.9 Slavery‑like offences—jurisdictional requirement
Section 15.2 (extended geographical jurisdiction—category B) applies to a slavery‑like offence.
270.10 Slavery‑like offences—relevant evidence
(1) 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 bondage.
(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.
Subdivision D—Offences against Division 270: general
270.11 Offences against Division 270—no defence of victim consent or acquiescence
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.
270.12 Offences against Division 270—other laws not excluded
(1) 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.
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.
Division 271—Trafficking in persons
Subdivision A—Definitions
271.1 Definitions
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).
271.1A Definition of exploitation
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 bondage.
Note: Division 270 (slavery and slavery‑like offences) deals with slavery, servitude, forced labour, forced marriage and debt bondage.
Subdivision B—Offences relating to trafficking in persons
271.2 Offence of trafficking in persons
(1) A person (the first person) commits an offence of trafficking in persons if:
(a) the first person organises or facilitates the entry or proposed entry, or the receipt, of another person into Australia; and
(b) the first person uses 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).
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.
271.4 Offence of trafficking in children
(1) A person (the first person) commits an offence of trafficking in children if:
(a) the first person organises or facilitates the entry or proposed entry into Australia, or the receipt in Australia, of another person; and
(b) the other person is under the age of 18; and
(c) in organising or facilitating that entry or proposed entry, or that receipt, the first person:
(i) intends that the other person will be used to provide sexual services or will be otherwise exploited, either by the first person or another, after that entry or receipt; or
(ii) is reckless as to whether the other person will be used to provide sexual services or will be otherwise exploited, either by the first person or another, after that entry or receipt.
Penalty: Imprisonment for 25 years.
(2) A person (the first person) commits an offence of trafficking in children if:
(a) the first person organises or facilitates the exit or proposed exit from Australia of another person; and
(b) the other person is under the age of 18; and
(c) in organising or facilitating that exit or proposed exit, the first person:
(i) intends that the other person will be used to provide sexual services or will be otherwise exploited, either by the first person or another, after that exit; or
(ii) is reckless as to whether the other person will be used to provide sexual services or will be otherwise exploited, either by the first person or another, after that exit.
Penalty: Imprisonment for 25 years.
271.5 Offence of domestic trafficking in persons
(1) A person (the first person) commits an offence of domestic trafficking in persons if:
(a) the first person organises or facilitates the transportation or proposed transportation of another person from one place in Australia to another place in Australia; and
(b) the first person uses 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 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 any of the following:
(i) the nature of the sexual services to be provided;
(ii) the extent to which the other person will be free to leave the place or area where the other person provides sexual services;
(iii) the extent to which the other person will be free to cease providing sexual services;
(iv) the extent to which the other person will be free to leave his or her place of residence;
(v) if there is a debt owed or claimed to be owed by the other person in connection with the arrangement for the other person to provide sexual services—the quantum, or the existence, of the debt owed or claimed to be owed.
Penalty: Imprisonment for 12 years.
(3) Absolute liability applies to paragraph (1)(c).
271.6 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.
271.7 Offence of domestic trafficking in children
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.
Subdivision BA—Organ trafficking
271.7A Removal of organs contrary to this Subdivision
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.
271.7B Offence of organ trafficking—entry into and exit from Australia
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.
271.7C Organ trafficking—aggravated offence
(1) 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.
271.7D Offence of domestic 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.
271.7E Domestic organ trafficking—aggravated offence
(1) 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.
Subdivision BB—Harbouring a victim
271.7F Harbouring a victim
(1) 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.
271.7G Harbouring a victim—aggravated offence
(1) 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.
Subdivision D—Offences against Division 271: general
271.10 Jurisdictional requirements—offences other than domestic trafficking in persons or organs
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.
271.11 Jurisdictional requirements—offences of domestic trafficking in persons or organs
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 paragraph 51(xix) of the Constitution.
271.11A Offences against Division 271—relevant evidence
(1) 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.
(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.
271.11B Offences against Division 271—no defence of victim consent or acquiescence
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.
271.12 Offences against Division 271—other laws not excluded
(1) 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.
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.
Division 271A—Overseas travel by certain registered offenders
271A.1 Restrictions on overseas travel by certain registered offenders
(1) 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).
Division 272—Child sex offences outside Australia
Subdivision A—Preliminary
272.1 Definitions
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.
272.2 When conduct causes a person to engage in sexual intercourse or other sexual activity
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.
272.3 Meaning of position of trust or authority
(1) 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.
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.
272.5 Meaning of offence against this Division and extension of criminal responsibility
(1) 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
(ii) an offence against section 11.1 (attempt), 11.5 (conspiracy) or 272.19 of this Code;
that relates to an offence against this Division or against that provision of it; and
(b) a reference to an offence against this Division, or against that provision of it, because of section 11.2 (complicity and common purpose), 11.2A (joint commission) or 11.3 (commission by proxy).
(2) A reference 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).
272.6 Who can be prosecuted for an offence committed outside Australia
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.
272.7 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.
Note: Division 279 (video link evidence) applies to a proceeding for an offence against this Division.
Subdivision B—Sexual offences against children outside Australia
272.8 Sexual intercourse with child outside Australia
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.
272.9 Sexual activity (other than sexual intercourse) with child outside Australia
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.
272.10 Aggravated offence—sexual intercourse or other sexual activity with child outside Australia
(1) 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.
272.11 Persistent sexual abuse of child outside Australia
(1) 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.
272.12 Sexual intercourse with young person outside Australia—defendant in position of trust or authority
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.
272.13 Sexual activity (other than sexual intercourse) with young person outside Australia—defendant in position of trust or authority
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.
272.14 Procuring child to engage in sexual activity outside Australia
(1) 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; 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.
272.15 “Grooming” child to engage in sexual activity outside Australia
(1) 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.
272.15A “Grooming” person to make it easier to engage in sexual activity with a child outside Australia
(1) 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.
272.16 Defence based on belief about age
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.
272.17 Defence based on valid and genuine marriage
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.
Subdivision C—Offences of benefiting from, encouraging or preparing for sexual offences against children outside Australia
272.18 Benefiting from offence against this Division
(1) 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.
272.19 Encouraging offence against this Division
(1) 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.
272.20 Preparing for or planning offence against this Division
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).
Subdivision E—Other rules about conduct of trials
272.27 Evidence relating to a person’s age
(1) 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.
272.28 Alternative verdicts
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) |
272.29 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.
272.30 Sentencing
(1) 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 subsection 16A(2) of the Crimes Act 1914).
272.31 Consent to commencement of proceedings where defendant under 18
(1) 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.
Division 273—Offences involving child abuse material outside Australia
Subdivision A—Preliminary
273.1 Definitions
(1) 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.
273.2 Who can be prosecuted for an offence committed outside Australia
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.
273.2A Consent to commencement of proceedings where defendant under 18
(1) 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.
273.3 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.
273.4 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.
Note: Division 279 (video link evidence) applies to a proceeding for an offence against this Division.
Subdivision B—Offences committed overseas involving child abuse material
273.6 Possessing, controlling, producing, distributing or obtaining child abuse material outside Australia
(1) 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.
273.7 Aggravated offence—offence involving conduct on 3 or more occasions and 2 or more people
(1) 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 purposes 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.
273.8 Alternative verdict if aggravated offence not proven
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.
Subdivision C—Defences
273.9 Defences to offences against this Division
(1) 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 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 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
(iii) an officer or employee of the government of a foreign country performing similar duties to an intelligence or security officer; and
(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.
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 in good faith for the sole purpose of:
(a) assisting the eSafety Commissioner to detect:
(i) prohibited content (within the meaning of Schedule 7 to the Broadcasting Services Act 1992); or
(ii) potential prohibited content (within the meaning of that Schedule);
in the performance of the Commissioner’s functions under Schedule 5 or Schedule 7 to that Act; or
(b) manufacturing or developing, or updating, content filtering technology (including software) in accordance with:
(i) a recognised alternative access‑prevention arrangement (within the meaning of clause 40 of Schedule 5 to the Broadcasting Services Act 1992); or
(ii) a designated alternative access‑prevention arrangement (within the meaning of clause 60 of that Schedule).
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
Division 273A—Possession of child‑like sex dolls etc.
273A.1 Possession of child‑like sex dolls etc.
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.
273A.2 Defences
(1) 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.
273A.3 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 273B—Protection of children
Subdivision A—Preliminary
273B.1 Definitions
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.
273B.2 Geographical jurisdiction
Section 15.2 (extended geographical jurisdiction—category B) applies to each offence against this Division.
273B.3 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.
Subdivision B—Offences relating to the protection of children
273B.4 Failing to protect child at risk of child sexual abuse offence
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.
273B.5 Failing to report child sexual abuse offence
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).
Subdivision C—Rules about conduct of trials
273B.6 Consent to commence proceedings
(1) 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.
273B.7 Evidence relating to a person’s age
(1) 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.
Subdivision D—Relationship with other laws
273B.8 Relationship with State and Territory laws
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.
273B.9 Protection from other laws etc. for complying with this Division
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.
Division 274—Torture
274.1 Definitions
(1) 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.
274.2 Torture
(1) 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).
274.3 Prosecutions
(1) 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.
274.4 No defence of exceptional circumstances or superior orders
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.
274.5 Jurisdiction of State/Territory courts preserved
For the purposes of section 38 of the Judiciary Act 1903, a matter arising under this Division, including a question of interpretation of the Convention, is taken not to be a matter arising directly under a treaty.
274.6 Concurrent operation intended
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.
274.7 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 under this Division in respect of that conduct.
Division 279—Video link evidence
279.1 Proceedings to which this Division applies
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).
279.2 When court may take evidence by video link
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.
279.3 Technical requirements for video link
(1) 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.
279.4 Application of laws about witnesses
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.
279.5 Administration of oaths and affirmations
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.
279.6 Expenses
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.
279.7 Other laws about foreign evidence not affected
This Division does not prevent any other law about taking evidence of a witness outside Australia from applying for the purposes of a proceeding.
Chapter 9—Dangers to the community
Part 9.1—Serious drug offences
Division 300—Preliminary
300.1 Purpose
(1) The purpose of this Part is to create offences relating to drug trafficking and to give effect to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, done at Vienna on 20 December 1988 (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.
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.
border controlled drug has the meaning given by section 301.4.
border controlled plant has the meaning given by section 301.5.
border controlled precursor has the meaning given by section 301.6.
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(a); or
(d) for a border controlled plant—listed by a regulation made for the purposes of paragraph 301.5(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).
sell includes the following:
(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.
transport includes deliver.
300.3 Geographical jurisdiction
Section 15.2 (extended geographical jurisdiction—category B) applies to each offence against this Part.
300.4 Concurrent operation intended
(1) This Part is not intended to exclude or limit the concurrent operation of any law of a State or Territory.
(2) Without limiting subsection (1), this Part is not intended to exclude or limit the concurrent operation of a law of a State or Territory that makes:
(a) an act or omission that is an offence against a provision of this Part; or
(b) a similar act or omission;
an offence against the law of the State or Territory.
(3) Subsection (2) applies even if the law of the State or Territory does any one or more of the following:
(a) provides for a penalty for the offence that differs from the penalty provided for in this Part;
(b) provides for a fault element in relation to the offence that differs from the fault elements applicable to the offence under this Part;
(c) provides for a defence in relation to the offence that differs from the defences applicable to the offence under this Part.
300.5 Particular identity of drugs, plants and precursors
If, in a prosecution for an offence against this Part, it is necessary for the prosecution to prove that a person knew, or was reckless as to whether, a substance or plant was a controlled drug, controlled plant, controlled precursor, border controlled drug, border controlled plant or border controlled precursor, it is not necessary for the prosecution to prove that the person knew, or was reckless as to, the particular identity of the controlled drug, controlled plant, controlled precursor, border controlled drug, border controlled plant or border controlled precursor.
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:
(a) sections 11.2, 11.2A and 11.3 (which treat certain combinations of physical and fault elements relating to this Part as being offences against this Part); and
(b) section 11.6 (which has the effect that a reference to an offence against this Part includes a reference to an offence against section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) that relates to this Part).
300.6 Recklessness as to nature of substance or plant sufficient for offence of attempt to commit an offence against this Part
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).
Division 301—Serious drugs and precursors
Subdivision A—Serious drugs and precursors: definitions
301.1 Meaning of controlled drug
(1) 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:
(a) a regulation can be made for paragraph (1)(a) (see section 301.7); or
(b) a determination can be made for paragraph (1)(c) (see subsection 301.13(2)).
(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.
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:
(a) a regulation can be made for paragraph (1)(a) (see section 301.7); or
(b) a determination can be made for paragraph (1)(b) (see subsection 301.13(2)).
(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).
301.3 Meaning of controlled precursor
(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:
(a) a regulation can be made for paragraph (a) (see section 301.8); or
(b) a determination can be made for paragraph (c) (see subsection 301.14(2)).
(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).
301.4 Meaning of border controlled drug
For the purposes of this Part, 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:
(a) a regulation can be made for paragraph (a) (see section 301.7); or
(b) a determination can be made for paragraph (c) (see subsection 301.8(2)).
Note 2: For the meaning of drug analogue, see section 301.9.
301.5 Meaning of border controlled plant
For the purposes of this Part, 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:
(a) a regulation can be made for paragraph (a) (see section 301.7); or
(b) a determination can be made for paragraph (b) (see subsection 301.13(2)).
301.6 Meaning of border controlled precursor
(1) For the purposes of this Part, 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:
(a) a regulation can be made for paragraph (a) (see section 301.8); or
(b) a determination can be made for paragraph (d) (see subsection 301.14(2)).
(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.
301.7 Serious drugs—conditions for listing by regulation
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.
301.8 Serious drug precursors—conditions for listing by regulation
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).
301.9 Meaning of drug analogue
(1) For the purposes of this Part, 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;
(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;
(iv) by the conversion of a carboxyl or an ester group into an amide group;
(d) any other homologue, analogue, chemical derivative or substance substantially similar in chemical structure.
(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.
Subdivision B—Serious drugs and precursors: commercial, marketable and trafficable quantities
301.10 Meaning of commercial quantity
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(b), and the definition of drug analogue in section 301.9).
301.11 Meaning of marketable quantity
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(b), and the definition of drug analogue in section 301.9).
301.12 Meaning of trafficable quantity
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).
Subdivision C—Serious drugs and precursors: emergency determinations
301.13 Emergency determinations—serious drugs
(1) 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.
(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;
(iv) the substance or plant may pose a substantial risk to the health or safety of the public.
(3) The AFP Minister must not make more than one determination under this section in relation to a particular substance or plant.
301.14 Emergency determinations—serious drug precursors
(1) The AFP Minister may, by legislative instrument, determine that a substance (including a growing plant) is a controlled precursor or a border controlled precursor.
(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.
301.15 Emergency determinations—commercial, marketable and trafficable quantities
(1) 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.
301.16 Emergency determinations—effectiveness
(1) 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.
301.17 Emergency determinations—publication
(1) 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.
Division 302—Trafficking controlled drugs
302.1 Meaning of traffics
(1) For the purposes of this Part, a person traffics in a substance if:
(a) the person sells the substance; or
(b) the person prepares the substance for supply with the intention of selling any of it or believing that another person intends to sell any of it; or
(c) the person transports the substance with the intention of selling any of it or believing that another person intends to sell any of it; or
(d) the person guards or conceals the substance with the intention of selling any of it or assisting another person to sell any of it; or
(e) the person possesses the substance with the intention of selling any of it.
(2) For the purposes of paragraph (1)(b), preparing a substance for supply includes packaging the substance or separating the substance into discrete units.
302.2 Trafficking commercial quantities of controlled drugs
(1) A person commits an offence if:
(a) the person traffics in a substance; and
(b) the substance is a controlled drug; and
(c) the quantity trafficked is a commercial quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or both.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
Note: Section 313.4 provides a partial defence in relation to the matter in paragraph (1)(c).
302.3 Trafficking marketable quantities of controlled drugs
(1) A person commits an offence if:
(a) the person traffics in a substance; and
(b) the substance is a controlled drug; and
(c) the quantity trafficked is a marketable quantity.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or both.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
Note: Section 313.4 provides a partial defence in relation to the matter in paragraph (1)(c).
302.4 Trafficking controlled drugs
(1) A person commits an offence if:
(a) the person traffics in a substance; and
(b) the substance is a controlled drug.
Penalty: Imprisonment for 10 years or 2,000 penalty units, or both.
(2) The fault element for paragraph (1)(b) is recklessness.
302.5 Presumption where trafficable quantities are involved
(1) For the purposes of proving an offence against this Division, if a person has:
(a) prepared a trafficable quantity of a substance for supply; or
(b) transported a trafficable quantity of a substance; or
(c) guarded or concealed a trafficable quantity of a substance; or
(d) possessed a trafficable quantity of a substance;
the person is taken to have had the necessary intention or belief concerning the sale of the substance to have been trafficking in the substance.
(2) Subsection (1) does not apply if the person proves that he or she had neither that intention nor belief.
Note 1: A defendant bears a legal burden in relation to the matters in subsection (2) (see section 13.4).
Note 2: This section does not apply where quantities are combined for the purposes of section 311.2 (see subsection 311.2(3)).
302.6 Purchase of controlled drugs is not an ancillary offence
A person does not commit:
(a) an offence against this Division because of the operation of section 11.2 or 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)).
Division 303—Commercial cultivation of controlled plants
303.1 Meanings of cultivate and cultivates a plant
(1) For the purposes of this Part, cultivate includes the following:
(a) plant a seed, seedling or cutting;
(b) transplant a plant;
(c) nurture, tend or grow a plant;
(d) guard or conceal a plant (including against interference or discovery by humans or natural predators);
(e) harvest a plant, pick any part of a plant or separate any resin or other substance from a plant.
(2) For the purposes of this Part, a person cultivates a plant if the person:
(a) engages in its cultivation; or
(b) exercises control or direction over its cultivation; or
(c) provides finance for its cultivation.
303.2 Meaning of product of a plant
For the purposes of this Part, the product of a plant includes the following:
(a) a seed of the plant;
(b) a part of the plant (whether alive or dead);
(c) a substance separated from the plant.
303.3 Meaning of cultivates a plant for a commercial purpose
For the purposes of this Part, a person cultivates a plant for a commercial purpose if the person cultivates the plant:
(a) with the intention of selling any of it or its products; or
(b) believing that another person intends to sell any of it or its products.
303.4 Cultivating commercial quantities of controlled plants
(1) A person commits an offence if:
(a) the person cultivates a plant for a commercial purpose; and
(b) the plant is a controlled plant; and
(c) the quantity cultivated is a commercial quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or both.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
Note: Section 313.4 provides a partial defence in relation to the matter in paragraph (1)(c).
303.5 Cultivating marketable quantities of controlled plants
(1) A person commits an offence if:
(a) the person cultivates a plant for a commercial purpose; and
(b) the plant is a controlled plant; and
(c) the quantity cultivated is a marketable quantity.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or both.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
Note: Section 313.4 provides a partial defence in relation to the matter in paragraph (1)(c).
303.6 Cultivating controlled plants
(1) A person commits an offence if:
(a) the person cultivates a plant for a commercial purpose; and
(b) the plant is a controlled plant.
Penalty: Imprisonment for 10 years or 2,000 penalty units, or both.
(2) The fault element for paragraph (1)(b) is recklessness.
303.7 Presumption where trafficable quantities are involved
(1) For the purposes of proving an offence against this Division, if a person has cultivated a trafficable quantity of a plant, the person is taken to have had the necessary intention or belief concerning the sale of the plant to have been cultivating the plant for a commercial purpose.
(2) Subsection (1) does not apply if the person proves that he or she had neither that intention nor belief.
Note: A defendant bears a legal burden in relation to the matters in subsection (2) (see section 13.4).
Division 304—Selling controlled plants
304.1 Selling commercial quantities of controlled plants
(1) A person commits an offence if:
(a) the person sells a plant; and
(b) the plant is a controlled plant; and
(c) the quantity sold is a commercial quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or both.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
Note: Section 313.4 provides a partial defence in relation to the matter in paragraph (1)(c).
304.2 Selling marketable quantities of controlled plants
(1) A person commits an offence if:
(a) the person sells a plant; and
(b) the plant is a controlled plant; and
(c) the quantity sold is a marketable quantity.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or both.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
Note: Section 313.4 provides a partial defence in relation to the matter in paragraph (1)(c).
304.3 Selling controlled plants
(1) A person commits an offence if:
(a) the person sells a plant; and
(b) the plant is a controlled plant.
Penalty: Imprisonment for 10 years or 2,000 penalty units, or both.
(2) The fault element for paragraph (1)(b) is recklessness.
Division 305—Commercial manufacture of controlled drugs
305.1 Meanings of manufacture and manufactures a substance
(1) For the purposes of this Part, manufacture means:
(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.
305.2 Meaning of manufactures a substance for a commercial purpose
For the purposes of this Part, a person manufactures a substance for a commercial purpose if the person manufactures the substance:
(a) with the intention of selling any of it; or
(b) believing that another person intends to sell any of it.
305.3 Manufacturing commercial quantities of controlled drugs
(1) A person commits an offence if:
(a) the person manufactures a substance for a commercial purpose; and
(b) the substance is a controlled drug; and
(c) the quantity manufactured is a commercial quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or both.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
Note: Section 313.4 provides a partial defence in relation to the matter in paragraph (1)(c).
305.4 Manufacturing marketable quantities of controlled drugs
(1) A person commits an offence if:
(a) the person manufactures a substance for a commercial purpose; and
(b) the substance is a controlled drug; and
(c) the quantity manufactured is a marketable quantity.
Penalty:
(a) in the case of an aggravated offence—imprisonment for 28 years or 5,600 penalty units, or both; or
(b) in any other case—imprisonment for 25 years or 5,000 penalty units, or both.
Note: The additional elements for an aggravated offence against this section are set out in subsection 310.4(2).
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
Note: Section 313.4 provides a partial defence in relation to the matter in paragraph (1)(c).
305.5 Manufacturing controlled drugs
(1) A person commits an offence if:
(a) the person manufactures a substance for a commercial purpose; and
(b) the substance is a controlled drug.
Penalty:
(a) in the case of an aggravated offence—imprisonment for 12 years or 2,400 penalty units, or both; or
(b) in any other case—imprisonment for 10 years or 2,000 penalty units, or both.
Note: The additional elements for an aggravated offence against this section are set out in subsection 310.4(2).
(2) The fault element for paragraph (1)(b) is recklessness.
305.6 Presumption where trafficable quantities are involved
(1) For the purposes of proving an offence against this Division, if a person has manufactured a trafficable quantity of a substance, the person is taken to have had the necessary intention or belief concerning the sale of the substance to have been manufacturing the substance for a commercial purpose.
(2) Subsection (1) does not apply if the person proves that he or she had neither that intention nor belief.
Note: A defendant bears a legal burden in relation to the matters in subsection (2) (see section 13.4).
Division 306—Pre‑trafficking controlled precursors
306.1 Meaning of pre‑traffics
For the purposes of this Part, a person pre‑traffics in a substance if the person:
(a) sells the substance believing that the person to whom it is sold, or another person, intends to use any of the substance to manufacture a controlled drug; or
(b) manufactures the substance:
(i) with the intention of using any of it to manufacture a controlled drug; and
(ii) with the intention of selling any of the drug so manufactured, or believing that another person intends to sell any of the drug so manufactured; or
(c) manufactures the substance:
(i) with the intention of selling any of it to another person; and
(ii) believing that the other person intends to use any of the substance to manufacture a controlled drug; or
(d) possesses the substance:
(i) with the intention of using any of it to manufacture a controlled drug; and
(ii) with the intention of selling any of the drug so manufactured, or believing that another person intends to sell any of the drug so manufactured.
306.2 Pre‑trafficking commercial quantities of controlled precursors
(1) A person commits an offence if:
(a) the person pre‑traffics in a substance; and
(b) the substance is a controlled precursor; and
(c) the quantity pre‑trafficked is a commercial quantity.
Penalty:
(a) in the case of an aggravated offence—imprisonment for 28 years or 5,600 penalty units, or both; or
(b) in any other case—imprisonment for 25 years or 5,000 penalty units, or both.
Note: The additional elements for an aggravated offence against this section are set out in subsection 310.4(3).
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
Note: Section 313.4 provides a partial defence in relation to the matter in paragraph (1)(c).
306.3 Pre‑trafficking marketable quantities of controlled precursors
(1) A person commits an offence if:
(a) the person pre‑traffics in a substance; and
(b) the substance is a controlled precursor; and
(c) the quantity pre‑trafficked is a marketable quantity.
Penalty:
(a) in the case of an aggravated offence—imprisonment for 17 years or 3,400 penalty units, or both; or
(b) in any other case—imprisonment for 15 years or 3,000 penalty units, or both.
Note: The additional elements for an aggravated offence against this section are set out in subsection 310.4(3).
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
Note: Section 313.4 provides a partial defence in relation to the matter in paragraph (1)(c).
306.4 Pre‑trafficking controlled precursors
(1) A person commits an offence if:
(a) the person pre‑traffics in a substance; and
(b) the substance is a controlled precursor.
Penalty:
(a) in the case of an aggravated offence—imprisonment for 9 years or 1,800 penalty units, or both; or
(b) in any other case—imprisonment for 7 years or 1,400 penalty units, or both.
Note: The additional elements for an aggravated offence against this section are set out in subsection 310.4(3).
(2) The fault element for paragraph (1)(b) is recklessness.
306.5 Presumption for pre‑trafficking controlled precursors—sale
(1) For the purposes of proving an offence against subsection 306.4(1), if:
(a) a person has sold a substance; and
(b) a law of the Commonwealth or of a State or Territory required the sale to be authorised (however described); and
(c) the sale was not so authorised;
the person is taken to have sold the substance believing that the person to whom it was sold, or another person, intended to use some or all of the substance to manufacture a controlled drug.
(2) Subsection (1) does not apply if the person proves that he or she did not have that belief.
Note: A defendant bears a legal burden in relation to the matter in subsection (2) (see section 13.4).
306.6 Presumptions for pre‑trafficking controlled precursors—manufacture for drug manufacture
(1) For the purposes of proving an offence against subsection 306.4(1), if:
(a) a person has manufactured a substance; and
(b) a law of the Commonwealth or of a State or Territory required the manufacture to be authorised (however described); and
(c) the manufacture was not so authorised;
the person is taken to have manufactured the substance with the intention of using some or all of it to manufacture a controlled drug.
(2) Subsection (1) does not apply if the person proves that he or she did not have that intention.
Note: A defendant bears a legal burden in relation to the matter in subsection (2) (see section 13.4).
(3) For the purposes of proving an offence against subsection 306.4(1), if a person has manufactured a marketable quantity of a substance with the intention of using some or all of it to manufacture a controlled drug, the person is taken to have done so with the intention of selling some or all of the drug so manufactured, or believing that another person intended to sell some or all of the drug so manufactured.
(4) Subsection (3) does not apply if the person proves that he or she had neither that intention nor belief.
Note: A defendant bears a legal burden in relation to the matters in subsection (4) (see section 13.4).
306.7 Presumptions for pre‑trafficking controlled precursors—manufacture for sale
(1) For the purposes of proving an offence against subsection 306.4(1), if a person has manufactured a marketable quantity of a substance, the person is taken to have done so with the intention of selling some or all of it to another person.
(2) Subsection (1) does not apply if the person proves that he or she did not have that intention.
Note: A defendant bears a legal burden in relation to the matter in subsection (2) (see section 13.4).
(3) For the purposes of proving an offence against subsection 306.4(1), if:
(a) a person has manufactured a substance with the intention of selling some or all of it to another person; and
(b) a law of the Commonwealth or of a State or Territory required the manufacture to be authorised (however described); and
(c) the manufacture was not so authorised;
the person is taken to have manufactured the substance believing that the other person intended to use some or all of the substance to manufacture a controlled drug.
(4) Subsection (3) does not apply if the person proves that he or she did not have that belief.
Note: A defendant bears a legal burden in relation to the matter in subsection (4) (see section 13.4).
306.8 Presumptions for pre‑trafficking controlled precursors—possession
(1) For the purposes of proving an offence against subsection 306.4(1), if:
(a) a person possessed a substance; and
(b) a law of the Commonwealth or of a State or Territory required the possession to be authorised (however described); and
(c) the possession was not so authorised;
the person is taken to have possessed the substance with the intention of using some or all of it to manufacture a controlled drug.
(2) Subsection (1) does not apply if the person proves that he or she did not have that intention.
Note: A defendant bears a legal burden in relation to the matter in subsection (2) (see section 13.4).
(3) For the purposes of proving an offence against subsection 306.4(1), if a person possessed a marketable quantity of a substance with the intention of using some or all of it to manufacture a controlled drug, the person is taken to have done so with the intention of selling some or all of the drug so manufactured, or believing that another person intended to sell some or all of the drug so manufactured.
(4) Subsection (3) does not apply if the person proves that he or she had neither that intention nor belief.
Note: A defendant bears a legal burden in relation to the matters in subsection (4) (see section 13.4).
Division 307—Import‑export offences
Subdivision A—Importing and exporting border controlled drugs or border controlled plants
307.1 Importing and exporting commercial quantities of border controlled drugs or border controlled plants
(1) A person commits an offence if:
(a) the person imports or exports a substance; and
(b) the substance is a border controlled drug or border controlled plant; and
(c) the quantity imported or exported is a commercial quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or both.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
307.2 Importing and exporting marketable quantities of border controlled drugs or border controlled plants
(1) A person commits an offence if:
(a) the person imports or exports a substance; and
(b) the substance is a border controlled drug or border controlled plant; and
(c) the quantity imported or exported is a marketable quantity.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or both.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
(4) Subsection (1) does not apply if the person proves that he or she neither intended, nor believed that another person intended, to sell any of the border controlled drug or any of the border controlled plant or its products.
Note: A defendant bears a legal burden in relation to the matters in subsection (4) (see section 13.4).
307.3 Importing and exporting border controlled drugs or border controlled plants
(1) A person commits an offence if:
(a) the person imports or exports a substance; and
(b) the substance is a border controlled drug or border controlled plant.
Penalty: Imprisonment for 10 years or 2,000 penalty units, or both.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Subsection (1) does not apply if the person proves that he or she neither intended, nor believed that another person intended, to sell any of the border controlled drug or any of the border controlled plant or its products.
Note: A defendant bears a legal burden in relation to the matters in subsection (3) (see section 13.4).
307.4 Importing and exporting border controlled drugs or border controlled plants—no defence relating to lack of commercial intent
(1) A person commits an offence if:
(a) the person imports or exports a substance; and
(b) the substance is a border controlled drug or border controlled plant, 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
307.5 Possessing commercial quantities of unlawfully imported border controlled drugs or border controlled plants
(1) A person commits an offence if:
(a) the person possesses a substance; and
(b) the substance was unlawfully imported; and
(c) the substance is a border controlled drug or border controlled plant; and
(d) the quantity possessed is a commercial quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or both.
(2) Absolute liability applies to paragraphs (1)(b) and (d).
(3) The fault element for paragraph (1)(c) is recklessness.
(4) Subsection (1) does not apply if the person proves that he or she did not know that the border controlled drug or border controlled plant was unlawfully imported.
Note: A defendant bears a legal burden in relation to the matter in subsection (4) (see section 13.4).
307.6 Possessing marketable quantities of unlawfully imported border controlled drugs or border controlled plants
(1) A person commits an offence if:
(a) the person possesses a substance; and
(b) the substance was unlawfully imported; and
(c) the substance is a border controlled drug or border controlled plant; and
(d) the quantity possessed is a marketable quantity.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or both.
(2) Absolute liability applies to paragraphs (1)(b) and (d).
(3) The fault element for paragraph (1)(c) is recklessness.
(4) Subsection (1) does not apply if the person proves that he or she neither intended, nor believed that another person intended, to sell any of the border controlled drug or any of the border controlled plant or its products.
(5) Subsection (1) does not apply if the person proves that he or she did not know that the border controlled drug or border controlled plant was unlawfully imported.
Note: A defendant bears a legal burden in relation to the matters in subsections (4) and (5) (see section 13.4).
307.7 Possessing unlawfully imported border controlled drugs or border controlled plants
(1) A person commits an offence if:
(a) the person possesses a substance; and
(b) the substance was unlawfully imported; and
(c) the substance is a border controlled drug or border controlled plant, 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
307.8 Possessing commercial quantities of border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported
(1) A person commits an offence if:
(a) the person possesses a substance; and
(b) the substance is reasonably suspected of having been unlawfully imported; and
(c) the substance is a border controlled drug or border controlled plant; and
(d) the quantity possessed is a commercial quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or both.
(2) Absolute liability applies to paragraphs (1)(b) and (d).
(3) The fault element for paragraph (1)(c) is recklessness.
(4) Subsection (1) does not apply if the person proves that the border controlled drug or border controlled plant was not unlawfully imported.
Note: A defendant bears a legal burden in relation to the matter in subsection (4) (see section 13.4).
307.9 Possessing marketable quantities of border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported
(1) A person commits an offence if:
(a) the person possesses a substance; and
(b) the substance is reasonably suspected of having been unlawfully imported; and
(c) the substance is a border controlled drug or border controlled plant; and
(d) the quantity possessed is a marketable quantity.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or both.
(2) Absolute liability applies to paragraphs (1)(b) and (d).
(3) The fault element for paragraph (1)(c) is recklessness.
(4) Subsection (1) does not apply if the person proves that he or she neither intended, nor believed that another person intended, to sell any of the border controlled drug or any of the border controlled plant or its products.
(5) Subsection (1) does not apply if the person proves that the border controlled drug or border controlled plant was not unlawfully imported.
Note: A defendant bears a legal burden in relation to the matters in subsections (4) and (5) (see section 13.4).
307.10 Possessing border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported
(1) A person commits an offence if:
(a) the person possesses a substance; and
(b) the substance is reasonably suspected of having been unlawfully imported; and
(c) the substance is a border controlled drug or border controlled plant, 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
307.11 Importing and exporting commercial quantities of border controlled precursors
(1) A person commits an offence if:
(a) the person imports or exports a substance; and
(c) the substance is a border controlled precursor; and
(d) the quantity imported or exported is a commercial quantity.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or both.
(2) The fault element for paragraph (1)(c) is recklessness.
(3) Absolute liability applies to paragraph (1)(d).
307.12 Importing and exporting marketable quantities of border controlled precursors
(1) A person commits an offence if:
(a) the person imports or exports a substance; and
(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).
307.13 Importing and exporting border controlled precursors
(1) A person commits an offence if:
(a) the person imports or exports a substance; and
(c) the substance is a border controlled precursor.
Penalty: Imprisonment for 7 years or 1,400 penalty units, or both.
(2) The fault element for paragraph (1)(c) is recklessness.
Division 308—Possession offences
308.1 Possessing controlled drugs
(1) A person commits an offence if:
(a) the person possesses a substance; and
(b) the substance is a controlled drug, other than a determined controlled drug.
Penalty: Imprisonment for 2 years or 400 penalty units, or both.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) If:
(a) a person is charged with, or convicted of, an offence against subsection (1); and
(b) the offence is alleged to have been, or was, committed in a State or Territory;
the person may be tried, punished or otherwise dealt with as if the offence were an offence against the law of the State or Territory that involved the possession or use of a controlled drug (however described).
Note: Subsection (3) allows for drug users to be diverted from the criminal justice system to receive the same education, treatment and support that is available in relation to drug offences under State and Territory laws.
(4) However, a person punished under subsection (3) must not be:
(a) sentenced to a period of imprisonment that exceeds the period set out in subsection (1); or
(b) fined an amount that exceeds the amount set out in subsection (1).
(5) Subsection (3) does not limit:
(a) Part 1B of the Crimes Act 1914; or
(b) section 68 or 79 of the Judiciary Act 1903; or
(c) any other law that provides for a law of a State or Territory to apply in relation to the exercise of federal jurisdiction.
308.2 Possessing controlled precursors
(1) A person commits an offence if:
(a) the person possesses a substance; and
(b) the person intends to use any of the substance to manufacture a controlled drug; and
(c) the substance is a controlled precursor.
Penalty: Imprisonment for 2 years or 400 penalty units, or both.
(2) The fault element for paragraph (1)(c) is recklessness.
(3) For the purposes of proving an offence against subsection (1), if:
(a) a person possessed a substance; and
(b) a law of the Commonwealth or of a State or Territory required the possession to be authorised (however described); and
(c) the possession was not so authorised;
the person is taken to have possessed the substance with the intention of using some or all of the substance to manufacture a controlled drug.
(4) Subsection (3) does not apply if the person proves that he or she did not have that intention.
Note: A defendant bears a legal burden in relation to the matter in subsection (4) (see section 13.4).
308.3 Possessing plant material, equipment or instructions for commercial cultivation of controlled plants
A person commits an offence if:
(a) the person possesses a plant, a product of a plant, any equipment or any document containing instructions for growing a plant; and
(b) the person intends to use the plant, product, equipment or document to cultivate a controlled plant; and
(c) the person intends to sell, or believes that another person intends to sell, any of the plant so cultivated or any of its products.
Penalty: Imprisonment for 7 years or 1,400 penalty units, or both.
308.4 Possessing substance, equipment or instructions for commercial manufacture of controlled drugs
(1) A person commits an offence if:
(a) the person possesses any substance (other than a controlled precursor), any equipment or any document containing instructions for manufacturing a controlled drug; and
(b) the person intends to use the substance, equipment or document to manufacture a controlled drug; and
(c) the person intends to sell, or believes that another person intends to sell, any of the drug so manufactured.
Penalty: Imprisonment for 7 years or 1,400 penalty units, or both.
(2) For the purposes of proving an offence against subsection (1), if:
(a) a person possessed a tablet press; and
(b) a law of the Commonwealth or of a State or Territory required the possession to be authorised (however described); and
(c) the possession was not so authorised;
the person is taken to have possessed the tablet press with the intention of using it to manufacture a controlled drug.
(3) Subsection (2) does not apply if the person proves that he or she did not have that intention.
Note: A defendant bears a legal burden in relation to the matter in subsection (3) (see section 13.4).
Division 309—Drug offences involving children
309.1 Children not criminally responsible for offences against this Division
A child is not criminally responsible for an offence against this Division.
Note: For the purposes of this Part, a child is an individual under 18 years of age (see section 300.2).
309.2 Supplying controlled drugs to children
(1) A person commits an offence if:
(a) the person supplies a substance to an individual; and
(b) the individual is a child; and
(c) the substance is a controlled drug.
Penalty: Imprisonment for 15 years or 3,000 penalty units, or both.
(2) Strict liability applies to paragraph (1)(b).
(3) The fault element for paragraph (1)(c) is recklessness.
309.3 Supplying marketable quantities of controlled drugs to children for trafficking
(1) A person commits an offence if:
(a) the person supplies a substance to an individual; and
(b) the individual is a child; and
(c) the substance is a controlled drug; and
(d) the quantity supplied is a marketable quantity; and
(e) the person supplies the controlled drug believing that the child intends to sell any of it.
Penalty: Imprisonment for life or 7,500 penalty units, or both.
(2) Strict liability applies to paragraph (1)(b).
(3) The fault element for paragraph (1)(c) is recklessness.
(4) Absolute liability applies to paragraph (1)(d).
Note: Section 313.4 provides a partial defence in relation to the matter in paragraph (1)(d).
309.4 Supplying controlled drugs to children for trafficking
(1) A person commits an offence if:
(a) the person supplies a substance to an individual; and
(b) the individual is a child; and
(c) the substance is a controlled drug; and
(d) the person supplies the controlled drug believing that the child intends to sell any of it.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or both.
(2) Strict liability applies to paragraph (1)(b).
(3) The fault element for paragraph (1)(c) is recklessness.
309.5 Presumption where trafficable quantities are involved
(1) For the purposes of proving an offence against section 309.3 or 309.4, if a person has supplied a trafficable quantity of a substance to a child, the person is taken to have done so believing that the child intended to sell some or all of it.
(2) Subsection (1) does not apply if the person proves that he or she did not have that belief.
Note: A defendant bears a legal burden in relation to the matter in subsection (2) (see section 13.4).
309.6 Meaning of procures an individual to traffic
(1) For the purposes of this Part, a person procures an individual to traffic in a substance if:
(a) the person procures the individual to sell the substance; or
(b) the person, with the intention of selling any of the substance or believing that another person intends to sell any of the substance, procures the individual to prepare the substance for supply or to transport the substance; or
(c) the person, with the intention of selling any of the substance or assisting another person to sell any of the substance, procures the individual to guard or conceal the substance.
(2) For the purposes of paragraph (1)(b), preparing a substance for supply includes packaging the substance or separating the substance into discrete units.
309.7 Procuring children for trafficking marketable quantities of controlled drugs
(1) A person commits an offence if:
(a) the person procures an individual to traffic in a quantity of a substance; and
(b) the individual is a child; and
(c) the substance is a controlled drug; and
(d) the quantity is a marketable quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or both.
(2) Strict liability applies to paragraph (1)(b).
(3) The fault element for paragraph (1)(c) is recklessness.
(4) Absolute liability applies to paragraph (1)(d).
Note: Section 313.4 provides a partial defence in relation to the matter in paragraph (1)(d).
309.8 Procuring children for trafficking controlled drugs
(1) A person commits an offence if:
(a) the person procures an individual to traffic in a substance; and
(b) the individual is a child; and
(c) the substance is a controlled drug.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or both.
(2) Strict liability applies to paragraph (1)(b).
(3) The fault element for paragraph (1)(c) is recklessness.
309.9 Meaning of procures an individual to pre‑traffic
For the purposes of this Part, a person procures an individual to pre‑traffic in a substance if the person procures the individual to sell the substance believing that the person to whom the substance is sold intends to use any of the substance to manufacture a controlled drug.
309.10 Procuring children for pre‑trafficking marketable quantities of controlled precursors
(1) A person commits an offence if:
(a) the person procures an individual to pre‑traffic in a quantity of a substance; and
(b) the individual is a child; and
(c) the substance is a controlled precursor; and
(d) the quantity is a marketable quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or both.
(2) Strict liability applies to paragraph (1)(b).
(3) The fault element for paragraph (1)(c) is recklessness.
(4) Absolute liability applies to paragraph (1)(d).
Note: Section 313.4 provides a partial defence in relation to the matter in paragraph (1)(d).
309.11 Procuring children for pre‑trafficking controlled precursors
(1) A person commits an offence if:
(a) the person procures an individual to pre‑traffic in a substance; and
(b) the individual is a child; and
(c) the substance is a controlled precursor.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or both.
(2) Strict liability applies to paragraph (1)(b).
(3) The fault element for paragraph (1)(c) is recklessness.
309.12 Procuring children for importing or exporting marketable quantities of border controlled drugs or border controlled plants
(1) A person commits an offence if:
(a) the person procures an individual to import or export a substance; and
(b) the individual is a child; and
(c) the substance is a border controlled drug or border controlled plant; and
(d) the quantity imported or exported is a marketable quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or both.
(2) Strict liability applies to paragraph (1)(b).
(3) The fault element for paragraph (1)(c) is recklessness.
(4) Absolute liability applies to paragraph (1)(d).
Note: Section 313.4 provides a partial defence in relation to the matter in paragraph (1)(d).
(5) Subsection (1) does not apply if the person proves that he or she neither intended, nor believed that another person intended, to sell any of the border controlled drug or any of the border controlled plant or its products.
Note 1: A defendant bears a legal burden in relation to the matters in subsection (5) (see section 13.4).
Note 2: A person who does not commit an offence against this section because he or she proves the matters in subsection (5) may, however, have committed an offence against section 309.2 (supplying controlled drugs to children).
309.13 Procuring children for importing or exporting border controlled drugs or border controlled plants
(1) A person commits an offence if:
(a) the person procures an individual to import or export a substance; and
(b) the individual is a child; and
(c) the substance is a border controlled drug or border controlled plant.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or both.
(2) Strict liability applies to paragraph (1)(b).
(3) The fault element for paragraph (1)(c) is recklessness.
(4) Subsection (1) does not apply if the person proves that he or she neither intended, nor believed that another person intended, to sell any of the border controlled drug or any of the border controlled plant or its products.
Note 1: A defendant bears a legal burden in relation to the matters in subsection (4) (see section 13.4).
Note 2: A person who does not commit an offence against this section because he or she proves the matters in subsection (4) may, however, have committed an offence against section 309.2 (supplying controlled drugs to children).
309.14 Procuring children for importing or exporting marketable quantities of border controlled precursors
(1) A person commits an offence if:
(a) the person procures an individual to import or export a substance; and
(b) either or both of the following apply:
(i) the person intends to use any of the substance to manufacture a controlled drug;
(ii) the person believes that another person intends to use any of the substance to manufacture a controlled drug; and
(c) the individual is a child; and
(d) the substance is a border controlled precursor; and
(e) the quantity imported or exported is a marketable quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or both.
(2) Strict liability applies to paragraph (1)(c).
(3) The fault element for paragraph (1)(d) is recklessness.
(4) Absolute liability applies to paragraph (1)(e).
Note: Section 313.4 provides a partial defence in relation to the matter in paragraph (1)(e).
(5) Subsection (1) does not apply if:
(a) in relation to conduct covered by subparagraph (1)(b)(i)—the person proves that he or she neither intended, nor believed that another person intended, to sell any of the controlled drug so manufactured; or
(b) in relation to conduct covered by subparagraph (1)(b)(ii)—the person proves that, although he or she believed that the other person intended to use the substance to manufacture a controlled drug, he or she did not intend to sell any of the substance to the other person.
Note: A defendant bears a legal burden in relation to the matters in subsection (5) (see section 13.4).
309.15 Procuring children for importing or exporting border controlled precursors
(1) A person commits an offence if:
(a) the person procures an individual to import or export a substance; and
(b) either or both of the following apply:
(i) the person intends to use any of the substance to manufacture a controlled drug;
(ii) the person believes that another person intends to use any of the substance to manufacture a controlled drug; and
(c) the individual is a child; and
(d) the substance is a border controlled precursor.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or both.
(2) Strict liability applies to paragraph (1)(c).
(3) The fault element for paragraph (1)(d) is recklessness.
(4) Subsection (1) does not apply if:
(a) in relation to conduct covered by subparagraph (1)(b)(i)—the person proves that he or she neither intended, nor believed that another person intended, to sell any of the controlled drug so manufactured; or
(b) in relation to conduct covered by subparagraph (1)(b)(ii)—the person proves that, although he or she believed that the other person intended to use the substance to manufacture a controlled drug, he or she did not intend to sell any of the substance to the other person.
Note: A defendant bears a legal burden in relation to the matters in subsection (4) (see section 13.4).
Division 310—Harm and danger to children under 14 from serious drug offences
310.1 Children not criminally responsible for offences against this Division
A child is not criminally responsible for an offence against this Division.
Note: For the purposes of this Part, a child is an individual under 18 years of age (see section 300.2).
310.2 Danger from exposure to unlawful manufacturing
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct gives rise to a danger of serious harm to an individual; and
(c) the individual is under 14 years of age; and
(d) the danger exists because the individual is exposed to the manufacture of a controlled drug or a controlled precursor; and
(e) the manufacture is an offence against this Part, or would be an offence against this Part if the manufacture were for a commercial purpose (see section 305.2).
Penalty: Imprisonment for 9 years or 1,800 penalty units, or both.
Note: A person can commit an offence against subsection (1) without being involved in the unlawful manufacture of controlled drugs or controlled precursors. The person need only expose a child under 14 to the danger of serious harm from such manufacture.
(2) Strict liability applies to paragraphs (1)(c) and (e).
(3) For the purposes of subsection (1), if a person’s conduct exposes another person to the risk of catching a disease that may give rise to a danger of serious harm to the other person, the conduct is taken to give rise to a danger of serious harm to the other person.
(4) For the purposes of subsection (1), a person’s conduct gives rise to a danger of serious harm if the conduct is ordinarily capable of creating a real, and not merely a theoretical, danger of serious harm.
(5) For the purposes of subsection (1), a person’s conduct may give rise to a danger of serious harm whatever the statistical or arithmetical calculation of the degree of risk of serious harm involved.
(6) In a prosecution for an offence against subsection (1), it is not necessary to prove:
(a) that a person was actually placed in danger of serious harm by the conduct concerned; or
(b) that a particular person committed the offence mentioned in paragraph (1)(e).
(7) If, in a prosecution for an offence against subsection (1), the conduct of the defendant for the purposes of paragraph (1)(a) is alleged to be an omission, the fault element for that omission is recklessness.
310.3 Harm from exposure to unlawful manufacturing
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct causes harm to an individual; and
(c) the individual is under 14 years of age; and
(d) the harm is caused because the individual is exposed to the manufacture of a controlled drug or a controlled precursor; and
(e) the manufacture is an offence against this Part, or would be an offence against this Part if the manufacture were for a commercial purpose (see section 305.2).
Penalty: Imprisonment for 9 years or 1,800 penalty units, or both.
Note: A person can commit an offence against this section without being involved in the unlawful manufacture of controlled drugs or controlled precursors. The person need only cause harm to a child under 14 by exposing the child to such manufacture.
(2) Strict liability applies to paragraphs (1)(c) and (e).
(3) In a prosecution for an offence against subsection (1), it is not necessary to prove that a particular person committed the offence mentioned in paragraph (1)(e).
(4) If, in a prosecution for an offence against subsection (1), the conduct of the defendant for the purposes of paragraph (1)(a) is alleged to be an omission, the fault element for that omission is recklessness.
310.4 Aggravated offences—manufacturing controlled drugs and controlled precursors
(1) If the prosecution intends to prove an aggravated offence, the charge must allege the relevant aggravated offence.
(2) For the purposes of this Part, an offence against section 305.4 or 305.5 is an aggravated offence if:
(a) the commission of the offence exposes an individual to the manufacture of a controlled drug; and
(b) the individual is under 14 years of age.
(3) For the purposes of this Part, an offence against section 306.2, 306.3 or 306.4 is an aggravated offence if:
(a) the commission of the offence exposes an individual to:
(i) a controlled precursor intended to be used for the manufacture of a controlled drug; or
(ii) the manufacture of a controlled precursor; and
(b) the individual is under 14 years of age.
(4) The fault element for paragraphs (2)(a) and (3)(a) is recklessness.
(5) Strict liability applies to paragraphs (2)(b) and (3)(b).
(6) Subsections (2) and (3) do not apply if the commission of the offence does not give rise to a danger of harm to the individual.
Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3)).
(7) For the purposes of this section, if the commission of an offence exposes a person to the risk of catching a disease that may give rise to a danger of harm to the person, the commission of the offence is taken to give rise to a danger of harm to the person.
(8) For the purposes of this section, the commission of an offence gives rise to a danger of harm if the commission of the offence is ordinarily capable of creating a real, and not merely a theoretical, danger of harm.
(9) For the purposes of this section, the commission of an offence may give rise to a danger of harm whatever the statistical or arithmetical calculation of the degree of risk of harm involved.
Division 311—Combining quantities of drugs, plants or precursors
Subdivision A—Combining different parcels on the same occasion
311.1 Combining different parcels on the same occasion
(1) If, on the same occasion, a person:
(a) traffics in different parcels of controlled drugs (Division 302); or
(b) cultivates different parcels of controlled plants (Division 303); or
(c) sells different parcels of controlled plants (Division 304); or
(d) manufactures different parcels of controlled drugs (Division 305); or
(e) pre‑traffics in different parcels of controlled precursors (Division 306); or
(f) imports or exports different parcels of border controlled drugs or border controlled plants (Subdivision A of Division 307); or
(g) possesses different parcels of unlawfully imported border controlled drugs or border controlled plants (Subdivision B of Division 307); or
(h) possesses different parcels of border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported (Subdivision C of Division 307); or
(i) imports or exports different parcels of border controlled precursors (Subdivision D of Division 307); or
(j) supplies different parcels of controlled drugs to a child for trafficking (sections 309.3 and 309.4); or
(k) procures a child to traffic in different parcels of controlled drugs (sections 309.7 and 309.8); or
(l) procures a child to pre‑traffic in different parcels of controlled precursors (sections 309.10 and 309.11); or
(m) procures a child to import or export different parcels of border controlled drugs or border controlled plants (sections 309.12 and 309.13); or
(n) procures a child to import or export different parcels of border controlled precursors (sections 309.14 and 309.15);
the person may be charged with a single offence against this Part in respect of all or any of the different parcels of drugs, plants or precursors.
(2) The quantity of the drugs, plants or precursors for the purposes of the offence is the sum of the quantities of the drugs, plants or precursors in the different parcels.
Note: See section 312.2 for working out quantities where different kinds of controlled or border controlled drugs, plants or precursors are involved.
(3) If the prosecution intends to rely on this Subdivision, particulars of each parcel of drugs, plants or precursors must be set out in the charge.
(4) This Subdivision does not prevent a person being charged with separate offences in respect of different parcels of drugs, plants or precursors.
Subdivision B—Combining parcels from organised commercial activities
311.2 Business of trafficking controlled drugs
(1) In proceedings for an offence against:
(a) section 302.2 (trafficking commercial quantities of controlled drugs); or
(b) section 302.3 (trafficking marketable quantities of controlled drugs);
the prosecution may prove the element of the offence relating to the quantity of controlled drug by proving:
(c) that the defendant was engaged in an organised commercial activity that involved repeated trafficking in controlled drugs; and
(d) that the relevant quantity of a controlled drug, or of a combination of controlled drugs, was trafficked in the course of that activity.
Note 1: See section 312.2 for working out quantities where different kinds of controlled drugs are involved.
Note 2: Section 313.4 provides a partial defence in relation to the matter in paragraph (1)(d).
(2) For the purposes of subsection (1) it is not necessary for the prosecution to specify or prove:
(a) the exact date of each occasion of trafficking; or
(b) the exact quantity trafficked on each occasion.
(3) Section 302.5 (presumption where trafficable quantities are involved) does not apply to an offence prosecuted in accordance with subsection (1).
311.3 Business of pre‑trafficking by selling controlled precursors
(1) In proceedings for an offence against:
(a) section 306.2 (pre‑trafficking commercial quantities of controlled precursors); or
(b) section 306.3 (pre‑trafficking marketable quantities of controlled precursors);
where the alleged conduct of the defendant involves pre‑trafficking by selling controlled precursors, the prosecution may prove the element of the offence relating to the quantity of controlled precursor by proving:
(c) that the defendant was engaged in an organised commercial activity that involved repeated pre‑trafficking by selling controlled precursors; and
(d) that the relevant quantity of a controlled precursor, or of a combination of controlled precursors, was pre‑trafficked by sale in the course of that activity.
Note 1: See section 312.2 for working out quantities where different kinds of controlled precursors are involved.
Note 2: Section 313.4 provides a partial defence in relation to the matter in paragraph (1)(d).
(2) For the purposes of subsection (1) it is not necessary for the prosecution to specify or prove:
(a) the exact date of each occasion of pre‑trafficking; or
(b) the exact quantity pre‑trafficked on each occasion.
311.4 Business of importing or exporting border controlled drugs or border controlled plants
(1) In proceedings for an offence against:
(a) section 307.1 (importing and exporting commercial quantities of border controlled drugs or border controlled plants); or
(b) section 307.2 (importing and exporting marketable quantities of border controlled drugs or border controlled plants);
the prosecution may prove the element of the offence relating to the quantity of border controlled drug or border controlled plant by proving:
(c) that the defendant was engaged in an organised commercial activity that involved repeated importing or exporting of border controlled drugs or border controlled plants, or both; and
(d) that the relevant quantity of a border controlled drug or border controlled plant or both, or of a combination of border controlled drugs or border controlled plants or both, was imported or exported in the course of that activity.
Note: See section 312.2 for working out quantities where different kinds of border controlled drugs or border controlled plants are involved.
(2) For the purposes of subsection (1) it is not necessary for the prosecution to specify or prove:
(a) the exact date of each occasion of import or export; or
(b) the exact quantity imported or exported on each occasion.
311.5 Business of importing or exporting border controlled precursors
(1) In proceedings for an offence against:
(a) section 307.11 (importing and exporting commercial quantities of border controlled precursors); or
(b) section 307.12 (importing and exporting marketable quantities of border controlled precursors);
the prosecution may prove the element of the offence relating to the quantity of border controlled precursor by proving:
(c) that the defendant was engaged in an organised commercial activity that involved repeated importing or exporting of border controlled precursors; and
(d) that the relevant quantity of a border controlled precursor, or of a combination of border controlled precursors, was imported or exported in the course of that activity.
Note: See section 312.2 for working out quantities where different kinds of border controlled precursors are involved.
(2) For the purposes of subsection (1) it is not necessary for the prosecution to specify or prove:
(a) the exact date of each occasion of import or export; or
(b) the exact quantity imported or exported on each occasion.
311.6 Business of supplying controlled drugs to children
(1) In proceedings for an offence against section 309.3 (supplying marketable quantities of controlled drugs to children for trafficking), the prosecution may prove the element of the offence relating to the quantity of controlled drug by proving:
(a) that the defendant was engaged in an organised commercial activity that involved repeated supplying of drugs to children for trafficking; and
(b) that the relevant quantity of a controlled drug, or of a combination of controlled drugs, was supplied to children in the course of that activity.
Note 1: See section 312.2 for working out quantities where different kinds of controlled drugs are involved.
Note 2: Section 313.4 provides a partial defence in relation to the matter in paragraph (1)(b).
(2) For the purposes of subsection (1) it is not necessary for the prosecution to specify or prove:
(a) the exact date of each occasion of supply; or
(b) the exact quantity supplied on each occasion.
(3) Section 309.5 (presumption where trafficable quantities are involved) does not apply to an offence prosecuted in accordance with subsection (1).
311.7 General rules—combining parcels from organised commercial activities
(1) If, in proceedings for an offence, the prosecution intends to rely on section 311.2, 311.3, 311.4, 311.5 or 311.6:
(a) the fact that it intends to do so must be set out in the charge; and
(b) a description of the conduct alleged for the purposes of that section must be set out in the charge or provided to the accused within a reasonable time before the proceedings.
(2) If:
(a) an occasion of trafficking, pre‑trafficking, importing or exporting or supplying is alleged in proceedings against a person for an offence prosecuted in accordance with section 311.2, 311.3, 311.4, 311.5 or 311.6; and
(b) the person is convicted or acquitted of the offence;
that occasion must not be alleged in proceedings against the person for another offence against this Part.
(3) If:
(a) an occasion of trafficking, pre‑trafficking, importing or exporting or supplying is alleged in proceedings against a person for an offence against this Part; and
(b) the person is convicted or acquitted of the offence;
that occasion must not be alleged in proceedings against the person for an offence prosecuted in accordance with section 311.2, 311.3, 311.4, 311.5 or 311.6.
(4) Subject to subsections (2) and (3), this Subdivision does not prevent a person being charged with separate offences in respect of conduct on different occasions.
Subdivision C—Combining parcels from multiple offences
311.8 Multiple offences—trafficking controlled drugs
The prosecution may prove an offence against Division 302 (trafficking controlled drugs) by proving:
(a) that the defendant committed offences against that Division on different occasions; and
(b) that each of those offences was committed within a period of not more than 7 days from another of those offences; and
(c) that the relevant quantity (in sum) of a controlled drug, or of a combination of controlled drugs, was trafficked during the commission of those offences.
Note 1: See section 312.2 for working out quantities where different kinds of controlled drugs are involved.
Note 2: Section 313.4 provides a partial defence in relation to the matter in paragraph (c).
311.9 Multiple offences—cultivating controlled plants
The prosecution may prove an offence against Division 303 (commercial cultivation of controlled plants) by proving:
(a) that the defendant committed offences against that Division on different occasions; and
(b) that each of those offences was committed within a period of not more than 7 days from another of those offences; and
(c) that the relevant quantity (in sum) of a controlled plant, or of a combination of controlled plants, was cultivated during the commission of those offences.
Note 1: See section 312.2 for working out quantities where different kinds of controlled plants are involved.
Note 2: Section 313.4 provides a partial defence in relation to the matter in paragraph (c).
311.10 Multiple offences—selling controlled plants
The prosecution may prove an offence against Division 304 (selling controlled plants) by proving:
(a) that the defendant committed offences against that Division on different occasions; and
(b) that each of those offences was committed within a period of not more than 7 days from another of those offences; and
(c) that the relevant quantity (in sum) of a controlled plant, or of a combination of controlled plants, was sold during the commission of those offences.
Note 1: See section 312.2 for working out quantities where different kinds of controlled plants are involved.
Note 2: Section 313.4 provides a partial defence in relation to the matter in paragraph (c).
311.11 Multiple offences—manufacturing controlled drugs
The prosecution may prove an offence against Division 305 (commercial manufacture of controlled drugs) by proving:
(a) that the defendant committed offences against that Division on different occasions; and
(b) that each of those offences was committed within a period of not more than 7 days from another of those offences; and
(c) that the relevant quantity (in sum) of a controlled drug, or of a combination of controlled drugs, was manufactured during the commission of those offences.
Note 1: See section 312.2 for working out quantities where different kinds of controlled drugs are involved.
Note 2: Section 313.4 provides a partial defence in relation to the matter in paragraph (c).
311.12 Multiple offences—pre‑trafficking controlled precursors
The prosecution may prove an offence against Division 306 (pre‑trafficking controlled precursors) by proving:
(a) that the defendant committed offences against that Division on different occasions; and
(b) that each of those offences was committed within a period of not more than 7 days from another of those offences; and
(c) that the relevant quantity (in sum) of a controlled precursor, or of a combination of controlled precursors, was pre‑trafficked during the commission of those offences.
Note 1: See section 312.2 for working out quantities where different kinds of controlled precursors are involved.
Note 2: Section 313.4 provides a partial defence in relation to the matter in paragraph (c).
311.13 Multiple offences—importing or exporting border controlled drugs or border controlled plants
The prosecution may prove an offence against Subdivision A of Division 307 (importing and exporting border controlled drugs or border controlled plants) by proving:
(a) that the defendant committed offences against that Subdivision on different occasions; and
(b) that each of those offences was committed within a period of not more than 30 days from another of those offences; and
(c) that the relevant quantity (in sum) of a border controlled drug or border controlled plant or both, or of a combination of border controlled drugs or border controlled plants or both, was imported or exported during the commission of those offences.
Note: See section 312.2 for working out quantities where different kinds of border controlled drugs or border controlled plants are involved.
311.14 Multiple offences—possessing unlawfully imported border controlled drugs or border controlled plants
The prosecution may prove an offence against Subdivision B of Division 307 (possessing unlawfully imported border controlled drugs or border controlled plants) by proving:
(a) that the defendant committed offences against that Subdivision on different occasions; and
(b) that each of those offences was committed within a period of not more than 7 days from another of those offences; and
(c) that the relevant quantity (in sum) of a border controlled drug or border controlled plant or both, or of a combination of border controlled drugs or border controlled plants or both, was possessed by the defendant during the commission of those offences.
Note: See section 312.2 for working out quantities where different kinds of border controlled drugs or border controlled plants are involved.
311.15 Multiple offences—possessing border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported
The prosecution may prove an offence against Subdivision C of Division 307 (possessing border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported) by proving:
(a) that the defendant committed offences against that Subdivision on different occasions; and
(b) that each of those offences was committed within a period of not more than 7 days from another of those offences; and
(c) that the relevant quantity (in sum) of a border controlled drug or border controlled plant or both, or of a combination of border controlled drugs or border controlled plants or both, was possessed by the defendant during the commission of those offences.
Note: See section 312.2 for working out quantities where different kinds of border controlled drugs or border controlled plants are involved.
311.16 Multiple offences—importing or exporting border controlled precursors
The prosecution may prove an offence against Subdivision D of Division 307 (importing and exporting border controlled precursors) by proving:
(a) that the defendant committed offences against that Subdivision on different occasions; and
(b) that each of those offences was committed within a period of not more than 30 days from another of those offences; and
(c) that the relevant quantity (in sum) of a border controlled precursor, or of a combination of border controlled precursors, was imported or exported during the commission of those offences.
Note: See section 312.2 for working out quantities where different kinds of border controlled precursors are involved.
311.17 Multiple offences—supplying controlled drugs to children for trafficking
The prosecution may prove an offence against section 309.3 (supplying marketable quantities of controlled drugs to children for trafficking) by proving:
(a) that the defendant committed offences against section 309.4 (supplying controlled drugs to children for trafficking) on different occasions; and
(b) that each of those offences was committed within a period of not more than 7 days from another of those offences; and
(c) that the relevant quantity (in sum) of a controlled drug, or of a combination of controlled drugs, was supplied during the commission of those offences.
Note 1: See section 312.2 for working out quantities where different kinds of controlled drugs are involved.
Note 2: Section 313.4 provides a partial defence in relation to the matter in paragraph (c).
311.18 Multiple offences—procuring children for trafficking controlled drugs
The prosecution may prove an offence against section 309.7 (procuring children for trafficking marketable quantities of controlled drugs) by proving:
(a) that the defendant committed offences against section 309.8 (procuring children for trafficking controlled drugs) on different occasions; and
(b) that each of those offences was committed within a period of not more than 7 days from another of those offences; and
(c) that the relevant quantity (in sum) of a controlled drug, or of a combination of controlled drugs, was trafficked during the commission of those offences.
Note 1: See section 312.2 for working out quantities where different kinds of controlled drugs are involved.
Note 2: Section 313.4 provides a partial defence in relation to the matter in paragraph (c).
311.19 Multiple offences—procuring children for pre‑trafficking controlled precursors
The prosecution may prove an offence against section 309.10 (procuring children for pre‑trafficking marketable quantities of controlled precursors) by proving:
(a) that the defendant committed offences against section 309.11 (procuring children for pre‑trafficking controlled precursors) on different occasions; and
(b) that each of those offences was committed within a period of not more than 7 days from another of those offences; and
(c) that the relevant quantity (in sum) of a controlled precursor, or of a combination of controlled precursors, was pre‑trafficked during the commission of those offences.
Note 1: See section 312.2 for working out quantities where different kinds of controlled precursors are involved.
Note 2: Section 313.4 provides a partial defence in relation to the matter in paragraph (c).
311.20 Multiple offences—procuring children for importing or exporting border controlled drugs or border controlled plants
The prosecution may prove an offence against section 309.12 (procuring children for importing or exporting marketable quantities of border controlled drugs or border controlled plants) by proving:
(a) that the defendant committed offences against section 309.13 (procuring children for importing or exporting border controlled drugs or border controlled plants) on different occasions; and
(b) that each of those offences was committed within a period of not more than 30 days from another of those offences; and
(c) that the relevant quantity (in sum) of a border controlled drug or border controlled plant or both, or of a combination of border controlled drugs or border controlled plants or both, was imported or exported during the commission of those offences.
Note 1: See section 312.2 for working out quantities where different kinds of border controlled drugs or border controlled plants are involved.
Note 2: Section 313.4 provides a partial defence in relation to the matter in paragraph (c).
311.21 Multiple offences—procuring children for importing or exporting border controlled precursors
The prosecution may prove an offence against section 309.14 (procuring children for importing or exporting marketable quantities of border controlled precursors) by proving:
(a) that the defendant committed offences against section 309.15 (procuring children for importing or exporting border controlled precursors) on different occasions; and
(b) that each of those offences was committed within a period of not more than 30 days from another of those offences; and
(c) that the relevant quantity (in sum) of a border controlled precursor, or of a combination of border controlled precursors, was imported or exported during the commission of those offences.
Note 1: See section 312.2 for working out quantities where different kinds of border controlled precursors are involved.
Note 2: Section 313.4 provides a partial defence in relation to the matter in paragraph (c).
311.22 General rules—combining parcels from multiple offences
(1) If the prosecution intends to rely on a section of this Subdivision, the particulars of the offences alleged to have been committed on the different occasions must be set out in the charge.
(2) The same parcel of controlled drugs, controlled plants, controlled precursors, border controlled drugs, border controlled plants or border controlled precursors must not be counted more than once for the purposes of this Subdivision.
Example: A person is in possession of a quantity of a controlled drug for sale on one day (the first occasion) and sells that particular quantity the next day (the second occasion). Only the quantity trafficked on one of those occasions may be counted.
(3) This Subdivision does not prevent a person being charged with separate offences in respect of conduct on different occasions.
Division 312—Working out quantities of drugs, plants or precursors
312.1 Working out quantities of drugs and precursors in mixtures
(1) If an alleged offence against this Part involves a quantity of a controlled drug in a mixture of substances, the prosecution may prove the quantity of the controlled drug involved:
(a) by proving that the mixture contains that quantity of the pure form of the controlled drug; or
(b) if such a quantity is specified, in regulations made for the purposes of item 1 of the table in section 301.10, 301.11 or 301.12, for the controlled drug in a mixture—by proving that quantity of the mixture.
(2) If an alleged offence against this Part involves a quantity of a controlled precursor in a mixture of substances, the prosecution may prove the quantity of the controlled precursor involved by proving that the mixture contains that quantity of the pure form of the controlled precursor.
(3) If an alleged offence against this Part involves a quantity of a border controlled drug in a mixture of substances, the prosecution may prove the quantity of the border controlled drug involved:
(a) by proving that the mixture contains that quantity of the pure form of the border controlled drug; or
(b) if such a quantity is specified, in regulations made for the purposes of item 1 of the table in section 301.10 or 301.11, for the border controlled drug in a mixture—by proving that quantity of the mixture.
(4) If an alleged offence against this Part involves a quantity of a border controlled precursor in a mixture of substances, the prosecution may prove the quantity of the border controlled precursor involved by proving that the mixture contains that quantity of the pure form of the border controlled precursor.
312.2 Working out quantities where different kinds of drugs, plants or precursors are involved
(1) This section applies if a person is charged with a single offence against this Part that involves:
(a) trafficking in more than one kind of controlled drug; or
(b) cultivating more than one kind of controlled plant; or
(c) selling more than one kind of controlled plant; or
(d) manufacturing more than one kind of controlled drug; or
(e) pre‑trafficking in more than one kind of controlled precursor; or
(f) importing or exporting more than one kind of border controlled drug or border controlled plant; or
(g) possessing more than one kind of unlawfully imported border controlled drug or border controlled plant; or
(h) possessing more than one kind of border controlled drug or border controlled plant reasonably suspected of having been unlawfully imported; or
(i) importing or exporting more than one kind of border controlled precursor; or
(j) supplying more than one kind of controlled drug to a child for trafficking; or
(k) procuring a child to traffic in more than one kind of controlled drug; or
(l) procuring a child to pre‑traffic in more than one kind of controlled precursor; or
(m) procuring a child to import or export more than one kind of border controlled drug or border controlled plant; or
(n) procuring a child to import or export more than one kind of border controlled precursor.
(2) The following apply for the purposes of working out the quantity of controlled drugs, controlled plants, controlled precursors, border controlled drugs, border controlled plants or border controlled precursors involved in the offence:
(a) the quantity of the drugs or plants is a trafficable quantity if the sum of the requisite fractions of the trafficable quantity of each of those drugs or plants is equal to or greater than one;
(b) the quantity of drugs, plants or precursors is a marketable quantity if the sum of the requisite fractions of the marketable quantity of each of those drugs, plants or precursors is equal to or greater than one;
(c) the quantity of drugs, plants or precursors is a commercial quantity if the sum of the requisite fractions of the commercial quantity of each of those drugs, plants or precursors is equal to or greater than one.
(3) For the purposes of this Part, requisite fraction means:
(a) in relation to a trafficable quantity of a controlled drug or controlled plant, the actual quantity of the drug or plant divided by the smallest trafficable quantity of the drug or plant; or
(b) in relation to a marketable quantity of a controlled drug, controlled plant, controlled precursor, border controlled drug, border controlled plant or border controlled precursor, the actual quantity of the drug, plant or precursor divided by the smallest marketable quantity of the drug, plant or precursor; or
(c) in relation to a commercial quantity of a controlled drug, controlled plant, controlled precursor, border controlled drug, border controlled plant or border controlled precursor, the actual quantity of the drug, plant or precursor divided by the smallest commercial quantity of the drug, plant or precursor.
(4) If this section applies in relation to a controlled drug in a mixture of substances, the requisite fraction of a trafficable, marketable or commercial quantity of the controlled drug may be calculated:
(a) on the basis of the quantity of the controlled drug in pure form; or
(b) if such a quantity is specified, in regulations made for the purposes of item 1 of the table in section 301.10, 301.11 or 301.12, for the controlled drug in a mixture—on the basis of the quantity of the mixture.
(5) If this section applies in relation to a border controlled drug in a mixture of substances, the requisite fraction of a marketable or commercial quantity of the border controlled drug may be calculated:
(a) on the basis of the quantity of the border controlled drug in pure form; or
(b) if such a quantity is specified, in regulations made for the purposes of item 1 of the table in section 301.10 or 301.11, for the border controlled drug in a mixture—on the basis of the quantity of the mixture.
Division 313—Defences and alternative verdicts
313.1 Defence—conduct justified or excused by or under a law of a State or Territory
This Part, other than Division 307, does not apply in relation to conduct if:
(a) a person engages in the conduct in a State or Territory; and
(b) the conduct is justified or excused by or under a law of that State or Territory.
Note 1: A defendant bears an evidential burden in relation to the matters in this section (see subsection 13.3(3)).
Note 2: A person is not criminally responsible for an offence against this Part if the person’s conduct is justified or excused by or under another Commonwealth law (see section 10.5). In 2005, Commonwealth laws that authorised importation, possession or use of controlled drugs, controlled plants, controlled precursors, border controlled drugs, border controlled plants or border controlled precursors included the Customs Act 1901, the Narcotic Drugs Act 1967 and the Crimes Act 1914.
313.2 Defence—reasonable belief that conduct is justified or excused by or under a law
A person is not criminally responsible for an offence against this Part if:
(a) at the time of the conduct constituting the offence, the person was under a mistaken but reasonable belief that the conduct was justified or excused by or under a law of the Commonwealth or of a State or Territory; and
(b) had the conduct been so justified or excused—the conduct would not have constituted the offence.
Note: A defendant bears an evidential burden in relation to the matter in paragraph (a) (see subsection 13.3(3)).
313.3 Alternative verdict—offence not proved
If:
(a) in a prosecution for an offence against this Part, the trier of fact:
(i) is not satisfied that the defendant is guilty of the alleged offence; but
(ii) is satisfied, beyond reasonable doubt, that the defendant is guilty of another offence against this Part; and
(b) the maximum penalty for the other offence is not greater than the maximum penalty for the alleged offence;
the trier of fact may find the defendant not guilty of the alleged offence but guilty of the other offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
313.4 Alternative verdict—mistake as to quantity of drug, plant or precursor
(1) This section applies if:
(a) an offence against this Part (other than Division 307) is prosecuted; and
(b) the offence involves a commercial quantity or a marketable quantity of a controlled drug, controlled plant, controlled precursor, border controlled drug, border controlled plant or border controlled precursor; and
(c) the trier of fact would, apart from this section, have found the defendant guilty of the offence.
(2) If:
(a) the defendant proves that, at the time of the alleged offence, he or she was under a mistaken belief about the quantity of the drug, plant or precursor; and
(b) if the mistaken belief had been correct, the defendant would have been guilty of another offence against this Part; and
(c) the maximum penalty for the other offence is less than the maximum penalty for the alleged offence;
the trier of fact may find the defendant:
(d) not guilty of the alleged offence; but
(e) guilty of the other offence.
Note: A defendant bears a legal burden in relation to the matter in paragraph (2)(a) (see section 13.4).
313.5 Alternative verdict—mistake as to identity of drug, plant or precursor
(1) This section applies if:
(a) an offence against this Part (other than Division 307) is prosecuted; and
(b) the offence involves a controlled drug, controlled plant, controlled precursor, border controlled drug, border controlled plant or border controlled precursor; and
(c) the trier of fact would, apart from this section, have found the defendant guilty of the offence.
(2) If:
(a) the defendant proves that, at the time of the alleged offence, he or she was under a mistaken belief about the identity of the drug, plant or precursor; and
(b) if the mistaken belief had been correct, the defendant would have been guilty of another offence against this Part; and
(c) the maximum penalty for the other offence is less than the maximum penalty for the alleged offence;
the trier of fact may find the defendant:
(d) not guilty of the alleged offence; but
(e) guilty of the other offence.
Note: A defendant bears a legal burden in relation to the matter in paragraph (2)(a) (see section 13.4).
Part 9.2—Psychoactive substances
Division 320—Psychoactive substances
320.1 Definitions
(1) In this Part:
consume, in relation to a substance, includes:
(a) ingest the substance; and
(b) inject the substance; and
(c) inhale the substance; and
(d) smoke the substance, or inhale fumes caused by heating or burning the substance; and
(e) apply the substance externally to the body of a person; and
(f) by any other means introduce the substance into any part of the body of a person.
psychoactive effect, in relation to a person, means:
(a) stimulation or depression of the person’s central nervous system, resulting in hallucinations or in a significant disturbance in, or significant change to, motor function, thinking, behaviour, perception, awareness or mood; or
(b) causing a state of dependence, including physical or psychological addiction.
psychoactive substance means any substance that, when a person consumes it, has the capacity to induce a psychoactive effect.
serious drug alternative means a substance that:
(a) has a psychoactive effect that is the same as, or is substantially similar to, the psychoactive effect of a serious drug; or
(b) is a lawful alternative to a serious drug.
(2) Expressions used in this Part that are defined for the purposes of Part 9.1 have the same meaning as in that Part.
320.2 Importing psychoactive substances
(1) A person commits an offence if:
(a) the person imports a substance; and
(b) the substance is a psychoactive substance.
Penalty: Imprisonment for 5 years, or 300 penalty units, or both.
(2) Subject to subsection (3), this section does not apply to a substance if it is:
(a) food (within the meaning of the Food Standards Australia New Zealand Act 1991) for which:
(i) there is a standard (within the meaning of that Act); or
(ii) in the form in which the substance is presented, there is a tradition in Australia and New Zealand of using the substance as food for humans; or
(b) a tobacco product (within the meaning of section 8 of the Tobacco Advertising Prohibition Act 1992); or
(c) goods that are listed goods, or registered goods, within the meaning of the Therapeutic Goods Act 1989; or
(d) goods that are represented in any way to be:
(i) for therapeutic use (within the meaning of that Act); or
(ii) for use as an ingredient or component in the manufacture of therapeutic goods (within the meaning of that Act);
other than goods that are represented as a serious drug alternative; or
(e) therapeutic goods that are:
(i) exempt goods (within the meaning of that Act); or
(ii) exempt under section 18A of that Act; or
(iii) the subject of an approval or authority under section 19 of that Act; or
(iv) the subject of an approval under section 19A of that Act; or
(f) a substance or mixture of substances:
(i) that is an agricultural chemical product (within the meaning of the Agricultural and Veterinary Chemicals Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994); or
(ii) that would be such an agricultural chemical product, apart from regulations made for the purposes of paragraph 4(4)(b) of that Code; or
(g) a substance or mixture of substances:
(i) that is a veterinary chemical product (within the meaning of that Code); or
(ii) to which paragraph 5(4)(a) of that Code applies; or
(iii) that would be such a veterinary chemical product, apart from regulations made for the purposes of paragraph 5(4)(b) of that Code; or
(h) a substance or mixture of substances that is an active constituent (within the meaning of that Code) for a proposed or existing chemical product (within the meaning of that Code), and that:
(i) is an approved active constituent (within the meaning of that Code); or
(ii) is an exempt active constituent (within the meaning of subsection 69B(1) of the Agricultural and Veterinary Chemicals (Administration) Act 1992); or
(iii) is imported into Australia with the written consent of the Australian Pesticides and Veterinary Medicines Authority under subsection 69B(1B) of that Act; or
(i) an industrial chemical within the meaning of the Industrial Chemicals Act 2019; or
(ia) a plant or fungus, or an extract from a plant or fungus; or
(j) a controlled drug, controlled plant, controlled precursor, border controlled drug, border controlled plant or border controlled precursor; or
(k) a prohibited import within the meaning of the Customs Act 1901; or
(l) prescribed by, or included in a class of substances prescribed by, the regulations.
Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
(3) Subsection (2) does not apply to a substance that contains any psychoactive substance that is not of a kind specified in any of paragraphs (2)(a) to (l).
(4) In a prosecution for an offence under subsection (1), it is not necessary to prove that the defendant was reckless as to:
(a) the particular identity of the substance; or
(b) whether the substance had a particular psychoactive effect.
320.3 Importing substances represented to be serious drug alternatives
(1) A person commits an offence if:
(a) the person imports a substance; and
(b) at the time of the importation, the presentation of the substance includes an express or implied representation that the substance is a serious drug alternative.
Penalty: Imprisonment for 2 years, or 120 penalty units, or both.
(2) For the purposes of paragraph (1)(b), the presentation of a substance includes, but is not limited to, matters relating to:
(a) the name of the substance; and
(b) the labelling and packaging of the substance and
(c) any advertising or other informational material associated with the substance.
(3) This section does not apply to a substance if it is:
(a) food (within the meaning of the Food Standards Australia New Zealand Act 1991) for which:
(i) there is a standard (within the meaning of that Act); or
(ii) in the form in which the substance is presented, there is a tradition in Australia and New Zealand of using the substance as food for humans; or
(b) goods that are listed goods, or registered goods, within the meaning of the Therapeutic Goods Act 1989; or
(c) therapeutic goods that are:
(i) exempt goods (within the meaning of that Act); or
(ii) exempt under section 18A of that Act; or
(iii) the subject of an approval or authority under section 19 of that Act; or
(iv) the subject of an approval under section 19A of that Act; or
(d) a substance or mixture of substances that is a chemical product (within the meaning of the Agricultural and Veterinary Chemicals Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994), and that:
(i) is a registered chemical product (within the meaning of that Code); or
(ii) is a reserved chemical product (within the meaning of that Code); or
(iii) is an exempt chemical product (within the meaning of subsection 69B(2) of the Agricultural and Veterinary Chemicals (Administration) Act 1992); or
(iv) is imported into Australia with the written consent of the Australian Pesticides and Veterinary Medicines Authority under subsection 69B(1B) of that Act; or
(e) a substance or mixture of substances that is an active constituent (within the meaning of that Code) for a proposed or existing chemical product (within the meaning of that Code), and that:
(i) is an approved active constituent (within the meaning of that Code); or
(ii) is an exempt active constituent (within the meaning of subsection 69B(2) of the Agricultural and Veterinary Chemicals (Administration) Act 1992); or
(iii) is imported into Australia with the written consent of the Australian Pesticides and Veterinary Medicines Authority under subsection 69B(1B) of that Act; or
(f) prescribed by, or included in a class of substances prescribed by, the regulations.
Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
(4) In a prosecution for an offence under subsection (1), it is not necessary to prove that:
(a) the representation of the substance to be a serious drug alternative related to a particular serious drug; or
(b) the defendant intended to cause any person to believe that the substance:
(i) was a particular serious drug; or
(ii) has a psychoactive effect that is the same as or similar to a particular serious drug; or
(iii) is a lawful alternative to a particular serious drug; or
(c) the defendant knew, or was reckless as to:
(i) the particular identity of the substance, or
(ii) whether the substance has a particular psychoactive effect.
Part 9.4—Dangerous weapons
Division 360—Cross‑border firearms trafficking
360.1 Disposal and acquisition of a firearm or firearm part
(1) For the purposes of this Division, and without limitation, a person disposes of a firearm or a firearm part if any of the following applies:
(a) the person sells the firearm or part (whether or not the person to whom the firearm or part is sold also acquires physical control of the firearm or part);
(b) the person hires, leases or rents the firearm or part to another person;
(c) the person passes physical control of the firearm or part to another person (whether or not the person to whom physical control is passed also acquires ownership of the firearm or part).
(2) For the purposes of this Division, and without limitation, a person acquires a firearm or a firearm part if any of the following applies:
(a) the person purchases the firearm or part (whether or not the person also acquires physical control of the firearm or part);
(b) the person hires, leases or rents the firearm or part from another person;
(c) the person obtains physical control of the firearm or part (whether or not the person also acquires ownership of the firearm or part).
360.2 Cross‑border offence of disposal or acquisition of a firearm or firearm part
(1) A person commits an offence if:
(a) in the course of trade or commerce among the States, between Territories or between a Territory and a State, the person engages in conduct that constitutes an offence against a firearm law; and
(b) the primary element of the offence is:
(i) the disposal of a firearm or a firearm part by the person; or
(ii) the acquisition of a firearm or a firearm part by the person.
Penalty: Imprisonment for 10 years or a fine of 2,500 penalty units, or both.
(2) Absolute liability applies to the paragraph (1)(a) element of the offence.
(3) In this section:
firearm means a firearm within the meaning of the firearm law concerned.
firearm law means a law of a State or Territory which is prescribed by the regulations for the purposes of this Division.
firearm part means either of the following within the meaning of the firearm law concerned:
(a) a firearm part;
(b) a part of, or for, a firearm or weapon.
360.3 Taking or sending a firearm or firearm part across borders
(1) A person commits an offence if:
(a) in the course of trade or commerce among the States, between Territories or between a Territory and a State, the person takes or sends a firearm or a firearm part from one State or Territory to another State or Territory; and
(b) the person does so intending that the firearm or firearm part will be disposed of in the other State or Territory (whether by the person or another); and
(c) the person knows that, or is reckless as to whether:
(i) the disposal of the firearm or firearm part; or
(ii) any acquisition of the firearm or firearm part that results from the disposal;
would happen in circumstances that would constitute an offence against the firearm law of that other State or Territory.
Penalty: Imprisonment for 10 years or a fine of 2,500 penalty units, or both.
(2) In this section:
firearm means a firearm within the meaning of the firearm law mentioned in paragraph (1)(c).
firearm law means a law of a State or Territory which is prescribed by the regulations for the purposes of this Division.
firearm part means either of the following within the meaning of the firearm law mentioned in paragraph (1)(c):
(a) a firearm part;
(b) a part of, or for, a firearm or weapon.
360.4 Concurrent operation intended
(1) This Division is not intended to exclude or limit the concurrent operation of any law of a State or Territory.
(2) Without limiting subsection (1), this Division 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 this Division; 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 Division;
(b) provides for a fault element in relation to the offence that differs from the fault elements applicable to the offence against this Division;
(c) provides for a defence in relation to the offence that differs from the defences applicable to the offence against this Division.
(4) A person punished for an offence against a law of a State or Territory referred to in subsection (2) in respect of particular conduct cannot be punished for an offence against this Division in respect of that conduct.
Division 361—International firearms trafficking
361.1 Definitions
In this Division:
export a thing, means export the thing from Australia.
firearm has the same meaning as in the Customs (Prohibited Imports) Regulations 1956.
firearm part has the same meaning as in the Customs (Prohibited Imports) Regulations 1956.
import a thing, means import the thing into Australia, and includes deal with the thing in connection with its importation.
traffic in a thing that is a firearm or a firearm part means:
(a) transfer the thing; or
(b) offer the thing for sale; or
(c) invite the making of offers to buy the thing; or
(d) prepare the thing 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 thing 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 thing with the intention of transferring any of it or the intention of assisting another person to transfer any of it; or
(g) possess the thing with the intention of transferring any of it.
For the purposes of paragraph (d), preparing a thing for transfer includes packaging the thing or separating the thing into discrete units.
361.2 Trafficking prohibited firearms or firearm parts into Australia
Customs Act prohibits imports absolutely
(1) A person commits an offence if:
(a) the person imports a thing; and
(b) the thing is a firearm or firearm part; and
(c) the person imports the firearm or part with the intention of trafficking in the firearm or part; and
(d) importing the firearm or part was prohibited under the Customs Act 1901 absolutely.
Penalty: Imprisonment for 10 years or a fine of 2,500 penalty units, or both.
(2) Absolute liability applies to paragraph (1)(d).
Note: For absolute liability, see section 6.2.
Customs Act prohibits imports if requirements not met
(3) A person commits an offence if:
(a) the person imports a thing; and
(b) the thing is a firearm or firearm part; and
(c) the person imports the firearm or part with the intention of trafficking in the firearm or part; and
(d) importing the firearm or part was prohibited under the Customs Act 1901 unless certain requirements were met; and
(e) the person fails to meet any of those requirements.
Penalty: Imprisonment for 10 years or a fine of 2,500 penalty units, or both.
(4) Absolute liability applies to paragraph (3)(d).
Note: For absolute liability, see section 6.2.
(5) Strict liability applies to paragraph (3)(e).
Note: For strict liability, see section 6.1.
361.3 Trafficking prohibited firearms or firearm parts out of Australia
Customs Act prohibits exports absolutely
(1) A person commits an offence if:
(a) the person exports a thing, or enters a thing for export from Australia; and
(b) the thing is a firearm or firearm part; and
(c) the person exports, or enters for export, the firearm or part with the intention of trafficking in the firearm or part; and
(d) exporting the firearm or part was prohibited under the Customs Act 1901 absolutely.
Penalty: Imprisonment for 10 years or a fine of 2,500 penalty units, or both.
(2) Absolute liability applies to paragraph (1)(d).
Note: For absolute liability, see section 6.2.
Customs Act prohibits exports if requirements not met
(3) A person commits an offence if:
(a) the person exports a thing; and
(b) the thing is a firearm or firearm part; and
(c) the person exports the firearm or part with the intention of trafficking in the firearm or part; and
(d) exporting the firearm or part, or entering the firearm or part for export, was prohibited under the Customs Act 1901 unless certain requirements were met; and
(e) the person fails to meet any of those requirements.
Penalty: Imprisonment for 10 years or a fine of 2,500 penalty units, or both.
(4) A person commits an offence if:
(a) the person enters a thing for export from Australia; and
(b) the thing is a firearm or firearm part; and
(c) the person enters the firearm or part for export with the intention of trafficking in the firearm or part; and
(d) entering the firearm or part for export was prohibited under the Customs Act 1901 unless certain requirements were met; and
(e) the person fails to meet any of those requirements.
Penalty: Imprisonment for 10 years or a fine of 2,500 penalty units, or both.
(5) Absolute liability applies to paragraphs (3)(d) and (4)(d).
Note: For absolute liability, see section 6.2.
(6) Strict liability applies to paragraphs (3)(e) and (4)(e).
Note: For strict liability, see section 6.1.
361.4 Defence—reasonable belief that conduct is justified or excused by or under a law
A person is not criminally responsible for an offence against this Division if:
(a) at the time of the conduct constituting the offence, the person was under a mistaken but reasonable belief that the conduct was justified or excused by or under a law of the Commonwealth or of a State or Territory; and
(b) had the conduct been so justified or excused—the conduct would not have constituted the offence.
Note: A defendant bears an evidential burden in relation to the matter in paragraph (a) (see subsection 13.3(3)).
361.6 Double jeopardy
A person punished for an offence against this Division in respect of particular conduct cannot be punished for an offence against section 233BAB of the Customs Act 1901 in respect of that conduct.
Note: A similar provision for the opposite case is set out in subsection 233BAB(7) of the Customs Act 1901.
Part 9.5—Identity crime
Division 370—Preliminary
370.1 Definitions
In this Code:
deal, in identification information, includes make, supply or use any such information.
identification documentation means any document or other thing that:
(a) contains or incorporates identification information; and
(b) is capable of being used by a person for the purpose of pretending to be, or passing the person off as, another person (whether living, dead, real or fictitious).
identification information means information, or a document, relating to a person (whether living, dead, real or fictitious) that is capable of being used (whether alone or in conjunction with other information or documents) to identify or purportedly identify the person, including any of the following:
(a) a name or address;
(b) a date or place of birth, whether the person is married or has a de facto partner, relatives’ identity or similar information;
(c) a driver’s licence or driver’s licence number;
(d) a passport or passport number;
(e) biometric data;
(f) a voice print;
(g) a credit or debit card, its number, or data stored or encrypted on it;
(h) a financial account number, user name or password;
(i) a digital signature;
(j) a series of numbers or letters (or both) intended for use as a means of personal identification;
(k) an ABN.
370.2 Definition of foreign indictable offence
In Division 372:
foreign indictable offence means an offence against a law of a foreign country or part of a foreign country that is constituted by conduct that, if engaged in in Australia, would constitute an indictable offence against a law of the Commonwealth.
370.3 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.
Division 372—Identity fraud offences
372.1 Dealing in identification information
(1) A person (the first person) commits an offence if:
(a) the first person deals in identification information; and
(b) the first person intends that any person (the user) (whether or not the first person) will use the identification information to pretend to be, or to pass the user off as, another person (whether living, dead, real or fictitious) for the purpose of:
(i) committing an offence; or
(ii) facilitating the commission of an offence; and
(c) the offence referred to in paragraph (b) is:
(i) an indictable offence against a law of the Commonwealth; or
(ii) a foreign indictable offence.
Penalty: Imprisonment for 5 years.
Note: Deal, in identification information, includes make, supply or use any such information. See section 370.1.
(2) Absolute liability applies to the paragraph (1)(c) element of the offence.
Note: For absolute liability, see section 6.2.
(3) This section applies:
(a) even if:
(i) committing the offence referred to in paragraph (1)(b) is impossible; or
(ii) the offence referred to in paragraph (1)(b) is to be committed at a later time; and
(b) whether or not the person to whom the identification information concerned relates consented to the dealing in the identification information.
(4) This section does not apply to dealing in the first person’s own identification information.
372.1A Dealing in identification information that involves use of a carriage service
Dealing in identification information using a carriage service
(1) A person (the first person) commits an offence if:
(a) the first person deals in identification information; and
(b) the first person does so using a carriage service; and
(c) the first person intends that any person (the user) (whether or not the first person) will use the identification information to pretend to be, or to pass the user off as, another person (whether living, dead, real or fictitious) for the purpose of:
(i) committing an offence; or
(ii) facilitating the commission of an offence; and
(d) the offence referred to in paragraph (c) is:
(i) an indictable offence against a law of the Commonwealth; or
(ii) an indictable offence against a law of a State or Territory; or
(iii) a foreign indictable offence.
Penalty: Imprisonment for 5 years.
Note: Deal, in identification information, includes make, supply or use any such information. See section 370.1.
(2) Absolute liability applies to the paragraphs (1)(b) and (d) elements of the offence.
Note: For absolute liability, see section 6.2.
Dealing in identification information obtained using a carriage service
(3) A person (the first person) commits an offence if:
(a) the first person obtains identification information; and
(b) the first person does so using a carriage service; and
(c) the first person deals in the identification information; and
(d) the first person intends that any person (the user) (whether or not the first person) will use the identification information to pretend to be, or to pass the user off as, another person (whether living, dead, real or fictitious) for the purpose of:
(i) committing an offence; or
(ii) facilitating the commission of an offence; and
(e) the offence referred to in paragraph (d) is:
(i) an indictable offence against a law of the Commonwealth; or
(ii) an indictable offence against a law of a State or Territory; or
(iii) a foreign indictable offence.
Penalty: Imprisonment for 5 years.
Note: Deal, in identification information, includes make, supply or use any such information. See section 370.1.
(4) Absolute liability applies to the paragraphs (3)(b) and (e) elements of the offence.
Note: For absolute liability, see section 6.2.
Presumption that conduct was engaged in using carriage service
(5) If the prosecution proves beyond reasonable doubt that a person engaged in the conduct referred to in paragraph (1)(a) or (3)(a), then it is presumed, unless the person proves to the contrary, that the person used a carriage service to engage in that conduct.
Note: A defendant bears a legal burden in relation to the matter in this subsection. See section 13.4.
Application of section
(6) This section applies:
(a) even if:
(i) committing the offence referred to in paragraph (1)(c) or (3)(d) is impossible; or
(ii) the offence referred to in paragraph (1)(c) or (3)(d) is to be committed at a later time; and
(b) whether or not the person to whom the identification information concerned relates consented to the dealing in the identification information.
(7) This section does not apply to dealing in the first person’s own identification information.
372.2 Possession of identification information
(1) A person (the first person) commits an offence if:
(a) the first person possesses identification information; and
(b) the first person intends that any person (whether or not the first person) will use the identification information to engage in conduct; and
(c) the conduct referred to in paragraph (b) constitutes an offence against section 372.1 or subsection 372.1A(1) or (3).
Penalty: Imprisonment for 3 years.
(2) Absolute liability applies to the paragraph (1)(c) element of the offence.
Note: For absolute liability, see section 6.2.
(3) This section applies whether or not the person to whom the identification information concerned relates consented to the possession of the identification information.
(4) This section does not apply to the possession of the first person’s own identification information.
372.3 Possession of equipment used to make identification documentation
(1) A person (the first person) commits an offence if:
(a) the first person possesses equipment; and
(b) the first person intends that any person (whether or not the first person) will use the equipment to make identification documentation; and
(c) the first person intends that any person (whether or not referred to in paragraph (b)) will use the identification documentation to engage in conduct; and
(d) the conduct referred to in paragraph (c) constitutes an offence against section 372.1 or subsection 372.1A(1) or (3).
Penalty: Imprisonment for 3 years.
(2) Absolute liability applies to the paragraph (1)(d) element of the offence.
Note: For absolute liability, see section 6.2.
372.4 Extended geographical jurisdiction—category A
Section 15.1 (extended geographical jurisdiction—category A) applies to an offence against this Division.
372.5 Alternative verdict
(1) This section applies if, in a prosecution for an offence against section 372.1 or subsection 372.1A(1) or (3), the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence against section 372.2.
(2) The trier of fact may find the defendant not guilty of the offence against section 372.1 or subsection 372.1A(1) or (3) (as the case requires) but guilty of the offence against section 372.2, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
372.6 Attempt
It is not an offence to attempt to commit an offence against this Division.
Division 375—Victims’ certificates
375.1 Certificate may be issued by magistrate in relation to victim of identity crime
(1) A magistrate may, on application by a person (the victim), issue a certificate under this section if the magistrate is satisfied, on the balance of probabilities, that:
(a) another person (the dealer) has dealt in identification information; and
(b) the dealer intended that any person (the user) (whether or not the dealer) would use the identification information to pretend to be, or to pass the user off as, another person (whether the victim or another person living, dead, real or fictitious) for the purpose of:
(i) committing an offence; or
(ii) facilitating the commission of an offence; and
(c) the certificate may assist with any problems the dealing has caused in relation to the victim’s personal or business affairs; and
(d) the offence referred to in paragraph (b) is an indictable offence against a law of the Commonwealth.
Note: Deal, in identification information, includes make, supply or use any such information. See section 370.1.
(2) This section applies:
(a) even if:
(i) committing the offence referred to in paragraph (1)(b) is impossible; or
(ii) the offence referred to in paragraph (1)(b) is to be committed at a later time; and
(b) whether or not the person to whom the identification information concerned relates consented to the dealing in the identification information.
375.2 Content of certificate
(1) A certificate issued under section 375.1 must:
(a) identify the victim; and
(b) describe the dealing in identification information.
(2) The certificate may contain such other information as the magistrate considers appropriate.
(3) The certificate must not identify the dealer.
375.3 Relation to civil and criminal proceedings
(1) The magistrate may issue a certificate under section 375.1 whether or not:
(a) the dealer is identifiable; or
(b) subject to subsection (2)—any proceedings (whether civil or criminal) have been or can be taken against a person for or in relation to the dealing, or are pending.
(2) The magistrate must not issue a certificate under section 375.1 if doing so would prejudice any proceedings.
(3) The certificate is not admissible in any proceedings.
375.4 Power conferred on magistrate personally
(1) Power is conferred by this Division on a magistrate only in a personal capacity and not as a court or a member of a court.
(2) The magistrate need not accept the power conferred.
(3) A magistrate exercising a power under this Division has the same protection and immunity as if he or she were exercising that power as, or as a member of, the court of which the magistrate is a member.
Division 376—False identity and air travel
376.1 Definitions for Division 376
In this Division:
air passenger ticket, for a flight, means a ticket, or electronic record, on the basis of which a person is treated as being entitled to travel as a passenger on:
(a) the flight; or
(b) a journey that includes the flight.
false: identification information relating to a person is false if it is false in a material particular that affects the capacity of the information to be used (whether alone or in conjunction with other information or documents) to identify the person.
Note: For the meaning of identification information, see section 370.1.
376.2 False identification information—at constitutional airports
(1) A person (the defendant) commits an offence if:
(a) the defendant uses information at a place; and
(b) the defendant does so reckless as to whether the information is used to identify the defendant as a passenger on a flight; and
(c) the information is identification information; and
(d) the information is false in relation to the defendant; and
(e) the place is a constitutional airport.
Penalty: Imprisonment for 12 months.
(2) Absolute liability applies to paragraph (1)(e).
Note: For absolute liability, see section 6.2.
(3) In this section:
constitutional airport means:
(a) a Commonwealth aerodrome within the meaning of the Crimes (Aviation) Act 1991 (see section 3 of that Act); or
(b) another airport, if the airport is in a Territory.
376.3 False identification information—air passenger tickets obtained using a carriage service
Carriage service offence—using information to obtain an air passenger ticket
(1) A person (the defendant) commits an offence if:
(a) the defendant uses information; and
(b) the defendant does so:
(i) with the result that an air passenger ticket for a flight is obtained (whether by the defendant or another person); and
(ii) reckless as to whether the information is used to identify the defendant, or another person, as a passenger on the flight; and
(c) the information is identification information; and
(d) the information is false in relation to the person who takes, or intends to take, the flight using the ticket; and
(e) a carriage service is used (whether by the defendant or another person) to obtain the ticket; and
(f) the flight starts or ends within Australia.
Penalty: Imprisonment for 12 months.
Carriage service offence—taking a flight using an air passenger ticket
(2) A person (the defendant) commits an offence if:
(a) the defendant takes a flight using an air passenger ticket; and
(b) identification information was used (whether by the defendant or another person) to obtain the ticket; and
(c) the information resulted in the identification of a person as a passenger on the flight; and
(d) the information is false in relation to the defendant; and
(e) a carriage service was used (whether by the defendant or another person) to obtain the ticket; and
(f) the flight starts or ends within Australia.
Penalty: Imprisonment for 12 months.
General
(3) In a prosecution for an offence against subsection (1) or (2), if the prosecution proves beyond reasonable doubt that an air passenger ticket was obtained, then it is presumed, unless the defendant proves to the contrary, that a carriage service was used to obtain the ticket.
Note: A defendant bears a legal burden in relation to the matter in this subsection: see section 13.4.
(4) Absolute liability applies to paragraphs (1)(e) and (f) and (2)(e) and (f).
Note: For absolute liability, see section 6.2.
376.4 False identification information—air passenger tickets for constitutional flights
Constitutional flight offence—using information to obtain an air passenger ticket
(1) A person (the defendant) commits an offence if:
(a) the defendant uses information; and
(b) the defendant does so:
(i) with the result that an air passenger ticket for a flight is obtained (whether by the defendant or another person); and
(ii) reckless as to whether the information is used to identify the defendant, or another person, as a passenger on the flight; and
(c) the information is identification information; and
(d) the information is false in relation to the person who takes, or intends to take, the flight using the ticket; and
(e) the flight is a constitutional flight.
Penalty: Imprisonment for 12 months.
Constitutional flight offence—taking a flight using an air passenger ticket
(2) A person (the defendant) commits an offence if:
(a) the defendant takes a flight using an air passenger ticket; and
(b) identification information was used (whether by the defendant or another person) to obtain the ticket; and
(c) the information resulted in the identification of a person as a passenger on the flight; and
(d) the information is false in relation to the defendant; and
(e) the flight is a constitutional flight.
Penalty: Imprisonment for 12 months.
General
(3) Absolute liability applies to paragraphs (1)(e) and (2)(e).
Note: For absolute liability, see section 6.2.
(4) In this section:
constitutional flight means:
(a) a flight that starts or ends in a Territory; or
(b) a flight between Australia and a foreign country in which an aircraft is used in the course of trade or commerce, for the carriage of passengers; or
(c) a flight between one State and another State in which an aircraft is used in the course of trade or commerce, for the carriage of passengers.
376.5 False identification information—extended jurisdiction (Category D)
Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to the offences in sections 376.3 and 376.4.
Part 9.6—Contamination of goods
380.1 Definitions
(1) In this Part:
constitutional trade and commerce means trade and commerce:
(a) with other countries; or
(b) among the States; or
(c) between a State and a Territory; or
(d) between 2 Territories.
contaminate goods includes:
(a) interfere with the goods; or
(b) make it appear that the goods have been contaminated or interfered with.
goods includes any substance:
(a) whether or not for human consumption; and
(b) whether natural or manufactured; and
(c) whether or not incorporated or mixed with other goods.
(2) A reference in this Part to economic loss caused through public awareness of the contamination of goods includes a reference to economic loss caused through:
(a) members of the public not purchasing or using those goods or similar things; or
(b) steps taken to avoid public alarm or anxiety or to avoid harm to members of the public.
380.2 Contaminating goods
Offences based on implied nationhood power
(1) A person commits an offence if:
(a) the person contaminates goods; and
(b) the person does so with intent:
(i) to cause public alarm or anxiety in Australia; or
(ii) to cause widespread, or nationally significant, economic loss in Australia through public awareness of the contamination, or possible contamination, of the goods; or
(iii) to cause harm to, or create a risk of harm to, public health in Australia.
Penalty: Imprisonment for 15 years.
(1A) A person commits an offence if:
(a) the person contaminates goods; and
(b) the person does so reckless as to:
(i) causing public alarm or anxiety in Australia; or
(ii) causing widespread, or nationally significant, economic loss in Australia through public awareness of the contamination, or possible contamination, of the goods; or
(iii) causing harm to, or creating a risk of harm to, public health in Australia.
Penalty: Imprisonment for 10 years.
Offences based on other constitutional powers
(2) A person commits an offence if:
(a) the person contaminates goods; and
(b) the person does so with intent to cause:
(i) public alarm or anxiety; or
(ii) economic loss through public awareness of the contamination, or possible contamination, of the goods; and
(c) any of the following subparagraphs applies:
(i) the loss is a loss to a constitutional corporation (other than a foreign corporation within the meaning of paragraph 51(xx) of the Constitution);
(ii) the loss is a loss to a constitutional corporation that is a foreign corporation within the meaning of paragraph 51(xx) of the Constitution and the goods have been produced, manufactured, assembled or otherwise processed in Australia;
(iii) the goods belong to a constitutional corporation (other than a foreign corporation within the meaning of paragraph 51(xx) of the Constitution);
(iv) the goods belong to a constitutional corporation that is a foreign corporation within the meaning of paragraph 51(xx) of the Constitution and the goods have been produced, manufactured, assembled or otherwise processed in Australia;
(v) the person is a constitutional corporation (other than a foreign corporation within the meaning of paragraph 51(xx) of the Constitution);
(vi) the person is a constitutional corporation that is a foreign corporation within the meaning of paragraph 51(xx) of the Constitution and the goods have been produced, manufactured, assembled or otherwise processed in Australia;
(vii) the loss takes the form of detriment to constitutional trade and commerce;
(viii) the goods are in the course of, or intended for, constitutional trade and commerce;
(ix) the contamination occurs outside Australia and the goods have been produced, manufactured, assembled or otherwise processed in Australia;
(x) the loss is a loss to the Commonwealth or a Commonwealth authority.
Penalty: Imprisonment for 15 years.
(2A) A person commits an offence if:
(a) the person contaminates goods; and
(b) the person does so reckless as to causing:
(i) public alarm or anxiety; or
(ii) economic loss through public awareness of the contamination, or possible contamination, of the goods; and
(c) any of the following subparagraphs applies:
(i) the loss is a loss to a constitutional corporation (other than a foreign corporation within the meaning of paragraph 51(xx) of the Constitution);
(ii) the loss is a loss to a constitutional corporation that is a foreign corporation within the meaning of paragraph 51(xx) of the Constitution and the goods have been produced, manufactured, assembled or otherwise processed in Australia;
(iii) the goods belong to a constitutional corporation (other than a foreign corporation within the meaning of paragraph 51(xx) of the Constitution);
(iv) the goods belong to a constitutional corporation that is a foreign corporation within the meaning of paragraph 51(xx) of the Constitution and the goods have been produced, manufactured, assembled or otherwise processed in Australia;
(v) the person is a constitutional corporation (other than a foreign corporation within the meaning of paragraph 51(xx) of the Constitution);
(vi) the person is a constitutional corporation that is a foreign corporation within the meaning of paragraph 51(xx) of the Constitution and the goods have been produced, manufactured, assembled or otherwise processed in Australia;
(vii) the loss takes the form of detriment to constitutional trade and commerce;
(viii) the goods are in the course of, or intended for, constitutional trade and commerce;
(ix) the contamination occurs outside Australia and the goods have been produced, manufactured, assembled or otherwise processed in Australia;
(x) the loss is a loss to the Commonwealth or a Commonwealth authority.
Penalty: Imprisonment for 10 years.
(3) Absolute liability applies to paragraphs (2)(c) and (2A)(c).
380.3 Threatening to contaminate goods
Offences based on implied nationhood power
(1) A person commits an offence if:
(a) the person makes a threat that goods will be contaminated; and
(b) the person does so with intent:
(i) to cause public alarm or anxiety in Australia; or
(ii) to cause widespread, or nationally significant, economic loss in Australia through public awareness of the contamination, or possible contamination, of the goods; or
(iii) to cause harm to, or create a risk of harm to, public health in Australia.
Penalty: Imprisonment for 15 years.
(1A) A person commits an offence if:
(a) the person makes a threat that goods will be contaminated; and
(b) the person does so reckless as to:
(i) causing public alarm or anxiety in Australia; or
(ii) causing widespread, or nationally significant, economic loss in Australia through public awareness of the contamination, or possible contamination, of the goods; or
(iii) causing harm to, or creating a risk of harm to, public health in Australia.
Penalty: Imprisonment for 10 years.
Offences based on other constitutional powers
(2) A person commits an offence if:
(a) the person makes a threat that goods will be contaminated; and
(b) the person does so with intent to cause:
(i) public alarm or anxiety; or
(ii) economic loss through public awareness of the contamination, or possible contamination, of the goods; and
(c) any of the following subparagraphs applies:
(i) the loss is a loss to a constitutional corporation (other than a foreign corporation within the meaning of paragraph 51(xx) of the Constitution);
(ii) the loss is a loss to a constitutional corporation that is a foreign corporation within the meaning of paragraph 51(xx) of the Constitution and the goods have been produced, manufactured, assembled or otherwise processed in Australia;
(iii) the goods belong to a constitutional corporation (other than a foreign corporation within the meaning of paragraph 51(xx) of the Constitution);
(iv) the goods belong to a constitutional corporation that is a foreign corporation within the meaning of paragraph 51(xx) of the Constitution and the goods have been produced, manufactured, assembled or otherwise processed in Australia;
(v) the person is a constitutional corporation (other than a foreign corporation within the meaning of paragraph 51(xx) of the Constitution);
(vi) the person is a constitutional corporation that is a foreign corporation within the meaning of paragraph 51(xx) of the Constitution and the goods have been produced, manufactured, assembled or otherwise processed in Australia;
(vii) the loss takes the form of detriment to constitutional trade and commerce;
(viii) the goods are in the course of, or intended for, constitutional trade and commerce;
(ix) the person makes the threat in Australia using a postal or other like service or an electronic communication;
(x) the person makes the threat outside Australia and the goods have been produced, manufactured, assembled or otherwise processed in Australia;
(xi) the loss is a loss to the Commonwealth or a Commonwealth authority;
(xii) the threat is made to the Commonwealth or a Commonwealth authority.
Penalty: Imprisonment for 15 years.
(2A) A person commits an offence if:
(a) the person makes a threat that goods will be contaminated; and
(b) the person does so reckless as to causing:
(i) public alarm or anxiety; or
(ii) economic loss through public awareness of the contamination, or possible contamination, of the goods; and
(c) any of the following subparagraphs applies:
(i) the loss is a loss to a constitutional corporation (other than a foreign corporation within the meaning of paragraph 51(xx) of the Constitution);
(ii) the loss is a loss to a constitutional corporation that is a foreign corporation within the meaning of paragraph 51(xx) of the Constitution and the goods have been produced, manufactured, assembled or otherwise processed in Australia;
(iii) the goods belong to a constitutional corporation (other than a foreign corporation within the meaning of paragraph 51(xx) of the Constitution);
(iv) the goods belong to a constitutional corporation that is a foreign corporation within the meaning of paragraph 51(xx) of the Constitution and the goods have been produced, manufactured, assembled or otherwise processed in Australia;
(v) the person is a constitutional corporation (other than a foreign corporation within the meaning of paragraph 51(xx) of the Constitution);
(vi) the person is a constitutional corporation that is a foreign corporation within the meaning of paragraph 51(xx) of the Constitution and the goods have been produced, manufactured, assembled or otherwise processed in Australia;
(vii) the loss takes the form of detriment to constitutional trade and commerce;
(viii) the goods are in the course of, or intended for, constitutional trade and commerce;
(ix) the person makes the threat in Australia using a postal or other like service or an electronic communication;
(x) the person makes the threat outside Australia and the goods have been produced, manufactured, assembled or otherwise processed in Australia;
(xi) the loss is a loss to the Commonwealth or a Commonwealth authority;
(xii) the threat is made to the Commonwealth or a Commonwealth authority.
Penalty: Imprisonment for 10 years.
(3) Absolute liability applies to paragraphs (2)(c) and (2A)(c).
380.4 Making false statements about contamination of goods
Offences based on implied nationhood power
(1) A person commits an offence if:
(a) the person makes a statement that the person believes to be false; and
(b) the person does so with the intention of inducing the person to whom the statement is made or others to believe that goods have been contaminated; and
(c) the person does so with intent:
(i) to cause public alarm or anxiety in Australia; or
(ii) to cause widespread, or nationally significant, economic loss in Australia through public awareness of the contamination, or possible contamination, of the goods; or
(iii) to cause harm to, or create a risk of harm to, public health in Australia.
Penalty: Imprisonment for 15 years.
(1A) A person commits an offence if:
(a) the person makes a statement that the person believes to be false; and
(b) the person does so with the intention of inducing the person to whom the statement is made or others to believe that goods have been contaminated; and
(c) the person does so reckless as to:
(i) causing public alarm or anxiety in Australia; or
(ii) causing widespread, or nationally significant, economic loss in Australia through public awareness of the contamination, or possible contamination, of the goods; or
(iii) causing harm to, or creating a risk of harm to, public health in Australia.
Penalty: Imprisonment for 10 years.
Offences based on other constitutional powers
(2) A person commits an offence if:
(a) the person makes a statement that the person believes to be false; and
(b) the person does so with the intention of inducing the person to whom the statement is made or others to believe that goods have been contaminated; and
(c) the person does so with intent to cause:
(i) public alarm or anxiety; or
(ii) economic loss through public awareness of the contamination, or possible contamination, of the goods; and
(d) any of the following subparagraphs applies:
(i) the loss is a loss to a constitutional corporation (other than a foreign corporation within the meaning of paragraph 51(xx) of the Constitution);
(ii) the loss is a loss to a constitutional corporation that is a foreign corporation within the meaning of paragraph 51(xx) of the Constitution and the goods have been produced, manufactured, assembled or otherwise processed in Australia;
(iii) the goods belong to a constitutional corporation (other than a foreign corporation within the meaning of paragraph 51(xx) of the Constitution);
(iv) the goods belong to a constitutional corporation that is a foreign corporation within the meaning of paragraph 51(xx) of the Constitution and the goods have been produced, manufactured, assembled or otherwise processed in Australia;
(v) the person is a constitutional corporation (other than a foreign corporation within the meaning of paragraph 51(xx) of the Constitution);
(vi) the person is a constitutional corporation that is a foreign corporation within the meaning of paragraph 51(xx) of the Constitution and the goods have been produced, manufactured, assembled or otherwise processed in Australia;
(vii) the loss takes the form of detriment to constitutional trade and commerce;
(viii) the goods are in the course of, or intended for, constitutional trade and commerce;
(ix) the person makes the statement in Australia using a postal or other like service or an electronic communication;
(x) the person makes the statement outside Australia and the goods have been produced, manufactured, assembled or otherwise processed in Australia;
(xi) the loss is a loss to the Commonwealth or a Commonwealth authority;
(xii) the statement is made to the Commonwealth or a Commonwealth authority.
Penalty: Imprisonment for 15 years.
(2A) A person commits an offence if:
(a) the person makes a statement that the person believes to be false; and
(b) the person does so with the intention of inducing the person to whom the statement is made or others to believe that goods have been contaminated; and
(c) the person does so reckless as to causing:
(i) public alarm or anxiety; or
(ii) economic loss through public awareness of the contamination, or possible contamination, of the goods; and
(d) any of the following subparagraphs applies:
(i) the loss is a loss to a constitutional corporation (other than a foreign corporation within the meaning of paragraph 51(xx) of the Constitution);
(ii) the loss is a loss to a constitutional corporation that is a foreign corporation within the meaning of paragraph 51(xx) of the Constitution and the goods have been produced, manufactured, assembled or otherwise processed in Australia;
(iii) the goods belong to a constitutional corporation (other than a foreign corporation within the meaning of paragraph 51(xx) of the Constitution);
(iv) the goods belong to a constitutional corporation that is a foreign corporation within the meaning of paragraph 51(xx) of the Constitution and the goods have been produced, manufactured, assembled or otherwise processed in Australia;
(v) the person is a constitutional corporation (other than a foreign corporation within the meaning of paragraph 51(xx) of the Constitution);
(vi) the person is a constitutional corporation that is a foreign corporation within the meaning of paragraph 51(xx) of the Constitution and the goods have been produced, manufactured, assembled or otherwise processed in Australia;
(vii) the loss takes the form of detriment to constitutional trade and commerce;
(viii) the goods are in the course of, or intended for, constitutional trade and commerce;
(ix) the person makes the statement in Australia using a postal or other like service or an electronic communication;
(x) the person makes the statement outside Australia and the goods have been produced, manufactured, assembled or otherwise processed in Australia;
(xi) the loss is a loss to the Commonwealth or a Commonwealth authority;
(xii) the statement is made to the Commonwealth or a Commonwealth authority.
Penalty: Imprisonment for 10 years.
(3) Absolute liability applies to paragraphs (2)(d) and (2A)(d).
(4) For the purposes of this section, making a statement includes conveying information by any means.
380.5 Extended geographical jurisdiction—category D
Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against section 380.2, 380.3 or 380.4.
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
(c) a State offence of attempting to commit the primary offence.
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.
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
(c) a child, step‑child or grandchild 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
(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 3 years or for life.
electronic communication means a communication of information:
(a) whether in the form of text; or
(b) whether in the form of data; or
(c) whether in the form of speech, music or other sounds; 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.
State offence means an offence against a law of a State.
(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
(c) was engaged in in a Commonwealth place; 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
(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 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
(c) the organisation consists of 2 or more persons; 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
(c) the organisation consists of 2 or more persons; 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 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
(c) the organisation consists of 2 or more persons; 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 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
(c) the organisation consists of 2 or more persons; 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 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
(c) the organisation consists of 2 or more persons; 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 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.
Chapter 10—National infrastructure
Part 10.2—Money laundering
Division 400—Money laundering
400.1 Definitions
(1) In this Division:
ADI (authorised deposit‑taking institution) means:
(a) a body corporate that is an ADI for the purposes of the Banking Act 1959; or
(b) the Reserve Bank of Australia; or
(c) a person who carries on State banking within the meaning of paragraph 51(xiii) of the Constitution.
Australian Capital Territory indictable offence means an offence against a law of the Australian Capital Territory that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence).
banking transaction includes:
(a) any transaction made at an ADI; and
(b) any transaction involving a money order.
Commonwealth indictable offence means an offence against a law of the Commonwealth, or a law of a Territory (other than the Australian Capital Territory and the Northern Territory), that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence).
deals with money or other property has the meaning given by section 400.2.
export money or other property, from Australia, includes transfer money or other property from Australia by an electronic communication.
foreign indictable offence means an offence against a law of a foreign country constituted by conduct that, if it had occurred in Australia, would have constituted an offence against:
(a) a law of the Commonwealth; or
(b) a law of a State or Territory connected with the offence;
that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence).
Note: See subsection (3) for when a law of a State or Territory is connected with the offence.
import money or other property, into Australia, includes transfer money or other property to Australia by an electronic communication.
instrument of crime: money or other property is an instrument of crime if it is used in the commission of, or used to facilitate the commission of, an offence against a law of the Commonwealth, a State, a Territory or a foreign country that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence).
Northern Territory indictable offence means an offence against a law of the Northern Territory that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence).
proceeds of crime means any money or other property that is wholly or partly derived or realised, directly or indirectly, by any person from the commission of an offence against a law of the Commonwealth, a State, a Territory or a foreign country that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence).
property means real or personal property of every description, whether situated in Australia or elsewhere and whether tangible or intangible, and includes an interest in any such real or personal property.
State indictable offence means an offence against a law of a State that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence).
(2) To avoid doubt, a reference in this Division to money or other property includes a reference to financial instruments, cards and other objects that represent money or can be exchanged for money, whether or not they have intrinsic value.
(3) For the purposes of the definition of foreign indictable offence in subsection (1), a State or Territory is connected with the offence if:
(a) a dealing in money or property takes place in the State or Territory; and
(b) the money or property would be proceeds of crime, or could become an instrument of crime, in relation to the offence if the offence were a foreign indictable offence.
400.2 Definition of deals with money or other property
A person deals with money or other property if the person does any of the following:
(a) receives, possesses, conceals or disposes of money or other property;
(b) imports money or other property into Australia;
(c) exports money or other property from Australia;
(d) engages in a banking transaction relating to money or other property.
400.2A Application of offences relating to possible instruments of crime
(1) This section affects the application of sections 400.3, 400.4, 400.5, 400.6, 400.7 and 400.8 so far as they relate to a person dealing with money or other property that:
(a) is intended by the person to become an instrument of crime; or
(b) is at risk of becoming an instrument of crime.
(2) Those sections apply if at least one of the circumstances described in subsections (3) and (4) exists.
(3) One circumstance is that money or other property is intended to become, or at risk of becoming, an instrument of crime in relation to an offence that is:
(a) a Commonwealth indictable offence; or
(b) a foreign indictable offence; or
(c) a State indictable offence that has a federal aspect; or
(d) an Australian Capital Territory indictable offence; or
(e) a Northern Territory indictable offence.
Note: The prosecution need not prove the existence of any fault element for the nature of the offence: see section 400.11.
(4) Another circumstance is that the dealing with the money or other property occurs:
(a) in the course of or for the purposes of importation of goods into, or exportation of goods from, Australia; or
(b) by means of a communication using a postal, telegraphic, telephonic or other like service within the meaning of paragraph 51(v) of the Constitution; or
(c) in the course of banking (other than State banking that does not extend beyond the limits of the State concerned); or
(d) outside Australia.
(5) Absolute liability applies to subsections (3) and (4).
Note: For absolute liability, see section 6.2.
400.3 Dealing in proceeds of crime etc.—money or property worth $1,000,000 or more
(1) A person commits an offence if:
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is, and the person believes it to be, proceeds of crime; or
(ii) the person intends that the money or property will become an instrument of crime; and
(c) at the time of the dealing, the value of the money and other property is $1,000,000 or more.
Penalty: Imprisonment for 25 years, or 1500 penalty units, or both.
(2) A person commits an offence if:
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is proceeds of crime; or
(ii) there is a risk that the money or property will become an instrument of crime; and
(c) the person is reckless as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and
(d) at the time of the dealing, the value of the money and other property is $1,000,000 or more.
Penalty: Imprisonment for 12 years, or 720 penalty units, or both.
(3) A person commits an offence if:
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is proceeds of crime; or
(ii) there is a risk that the money or property will become an instrument of crime; and
(c) the person is negligent as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and
(d) at the time of the dealing, the value of the money and other property is $1,000,000 or more.
Penalty: Imprisonment for 5 years, or 300 penalty units, or both.
(4) Absolute liability applies to paragraphs (1)(c), (2)(d) and (3)(d).
Note 1: Section 400.10 provides for a defence of mistake of fact in relation to these paragraphs.
Note 2: Section 400.2A affects the application of this section so far as it relates to a person dealing with money or other property that:
(a) is intended by the person to become an instrument of crime; or
(b) is at risk of becoming an instrument of crime.
400.4 Dealing in proceeds of crime etc.—money or property worth $100,000 or more
(1) A person commits an offence if:
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is, and the person believes it to be, proceeds of crime; or
(ii) the person intends that the money or property will become an instrument of crime; and
(c) at the time of the dealing, the value of the money and other property is $100,000 or more.
Penalty: Imprisonment for 20 years, or 1200 penalty units, or both.
(2) A person commits an offence if:
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is proceeds of crime; or
(ii) there is a risk that the money or property will become an instrument of crime; and
(c) the person is reckless as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and
(d) at the time of the dealing, the value of the money and other property is $100,000 or more.
Penalty: Imprisonment for 10 years, or 600 penalty units, or both.
(3) A person commits an offence if:
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is proceeds of crime; or
(ii) there is a risk that the money or property will become an instrument of crime; and
(c) the person is negligent as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and
(d) at the time of the dealing, the value of the money and other property is $100,000 or more.
Penalty: Imprisonment for 4 years, or 240 penalty units, or both.
(4) Absolute liability applies to paragraphs (1)(c), (2)(d) and (3)(d).
Note 1: Section 400.10 provides for a defence of mistake of fact in relation to these paragraphs.
Note 2: Section 400.2A affects the application of this section so far as it relates to a person dealing with money or other property that:
(a) is intended by the person to become an instrument of crime; or
(b) is at risk of becoming an instrument of crime.
400.5 Dealing in proceeds of crime etc.—money or property worth $50,000 or more
(1) A person commits an offence if:
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is, and the person believes it to be, proceeds of crime; or
(ii) the person intends that the money or property will become an instrument of crime; and
(c) at the time of the dealing, the value of the money and other property is $50,000 or more.
Penalty: Imprisonment for 15 years, or 900 penalty units, or both.
(2) A person commits an offence if:
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is proceeds of crime; or
(ii) there is a risk that the money or property will become an instrument of crime; and
(c) the person is reckless as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and
(d) at the time of the dealing, the value of the money and other property is $50,000 or more.
Penalty: Imprisonment for 7 years, or 420 penalty units, or both.
(3) A person commits an offence if:
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is proceeds of crime; or
(ii) there is a risk that the money or property will become an instrument of crime; and
(c) the person is negligent as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and
(d) at the time of the dealing, the value of the money and other property is $50,000 or more.
Penalty: Imprisonment for 3 years, or 180 penalty units, or both.
(4) Absolute liability applies to paragraphs (1)(c), (2)(d) and (3)(d).
Note 1: Section 400.10 provides for a defence of mistake of fact in relation to these paragraphs.
Note 2: Section 400.2A affects the application of this section so far as it relates to a person dealing with money or other property that:
(a) is intended by the person to become an instrument of crime; or
(b) is at risk of becoming an instrument of crime.
400.6 Dealing in proceeds of crime etc.—money or property worth $10,000 or more
(1) A person commits an offence if:
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is, and the person believes it to be, proceeds of crime; or
(ii) the person intends that the money or property will become an instrument of crime; and
(c) at the time of the dealing, the value of the money and other property is $10,000 or more.
Penalty: Imprisonment for 10 years, or 600 penalty units, or both.
(2) A person commits an offence if:
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is proceeds of crime; or
(ii) there is a risk that the money or property will become an instrument of crime; and
(c) the person is reckless as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and
(d) at the time of the dealing, the value of the money and other property is $10,000 or more.
Penalty: Imprisonment for 5 years, or 300 penalty units, or both.
(3) A person commits an offence if:
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is proceeds of crime; or
(ii) there is a risk that the money or property will become an instrument of crime; and
(c) the person is negligent as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and
(d) at the time of the dealing, the value of the money and other property is $10,000 or more.
Penalty: Imprisonment for 2 years, or 120 penalty units, or both.
(4) Absolute liability applies to paragraphs (1)(c), (2)(d) and (3)(d).
Note 1: Section 400.10 provides for a defence of mistake of fact in relation to these paragraphs.
Note 2: Section 400.2A affects the application of this section so far as it relates to a person dealing with money or other property that:
(a) is intended by the person to become an instrument of crime; or
(b) is at risk of becoming an instrument of crime.
400.7 Dealing in proceeds of crime etc.—money or property worth $1,000 or more
(1) A person commits an offence if:
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is, and the person believes it to be, proceeds of crime; or
(ii) the person intends that the money or property will become an instrument of crime; and
(c) at the time of the dealing, the value of the money and other property is $1,000 or more.
Penalty: Imprisonment for 5 years, or 300 penalty units, or both.
(2) A person commits an offence if:
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is proceeds of crime; or
(ii) there is a risk that the money or property will become an instrument of crime; and
(c) the person is reckless as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and
(d) at the time of the dealing, the value of the money and other property is $1,000 or more.
Penalty: Imprisonment for 2 years, or 120 penalty units, or both.
(3) A person commits an offence if:
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is proceeds of crime; or
(ii) there is a risk that the money or property will become an instrument of crime; and
(c) the person is negligent as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and
(d) at the time of the dealing, the value of the money and other property is $1,000 or more.
Penalty: Imprisonment for 12 months, or 60 penalty units, or both.
(4) Absolute liability applies to paragraphs (1)(c), (2)(d) and (3)(d).
Note 1: Section 400.10 provides for a defence of mistake of fact in relation to these paragraphs.
Note 2: Section 400.2A affects the application of this section so far as it relates to a person dealing with money or other property that:
(a) is intended by the person to become an instrument of crime; or
(b) is at risk of becoming an instrument of crime.
400.8 Dealing in proceeds of crime etc.—money or property of any value
(1) A person commits an offence if:
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is, and the person believes it to be, proceeds of crime; or
(ii) the person intends that the money or property will become an instrument of crime.
Penalty: Imprisonment for 12 months, or 60 penalty units, or both.
(2) A person commits an offence if:
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is proceeds of crime; or
(ii) there is a risk that the money or property will become an instrument of crime; and
(c) the person is reckless as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires).
Penalty: Imprisonment for 6 months, or 30 penalty units, or both.
(3) A person commits an offence if:
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is proceeds of crime; or
(ii) there is a risk that the money or property will become an instrument of crime; and
(c) the person is negligent as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires).
Penalty: 10 penalty units.
Note: Section 400.2A affects the application of this section so far as it relates to a person dealing with money or other property that:
(a) is intended by the person to become an instrument of crime; or
(b) is at risk of becoming an instrument of crime.
400.9 Dealing with property reasonably suspected of being proceeds of crime etc.
(1) A person commits an offence if:
(a) the person deals with money or other property; and
(b) it is reasonable to suspect that the money or property is proceeds of crime; and
(c) at the time of the dealing, the value of the money and other property is $100,000 or more.
Penalty: Imprisonment for 3 years, or 180 penalty units, or both.
(1A) A person commits an offence if:
(a) the person deals with money or other property; and
(b) it is reasonable to suspect that the money or property is proceeds of crime; and
(c) at the time of the dealing, the value of the money and other property is less than $100,000.
Penalty: Imprisonment for 2 years, or 120 penalty units, or both.
(2) Without limiting paragraph (1)(b) or (1A)(b), that paragraph is taken to be satisfied if:
(a) the conduct referred to in paragraph (1)(a) involves a number of transactions that are structured or arranged to avoid the reporting requirements of the Financial Transaction Reports Act 1988 that would otherwise apply to the transactions; or
(aa) the conduct involves a number of transactions that are structured or arranged to avoid the reporting requirements of the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 that would otherwise apply to the transactions; or
(b) the conduct involves using one or more accounts held with ADIs in false names; or
(ba) the conduct amounts to an offence against section 139, 140 or 141 of the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006; or
(c) the value of the money and property involved in the conduct is, in the opinion of the trier of fact, grossly out of proportion to the defendant’s income and expenditure over a reasonable period within which the conduct occurs; or
(d) the conduct involves a significant cash transaction within the meaning of the Financial Transaction Reports Act 1988, and the defendant:
(i) has contravened his or her obligations under that Act relating to reporting the transaction; or
(ii) has given false or misleading information in purported compliance with those obligations; or
(da) the conduct involves a threshold transaction (within the meaning of the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006) and the defendant:
(i) has contravened the defendant’s obligations under that Act relating to reporting the transaction; or
(ii) has given false or misleading information in purported compliance with those obligations; or
(e) the defendant:
(i) has stated that the conduct was engaged in on behalf of or at the request of another person; and
(ii) has not provided information enabling the other person to be identified and located.
(4) Absolute liability applies to paragraphs (1)(b) and (c) and (1A)(b) and (c).
(5) This section does not apply if the defendant proves that he or she had no reasonable grounds for suspecting that the money or property was derived or realised, directly or indirectly, from some form of unlawful activity.
Note: A defendant bears a legal burden in relation to the matter in subsection (5) (see section 13.4).
400.10 Mistake of fact as to the value of money or property
(1) A person is not criminally responsible for an offence against section 400.3, 400.4, 400.5, 400.6, 400.7 or 400.9 in relation to money or property if:
(a) at or before the time of dealing with the money or property, the person considered what was the value of the money or property, and was under a mistaken but reasonable belief about that value; and
(b) had the value been what the person believed it to be, the person’s conduct would have constituted another offence against this Division for which the maximum penalty, in penalty units, is less than the maximum penalty, in penalty units, for the offence charged.
Example: Assume that a person deals with money or property that is the proceeds of crime. While the person believes it to be proceeds of crime, he or she is under a mistaken but reasonable belief that it is worth $90,000 when it is in fact worth $120,000.
That belief is a defence to an offence against subsection 400.4(1) (which deals with money or property of a value of $100,000 or more). However, the person would commit an offence against subsection 400.5(1) (which deals with money or property of a value of $10,000 or more). Section 400.14 allows for an alternative verdict of guilty of an offence against subsection 400.5(1).
Note: A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3)).
(2) A person may be regarded as having considered what the value of the money or property was if:
(a) he or she had considered, on a previous occasion, what the value of the money or property was in the circumstances surrounding that occasion; and
(b) he or she honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.
400.11 Proof of certain matters relating to kinds of offences not required
In a prosecution for an offence against a provision of this Division, it is not necessary to prove the existence of any fault element in relation to any of the following:
(a) whether an offence may be dealt with as an indictable offence;
(b) whether an offence is an indictable offence;
(c) whether an offence is a Commonwealth indictable offence;
(d) whether an offence is a foreign indictable offence;
(e) whether an offence is a State indictable offence;
(f) whether an offence is an Australian Capital Territory indictable offence;
(g) whether an offence is a Northern Territory indictable offence.
400.12 Combining several contraventions in a single charge
(1) A single charge of an offence against a provision of this Division may be about 2 or more instances of the defendant engaging in conduct (at the same time or different times) that constitutes an offence against a provision of this Division.
(2) If:
(a) a single charge is about 2 or more such instances; and
(b) the value of the money and other property dealt with is an element of the offence in question;
that value is taken to be the sum of the values of the money and other property dealt with in respect of each of those instances.
400.13 Proof of other offences is not required
(1) To avoid doubt, it is not necessary, in order to prove for the purposes of this Division that money or property is proceeds of crime, to establish:
(a) a particular offence was committed in relation to the money or property; or
(b) a particular person committed an offence in relation to the money or property.
(2) To avoid doubt, it is not necessary, in order to prove for the purposes of this Division an intention or risk that money or property will be an instrument of crime, to establish that:
(a) an intention or risk that a particular offence will be committed in relation to the money or property; or
(b) an intention or risk that a particular person will commit an offence in relation to the money or property.
400.14 Alternative verdicts
If, on a trial for an offence against a provision of this Division (the offence charged), the trier of fact:
(a) is not satisfied that the defendant is guilty of the offence charged; but
(b) is otherwise satisfied that the defendant is guilty of another offence against this Division for which the maximum penalty, in penalty units, is less than the maximum penalty, in penalty units, for the offence charged;
the trier of fact may find the defendant not guilty of the offence charged but guilty of the other offence, so long as the person has been accorded procedural fairness in relation to that finding of guilt.
400.15 Geographical jurisdiction
(1) A person does not commit an offence against this Division 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 (but not on board an Australian aircraft or an Australian ship) and the money or other property:
(i) is proceeds of crime; or
(ii) is intended to become an instrument of crime; or
(iii) is at risk of becoming an instrument of crime;
in relation to a Commonwealth indictable offence, a State indictable offence, an Australian Capital Territory indictable offence or a Northern Territory indictable offence; 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 occurs, or is intended by the person to occur, wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship.
Note: The expression offence is given an extended meaning by subsection 11.2(1), section 11.3 and subsection 11.6(1).
Defence—primary offence
(2) A person does not commit an offence against this Division if:
(a) the alleged offence is a primary 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) paragraph (1)(b) of this section does not apply; 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 alleged offence occurs; or
(ii) the part of the foreign country where the conduct constituting the alleged offence occurs;
a law of that foreign country, or a law of that part of that foreign country, that creates an offence that corresponds to the offence against this Division.
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) A person does not commit an offence against this Division 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 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) paragraph (1)(b) of this section does not apply (and would not apply if the conduct described in paragraph (c) of this subsection occurred as intended); and
(e) 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
(f) there is not in force in:
(i) the foreign country where the conduct constituting the primary offence to which the ancillary offence relates occurs, or is intended by the person to occur; or
(ii) the part of the foreign country where the conduct constituting the primary offence to which the ancillary offence relates or is intended by the person to occur;
a law of that foreign country, or a law of that part of that foreign country, that creates an offence that corresponds to the primary offence.
Note: A defendant bears an evidential burden in relation to the matters in subsection (4). See subsection 13.3(3).
(5) For the purposes of the application of subsection 13.3(3) to an offence, subsection (4) of this section is taken to be an exception provided by the law creating the offence.
Extended application of sections 16.1, 16.2 and 16.3
(6) Section 16.1, except paragraph 16.1(1)(a), applies in relation to an offence against this Division (in addition to the application of that section apart from this subsection).
Note: Section 16.1 requires the Attorney‑General’s consent for prosecution of an offence if the alleged conduct occurred wholly in a foreign country in certain circumstances.
(7) Sections 16.2 and 16.3 apply for the purposes of this Division in the same way as they apply for the purposes of Part 2.7.
Note: Section 16.2 treats the sending of things and electronic communications into and out of Australia as conduct occurring partly in Australia. Section 16.3 affects the meaning of Australia.
400.16 Saving of other laws
This Division is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory.
Part 10.5—Postal services
Division 470—Preliminary
470.1 Definitions
In this Part:
AFP Minister means the Minister administering the Australian Federal Police Act 1979.
article has the same meaning as in the Australian Postal Corporation Act 1989.
article in the course of post means an article that is being carried by post, and includes an article that has been collected or received by or on behalf of Australia Post for carriage by post, but has not been delivered by or on behalf of Australia Post.
Australia Post means the Australian Postal Corporation.
carry, in relation to an article, has the same meaning as in the Australian Postal Corporation Act 1989.
carry by post has the same meaning as in the Australian Postal Corporation Act 1989.
constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.
mail‑receptacle means a mail‑bag, package, parcel, container, wrapper, receptacle or similar thing that:
(a) belongs to, or is in the possession of, Australia Post; and
(b) is used, or intended for use, in the carriage of articles by post (whether or not it actually contains such articles).
postage stamp has the same meaning as in the Australian Postal Corporation Act 1989.
postal message means:
(a) a material record of an unwritten communication:
(i) carried by post; or
(ii) collected or received by Australia Post for carriage by post; or
(b) a material record issued by Australia Post as a record of an unwritten communication:
(i) carried by post; or
(ii) collected or received by Australia Post for carriage by post.
postal or similar service means:
(a) a postal service (within the meaning of paragraph 51(v) of the Constitution); or
(b) a courier service, to the extent to which the service is a postal or other like service (within the meaning of paragraph 51(v) of the Constitution); or
(c) a packet or parcel carrying service, to the extent to which the service is a postal or other like service (within the meaning of paragraph 51(v) of the Constitution); or
(d) any other service that is a postal or other like service (within the meaning of paragraph 51(v) of the Constitution); or
(e) a courier service that is provided by a constitutional corporation; or
(f) a packet or parcel carrying service that is provided by a constitutional corporation; or
(g) a courier service that is provided in the course of, or in relation to, trade or commerce:
(i) between Australia and a place outside Australia; or
(ii) among the States; or
(iii) between a State and a Territory or between 2 Territories; or
(h) a packet or parcel carrying service that is provided in the course of, or in relation to, trade or commerce:
(i) between Australia and a place outside Australia; or
(ii) among the States; or
(iii) between a State and a Territory or between 2 Territories.
property has the same meaning as in Chapter 7.
unwritten communication has the same meaning as in the Australian Postal Corporation Act 1989.
470.2 Dishonesty
For the purposes of this Part, dishonest means:
(a) dishonest according to the standards of ordinary people; and
(b) known by the defendant to be dishonest according to the standards of ordinary people.
470.3 Determination of dishonesty to be a matter for the trier of fact
In a prosecution for an offence against this Part, the determination of dishonesty is a matter for the trier of fact.
470.4 Meaning of expressions used in Subdivisions B and C of Division 471
(1) Subject to subsections (2) and (3), an expression used in Subdivision B or C of Division 471 that is defined in Part 10.6 has the same meaning in that Subdivision as it has in that Part.
Note: One of those expressions is child abuse material.
(2) A reference in Subdivision B or C of Division 471 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 Subdivision B or C of Division 471 to a person producing, supplying or obtaining material includes a reference to the person:
(a) producing, supplying or obtaining material held or contained in a computer or data storage device; or
(b) producing, supplying or obtaining a document in which the material is recorded.
(4) Section 473.4 applies in relation to Subdivisions B and C of Division 471 as if the reference in that section to Part 10.6 were a reference to those Subdivisions.
Note: Section 473.4 sets out matters that may be taken into account in deciding whether particular material is offensive.
Division 471—Postal offences
Subdivision A—General postal offences
471.1 Theft of mail‑receptacles, articles or postal messages
(1) A person commits an offence if:
(a) the person dishonestly appropriates:
(i) a mail‑receptacle; or
(ii) an article in the course of post (including an article that appears to have been lost or wrongly delivered by or on behalf of Australia Post or lost in the course of delivery to Australia Post); or
(iii) a postal message; and
(b) the person does so with the intention of permanently depriving another person of the mail‑receptacle, article or postal message.
Penalty: Imprisonment for 10 years.
Dishonesty
(2) For the purposes of this section, a person’s appropriation of a mail‑receptacle, article or postal message may be dishonest even if the person or another person is willing to pay for the mail‑receptacle, article or postal message.
Intention of permanently depriving a person of a mail‑receptacle, article or postal message
(3) For the purposes of this section, if:
(a) a person appropriates a mail‑receptacle, article or postal message without meaning another permanently to lose the thing itself; and
(b) the person’s intention is to treat the thing as the person’s own to dispose of regardless of the other’s rights;
the person has the intention of permanently depriving the other of it.
(4) For the purposes of subsection (3), a borrowing or lending of a thing amounts to treating the thing as the borrower’s or lender’s own to dispose of regardless of another’s rights if, and only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.
471.2 Receiving stolen mail‑receptacles, articles or postal messages
(1) A person commits an offence if the person dishonestly receives stolen property, knowing or believing the property to be stolen.
Penalty: Imprisonment for 10 years.
Stolen property
(2) For the purposes of this section, property is stolen property if, and only if:
(a) it is original stolen property (as defined by subsection (3)); or
(b) it is tainted property (as defined by subsection (5)).
This subsection has effect subject to subsection (4).
Original stolen property
(3) For the purposes of this section, original stolen property is property, or a part of property, that:
(a) was appropriated in the course of an offence against section 471.1 (whether or not the property, or the part of the property, is in the state it was in when it was so appropriated); and
(b) is in the possession or custody of the person who so appropriated the property.
(4) For the purposes of this section, property ceases to be original stolen property:
(a) after the property is restored:
(i) to the person from whom it was appropriated; or
(ii) to other lawful possession or custody; or
(b) after:
(i) the person from whom the property was appropriated ceases to have any right to restitution in respect of the property; or
(ii) a person claiming through the person from whom the property was appropriated ceases to have any right to restitution in respect of the property.
Tainted property
(5) For the purposes of this section, tainted property is property that:
(a) is (in whole or in part) the proceeds of sale of, or property exchanged for, original stolen property; and
(b) is in the possession or custody of the person who so appropriated the original stolen property.
Alternative verdicts
(6) If, in a prosecution for an offence against section 471.1, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence against this section, the trier of fact may find the defendant not guilty of the offence against section 471.1 but guilty of the offence against this section, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
(7) If, in a prosecution for an offence against this section, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence against section 471.1, the trier of fact may find the defendant not guilty of the offence against this section but guilty of the offence against section 471.1, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
Receiving stolen property before commencement
(8) For the purposes of this section:
(a) it is to be assumed that section 471.1 had been in force at all times before the commencement of this section; and
(b) property that was appropriated at a time before the commencement of this section does not become stolen property unless the property was appropriated in circumstances that (apart from paragraph (a)) amounted to an offence against a law of the Commonwealth in force at that time.
471.3 Taking or concealing of mail‑receptacles, articles or postal messages
A person commits an offence if the person dishonestly takes or conceals:
(a) a mail‑receptacle; or
(b) an article in the course of post (including an article that appears to have been lost or wrongly delivered by or on behalf of Australia Post or lost in the course of delivery to Australia Post); or
(c) a postal message.
Penalty: Imprisonment for 5 years.
471.4 Dishonest removal of postage stamps or postmarks
A person commits an offence if the person dishonestly:
(a) removes any postage stamp affixed to, or printed on, an article; or
(b) removes any postmark from a postage stamp that has previously been used for postal services.
Penalty: Imprisonment for 12 months.
471.5 Dishonest use of previously used, defaced or obliterated stamps
(1) A person commits an offence if the person dishonestly uses for postal services a postage stamp:
(a) that has previously been used for postal services; or
(b) that has been obliterated; or
(c) that has been defaced.
Penalty: Imprisonment for 12 months.
(2) If, in proceedings for an offence against subsection (1), it is proved that the defendant caused an article to or on which was affixed or printed a postage stamp:
(a) that had previously been used for postal services; or
(b) that had been obliterated; or
(c) that had been defaced;
to be carried by post, it is presumed, in the absence of evidence to the contrary, that the defendant used the stamp for postal services.
(3) The burden of proof in respect of evidence to the contrary is an evidential burden of proof.
471.6 Damaging or destroying mail‑receptacles, articles or postal messages
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person’s conduct causes damage to, or the destruction of:
(i) a mail‑receptacle; or
(ii) an article in the course of post (including an article that appears to have been lost or wrongly delivered by or on behalf of Australia Post or lost in the course of delivery to Australia Post); or
(iii) a postal message; and
(c) the person:
(i) intends that his or her conduct cause that damage; or
(ii) is reckless as to whether his or her conduct causes that damage.
Penalty: Imprisonment for 10 years.
(2) For the purposes of this section, a person’s conduct is taken to cause the destruction of a thing if the person’s conduct causes the physical loss of the thing by interfering with the thing (including by removing any restraint over the thing or abandoning the thing).
(3) For the purposes of this section, a person’s conduct is taken to cause damage to a thing if:
(a) the person’s conduct causes any loss of a use of the function of the thing by interfering with the thing; or
(b) the person’s conduct causes the thing to be defaced.
471.7 Tampering with mail‑receptacles
(1) A person commits an offence if the person dishonestly:
(a) opens a mail‑receptacle; or
(b) tampers with a mail‑receptacle.
Penalty: Imprisonment for 5 years.
(2) A person commits an offence if:
(a) the person intentionally opens a mail‑receptacle; and
(b) the person is not authorised by Australia Post to open the mail‑receptacle; and
(c) the person does so knowing that he or she is not authorised by Australia Post to open the mail‑receptacle.
Penalty: Imprisonment for 2 years.
471.8 Dishonestly obtaining delivery of articles
A person commits an offence if the person dishonestly obtains delivery of, or receipt of, an article in the course of post that is not directed to the person.
Penalty: Imprisonment for 5 years.
471.9 Geographical jurisdiction
Section 15.3 (extended geographical jurisdiction—category C) applies to an offence against section 471.1, 471.2, 471.3, 471.4, 471.5, 471.6, 471.7 or 471.8.
471.10 Hoaxes—explosives and dangerous substances
(1) A person commits an offence if:
(a) the person causes an article to be carried by a postal or similar service; and
(b) the person does so with the intention of inducing a false belief that:
(i) the article consists of, encloses or contains an explosive or a dangerous or harmful substance or thing; or
(ii) an explosive, or a dangerous or harmful substance or thing, has been or will be left in any place.
Penalty: Imprisonment for 10 years.
(2) To avoid doubt, the definition of carry by post in section 470.1 does not apply to this section.
471.11 Using a postal or similar service to make a threat
Threat to kill
(1) A person (the first person) commits an offence if:
(a) the first person uses a postal or similar service to make to another person (the second person) a threat to kill the second person or a third person; and
(b) the first person intends the second person to fear that the threat will be carried out.
Penalty: Imprisonment for 10 years.
Threat to cause serious harm
(2) A person (the first person) commits an offence if:
(a) the first person uses a postal or similar service to make to another person (the second person) a threat to cause serious harm to the second person or a third person; and
(b) the first person intends the second person to fear that the threat will be carried out.
Penalty: Imprisonment for 7 years.
Actual fear not necessary
(3) In a prosecution for an offence against this section, it is not necessary to prove that the person receiving the threat actually feared that the threat would be carried out.
Definitions
(4) In this section:
fear includes apprehension.
threat to cause serious harm to a person includes a threat to substantially contribute to serious harm to the person.
471.12 Using a postal or similar service to menace, harass or cause offence
A person commits an offence if:
(a) the person uses a postal or similar service; and
(b) the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.
Penalty: Imprisonment for 2 years.
471.13 Causing a dangerous article to be carried by a postal or similar service
Offence
(1) A person (the first person) commits an offence if:
(a) the first person causes an article to be carried by a postal or similar service; and
(b) the person does so in a way that gives rise to a danger of death or serious harm to another person; and
(c) the first person is reckless as to the danger of death or serious harm.
Penalty: Imprisonment for 10 years.
Danger of death or serious harm
(2) For the purposes of this section, if a person’s conduct exposes another person to the risk of catching a disease that may give rise to a danger of death or serious harm to the other person, the conduct is taken to give rise to a danger of death or serious harm to the other person.
(3) For the purposes of this section, a person’s conduct gives rise to a danger of death or serious harm if the conduct is ordinarily capable of creating a real, and not merely a theoretical, danger of death or serious harm.
(4) For the purposes of this section, a person’s conduct may give rise to a danger of death or serious harm whatever the statistical or arithmetical calculation of the degree of risk of death or serious harm involved.
(5) In a prosecution for an offence against subsection (1), it is not necessary to prove that a specific person was actually placed in danger of death or serious harm by the conduct concerned.
Definition
(6) To avoid doubt, the definition of carry by post in section 470.1 does not apply to this section.
471.14 Geographical jurisdiction
Section 15.1 (extended geographical jurisdiction—category A) applies to an offence against section 471.10, 471.11, 471.12 or 471.13.
471.15 Causing an explosive, or a dangerous or harmful substance, to be carried by post
Offence
(1) A person commits an offence if:
(a) the person causes an article to be carried by post; and
(b) the article consists of, encloses or contains:
(i) an explosive; or
(ii) a dangerous or harmful substance or thing that the regulations say must not, without exception, be carried by post.
Penalty: Imprisonment for 10 years.
Geographical jurisdiction
(2) Section 15.3 (extended geographical jurisdiction—category C) applies to an offence against subsection (1).
Subdivision B—Offences relating to use of postal or similar service for child abuse material
471.19 Using a postal or similar service for child abuse material
(1) A person commits an offence if:
(a) the person causes an article to be carried by a postal or similar service; and
(b) the article is, or contains, child abuse material.
Penalty: Imprisonment for 15 years.
(2) A person commits an offence if:
(a) the person requests another person to cause an article to be carried by a postal or similar service; and
(b) the article is, or contains, child abuse material.
Penalty: Imprisonment for 15 years.
471.20 Possessing, controlling, producing, supplying or obtaining child abuse material for use through a postal or similar service
(1) A person commits an offence if:
(a) the person:
(i) has possession or control of material; or
(ii) produces, supplies or obtains material; and
(b) the material is child abuse material; and
(c) the person has that possession or control, or engages in that production, supply or obtaining, with the intention that the material be used:
(i) by that person; or
(ii) by another person;
in committing an offence against section 471.19 (using a postal or similar service for child abuse material).
Penalty: Imprisonment for 15 years.
(2) A person may be found guilty of an offence against subsection (1) even if committing the offence against section 471.19 (using a postal or similar service for child abuse material) is impossible.
(3) It is not an offence to attempt to commit an offence against subsection (1).
471.21 Defences in respect of child abuse material
(1) A person is not criminally responsible for an offence against section 471.19 (using a postal or similar service for child abuse material) or 471.20 (possessing etc. child abuse material for use through a postal or similar service) because of engaging in particular conduct if the conduct:
(a) is of public benefit; and
(b) does not extend beyond what is of public benefit.
In determining whether the person is, under this subsection, not criminally responsible for the offence, the question whether the conduct is of public benefit is a question of fact and the person’s motives in engaging in the conduct are irrelevant.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
(2) For the purposes of subsection (1), conduct is of public benefit if, and only if, the conduct is necessary for or of assistance in:
(a) enforcing a law of the Commonwealth, a State or a Territory; or
(b) monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or a Territory; or
(c) the administration of justice; or
(d) conducting scientific, medical or educational research that has been approved by the AFP Minister in writing for the purposes of this section.
(3) A person is not criminally responsible for an offence against section 471.19 (using a postal or similar service for child abuse material) or 471.20 (possessing etc. child abuse material for use through a postal or similar service) if:
(a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in the course of his or her duties; and
(b) the conduct of the person is reasonable in the circumstances for the purpose of performing that duty.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
471.22 Aggravated offence—offence involving conduct on 3 or more occasions and 2 or more people
(1) A person commits an offence against this section if:
(a) the person commits an offence against either of the following provisions on 3 or more separate occasions:
(iii) section 471.19 (using a postal or similar service for child abuse material);
(iv) section 471.20 (possessing etc. child abuse material for use through a postal or similar service); 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 471.19 or 471.20.
(3) To avoid doubt, a person does not commit an offence against section 471.19 or 471.20 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 purposes 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 471.19 or 471.20 in relation to the conduct that constituted the aggravated offence.
(6) Subsection (5) does not prevent an alternative verdict under section 471.23.
(7) A person who has been convicted or acquitted of an offence (the underlying offence) against section 471.19 or 471.20 may not be convicted of an offence against this section in relation to the conduct that constituted the underlying offence.
471.23 Alternative verdict if aggravated offence not proven
If, on a trial for an offence (the aggravated offence) against subsection 471.22(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 (the underlying offence) against section 471.19 or 471.20;
it may find the defendant not guilty of the aggravated offence but guilty of the underlying offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
Subdivision C—Offences relating to use of postal or similar service involving sexual activity with person under 16
471.24 Using a postal or similar service to procure persons under 16
(1) A person (the sender) commits an offence if:
(a) the sender causes an article to be carried by a postal or similar service to another person (the recipient); and
(b) the sender does this with the intention of procuring the recipient to engage in sexual activity with the sender; and
(c) the recipient is someone who is, or who the sender believes to be, under 16; and
(d) the sender is at least 18.
Penalty: Imprisonment for 15 years.
(2) A person (the sender) commits an offence if:
(a) the sender causes an article to be carried by a postal or similar service to another person (the recipient); and
(b) the sender does this with the intention of procuring the recipient to engage in sexual activity with another person (the participant); and
(c) the recipient is someone who is, or who the sender believes to be, under 16; and
(d) the participant is someone who is, or who the sender believes to be, at least 18.
Penalty: Imprisonment for 15 years.
(3) A person (the sender) commits an offence if:
(a) the sender causes an article to be carried by a postal or similar service to another person (the recipient); and
(b) the sender does this with the intention of procuring the recipient to engage in sexual activity with another person; and
(c) the recipient is someone who is, or who the sender believes to be, under 16; and
(d) the other person referred to in paragraph (b) is someone who is, or who the sender believes to be, under 18; and
(e) the sender intends that the sexual activity referred to in paragraph (b) will take place in the presence of:
(i) the sender; or
(ii) another person (the participant) who is, or who the sender believes to be, at least 18.
Penalty: Imprisonment for 15 years.
471.25 Using a postal or similar service to “groom” persons under 16
(1) A person (the sender) commits an offence if:
(a) the sender causes an article to be carried by a postal or similar service to another person (the recipient); and
(b) the sender does this with the intention of making it easier to procure the recipient to engage in sexual activity with the sender; and
(c) the recipient is someone who is, or who the sender believes to be, under 16; and
(d) the sender is at least 18.
Penalty: Imprisonment for 15 years.
(2) A person (the sender) commits an offence if:
(a) the sender causes an article to be carried by a postal or similar service to another person (the recipient); and
(b) the sender does this with the intention of making it easier to procure the recipient to engage in sexual activity with another person (the participant); and
(c) the recipient is someone who is, or who the sender believes to be, under 16; and
(d) the participant is someone who is, or who the sender believes to be, at least 18.
Penalty: Imprisonment for 15 years.
(3) A person (the sender) commits an offence if:
(a) the sender causes an article to be carried by a postal or similar service to another person (the recipient); and
(b) the sender does this with the intention of making it easier to procure the recipient to engage in sexual activity with another person; and
(c) the recipient is someone who is, or who the sender believes to be, under 16; and
(d) the other person referred to in paragraph (b) is someone who is, or who the sender believes to be, under 18; and
(e) the sender intends that the sexual activity referred to in paragraph (b) will take place in the presence of:
(i) the sender; or
(ii) another person (the participant) who is, or who the sender believes to be, at least 18.
Penalty: Imprisonment for 15 years.
471.25A Using a postal or similar service to “groom” another person to make it easier to procure persons under 16
(1) A person (the sender) commits an offence if:
(a) the sender causes an article to be carried by a postal or similar service to another person (the recipient); and
(b) the sender does this with the intention of making it easier to procure a person (the child) to engage in sexual activity with the sender; and
(c) the child is someone who is, or who the sender believes to be, under 16; and
(d) the sender is at least 18.
Penalty: Imprisonment for 15 years.
(2) A person (the sender) commits an offence if:
(a) the sender causes an article to be carried by a postal or similar service to another person (the recipient); and
(b) the sender does this with the intention of making it easier to procure a person (the child) to engage in sexual activity with another person (the participant); and
(c) the child is someone who is, or who the sender believes to be, under 16; and
(d) the participant is someone who is, or who the sender believes to be, at least 18.
Penalty: Imprisonment for 15 years.
(3) A person (the sender) commits an offence if:
(a) the sender causes an article to be carried by a postal or similar service to another person (the recipient); and
(b) the sender does this with the intention of making it easier to procure a person (the child) to engage in sexual activity with another person; and
(c) the child is someone who is, or who the sender believes to be, under 16; and
(d) the other person referred to in paragraph (b) is someone who is, or who the sender believes to be, under 18; and
(e) the sender intends that the sexual activity referred to in paragraph (b) will take place in the presence of:
(i) the sender; or
(ii) another person (the participant) who is, or who the sender believes to be, at least 18.
Penalty: Imprisonment for 15 years.
471.26 Using a postal or similar service to send indecent material to person under 16
(1) A person (the sender) commits an offence if:
(a) the sender causes an article to be carried by a postal or similar service to another person (the recipient); and
(b) the article is, or contains, material that is indecent; and
(c) the recipient is someone who is, or who the sender believes to be, under 16; and
(d) the sender is at least 18.
Penalty: Imprisonment for 10 years.
(2) In a prosecution for an offence against subsection (1), whether material is indecent is a matter for the trier of fact.
(3) In this section:
indecent means indecent according to the standards of ordinary people.
471.27 Age‑related provisions relating to offences against this Subdivision
Application of absolute liability
(1) For the purposes of an offence against this Subdivision (other than section 471.25A), absolute liability applies to the physical element of circumstance of the offence that the recipient is someone who is under 16.
Note 1: For absolute liability, see section 6.2.
Note 2: For a defence based on belief about age, see section 471.29.
(1A) For the purposes of an offence against section 471.25A, absolute liability applies to the physical element of circumstance of the offence that the child is someone who is under 16.
Note 1: For absolute liability, see section 6.2.
Note 2: For a defence based on belief about age, see section 471.29.
(2) For the purposes of an offence against subsection 471.24(2) or (3), 471.25(2) or (3) or 471.25A(2) or (3), absolute liability applies to the physical element of circumstance of the offence that the participant is at least 18.
Note 1: For absolute liability, see section 6.2.
Note 2: For a defence based on belief about age, see section 471.29.
Proof of belief about age—evidence of representation
(3) For the purposes of this Subdivision, evidence that a person was represented to the defendant as being under, of, at least or over a particular age is, in the absence of evidence to the contrary, proof that the defendant believed the person to be under, of, at least or over that age (as the case requires).
Determining age—admissible evidence
(5) In determining for the purposes of this Subdivision how old a person is or was at a particular time, a jury or court may treat any of the following as admissible evidence:
(a) the person’s appearance;
(b) medical or other scientific opinion;
(c) a document that is or appears to be an official or medical record from a country outside Australia;
(d) a document that is or appears to be a copy of such a record.
(6) Subsection (5) does not make any other kind of evidence inadmissible, and does not affect a prosecutor’s duty to do all he or she can to adduce the best possible evidence for determining the question.
(7) If, on a trial for an offence against this Subdivision, evidence may be treated as admissible because of subsection (5), the court must warn the jury that it must be satisfied beyond reasonable doubt in determining the question.
471.28 Other provisions relating to offences against this Subdivision
Impossibility of sexual activity taking place
(1) A person may be found guilty of an offence against section 471.24, 471.25 or 471.25A even if it is impossible for the sexual activity referred to in that section to take place.
Fictitious persons
(2) For the purposes of an offence against this Subdivision, it does not matter that the recipient to whom the sender believes the sender is causing an article to be carried is a fictitious person represented to the sender as a real person.
(2A) For the purposes of an offence against section 471.25A, it does not matter that the child is a fictitious person represented to the sender as a real person.
Attempt not offence
(3) It is not an offence to attempt to commit an offence against section 471.24, 471.25 or 471.25A.
471.29 Defences to offences against this Subdivision
Belief that certain persons at least 16
(1) It is a defence to a prosecution for an offence against this Subdivision (other than section 471.25A) if the defendant proves that, at the time he or she caused the article to be carried, the defendant believed that the recipient was at least 16.
Note: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.
(1A) It is a defence to a prosecution for an offence against section 471.25A if the defendant proves that, at the time he or she caused the article to be carried, the defendant 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.
Procuring and “grooming” offences involving child engaging in sexual activity with other participant—belief that participant under 18
(2) It is a defence to a prosecution for an offence against subsection 471.24(2) or (3), 471.25(2) or (3) or 471.25A(2) or (3) if the defendant proves that, at the time he or she caused the article to be carried, the defendant believed that the participant was under 18.
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
(3) In determining whether the defendant had the belief mentioned in subsection (1), (1A) or (2), the trier of fact may take into account whether the alleged belief was reasonable in the circumstances.
471.29A Sentencing
(1) In determining the sentence to be passed, or the order to be made, in respect of a person for an offence against this Subdivision, 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.
(2) 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.
(3) 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).
Subdivision D—Miscellaneous
471.30 Geographical jurisdiction
Section 15.1 (extended geographical jurisdiction—category A) applies to an offence against Subdivision B or C of this Division.
471.31 Definition of carry by post does not apply
To avoid doubt, the definition of carry by post in section 470.1 does not apply in relation to Subdivision B or C of this Division.
Division 472—Miscellaneous
472.1 Saving of other laws
This Part is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory.
472.2 Interpretation of other laws
In determining the meaning of a provision of:
(a) Part VIIA of the Crimes Act 1914; or
(b) the Australian Postal Corporation Act 1989;
this Part is to be disregarded.
Part 10.6—Telecommunications Services
Division 473—Preliminary
473.1 Definitions
In this Part:
abattoir means a place where animals are slaughtered (whether or not for human consumption), but does not include a restaurant.
access in relation to material includes:
(a) the display of the material by a computer or any other output of the material from a computer; or
(b) the copying or moving of the material to any place in a computer or to a data storage device; or
(c) in the case of material that is a program—the execution of the program.
account identifier means:
(a) something that:
(i) contains subscription‑specific secure data; and
(ii) is installed, or capable of being installed, in a mobile telecommunications device; or
(b) anything else that:
(i) allows a particular mobile telecommunications account to be identified; and
(ii) is prescribed by the regulations as an account identifier for the purposes of this Part.
Note: Paragraph (a)—This would include a SIM card.
AFP Minister means the Minister administering the Australian Federal Police Act 1979.
agricultural land means land in Australia that is used for a primary production business. For the purposes of this definition, it is immaterial:
(a) whether a part of the land is used for residential purposes; or
(b) whether a part of the land is used for a business that is not a primary production business.
carriage service provider has the same meaning as in the Telecommunications Act 1997.
Note: See also section 474.3 respecting persons who are taken to be carriage service providers in relation to certain matters.
carrier has the same meaning as in the Telecommunications Act 1997.
Note: See also section 474.3 respecting persons who are taken to be carriers in relation to certain matters.
carry includes transmit, switch and receive.
child abuse material means:
(a) material that depicts a person, or a representation of a person, who:
(i) is, or appears to be, under 18 years of age; and
(ii) is, or appears to be, a victim of torture, cruelty or physical abuse;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
(b) material that describes a person who:
(i) is, or is implied to be, under 18 years of age; and
(ii) is, or is implied to be, a victim of torture, cruelty or physical abuse;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
(c) material that depicts a person, or a representation of a person, who is, or appears to be, under 18 years of age and who:
(i) is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or
(ii) is in the presence of a person who is engaged in, or appears to be engaged in, a sexual pose or sexual activity;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
(d) material the dominant characteristic of which is the depiction, for a sexual purpose, of:
(i) a sexual organ or the anal region of a person who is, or appears to be, under 18 years of age; or
(ii) a representation of such a sexual organ or anal region; or
(iii) the breasts, or a representation of the breasts, of a female person who is, or appears to be, under 18 years of age;
in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
(e) material that describes a person who is, or is implied to be, under 18 years of age and who:
(i) is engaged in, or is implied to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or
(ii) is in the presence of a person who is engaged in, or is implied to be engaged in, a sexual pose or sexual activity;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
(f) material that describes:
(i) a sexual organ or the anal region of a person who is, or is implied to be, under 18 years of age; or
(ii) the breasts of a female person who is, or is implied to be, under 18 years of age;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
(g) material that is a doll or other object that 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;
if a reasonable person would consider it likely that the material is intended to be used by a person to simulate sexual intercourse.
communication in the course of telecommunications carriage means a communication that is being carried by a carrier or carriage service provider, and includes a communication that has been collected or received by a carrier or carriage service provider for carriage, but has not yet been delivered by the carrier or carriage service provider.
connected, in relation to a telecommunications network, includes connection otherwise than by means of physical contact (for example, a connection by means of radiocommunication).
control of data, or material that is in the form of data, has the meaning given by section 473.2.
Crown land means land that is the property of:
(a) the Commonwealth, a State or a Territory; or
(b) a statutory authority;
but does not include land that is subject to a lease to a person other than:
(c) the Commonwealth, a State or a Territory; or
(d) a statutory authority.
Defence Department means the Department of State that deals with defence and that is administered by the Minister administering section 1 of the Defence Act 1903.
depict includes contain data from which a visual image (whether still or moving) can be generated.
describe includes contain data from which text or sounds can be generated.
emergency call person has the same meaning as in the Telecommunications Act 1997.
emergency service number has the same meaning as in the Telecommunications Act 1997.
emergency service organisation has the same meaning as in section 147 of the Telecommunications (Consumer Protection and Service Standards) Act 1999.
facility has the same meaning as in the Telecommunications Act 1997.
forestry means:
(a) planting or tending trees in a plantation or forest that are intended to be felled; or
(b) felling trees in a plantation or forest.
intelligence or security officer means an officer or employee of:
(a) the Australian Security Intelligence Organisation; or
(b) the Australian Secret Intelligence Service; or
(ba) the Australian Signals Directorate; or
(c) the Office of National Intelligence; or
(e) that part of the Defence Department known as the Defence Intelligence Organisation;
and includes a staff member (within the meaning of the Intelligence Services Act 2001) of the Australian Security Intelligence Organisation, the Australian Secret Intelligence Service or the Australian Signals Directorate.
interception device means an apparatus or device that:
(a) is of a kind that is capable of being used to enable a person to intercept a communication passing over a telecommunications system; and
(b) could reasonably be regarded as having been designed:
(i) for the purpose of; or
(ii) for purposes including the purpose of;
using it in connection with the interception of communications passing over a telecommunications system; and
(c) is not designed principally for the reception of communications transmitted by radiocommunications.
Terms used in this definition that are defined in the Telecommunications (Interception and Access) Act 1979 have the same meaning in this definition as they have in that Act.
internet content host has the same meaning as in Schedule 5 to the Broadcasting Services Act 1992.
internet service provider has the same meaning as in Schedule 5 to the Broadcasting Services Act 1992.
law enforcement officer means any of the following:
(a) the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee or a special member of the Australian Federal Police (all within the meaning of the Australian Federal Police Act 1979);
(b) a member, or employee, of the police force of a State or Territory;
(c) a member of the staff of the Australian Crime Commission (within the meaning of the Australian Crime Commission Act 2002);
(d) a member of a police force, or other law enforcement agency, of a foreign country;
(e) the Director of Public Prosecutions or a person performing a similar function under a law of a State or Territory;
(f) a member of the staff of the Office of the Director of Public Prosecutions (within the meaning of the Director of Public Prosecutions Act 1983) or of a similar body established under a law of a State or Territory;
(g) a member of the New South Wales Crime Commission or a member of the staff of that Commission;
(h) an officer of the Independent Commission Against Corruption of New South Wales, being a person who is an officer as defined by the Independent Commission Against Corruption Act 1988 of New South Wales;
(i) any of the following:
(i) the Chief Commissioner of the Law Enforcement Conduct Commission of New South Wales;
(ii) the Commissioner for Integrity of the Commission;
(iii) an Assistant Commissioner of the Commission;
(iv) a member of staff of the Commission (within the meaning of the Law Enforcement Conduct Commission Act 2016 (NSW));
(ia) an IBAC Officer within the meaning of the Independent Broad‑based Anti‑corruption Commission Act 2011 (Vic.);
(j) an officer of the Corruption and Crime Commission of Western Australia within the meaning of the Corruption and Crime Commission Act 2003 of Western Australia;
(k) an authorised commission officer of the Crime and Corruption Commission of Queensland within the meaning of the Crime and Corruption Act 2001 (Qld);
(l) the Independent Commissioner Against Corruption of South Australia, the Deputy Commissioner, a member of the staff of the Commissioner, or an examiner or investigator, within the meaning of the Independent Commissioner Against Corruption Act 2012 (SA).
loss means a loss in property, whether temporary or permanent, and includes not getting what one might get.
material includes material in any form, or combination of forms, capable of constituting a communication.
meat by‑product includes skin, hide, tallow, meat meal and inedible offal.
mobile telecommunications account means an account with a carriage service provider for the supply of a public mobile telecommunications service to an end‑user.
mobile telecommunications device means an item of customer equipment (within the meaning of the Telecommunications Act 1997) that is used, or is capable of being used, in connection with a public mobile telecommunications service.
National Relay Service has the same meaning as in the Telecommunications (Consumer Protection and Service Standards) Act 1999.
nominated carrier has the same meaning as in the Telecommunications Act 1997.
NRS provider means:
(a) a person who:
(i) is a contractor (within the meaning of the Telecommunications (Consumer Protection and Service Standards) Act 1999); and
(ii) provides the whole or a part of the National Relay Service; or
(b) a person who:
(i) is a grant recipient (within the meaning of the Telecommunications (Consumer Protection and Service Standards) Act 1999); and
(ii) provides the whole or a part of the National Relay Service.
obtaining includes:
(a) obtaining for another person; and
(b) inducing a third person to do something that results in another person obtaining.
obtaining data, or material that is in the form of data, has the meaning given by section 473.3.
possession of data, or material that is in the form of data, has the meaning given by section 473.2.
primary production business means any of the following:
(a) a business of grazing;
(b) a business of operating animal feedlots;
(c) a business of dairy farming;
(d) a business of farming animals for the purpose of producing meat or meat by‑products;
(e) a business of poultry farming;
(f) a business of aquaculture;
(g) a business of bee‑keeping;
(h) a business of operating an abattoir;
(i) a business of operating livestock sale yards;
(j) a business of operating a registered establishment (within the meaning of the Export Control Act 1982);
(k) a business of operating a fish processing facility;
(l) a business of growing fruit;
(m) a business of growing vegetables;
(n) a business of growing nuts;
(o) a business of growing crops;
(p) a business of viticulture;
(pa) a business of operating:
(i) a wood processing facility; or
(ii) a wood fibre processing facility;
(q) a business of forestry that is carried on on private land.
private land means land other than Crown land.
private sexual material means:
(a) material that:
(i) depicts a person who is, or appears to be, 18 years of age or older and who is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); and
(ii) does so in circumstances that reasonable persons would regard as giving rise to an expectation of privacy; or
(b) material the dominant characteristic of which is the depiction of:
(i) a sexual organ or the anal region of a person who is, or appears to be, 18 years of age or older; or
(ii) the breasts of a female person who is, or appears to be, 18 years of age or older;
where the depiction is in circumstances that reasonable persons would regard as giving rise to an expectation of privacy.
Note: For material that relates to a person who is, or appears to be, under 18 years of age, see:
(a) the definition of child abuse material; and
(b) the offences relating to child abuse material in Subdivision D.
producing data, or material that is in the form of data, has the meaning given by section 473.3.
property has the same meaning as in Chapter 7.
public mobile telecommunications service has the same meaning as in the Telecommunications Act 1997.
radiocommunication has the same meaning as in the Radiocommunications Act 1992.
serious offence against a foreign law means an offence against a law of a foreign country constituted by conduct that, if it had occurred in Australia, would have constituted a serious offence against a law of the Commonwealth, a State or a Territory.
serious offence against a law of the Commonwealth, a State or a Territory means an offence against a law of the Commonwealth, a State or a Territory that is punishable by imprisonment:
(a) for life; or
(b) for a period of 5 or more years.
statutory authority means a body established for a public purpose by or under a law of the Commonwealth, a State or a Territory.
subject of private sexual material means:
(a) if the material is covered by paragraph (a) of the definition of private sexual material—the person first mentioned in that paragraph; or
(b) if the material is covered by paragraph (b) of the definition of private sexual material—the person mentioned in whichever of subparagraph (b)(i) or (ii) of that definition is applicable.
subscription‑specific secure data means data that is used, or is capable of being used, to:
(a) allow a carrier to identify a particular mobile telecommunications account (whether an existing account or an account that may be set up in the future); and
(b) allow a mobile telecommunications device in which an account identifier that contains the data is installed to access the public mobile telecommunication service to which that account relates.
supplying data, or material that is in the form of data, has the meaning given by section 473.3.
telecommunications device identifier means:
(a) an electronic identifier of a mobile telecommunications device that is:
(i) installed in the device by the manufacturer; and
(ii) is capable of being used to distinguish that particular device from other mobile telecommunications devices; or
(b) any other form of identifier that is prescribed by the regulations as a telecommunications device identifier for the purposes of this Part.
Note: Paragraph (a)—For example, GSM mobile phones use an industry‑recognised International Mobile Equipment Identity (IMEI) number. This number identifies the particular phone, as compared to the SIM card number which identifies a particular telecommunications account. Carriers are able to block service to lost and stolen mobile phones based on their IMEI numbers.
telecommunications network has the same meaning as in the Telecommunications Act 1997.
use, a carriage service, has a meaning affected by section 473.5.
473.2 Possession or control of data or material in the form of data
A reference in this Part to a person having possession or control of data, or material that is in the form of data, includes a reference to the person:
(a) having possession of a computer or data storage device that holds or contains the data; or
(b) having possession of a document in which the data is recorded; or
(c) having control of data held in a computer that is in the possession of another person (whether inside or outside Australia).
473.3 Producing, supplying or obtaining data or material in the form of data
A reference in this Part to a person producing, supplying or obtaining data, or material that is in the form of data, includes a reference to the person:
(a) producing, supplying or obtaining data held or contained in a computer or data storage device; or
(b) producing, supplying or obtaining a document in which the data is recorded.
473.4 Determining whether material is offensive
(1) The matters to be taken into account in deciding for the purposes of this Part whether reasonable persons would regard particular material, or a particular use of a carriage service, as being, in all the circumstances, offensive, include:
(a) the standards of morality, decency and propriety generally accepted by reasonable adults; and
(b) the literary, artistic or educational merit (if any) of the material; and
(c) the general character of the material (including whether it is of a medical, legal or scientific character).
(2) If:
(a) a particular use of a carriage service involves the transmission, making available, publication, distribution, advertisement or promotion of material; and
(b) the material is private sexual material;
then, in deciding for the purposes of this Part whether reasonable persons would regard the use of the carriage service as being, in all the circumstances, offensive, regard must be had to whether the subject, or each of the subjects, of the private sexual material gave consent to the transmission, making available, publication, distribution, advertisement or promotion of the material.
(3) Subsection (2) does not limit subsection (1).
Definition
(4) In this section:
consent means free and voluntary agreement.
473.5 Use of a carriage service
For the purposes of this Part, a person is taken not to use a carriage service by engaging in particular conduct if:
(a) the person is a carrier and, in engaging in that conduct, is acting solely in the person’s capacity as a carrier; or
(b) the person is a carriage service provider and, in engaging in that conduct, is acting solely in the person’s capacity as a carriage service provider; or
(c) the person is an internet service provider and, in engaging in that conduct, is acting solely in the person’s capacity as an internet service provider; or
(d) the person is an internet content host and, in engaging in that conduct, is acting solely in the person’s capacity as an internet content host.
Division 474—Telecommunications offences
Subdivision A—Dishonesty with respect to carriage services
474.1 Dishonesty
(1) For the purposes of this Subdivision, dishonest means:
(a) dishonest according to the standards of ordinary people; and
(b) known by the defendant to be dishonest according to the standards of ordinary people.
(2) In a prosecution for an offence against this Subdivision, the determination of dishonesty is a matter for the trier of fact.
474.2 General dishonesty with respect to a carriage service provider
Obtaining a gain
(1) A person commits an offence if the person does anything with the intention of dishonestly obtaining a gain from a carriage service provider by way of the supply of a carriage service.
Penalty: Imprisonment for 5 years.
Causing a loss
(2) A person commits an offence if the person does anything with the intention of dishonestly causing a loss to a carriage service provider in connection with the supply of a carriage service.
Penalty: Imprisonment for 5 years.
(3) A person commits an offence if:
(a) the person dishonestly causes a loss, or dishonestly causes a risk of loss, to a carriage service provider in connection with the supply of a carriage service; and
(b) the person knows or believes that the loss will occur or that there is a substantial risk of the loss occurring.
Penalty: Imprisonment for 5 years.
Subdivision B—Interference with telecommunications
474.3 Person acting for a carrier or carriage service provider
(1) For the purposes of this Subdivision, a person who does any thing for or on behalf of a carrier, or on behalf of persons at least one of whom is a carrier, is, in respect of:
(a) the doing by that person of that thing; or
(b) any rental, fee or charge payable for or in relation to the doing by that person of that thing; or
(c) the operation by that person of a facility in connection with the doing of that thing; or
(d) a facility belonging to that person; or
(e) the operation by that person of a satellite;
taken to be a carrier.
(2) For the purposes of this Subdivision, a person who does any thing for or on behalf of a carriage service provider, or on behalf of persons at least one of whom is a carriage service provider, is, in respect of:
(a) the doing by that person of that thing; or
(b) any rental, fee or charge payable for or in relation to the doing by that person of that thing; or
(c) the operation by that person of a facility in connection with the doing of that thing; or
(d) a facility belonging to that person; or
(e) the operation by that person of a satellite;
taken to be a carriage service provider.
474.4 Interception devices
(1) A person commits an offence if:
(a) the person:
(i) manufactures; or
(ii) advertises, displays or offers for sale; or
(iii) sells; or
(iv) possesses;
an apparatus or device (whether in an assembled or unassembled form); and
(b) the apparatus or device is an interception device.
Penalty: Imprisonment for 5 years.
(2) A person is not criminally responsible for an offence against subsection (1) if the person possesses the interception device in the course of the person’s duties relating to the interception of communications that does not constitute a contravention of subsection 7(1) of the Telecommunications (Interception and Access) Act 1979.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
(3) A person is not criminally responsible for an offence against subsection (1) if the applicable conduct mentioned in subparagraphs (1)(a)(i) to (iv) is in circumstances specified in regulations made for the purposes of this subsection.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
474.5 Wrongful delivery of communications
(1) A person commits an offence if:
(a) a communication is in the course of telecommunications carriage; and
(b) the person causes the communication to be received by a person or carriage service other than the person or service to whom it is directed.
Penalty: Imprisonment for 1 year.
(2) A person is not criminally responsible for an offence against subsection (1) if the person engages in the conduct referred to in paragraph (1)(b) with the consent or authorisation of the person to whom, or the person operating the carriage service to which, the communication is directed.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
474.6 Interference with facilities
(1) A person commits an offence if the person tampers with, or interferes with, a facility owned or operated by:
(a) a carrier; or
(b) a carriage service provider; or
(c) a nominated carrier.
Penalty: Imprisonment for 1 year.
(2) For the purposes of an offence against subsection (1), absolute liability applies to the physical element of circumstance of the offence, that the facility is owned or operated by a carrier, a carriage service provider or a nominated carrier.
(3) A person commits an offence if:
(a) the person tampers with, or interferes with, a facility owned or operated by:
(i) a carrier; or
(ii) a carriage service provider; or
(iii) a nominated carrier; and
(b) this conduct results in hindering the normal operation of a carriage service supplied by a carriage service provider.
Penalty: Imprisonment for 2 years.
(4) For the purposes of an offence against subsection (3), absolute liability applies to the following physical elements of circumstance of the offence:
(a) that the facility is owned or operated by a carrier, a carriage service provider or a nominated carrier;
(b) that the carriage service is supplied by a carriage service provider.
(5) A person commits an offence if:
(a) the person uses or operates any apparatus or device (whether or not it is comprised in, connected to or used in connection with a telecommunications network); and
(b) this conduct results in hindering the normal operation of a carriage service supplied by a carriage service provider.
Penalty: Imprisonment for 2 years.
(6) For the purposes of an offence against subsection (5), absolute liability applies to the physical element of circumstance of the offence, that the carriage service is supplied by a carriage service provider.
(7) A person is not criminally responsible for an offence against subsection (5) if:
(a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in good faith in the course of his or her duties; and
(b) the conduct of the person is reasonable in the circumstances for the purpose of performing that duty.
Note 1: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
Note 2: See also subsection 475.1(2) for the interaction between this defence and the Radiocommunications Act 1992.
(7A) A person is not criminally responsible for an offence against subsection (5) if the conduct of the person:
(a) is in accordance with a technical assistance request; or
(b) is in compliance with a technical assistance notice; or
(c) is in compliance with a technical capability notice.
(8) For the purposes of this section, a facility is taken to be owned or operated by a nominated carrier if the Telecommunications Act 1997 applies, under section 81A of that Act, as if that facility were owned or operated by the nominated carrier.
474.7 Modification etc. of a telecommunications device identifier
(1) A person commits an offence if the person:
(a) modifies a telecommunications device identifier; or
(b) interferes with the operation of a telecommunications device identifier.
Penalty: Imprisonment for 2 years.
(2) A person is not criminally responsible for an offence against subsection (1) if the person is:
(a) the manufacturer of the mobile telecommunications device in which the telecommunications device identifier is installed; or
(b) an employee or agent of the manufacturer who is acting on behalf of the manufacturer; or
(c) acting with the consent of the manufacturer.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
(3) A person is not criminally responsible for an offence against subsection (1) if:
(a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in the course of his or her duties; and
(b) the conduct of the person is reasonable in the circumstances for the purpose of performing that duty.
Note 1: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
Note 2: This subsection merely creates a defence to an offence against subsection (1) and does not operate to authorise any conduct that requires a warrant under some other law.
474.8 Possession or control of data or a device with intent to modify a telecommunications device identifier
(1) A person commits an offence if:
(a) the person has possession or control of any thing or data; and
(b) the person has that possession or control with the intention that the thing or data be used:
(i) by the person; or
(ii) by another person;
in committing an offence against subsection 474.7(1) (modification of a telecommunications device identifier).
Penalty: Imprisonment for 2 years.
(2) A person may be found guilty of an offence against subsection (1) even if committing the offence against subsection 474.7(1) (modification of a telecommunications device identifier) is impossible.
(3) It is not an offence to attempt to commit an offence against subsection (1).
(4) A person is not criminally responsible for an offence against subsection (1) if the person is:
(a) the manufacturer of the mobile telecommunications device in which the telecommunications device identifier is installed; or
(b) an employee or agent of the manufacturer who is acting on behalf of the manufacturer; or
(c) acting with the consent of the manufacturer.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
(5) A person is not criminally responsible for an offence against subsection (1) if:
(a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in the course of his or her duties; and
(b) the conduct of the person is reasonable in the circumstances for the purpose of performing that duty.
Note 1: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
Note 2: This subsection merely creates a defence to an offence against subsection (1) and does not operate to authorise any conduct that requires a warrant under some other law.
474.9 Producing, supplying or obtaining data or a device with intent to modify a telecommunications device identifier
(1) A person commits an offence if:
(a) the person produces, supplies or obtains any thing or data; and
(b) the person does so with the intention that the thing or data be used:
(i) by the person; or
(ii) by another person;
in committing an offence against subsection 474.7(1) (modification of a telecommunications device identifier).
Penalty: Imprisonment for 2 years.
(2) A person may be found guilty of an offence against subsection (1) even if committing the offence against subsection 474.7(1) (modification of a telecommunications device identifier) is impossible.
(3) It is not an offence to attempt to commit an offence against subsection (1).
(4) A person is not criminally responsible for an offence against subsection (1) if the person is:
(a) the manufacturer of the mobile telecommunications device in which the telecommunications device identifier is installed; or
(b) an employee or agent of the manufacturer who is acting on behalf of the manufacturer; or
(c) acting with the consent of the manufacturer.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
(5) A person is not criminally responsible for an offence against subsection (1) if:
(a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in the course of his or her duties; and
(b) the conduct of the person is reasonable in the circumstances for the purpose of performing that duty.
Note 1: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
Note 2: This subsection merely creates a defence to an offence against subsection (1) and does not operate to authorise any conduct that requires a warrant under some other law.
474.10 Copying subscription‑specific secure data
Copying subscription‑specific secure data from an existing account identifier
(1) A person commits an offence if the person:
(a) copies the subscription‑specific secure data from an account identifier; and
(b) does so with the intention that the data will be copied (whether by the person or by someone else) onto something that:
(i) is an account identifier; or
(ii) will, once the data is copied onto it, be capable of operating as an account identifier.
Penalty: Imprisonment for 2 years.
Copying subscription‑specific secure data onto a new account identifier
(2) A person commits an offence if:
(a) subscription‑specific secure data is copied from an account identifier (whether by the person or by someone else); and
(b) the person copies that data onto something that:
(i) is an account identifier; or
(ii) will, once the data is copied onto it, be capable of operating as an account identifier.
This is so whether or not the person knows which particular account identifier the subscription‑specific secure data is copied from.
Penalty: Imprisonment for 2 years.
Defences
(3) A person is not criminally responsible for an offence against subsection (1) or (2) if the person is:
(a) the carrier who operates the facilities used, or to be used, in the supply of the public mobile telecommunications service to which the subscription‑specific secure data relates; or
(b) an employee or agent of that carrier who is acting on behalf of that carrier; or
(c) acting with the consent of that carrier.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
(4) A person is not criminally responsible for an offence against subsection (1) or (2) if:
(a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in the course of his or her duties; and
(b) the conduct of the person is reasonable in the circumstances for the purpose of performing that duty.
Note 1: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
Note 2: This subsection merely creates a defence to an offence against subsection (1) or (2) and does not operate to authorise any conduct that requires a warrant under some other law.
474.11 Possession or control of data or a device with intent to copy an account identifier
(1) A person commits an offence if:
(a) the person has possession or control of any thing or data; and
(b) the person has that possession or control with the intention that the thing or data be used:
(i) by the person; or
(ii) by another person;
in committing an offence against subsection 474.10(1) (copying subscription‑specific secure data from an account identifier) or 474.10(2) (copying subscription‑specific secure data onto an account identifier).
Penalty: Imprisonment for 2 years.
(2) A person may be found guilty of an offence against subsection (1) even if committing the offence against subsection 474.10(1) (copying subscription‑specific secure data from an account identifier) or 474.10(2) (copying subscription‑specific secure data onto an account identifier) is impossible.
(3) It is not an offence to attempt to commit an offence against subsection (1).
Defences
(4) A person is not criminally responsible for an offence against subsection (1) if the person is:
(a) the carrier who operates the facilities used, or to be used, in the supply of the public mobile telecommunications service to which the subscription‑specific secure data relates; or
(b) an employee or agent of that carrier who is acting on behalf of that carrier; or
(c) acting with the consent of that carrier.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
(5) A person is not criminally responsible for an offence against subsection (1) if:
(a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in the course of his or her duties; and
(b) the conduct of the person is reasonable in the circumstances for the purpose of performing that duty.
Note 1: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
Note 2: This subsection merely creates a defence to an offence against subsection (1) and does not operate to authorise any conduct that requires a warrant under some other law.
474.12 Producing, supplying or obtaining data or a device with intent to copy an account identifier
(1) A person commits an offence if:
(a) the person produces, supplies or obtains any thing or data; and
(b) the person does so with the intention that the thing or data be used:
(i) by the person; or
(ii) by another person;
in committing an offence against subsection 474.10(1) (copying subscription‑specific secure data from an account identifier) or 474.10(2) (copying subscription‑specific secure data onto an account identifier).
Penalty: Imprisonment for 2 years.
(2) A person may be found guilty of an offence against subsection (1) even if committing the offence against subsection 474.10(1) (copying subscription‑specific secure data from an account identifier) or 474.10(2) (copying subscription‑specific secure data onto an account identifier) is impossible.
(3) It is not an offence to attempt to commit an offence against subsection (1).
Defences
(4) A person is not criminally responsible for an offence against subsection (1) if the person is:
(a) the carrier who operates the facilities used, or to be used, in the supply of the public mobile telecommunications service to which the subscription‑specific secure data relates; or
(b) an employee or agent of that carrier who is acting on behalf of that carrier; or
(c) acting with the consent of that carrier.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
(5) A person is not criminally responsible for an offence against subsection (1) if:
(a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in the course of his or her duties; and
(b) the conduct of the person is reasonable in the circumstances for the purpose of performing that duty.
Note 1: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
Note 2: This subsection merely creates a defence to an offence against subsection (1) and does not operate to authorise any conduct that requires a warrant under some other law.
Subdivision C—General offences relating to use of telecommunications
474.14 Using a telecommunications network with intention to commit a serious offence
(1) A person commits an offence if:
(a) the person:
(i) connects equipment to a telecommunications network; and
(ii) intends by this to commit, or to facilitate the commission of, an offence (whether by that person or another person); and
(b) the offence is:
(i) a serious offence against a law of the Commonwealth, a State or a Territory; or
(ii) a serious offence against a foreign law.
(2) A person commits an offence if:
(a) the person uses equipment connected to a telecommunications network in the commission of, or to facilitate the commission of, an offence (whether by that person or another person); and
(b) the offence is:
(i) a serious offence against a law of the Commonwealth, a State or a Territory; or
(ii) a serious offence against a foreign law.
(3) A person who commits an offence against subsection (1) or (2) is punishable, on conviction, by a penalty not exceeding the penalty applicable to the serious offence.
(4) Absolute liability applies to paragraphs (1)(b) and (2)(b).
Note: For absolute liability, see section 6.2.
(5) A person may be found guilty of an offence against subsection (1) or (2) even if committing the serious offence is impossible.
(6) It is not an offence to attempt to commit an offence against subsection (1) or (2).
474.15 Using a carriage service to make a threat
Threat to kill
(1) A person (the first person) commits an offence if:
(a) the first person uses a carriage service to make to another person (the second person) a threat to kill the second person or a third person; and
(b) the first person intends the second person to fear that the threat will be carried out.
Penalty: Imprisonment for 10 years.
Threat to cause serious harm
(2) A person (the first person) commits an offence if:
(a) the first person uses a carriage service to make to another person (the second person) a threat to cause serious harm to the second person or a third person; and
(b) the first person intends the second person to fear that the threat will be carried out.
Penalty: Imprisonment for 7 years.
Actual fear not necessary
(3) In a prosecution for an offence against this section, it is not necessary to prove that the person receiving the threat actually feared that the threat would be carried out.
Definitions
(4) In this section:
fear includes apprehension.
threat to cause serious harm to a person includes a threat to substantially contribute to serious harm to the person.
474.16 Using a carriage service for a hoax threat
A person commits an offence if:
(a) the person uses a carriage service to send a communication; and
(b) the person does so with the intention of inducing a false belief that an explosive, or a dangerous or harmful substance or thing, has been or will be left in any place.
Penalty: Imprisonment for 10 years.
474.17 Using a carriage service to menace, harass or cause offence
(1) A person commits an offence if:
(a) the person uses a carriage service; and
(b) the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.
Penalty: Imprisonment for 3 years.
(2) Without limiting subsection (1), that subsection applies to menacing, harassing or causing offence to:
(a) an employee of an NRS provider; or
(b) an emergency call person; or
(c) an employee of an emergency service organisation; or
(d) an APS employee in the Department administered by the AFP Minister acting as a National Security Hotline call taker.
474.17A Aggravated offences involving private sexual material—using a carriage service to menace, harass or cause offence
Standard aggravated offence
(1) A person commits an offence against this subsection if:
(a) the person commits an offence (the underlying offence) against subsection 474.17(1); and
(b) the commission of the underlying offence involves the transmission, making available, publication, distribution, advertisement or promotion of material; and
(c) the material is private sexual material.
Penalty: Imprisonment for 5 years.
(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.
Special aggravated offence
(4) A person commits an offence against this subsection if:
(a) the person commits an offence (the underlying offence) against subsection 474.17(1); and
(b) the commission of the underlying offence involves the transmission, making available, publication, distribution, advertisement or promotion of material; and
(c) the material is private sexual material; and
(d) before the commission of the underlying offence, 3 or more civil penalty orders were made against the person under the Regulatory Powers (Standard Provisions) Act 2014 in relation to contraventions of subsection 44B(1) of the Enhancing Online Safety Act 2015.
Penalty: Imprisonment for 7 years.
(5) There is no fault element for the physical element described in paragraph (4)(a) other than the fault elements (however described), if any, for the underlying offence.
(6) To avoid doubt, a person does not commit the underlying offence for the purposes of paragraph (4)(a) if the person has a defence to the underlying offence.
(7) Absolute liability applies to paragraph (4)(d).
Note: For absolute liability, see section 6.2.
Double jeopardy etc.
(8) A person who has been convicted or acquitted of an offence (the aggravated offence) against subsection (1) may not be convicted of an offence against subsection 474.17(1) or subsection (4) of this section in relation to the conduct that constituted the aggravated offence.
(9) Subsection (8) does not prevent an alternative verdict under section 474.17B.
(10) A person who has been convicted or acquitted of an offence (the aggravated offence) against subsection (4) may not be convicted of an offence against subsection 474.17(1) or subsection (1) of this section in relation to the conduct that constituted the aggravated offence.
(11) Subsection (10) does not prevent an alternative verdict under section 474.17B.
(12) A person who has been convicted or acquitted of an offence (the underlying offence) against subsection 474.17(1) may not be convicted of an offence against subsection (1) or (4) of this section in relation to the conduct that constituted the underlying offence.
When conviction must be set aside
(13) If:
(a) a person has been convicted by a court of an offence against subsection (4) on the basis that 3 or more civil penalty orders were made against the person under the Regulatory Powers (Standard Provisions) Act 2014 in relation to contraventions of subsection 44B(1) of the Enhancing Online Safety Act 2015; and
(b) one or more of those civil penalty orders are set aside or reversed on appeal; and
(c) if the civil penalty orders covered by paragraph (b) had never been made, the person could not have been convicted of the offence; and
(d) the person applies to the court for the conviction to be set aside;
the court must set aside the conviction.
(14) If:
(a) a person has been convicted by a court of an offence (the aggravated offence) against subsection (4); and
(b) the court sets aside the conviction under subsection (13);
the setting aside of the conviction does not prevent proceedings from being instituted against the person for an offence against subsection 474.17(1) or subsection (1) of this section in relation to the conduct that constituted the aggravated offence.
474.17B Alternative verdict if aggravated offence not proven
(1) If, on a trial for an offence (the aggravated offence) against subsection 474.17A(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 the defendant is guilty of an offence against subsection 474.17(1);
it may find the defendant not guilty of the aggravated offence but guilty of the offence against subsection 474.17(1), so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
(2) If, on a trial for an offence (the aggravated offence) against subsection 474.17A(4), 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 the defendant is guilty of an offence against subsection 474.17(1) or subsection 474.17A(1);
it may find the defendant not guilty of the aggravated offence but guilty of the offence against subsection 474.17(1) or subsection 474.17A(1), so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
474.18 Improper use of emergency call service
(1) A person commits an offence if the person:
(a) makes a call to an emergency service number; and
(b) does so with the intention of inducing a false belief that an emergency exists.
Penalty: Imprisonment for 3 years.
(2) A person commits an offence if:
(a) the person makes a call to an emergency service number; and
(b) the person makes the call otherwise than for the purpose of reporting an emergency; and
(c) the call is a vexatious one.
Penalty: Imprisonment for 3 years.
(3) In determining whether a call by a person to an emergency service number is a vexatious one, have regard to:
(a) the content of the call; and
(b) the number, frequency and content of previous calls the person has made to emergency service numbers otherwise than for the purpose of reporting emergencies; and
(c) any other relevant matter.
Subdivision D—Offences relating to use of carriage service for child abuse material
474.22 Using a carriage service for child abuse material
(1) A person commits an offence if:
(a) the person:
(i) accesses material; or
(ii) causes material to be transmitted to himself or herself; or
(iii) transmits, makes available, publishes, distributes, advertises or promotes material; or
(iv) solicits material; and
(aa) the person does so using a carriage service; and
(b) the material is child abuse material.
Penalty: Imprisonment for 15 years.
(2) To avoid doubt, the following are the fault elements for the physical elements of an offence against subsection (1):
(a) intention is the fault element for the conduct referred to in paragraph (1)(a);
(b) recklessness is the fault element for the circumstances referred to in paragraph (1)(b).
Note: For the meaning of intention and recklessness see sections 5.2 and 5.4.
(2A) Absolute liability applies to paragraph (1)(aa).
Note: For absolute liability, see section 6.2.
(3) As well as the general defences provided for in Part 2.3, defences are provided for under section 474.24 in relation to this section.
474.22A Possessing or controlling child abuse material obtained or accessed using a carriage service
(1) A person commits an offence if:
(a) the person has possession or control of material; and
(b) the material is in the form of data held in a computer or contained in a data storage device; and
(c) the person used a carriage service to obtain or access the material; and
(d) the material is child abuse material.
Penalty: Imprisonment for 15 years.
(2) Absolute liability applies to paragraph (1)(c).
Note: For absolute liability, see section 6.2.
(3) If the prosecution proves beyond reasonable doubt the matters mentioned in paragraphs (1)(a), (b) and (d), then it is presumed, unless the person proves to the contrary, that the person:
(a) obtained or accessed the material; and
(b) used a carriage service to obtain or access the material.
Note: A defendant bears a legal burden in relation to the matters in this subsection: see section 13.4.
474.23 Possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service
(1) A person commits an offence if:
(a) the person:
(i) has possession or control of material; or
(ii) produces, supplies or obtains material; and
(b) the material is child abuse material; and
(c) the person has that possession or control, or engages in that production, supply or obtaining, with the intention that the material be used:
(i) by that person; or
(ii) by another person;
in committing an offence against section 474.22 (using a carriage service for child abuse material).
Penalty: Imprisonment for 15 years.
(2) A person may be found guilty of an offence against subsection (1) even if committing the offence against section 474.22 (using a carriage service for child abuse material) is impossible.
(3) It is not an offence to attempt to commit an offence against subsection (1).
474.23A Conduct for the purposes of electronic service used for child abuse material
(1) A person commits an offence if:
(a) the person engages in any of the following conduct:
(i) creating, developing, altering or maintaining an electronic service;
(ii) controlling or moderating an electronic service;
(iii) making available, advertising or promoting an electronic service;
(iv) assisting in doing anything covered by a preceding subparagraph; and
(b) the person does so with the intention that the electronic service be used:
(i) by that person; or
(ii) by another person;
in committing, or facilitating the commission of, an offence against section 474.22, 474.22A or 474.23.
Penalty: Imprisonment for 20 years.
(2) A person may be found guilty of an offence against subsection (1) even if:
(a) committing the offence against section 474.22, 474.22A or 474.23 is impossible; or
(b) the electronic service is incapable of being used as mentioned in paragraph (1)(b):
(i) at the time the person engages in the conduct mentioned in paragraph (1)(a); or
(ii) at any other time.
(3) It is not an offence to attempt to commit an offence against subsection (1).
(4) In this Code:
electronic service means a service a purpose of which is to:
(a) allow persons to access material using a carriage service; or
(b) deliver material to persons having equipment appropriate for receiving that material, where the delivery of the service is by means of a carriage service;
but does not include:
(c) a broadcasting service (within the meaning of the Broadcasting Services Act 1992); or
(d) a datacasting service (within the meaning of that Act).
474.24 Defences in respect of child abuse material
(1) A person is not criminally responsible for an offence against section 474.22, 474.22A, 474.23 or 474.23A 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 section 474.22, 474.22A, 474.23 or 474.23A if:
(a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in the course of his or her duties; and
(b) the conduct of the person is reasonable in the circumstances for the purpose of performing that duty.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
(4) A person is not criminally responsible for an offence against section 474.22, 474.22A, 474.23 or 474.23A if the person engages in the conduct in good faith for the sole purpose of:
(a) assisting the eSafety Commissioner to detect:
(i) prohibited content (within the meaning of Schedule 7 to the Broadcasting Services Act 1992); or
(ii) potential prohibited content (within the meaning of that Schedule);
in the performance of the Commissioner’s functions under Schedule 5 or Schedule 7 to that Act; or
(b) manufacturing or developing, or updating, content filtering technology (including software) in accordance with:
(i) a recognised alternative access‑prevention arrangement (within the meaning of clause 40 of Schedule 5 to the Broadcasting Services Act 1992); or
(ii) a designated alternative access‑prevention arrangement (within the meaning of clause 60 of that Schedule).
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
474.24A Aggravated offence—offence involving conduct on 3 or more occasions and 2 or more people
(1) A person commits an offence against this section if:
(a) the person commits an offence against one or more of the following provisions on 3 or more separate occasions:
(iii) section 474.22 (using a carriage service for child abuse material);
(iiia) section 474.22A (possessing or controlling child abuse material obtained or accessed using a carriage service);
(iv) section 474.23 (possessing etc. child abuse material for use through a carriage service); 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 474.22, 474.22A or 474.23.
(3) To avoid doubt, a person does not commit an offence against section 474.22, 474.22A or 474.23 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 purposes 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 474.22, 474.22A or 474.23 in relation to the conduct that constituted the aggravated offence.
(6) Subsection (5) does not prevent an alternative verdict under section 474.24B.
(7) A person who has been convicted or acquitted of an offence (the underlying offence) against section 474.22, 474.22A or 474.23 may not be convicted of an offence against this section in relation to the conduct that constituted the underlying offence.
474.24B Alternative verdict if aggravated offence not proven
If, on a trial for an offence (the aggravated offence) against subsection 474.24A(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 (the underlying offence) against section 474.22, 474.22A or 474.23;
it may find the defendant not guilty of the aggravated offence but guilty of the underlying offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
474.24C Consent to commencement of proceedings where defendant under 18
(1) Proceedings for an offence against this Subdivision 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.
Subdivision E—Offence relating to obligations of internet service providers and internet content hosts
474.25 Obligations of internet service providers and internet content hosts
A person commits an offence if the person:
(a) is an internet service provider or an internet content host; and
(b) is aware that the service provided by the person can be used to access particular material that the person has reasonable grounds to believe is child abuse material; and
(c) does not refer details of the material to the Australian Federal Police within a reasonable time after becoming aware of the existence of the material.
Penalty: 800 penalty units.
Subdivision F—Offences relating to use of carriage service involving sexual activity with, or causing harm to, person under 16
474.25A Using a carriage service for sexual activity with person under 16 years of age
Engaging in sexual activity with child using a carriage service
(1) A person commits an offence if:
(a) the person engages in sexual activity with another person (the child) using a carriage service; and
(b) the child is under 16 years of age; and
(c) the person is at least 18 years of age.
Note: Because of the definition of engage in sexual activity in the Dictionary, this offence covers (for example):
(a) a person using a carriage service to see or hear, in real time, a person under 16 engage in sexual activity; and
(b) a person engaging in sexual activity that is seen or heard, in real time, by a person under 16 using a carriage service.
Penalty: Imprisonment for 20 years.
Causing child to engage in sexual activity with another person
(2) A person (the defendant) commits an offence if:
(a) the defendant engages in conduct in relation to another person (the child); and
(b) that conduct causes the child to engage in sexual activity with another person (the participant) using a carriage service; and
(c) the child is under 16 years of age when the sexual activity is engaged in; and
(d) the participant is at least 18 years of age when the sexual activity is engaged in.
Note: Because of the definition of engage in sexual activity in the Dictionary, this offence covers (for example) causing a person under 16:
(a) to engage in sexual activity that is seen or heard, in real time, by another person using a carriage service; or
(b) to use a carriage service to see or hear, in real time, another person engage in sexual activity.
Penalty: Imprisonment for 20 years.
(3) The fault element for paragraph (2)(b) is intention.
Defence—child present but defendant does not intend to derive gratification
(4) 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 a person 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 other defences relating to this offence, see section 474.29.
474.25B Aggravated offence—using a carriage service for sexual activity with person under 16 years of age
(1) A person commits an offence against this section if:
(a) the person commits an offence (the underlying offence) against either of the following provisions in relation to another person (the child):
(i) subsection 474.25A(1) (engaging in sexual activity with child using a carriage service);
(ii) subsection 474.25A(2) (causing child to engage in sexual activity with another person); 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 474.25A(1) or (2);
(iv) the child dies as a result of physical harm suffered in connection with the sexual activity referred to in subsection 474.25A(1) or (2).
Penalty: Imprisonment for 30 years.
(2) To avoid doubt, a person does not commit the offence against subsection 474.25A(1) or (2) for the purposes of paragraph (1)(a) if the person has a defence to that offence.
Alternative verdicts
(3) If, on a trial for an offence (the aggravated offence) against subsection (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 (the underlying offence) against subsection 474.25A(1) or (2);
it may find the defendant not guilty of the aggravated offence but guilty of the underlying offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
474.25C Using a carriage service to prepare or plan to cause harm to, engage in sexual activity with, or procure for sexual activity, persons under 16
A person (the first person) commits an offence if:
(a) the first person does any act in preparation for doing, or planning to do, any of the following:
(i) causing harm to a person under 16 years of age;
(ii) engaging in sexual activity with a person under 16 years of age;
(iii) procuring a person under 16 years of age to engage in sexual activity; and
(b) the first person is at least 18 years of age; and
(c) the act is done using a carriage service.
Penalty: Imprisonment for 10 years.
Example: A person misrepresents their age online as part of a plan to cause harm to another person under 16 years of age.
474.26 Using a carriage service to procure persons under 16 years of age
(1) A person (the sender) commits an offence if:
(a) the sender uses a carriage service to transmit a communication to another person (the recipient); and
(b) the sender does this with the intention of procuring the recipient to engage in sexual activity with the sender; and
(c) the recipient is someone who is, or who the sender believes to be, under 16 years of age; and
(d) the sender is at least 18 years of age.
Penalty: Imprisonment for 15 years.
(2) A person (the sender) commits an offence if:
(a) the sender uses a carriage service to transmit a communication to another person (the recipient); and
(b) the sender does this with the intention of procuring the recipient to engage in sexual activity with another person (the participant); and
(c) the recipient is someone who is, or who the sender believes to be, under 16 years of age; and
(d) the participant is someone who is, or who the sender believes to be, at least 18 years of age.
Penalty: Imprisonment for 15 years.
(3) A person (the sender) commits an offence if:
(a) the sender uses a carriage service to transmit a communication to another person (the recipient); and
(b) the sender does this with the intention of procuring the recipient to engage in sexual activity with another person; and
(c) the recipient is someone who is, or who the sender believes to be, under 16 years of age; and
(d) the other person referred to in paragraph (b) is someone who is, or who the sender believes to be, under 18 years of age; and
(e) the sender intends that the sexual activity referred to in paragraph (b) will take place in the presence of:
(i) the sender; or
(ii) another person (the participant) who is, or who the sender believes to be, at least 18 years of age.
Penalty: Imprisonment for 15 years.
474.27 Using a carriage service to “groom” persons under 16 years of age
(1) A person (the sender) commits an offence if:
(a) the sender uses a carriage service to transmit a communication to another person (the recipient); and
(c) the sender does this with the intention of making it easier to procure the recipient to engage in sexual activity with the sender; and
(d) the recipient is someone who is, or who the sender believes to be, under 16 years of age; and
(e) the sender is at least 18 years of age.
Penalty: Imprisonment for 15 years.
(2) A person (the sender) commits an offence if:
(a) the sender uses a carriage service to transmit a communication to another person (the recipient); and
(c) the sender does this with the intention of making it easier to procure the recipient to engage in sexual activity with another person (the participant); and
(d) the recipient is someone who is, or who the sender believes to be, under 16 years of age; and
(e) the participant is someone who is, or who the sender believes to be, at least 18 years of age.
Penalty: Imprisonment for 15 years.
(3) A person (the sender) commits an offence if:
(a) the sender uses a carriage service to transmit a communication to another person (the recipient); and
(c) the sender does this with the intention of making it easier to procure the recipient to engage in sexual activity with another person; and
(d) the recipient is someone who is, or who the sender believes to be, under 16 years of age; and
(e) the other person referred to in paragraph (c) is someone who is, or who the sender believes to be, under 18 years of age; and
(f) the sender intends that the sexual activity referred to in paragraph (c) will take place in the presence of:
(i) the sender; or
(ii) another person (the participant) who is, or who the sender believes to be, at least 18 years of age.
Penalty: Imprisonment for 15 years.
474.27AA Using a carriage service to “groom” another person to make it easier to procure persons under 16 years of age
(1) A person (the sender) commits an offence if:
(a) the sender uses a carriage service to transmit a communication to another person (the recipient); and
(b) the sender does this with the intention of making it easier to procure a person (the child) to engage in sexual activity with the sender; and
(c) the child is someone who is, or who the sender believes to be, under 16 years of age; and
(d) the sender is at least 18 years of age.
Penalty: Imprisonment for 15 years.
(2) A person (the sender) commits an offence if:
(a) the sender uses a carriage service to transmit a communication to another person (the recipient); and
(b) the sender does this with the intention of making it easier to procure a person (the child) to engage in sexual activity with another person (the participant); and
(c) the child is someone who is, or who the sender believes to be, under 16 years of age; and
(d) the participant is someone who is, or who the sender believes to be, at least 18 years of age.
Penalty: Imprisonment for 15 years.
(3) A person (the sender) commits an offence if:
(a) the sender uses a carriage service to transmit a communication to another person (the recipient); and
(b) the sender does this with the intention of making it easier to procure a person (the child) to engage in sexual activity with another person; and
(c) the child is someone who is, or who the sender believes to be, under 16 years of age; and
(d) the other person referred to in paragraph (b) is someone who is, or who the sender believes to be, under 18 years of age; and
(e) the sender intends that the sexual activity referred to in paragraph (b) will take place in the presence of:
(i) the sender; or
(ii) another person (the participant) who is, or who the sender believes to be, at least 18 years of age.
Penalty: Imprisonment for 15 years.
474.27A Using a carriage service to transmit indecent communication to person under 16 years of age
(1) A person (the sender) commits an offence if:
(a) the sender uses a carriage service to transmit a communication to another person (the recipient); and
(b) the communication includes material that is indecent; and
(c) the recipient is someone who is, or who the sender believes to be, under 16 years of age; and
(d) the sender is at least 18 years of age.
Penalty: Imprisonment for 10 years.
(2) In a prosecution for an offence against subsection (1), whether material is indecent is a matter for the trier of fact.
(3) In this section:
indecent means indecent according to the standards of ordinary people.
474.28 Provisions relating to offences against this Subdivision
Age‑related issues—application of absolute liability
(1) For the purposes of an offence against this Subdivision, absolute liability applies to the physical element of circumstance of the offence that:
(a) in the case of an offence against section 474.25A or 474.27AA—the child is under 16 years of age; and
(b) in the case of an offence against section 474.26, 474.27 or 474.27A—the recipient is someone who is under 16 years of age.
Note 1: For absolute liability, see section 6.2.
Note 2: For a defence based on belief about age, see section 474.29.
(2) For the purposes of an offence against subsection 474.25A(2), 474.26(2) or (3), 474.27(2) or (3) or 474.27AA(2) or (3), absolute liability applies to the physical elements of circumstance of the offence that the participant is at least 18 years of age.
Note 1: For absolute liability, see section 6.2.
Note 2: For a defence based on belief about age, see section 474.29.
Proof of belief about age—evidence of representation
(3) For the purposes of sections 474.26, 474.27, 474.27AA and 474.27A, evidence that a person was represented to the defendant as being under, of, at least or over a particular age is, in the absence of evidence to the contrary, proof that the defendant believed the person to be under, of, at least or over that age (as the case requires).
Determining age—admissible evidence
(5) In determining for the purposes of this Subdivision how old a person is or was at a particular time, a jury or court may treat any of the following as admissible evidence:
(a) the person’s appearance;
(b) medical or other scientific opinion;
(c) a document that is or appears to be an official or medical record from a country outside Australia;
(d) a document that is or appears to be a copy of such a record.
(6) Subsection (5) does not make any other kind of evidence inadmissible, and does not affect a prosecutor’s duty to do all he or she can to adduce the best possible evidence for determining the question.
(7) If, on a trial for an offence against a provision of this Subdivision, evidence may be treated as admissible because of subsection (5), the court must warn the jury that it must be satisfied beyond reasonable doubt in determining the question.
Issues relating to aggravated offence involving sexual activity
(7A) For the purposes of an offence against subsection 474.25B(1):
(a) there is no fault element for the physical element described in paragraph (a) of that subsection other than the fault elements (however described), if any, for the underlying offence; and
(b) absolute liability applies to the physical element of circumstance of the offence that the child has a mental impairment; and
(c) strict liability applies to the physical element of circumstance of the offence that the defendant 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 defendant.
Note 1: For absolute liability, see section 6.2.
Note 2: For strict liability, see section 6.1.
Note 3: For a defence based on belief that the child did not have a mental impairment, see section 474.29.
Impossibility of sexual activity taking place
(8) A person may be found guilty of an offence against section 474.26, 474.27 or 474.27AA even if it is impossible for the sexual activity referred to in that section to take place.
Fictitious persons
(9) For the purposes of sections 474.26, 474.27, 474.27AA and 474.27A, it does not matter that the recipient to whom the sender believes the sender is transmitting the communication is a fictitious person represented to the sender as a real person.
(9A) For the purposes of an offence against section 474.27AA, it does not matter that the child is a fictitious person represented to the sender as a real person.
Attempt not offence
(10) It is not an offence to attempt to commit an offence against section 474.26, 474.27 or 474.27AA.
474.29 Defences to offences against this Subdivision
Offences involving sexual activity—belief that child at least 16 years of age
(1) It is a defence to a prosecution for an offence against section 474.25A if the defendant proves that, at the time the sexual activity was engaged in, he or she believed that the child was at least 16 years of age.
Note: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.
Offences involving sexual activity with other participant—belief that participant under 18 years of age
(2) It is a defence to a prosecution for an offence against subsection 474.25A(2) if the defendant proves that, at the time the sexual activity was engaged in, he or she believed that the participant was under 18 years of age.
Note: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.
Aggravated offence involving sexual activity—belief that child did not have mental impairment
(3) It is a defence to a prosecution for an offence against subsection 474.25B(1) (as that subsection applies because of subparagraph 474.25B(1)(b)(i)) if the defendant proves that, at the time the defendant committed the 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.
Procuring and “grooming” offences involving child engaging in sexual activity with other participant—belief that participant under 18 years of age
(4) It is a defence to a prosecution for an offence against subsection 474.26(2) or (3), 474.27(2) or (3) or 474.27AA(2) or (3) if the defendant proves that, at the time the communication was transmitted, he or she believed that the participant was under 18 years of age.
Note: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.
Offences involving transmission of communication—belief that certain persons at least 16 years of age
(5) It is a defence to a prosecution for an offence against section 474.26, 474.27 or 474.27A if the defendant proves that, at the time the communication was transmitted, he or she believed that the recipient was at least 16 years of age.
Note: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.
(5A) It is a defence to a prosecution for an offence against section 474.27AA if the defendant proves that, at the time the communication was transmitted, the defendant believed that the child was at least 16 years of age.
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
(6) In determining whether the defendant had the belief mentioned in one of the preceding subsections of this section, the trier of fact may take into account whether the alleged belief was reasonable in the circumstances.
474.29AA Sentencing
(1) In determining the sentence to be passed, or the order to be made, in respect of a person for an offence against this Subdivision, 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.
(2) 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.
(3) 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).
Subdivision G—Offences relating to use of carriage service for suicide related material
474.29A Using a carriage service for suicide related material
(1) A person commits an offence if:
(a) the person:
(i) uses a carriage service to access material; or
(ii) uses a carriage service to cause material to be transmitted to the person; or
(iii) uses a carriage service to transmit material; or
(iv) uses a carriage service to make material available; or
(v) uses a carriage service to publish or otherwise distribute material; and
(b) the material directly or indirectly counsels or incites committing or attempting to commit suicide; and
(c) the person:
(i) intends to use the material to counsel or incite committing or attempting to commit suicide; or
(ii) intends that the material be used by another person to counsel or incite committing or attempting to commit suicide.
Penalty: 1,000 penalty units.
(2) A person commits an offence if:
(a) the person:
(i) uses a carriage service to access material; or
(ii) uses a carriage service to cause material to be transmitted to the person; or
(iii) uses a carriage service to transmit material; or
(iv) uses a carriage service to make material available; or
(v) uses a carriage service to publish or otherwise distribute material; and
(b) the material directly or indirectly:
(i) promotes a particular method of committing suicide; or
(ii) provides instruction on a particular method of committing suicide; and
(c) the person:
(i) intends to use the material to promote that method of committing suicide or provide instruction on that method of committing suicide; or
(ii) intends that the material be used by another person to promote that method of committing suicide or provide instruction on that method of committing suicide; or
(iii) intends the material to be used by another person to commit suicide.
Penalty: 1,000 penalty units.
(3) To avoid doubt, a person does not commit an offence against subsection (1) merely because the person uses a carriage service to:
(a) engage in public discussion or debate about euthanasia or suicide; or
(b) advocate reform of the law relating to euthanasia or suicide;
if the person does not:
(c) intend to use the material concerned to counsel or incite committing or attempting to commit suicide; or
(d) intend that the material concerned be used by another person to counsel or incite committing or attempting to commit suicide.
(4) To avoid doubt, a person does not commit an offence against subsection (2) merely because the person uses a carriage service to:
(a) engage in public discussion or debate about euthanasia or suicide; or
(b) advocate reform of the law relating to euthanasia or suicide;
if the person does not:
(c) intend to use the material concerned to promote a method of committing suicide or provide instruction on a method of committing suicide; or
(d) intend that the material concerned be used by another person to promote a method of committing suicide or provide instruction on a method of committing suicide; or
(e) intend the material concerned to be used by another person to commit suicide.
474.29B Possessing, controlling, producing, supplying or obtaining suicide related material for use through a carriage service
(1) A person commits an offence if:
(a) the person:
(i) has possession or control of material; or
(ii) produces, supplies or obtains material; and
(b) the material directly or indirectly:
(i) counsels or incites committing or attempting to commit suicide; or
(ii) promotes a particular method of committing suicide; or
(iii) provides instruction on a particular method of committing suicide; and
(c) the person has that possession or control, or engages in that production, supply or obtaining, with the intention that the material be used:
(i) by that person; or
(ii) by another person;
in committing an offence against section 474.29A (using a carriage service for suicide related material).
Penalty: 1,000 penalty units.
(2) A person may be found guilty of an offence against subsection (1) even if committing the offence against section 474.29A (using a carriage service for suicide related material) is impossible.
(3) It is not an offence to attempt to commit an offence against subsection (1).
Subdivision H—Offences relating to use of carriage service for sharing of abhorrent violent material
474.30 Definitions
In this Subdivision:
abhorrent violent conduct has the meaning given by section 474.32.
abhorrent violent material has the meaning given by section 474.31.
consent means free and voluntary agreement.
content service means:
(a) a social media service (within the meaning of the Enhancing Online Safety Act 2015); or
(b) a designated internet service (within the meaning of the Enhancing Online Safety Act 2015).
hosting service has the same meaning as in the Enhancing Online Safety Act 2015. For this purpose, disregard subparagraphs 9C(a)(ii) and (b)(ii) of that Act.
474.31 Abhorrent violent material
(1) For the purposes of this Subdivision, abhorrent violent material means material that:
(a) is:
(i) audio material; or
(ii) visual material; or
(iii) audio‑visual material;
that records or streams abhorrent violent conduct engaged in by one or more persons; and
(b) is material that reasonable persons would regard as being, in all the circumstances, offensive; and
(c) is produced by a person who is, or by 2 or more persons each of whom is:
(i) a person who engaged in the abhorrent violent conduct; or
(ii) a person who conspired to engage in the abhorrent violent conduct; or
(iii) a person who aided, abetted, counselled or procured, or was in any way knowingly concerned in, the abhorrent violent conduct; or
(iv) a person who attempted to engage in the abhorrent violent conduct.
(2) For the purposes of this section, it is immaterial whether the material has been altered.
(3) For the purposes of this section, it is immaterial whether the abhorrent violent conduct was engaged in within or outside Australia.
474.32 Abhorrent violent conduct
(1) For the purposes of this Subdivision, a person engages in abhorrent violent conduct if the person:
(a) engages in a terrorist act; or
(b) murders another person; or
(c) attempts to murder another person; or
(d) tortures another person; or
(e) rapes another person; or
(f) kidnaps another person.
Murder
(2) For the purposes of this section, a person (the first person) murders another person if:
(a) the first person’s conduct causes the death of the other person; and
(b) the conduct constitutes an offence.
Torture
(3) For the purposes of this section, a person (the first person) tortures another person if:
(a) the first person inflicts severe physical or mental pain or suffering upon the other person; and
(b) the other person is in the custody, or under the control, of the first person; and
(c) the pain or suffering does not arise only from, and is not 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).
Rape
(4) For the purposes of this section, a person (the first person) rapes another person if:
(a) the first person sexually penetrates the other person without the consent of the other person; or
(b) the first person causes the other person to sexually penetrate the first person without the consent of the other person.
Kidnapping
(5) For the purposes of this section, a person (the first person) kidnaps another person if:
(a) the first person takes or detains the other person without the other person’s consent; and
(b) the first person takes or detains the other person in order to:
(i) hold the other person to ransom or as a hostage; or
(ii) murder, torture or rape the other person or a third person; or
(iii) cause serious harm to the other person or a third person; and
(c) the taking or detention of the other person involves violence or a threat of violence.
Interpretation
(6) In this section:
sexually penetrate means:
(a) penetrate (to any extent) the genitalia or anus of a person by any part of the body of another person or by any object manipulated by that other person; or
(b) penetrate (to any extent) the mouth of a person by the penis of another person; or
(c) continue to sexually penetrate as defined in paragraph (a) or (b).
terrorist act has the same meaning as in section 100.1. For this purpose, disregard paragraphs 100.1(2)(b), (d), (e) and (f).
(7) For the purposes of 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.
474.33 Notification obligations of internet service providers, content service providers and hosting service providers
(1) A person commits an offence if:
(a) the person:
(i) is an internet service provider; or
(ii) provides a content service; or
(iii) provides a hosting service; and
(b) the person is aware that the service provided by the person can be used to access particular material that the person has reasonable grounds to believe is abhorrent violent material that records or streams abhorrent violent conduct that has occurred, or is occurring, in Australia; and
(c) the person does not refer details of the material to the Australian Federal Police within a reasonable time after becoming aware of the existence of the material.
Penalty: 800 penalty units.
(2) For the purposes of this section:
(a) it is immaterial whether the content service is provided within or outside Australia; and
(b) it is immaterial whether the hosting service is provided within or outside Australia.
(3) Subsection (1) does not apply if the person reasonably believes that details of the material are already known to the Australian Federal Police.
Note: A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3).
474.34 Removing, or ceasing to host, abhorrent violent material
Content service
(1) A person commits an offence if:
(a) the person provides a content service; and
(b) the content service can be used to access material; and
(c) the material is abhorrent violent material; and
(d) the person does not ensure the expeditious removal of the material from the content service.
(2) For the purposes of subsection (1), it is immaterial whether the content service is provided within or outside Australia.
(3) Subsection (1) does not apply to material unless the material is reasonably capable of being accessed within Australia.
(4) The fault element for paragraphs (1)(b) and (c) is recklessness.
Hosting service
(5) A person commits an offence if:
(a) the person provides a hosting service; and
(b) material is hosted on the hosting service; and
(c) the material is abhorrent violent material; and
(d) the person does not expeditiously cease hosting the material.
(6) For the purposes of subsection (5), it is immaterial whether the hosting service is provided within or outside Australia.
(7) Subsection (5) does not apply to material unless the material is reasonably capable of being accessed within Australia.
(8) The fault element for paragraphs (5)(b) and (c) is recklessness.
Penalty for individual
(9) An offence against subsection (1) or (5) committed by an individual is punishable on conviction by imprisonment for a period of not more than 3 years or a fine of not more than 10,000 penalty units, or both.
Penalty for body corporate
(10) An offence against subsection (1) or (5) committed by a body corporate is punishable on conviction by a fine of not more than the greater of the following:
(a) 50,000 penalty units;
(b) 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.
(11) 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.
(12) For the purposes of subsection (11), it is immaterial whether the supplies were made, or are likely to be made, within or outside Australia.
(13) Expressions used in subsections (11) and (12) that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning in those subsections as they have in that Act.
(14) 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.
When material is removed from a content service
(15) For the purposes of this section, material is removed from a content service if the material is not accessible to any of the end‑users using the service.
474.35 Notice issued by eSafety Commissioner in relation to a content service—presumptions
(1) The eSafety Commissioner may issue a written notice stating that, at the time the notice was issued:
(a) a specified content service could be used to access specified material; and
(b) the specified material was abhorrent violent material.
(2) The eSafety Commissioner must not issue a notice under subsection (1) unless the eSafety Commissioner is satisfied on reasonable grounds that, at the time the notice was issued:
(a) the specified content service could be used to access the specified material; and
(b) the specified material was abhorrent violent material.
(3) As soon as practicable after issuing a notice under subsection (1), the eSafety Commissioner must give a copy of the notice to the person who provides the content service concerned.
(4) The eSafety Commissioner is not required to observe any requirements of procedural fairness in relation to the issue of a notice under subsection (1).
Presumptions
(5) If:
(a) a notice under subsection (1) is issued in relation to a content service provided by a person; and
(b) in a prosecution of the person for an offence against subsection 474.34(1), it is proven that the content service could be used to access the material specified in the notice at the time the notice was issued;
then, in that prosecution, it must be presumed that the person was reckless as to whether the content service could be used to access the specified material at the time the notice was issued, unless the person adduces or points to evidence that suggests a reasonable possibility that the person was not reckless as to whether the content service could be used to access the specified material at the time the notice was issued.
(6) If a notice under subsection (1) is issued in relation to a content service provided by a person, then, in a prosecution of the person for an offence against subsection 474.34(1), it must be presumed that, at the time the notice was issued, the person was reckless as to whether the material specified in the notice was abhorrent violent material, unless the person adduces or points to evidence that suggests a reasonable possibility that, at the time the notice was issued, the person was not reckless as to whether the specified material was abhorrent violent material.
Other evidentiary matters
(7) A document purporting to be a notice issued under subsection (1) must, unless the contrary is established, be taken to be such a notice and to have been properly issued.
(8) The eSafety Commissioner may certify that a document is a copy of a notice issued under subsection (1).
(9) Subsections (5), (6) and (7) apply to the certified copy as if it were the original.
Application
(10) This section extends to matters and things outside Australia.
474.36 Notice issued by eSafety Commissioner in relation to a hosting service—presumptions
(1) The eSafety Commissioner may issue a written notice stating that, at the time the notice was issued:
(a) specified material was hosted on a specified hosting service; and
(b) the specified material was abhorrent violent material.
(2) The eSafety Commissioner must not issue a notice under subsection (1) unless the eSafety Commissioner is satisfied on reasonable grounds that, at the time the notice was issued:
(a) the specified material was hosted on the specified hosting service; and
(b) the specified material was abhorrent violent material.
(3) As soon as practicable after issuing a notice under subsection (1), the eSafety Commissioner must give a copy of the notice to the person who provides the hosting service concerned.
(4) The eSafety Commissioner is not required to observe any requirements of procedural fairness in relation to the issue of a notice under subsection (1).
Presumptions
(5) If:
(a) a notice under subsection (1) is issued in relation to a hosting service provided by a person; and
(b) in a prosecution of the person for an offence against subsection 474.34(5), it is proven that the material specified in the notice was hosted on the hosting service at the time the notice was issued;
then, in that prosecution, it must be presumed that the person was reckless as to whether the specified material was hosted on the hosting service at the time the notice was issued, unless the person adduces or points to evidence that suggests a reasonable possibility that the person was not reckless as to whether specified material was hosted on the hosting service at the time the notice was issued.
(6) If a notice under subsection (1) is issued in relation to a hosting service provided by a person, then, in a prosecution of the person for an offence against subsection 474.34(5), it must be presumed that, at the time the notice was issued, the person was reckless as to whether the material specified in the notice was abhorrent violent material, unless the person adduces or points to evidence that suggests a reasonable possibility that, at the time the notice was issued, the person was not reckless as to whether the specified material was abhorrent violent material.
Other evidentiary matters
(7) A document purporting to be a notice issued under subsection (1) must, unless the contrary is established, be taken to be such a notice and to have been properly issued.
(8) The eSafety Commissioner may certify that a document is a copy of a notice issued under subsection (1).
(9) Subsections (5), (6) and (7) apply to the certified copy as if it were the original.
Application
(10) This section extends to matters and things outside Australia.
474.37 Defences in respect of abhorrent violent material
Content service
(1) Subsection 474.34(1) does not apply to material that can be accessed using a service if:
(a) the accessibility of the material is necessary for enforcing a law of:
(i) the Commonwealth; or
(ii) a State; or
(iii) a Territory; or
(iv) a foreign country; or
(v) a part of a foreign country; or
(b) the accessibility of the material is necessary for monitoring compliance with, or investigating a contravention of, a law of:
(i) the Commonwealth; or
(ii) a State; or
(iii) a Territory; or
(iv) a foreign country; or
(v) a part of a foreign country; or
(c) the accessibility of the material is for the purposes of proceedings in a court or tribunal; or
(d) both:
(i) the accessibility of the material is necessary for, or of assistance in, conducting scientific, medical, academic or historical research; and
(ii) the accessibility of the material is reasonable in the circumstances for the purpose of conducting that scientific, medical, academic or historical research; or
(e) the material relates to a news report, or a current affairs report, that:
(i) is in the public interest; and
(ii) is made by a person working in a professional capacity as a journalist; or
(f) both:
(i) the accessibility of the material is in connection with the performance by a public official of the official’s duties or functions; and
(ii) the accessibility of the material is reasonable in the circumstances for the purpose of performing that duty or function; or
(g) both:
(i) the accessibility of the material 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 accessibility of the material 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
(h) the accessibility of the material is for the purpose of advocating the lawful procurement of a change to any matter established by law, policy or practice in:
(i) the Commonwealth; or
(ii) a State; or
(iii) a Territory; or
(iv) a foreign country; or
(v) a part of a foreign country;
and the accessibility of the material is reasonable in the circumstances for that purpose; or
(i) the accessibility of the material relates to the development, performance, exhibition or distribution, in good faith, of an artistic work.
Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
Hosting service
(2) Subsection 474.34(5) does not apply to material that is hosted on a hosting service if:
(a) the hosting of the material is necessary for enforcing a law of:
(i) the Commonwealth; or
(ii) a State; or
(iii) a Territory; or
(iv) a foreign country; or
(v) a part of a foreign country; or
(b) the hosting of the material is necessary for monitoring compliance with, or investigating a contravention of, a law of:
(i) the Commonwealth; or
(ii) a State; or
(iii) a Territory; or
(iv) a foreign country; or
(v) a part of a foreign country; or
(c) the hosting of the material is for the purposes of proceedings in a court or tribunal; or
(d) both:
(i) the hosting of the material is necessary for, or of assistance in, conducting scientific, medical, academic or historical research; and
(ii) the hosting of the material is reasonable in the circumstances for the purpose of conducting that scientific, medical, academic or historical research; or
(e) the material relates to a news report, or a current affairs report, that:
(i) is in the public interest; and
(ii) is made by a person working in a professional capacity as a journalist; or
(f) both:
(i) the hosting of the material is in connection with the performance by a public official of the official’s duties or functions; and
(ii) the hosting of the material is reasonable in the circumstances for the purpose of performing that duty or function; or
(g) both:
(i) the hosting of the material 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 hosting of the material 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
(h) the hosting of the material is for the purpose of advocating the lawful procurement of a change to any matter established by law, policy or practice in:
(i) the Commonwealth; or
(ii) a State; or
(iii) a Territory; or
(iv) a foreign country; or
(v) a part of a foreign country;
and the hosting of the material is reasonable in the circumstances for that purpose; or
(i) the hosting of the material relates to the development, performance, exhibition or distribution, in good faith, of an artistic work.
Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
Functions
(3) 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.
Application
(4) This section extends to matters and things outside Australia.
474.38 Implied freedom of political communication
(1) This Subdivision does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication.
(2) Subsection (1) does not limit the application of section 15A of the Acts Interpretation Act 1901 to this Act.
474.39 Provider of content service
(1) For the purposes of this Subdivision, a person does not provide a content service merely because the person supplies a carriage service that enables material to be accessed.
(2) For the purposes of this Subdivision, a person does not provide a content service merely because the person provides a billing service, or a fee collection service, in relation to a content service.
474.40 Service of copies of notices by electronic means
Paragraphs 9(1)(d) and (2)(d) of the Electronic Transactions Act 1999 do not apply to a copy of a notice under subsection 474.35(1) or 474.36(1) of this Act.
Note: Paragraphs 9(1)(d) and (2)(d) of the Electronic Transactions Act 1999 deal with the consent of the recipient of information to the information being given by way of electronic communication.
474.41 Giving a copy of a notice to a contact person etc.
Contact person
(1) If:
(a) a copy of a notice under subsection 474.35(1) is required to be given to the provider of a content service that is a social media service (within the meaning of the Enhancing Online Safety Act 2015); and
(b) there is an individual who is:
(i) an employee or agent of the provider; and
(ii) designated as the service’s contact person for the purposes of that Act; and
(c) the contact details of the contact person have been notified to the eSafety Commissioner;
the copy of the notice is taken to have been given to the provider if it is given to the contact person.
Agent
(2) If:
(a) a copy of a notice under subsection 474.35(1) or 474.36(1) is required to be given to a body corporate incorporated outside Australia; and
(b) the body corporate does not have a registered office or a principal office in Australia; and
(c) the body corporate has an agent in Australia;
the copy of the notice is taken to have been given to the body corporate if it is given to the agent.
Other matters
(3) Subsections (1) and (2) have effect in addition to section 28A of the Acts Interpretation Act 1901.
Note: Section 28A of the Acts Interpretation Act 1901 deals with the service of documents.
474.42 Attorney‑General’s consent required for prosecution
Offence against section 474.33
(1) Proceedings for an offence against section 474.33 must not be commenced without the Attorney‑General’s written consent if:
(a) the conduct constituting the alleged offence occurs wholly in a foreign country; and
(b) 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 against section 474.33 before the necessary consent has been given.
Offence against section 474.34
(3) Proceedings for an offence against section 474.34 must not be commenced without the Attorney‑General’s written consent.
(4) However, a person may be arrested for, charged with, or remanded in custody or released on bail in connection with, an offence against section 474.34 before the necessary consent has been given.
474.43 Compensation for acquisition of property
(1) If the operation of this Subdivision would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph), the Commonwealth is liable to pay a reasonable amount of compensation to the person.
(2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in:
(a) the Federal Court of Australia; or
(b) the Supreme Court of a State or Territory;
for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
474.44 This Subdivision does not limit Schedule 5 or 7 to the Broadcasting Services Act 1992
This Subdivision does not limit the operation of Schedule 5 or 7 to the Broadcasting Services Act 1992.
474.45 Review of this Subdivision
(1) After the end of the 2‑year period beginning at the commencement of this section, the Minister must cause to be conducted a review of the operation of this Subdivision.
Report
(2) A report of the review must be given to the Minister within 12 months after the end of the 2‑year period mentioned in subsection (1).
(3) The Minister must cause copies of a report under subsection (2) to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report.
Subdivision J—Offences relating to use of carriage service for inciting trespass, property damage, or theft, on agricultural land
474.46 Using a carriage service for inciting trespass on agricultural land
(1) A person (the offender) commits an offence if:
(a) the offender transmits, makes available, publishes or otherwise distributes material; and
(b) the offender does so using a carriage service; and
(c) the offender does so with the intention of inciting another person to trespass on agricultural land; and
(d) the offender is reckless as to whether:
(i) the trespass of the other person on the agricultural land; or
(ii) any conduct engaged in by the other person while trespassing on the agricultural land;
could cause detriment to a primary production business that is being carried on on the agricultural land.
Penalty: Imprisonment for 12 months.
(2) Subsection (1) does not apply to material if the material relates to a news report, or a current affairs report, that:
(a) is in the public interest; and
(b) is made by a person working in a professional capacity as a journalist.
(2A) In a prosecution for an offence against subsection (1), the defendant does not bear an evidential burden in relation to the matters in subsection (2), despite subsection 13.3(3).
(3) Subsection (1) does not apply to conduct engaged in by a person if, as a result of the operation of a law of the Commonwealth, a State or a Territory, the person is not subject to any civil or criminal liability for the conduct.
Note 1: The Public Interest Disclosure Act 2013 provides that an individual is not subject to any civil or criminal liability for making a public interest disclosure.
Note 2: Section 1317AB of the Corporations Act 2001 provides that a person who makes a disclosure that qualifies for protection under Part 9.4AAA of that Act is not subject to any civil or criminal liability for making the disclosure.
Note 3: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
(4) Subsection (3) does not limit section 10.5 (lawful authority).
474.47 Using a carriage service for inciting property damage, or theft, on agricultural land
(1) A person (the offender) commits an offence if:
(a) the offender transmits, makes available, publishes or otherwise distributes material; and
(b) the offender does so using a carriage service; and
(c) the offender does so with the intention of inciting another person to:
(i) unlawfully damage property on agricultural land; or
(ii) unlawfully destroy property on agricultural land; or
(iii) commit theft of property on agricultural land.
Penalty: Imprisonment for 5 years.
(2) Subsection (1) does not apply to material if the material relates to a news report, or a current affairs report, that:
(a) is in the public interest; and
(b) is made by a person working in a professional capacity as a journalist.
(2A) In a prosecution for an offence against subsection (1), the defendant does not bear an evidential burden in relation to the matters in subsection (2), despite subsection 13.3(3).
(3) Subsection (1) does not apply to conduct engaged in by a person if, as a result of the operation of a law of the Commonwealth, a State or a Territory, the person is not subject to any civil or criminal liability for the conduct.
Note 1: The Public Interest Disclosure Act 2013 provides that an individual is not subject to any civil or criminal liability for making a public interest disclosure.
Note 2: Section 1317AB of the Corporations Act 2001 provides that a person who makes a disclosure that qualifies for protection under Part 9.4AAA of that Act is not subject to any civil or criminal liability for making the disclosure.
Note 3: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
(4) Subsection (3) does not limit section 10.5 (lawful authority).
When a person commits theft
(5) For the purposes of this section, a person commits theft of property if:
(a) the property belongs to another person; and
(b) the person dishonestly appropriates the property with the intention of permanently depriving the other person of the property.
(6) An expression used in subsection (5) and in Chapter 7 has the same meaning in that subsection as it has in that Chapter.
(7) In a prosecution for an offence against this section, the determination of dishonesty is a matter for the trier of fact.
(8) Sections 131.2 to 131.11 apply (with appropriate modifications) in determining whether a person commits theft of property (within the meaning of this section).
474.48 Implied freedom of political communication
(1) This Subdivision does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication.
(2) Subsection (1) does not limit the application of section 15A of the Acts Interpretation Act 1901 to this Act.
Division 475—Miscellaneous
475.1A Defences for NRS employees and emergency call persons
(1) A person is not criminally responsible for an offence against a provision of Subdivision C, D, E, F, G or J of Division 474 in relation to particular conduct if the person:
(a) is an employee of an NRS provider; and
(b) engages in the conduct in good faith in the course of the person’s duties as such an employee.
(2) A person is not criminally responsible for an offence against a provision of Subdivision C, D, E, F, G or J of Division 474 in relation to particular conduct if the person:
(a) is an emergency call person; and
(b) engages in the conduct in good faith in the course of the person’s duties as such an emergency call person.
475.1B Provisions relating to element of offence that particular conduct was engaged in using a carriage service
Presumption that conduct engaged in using carriage service
(1) If:
(a) a physical element of an offence against Subdivision C, D, E, F or J of Division 474 consists of a person using a carriage service to engage in particular conduct; and
(b) the prosecution proves beyond reasonable doubt that the person engaged in that particular conduct;
then it is presumed, unless the person proves to the contrary, that the person used a carriage service to engage in that conduct.
Note: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.
Absolute liability applies to physical element of offence that carriage service was used
(2) If:
(a) a physical element of an offence against Subdivision C, D, E, F or J of Division 474 consists of a person using a carriage service to engage in particular conduct; and
(b) the prosecution proves beyond reasonable doubt that the person intended to engage in that particular conduct;
then absolute liability applies to the physical element of the offence that a carriage service was used to engage in that particular conduct.
Note: For absolute liability, see section 6.2.
475.1 Saving of other laws
(1) This Part is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory.
(2) Without limiting subsection (1), a provision in this Part to the effect that a person is not criminally responsible for an offence against a provision of this Part in relation to particular conduct does not make the conduct lawful if it would otherwise be unlawful under the Radiocommunications Act 1992.
475.2 Geographical jurisdiction
(1) Section 15.1 (extended geographical jurisdiction—category A) applies to each offence against this Part (other than Subdivision H of Division 474).
(2) Section 14.1 (standard geographical jurisdiction) does not apply to an offence against Subdivision H of Division 474.
Part 10.7—Computer offences
Division 476—Preliminary
476.1 Definitions
(1) In this Part:
access to data held in a computer means:
(a) the display of the data by the computer or any other output of the data from the computer; or
(b) the copying or moving of the data to any other place in the computer or to a data storage device; or
(c) in the case of a program—the execution of the program.
Defence Department means the Department of State that deals with defence and that is administered by the Minister administering section 1 of the Defence Act 1903.
electronic communication means a communication of information in any form by means of guided or unguided electromagnetic energy.
impairment of electronic communication to or from a computer includes:
(a) the prevention of any such communication; or
(b) the impairment of any such communication on an electronic link or network used by the computer;
but does not include a mere interception of any such communication.
modification, in respect of data held in a computer, means:
(a) the alteration or removal of the data; or
(b) an addition to the data.
unauthorised access, modification or impairment has the meaning given in section 476.2.
(2) In this Part, a reference to:
(a) access to data held in a computer; or
(b) modification of data held in a computer; or
(c) the impairment of electronic communication to or from a computer;
is limited to such access, modification or impairment caused, whether directly or indirectly, by the execution of a function of a computer.
476.2 Meaning of unauthorised access, modification or impairment
(1) In this Part:
(a) access to data held in a computer; or
(b) modification of data held in a computer; or
(c) the impairment of electronic communication to or from a computer; or
(d) the impairment of the reliability, security or operation of any data held on a computer disk, credit card or other device used to store data by electronic means;
by a person is unauthorised if the person is not entitled to cause that access, modification or impairment.
(2) Any such access, modification or impairment caused by the person is not unauthorised merely because he or she has an ulterior purpose for causing it.
(3) For the purposes of an offence under this Part, a person causes any such unauthorised access, modification or impairment if the person’s conduct substantially contributes to it.
(4) For the purposes of subsection (1), if:
(a) a person causes any access, modification or impairment of a kind mentioned in that subsection; and
(b) the person does so:
(i) under a warrant issued under the law of the Commonwealth, a State or a Territory; or
(ii) under an emergency authorisation given to the person under Part 3 of the Surveillance Devices Act 2004 or under a law of a State or Territory that makes provision to similar effect; or
(iii) under a tracking device authorisation given to the person under section 39 of that Act; or
(iv) in accordance with a technical assistance request; or
(v) in compliance with a technical assistance notice; or
(vi) in compliance with a technical capability notice;
the person is entitled to cause that access, modification or impairment.
476.3 Geographical jurisdiction
Section 15.1 (extended geographical jurisdiction—Category A) applies to offences under this Part.
476.4 Saving of other laws
(1) This Part is not intended to exclude or limit the operation of any other law of the Commonwealth, a State or a Territory.
(2) Subsection (1) has effect subject to section 476.5.
476.5 Liability for certain acts
(1) A staff member or agent of ASIS, AGO or ASD (the agency) is not subject to any civil or criminal liability for any computer‑related act done outside Australia if the act is done in the proper performance of a function of the agency.
(2) A person is not subject to any civil or criminal liability for any act done inside Australia if:
(a) the act is preparatory to, in support of, or otherwise directly connected with, overseas activities of the agency concerned; and
(b) the act:
(i) taken together with a computer‑related act, event, circumstance or result that took place, or was intended to take place, outside Australia, could amount to an offence; but
(ii) in the absence of that computer‑related act, event, circumstance or result, would not amount to an offence; and
(c) the act is done in the proper performance of a function of the agency.
(2A) Subsection (2) is not intended to permit any act in relation to premises, persons, computers, things, or carriage services in Australia, being:
(a) an act that ASIO could not do without a Minister authorising it by warrant issued under Division 2 of Part III of the Australian Security Intelligence Organisation Act 1979 or under Part 2‑2 of the Telecommunications (Interception and Access) Act 1979; or
(b) an act to obtain information that ASIO could not obtain other than in accordance with Division 3 of Part 4‑1 of the Telecommunications (Interception and Access) Act 1979.
(2AA) Subsections (1) and (2) have effect despite anything in a law of the Commonwealth or of a State or Territory, whether passed or made before or after the commencement of this subsection, unless the law expressly provides otherwise.
(2AB) Subsection (2AA) does not affect the operation of subsection (2A).
(2B) The Inspector‑General of Intelligence and Security may give a certificate in writing certifying any fact relevant to the question of whether an act was done in the proper performance of a function of an agency.
(2C) In any proceedings, a certificate given under subsection (2B) is prima facie evidence of the facts certified.
(3) In this section:
AGO means that part of the Defence Department known as the Australian Geospatial‑Intelligence Organisation.
ASD means the Australian Signals Directorate.
ASIS means the Australian Secret Intelligence Service.
civil or criminal liability means any civil or criminal liability (whether under this Part, under another law or otherwise).
computer‑related act, event, circumstance or result means an act, event, circumstance or result involving:
(a) the reliability, security or operation of a computer; or
(b) access to, or modification of, data held in a computer or on a data storage device; or
(c) electronic communication to or from a computer; or
(d) the reliability, security or operation of any data held in or on a computer, computer disk, credit card, or other data storage device; or
(e) possession or control of data held in a computer or on a data storage device; or
(f) producing, supplying or obtaining data held in a computer or on a data storage device.
staff member means:
(a) in relation to ASIS—the Director‑General of ASIS or a member of the staff of ASIS (whether an employee of ASIS, a consultant or contractor to ASIS, or a person who is made available by another Commonwealth or State authority or other person to perform services for ASIS); and
(b) in relation to ASD—the Director‑General of ASD or a member of the staff of ASD (whether an employee of ASD, a consultant or contractor to ASD, or a person who is made available by another Commonwealth or State authority or other person to perform services for ASD); and
(c) in relation to AGO—the Director of AGO or a member of the staff of AGO (whether an employee of AGO, a consultant or contractor to AGO, or a person who is made available by another Commonwealth or State authority or other person to perform services for AGO).
Division 477—Serious computer offences
477.1 Unauthorised access, modification or impairment with intent to commit a serious offence
Intention to commit a serious Commonwealth, State or Territory offence
(1) A person commits an offence if:
(a) the person causes:
(i) any unauthorised access to data held in a computer; or
(ii) any unauthorised modification of data held in a computer; or
(iii) any unauthorised impairment of electronic communication to or from a computer; and
(c) the person knows the access, modification or impairment is unauthorised; and
(d) the person intends to commit, or facilitate the commission of, a serious offence against a law of the Commonwealth, a State or a Territory (whether by that person or another person) by the access, modification or impairment.
(3) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the offence was:
(a) an offence against a law of the Commonwealth, a State or a Territory; or
(b) a serious offence.
Penalty
(6) A person who commits an offence against this section is punishable, on conviction, by a penalty not exceeding the penalty applicable to the serious offence.
Impossibility
(7) A person may be found guilty of an offence against this section even if committing the serious offence is impossible.
No offence of attempt
(8) It is not an offence to attempt to commit an offence against this section.
Meaning of serious offence
(9) In this section:
serious offence means an offence that is punishable by imprisonment for life or a period of 5 or more years.
477.2 Unauthorised modification of data to cause impairment
(1) A person commits an offence if:
(a) the person causes any unauthorised modification of data held in a computer; and
(b) the person knows the modification is unauthorised; and
(c) the person is reckless as to whether the modification impairs or will impair:
(i) access to that or any other data held in any computer; or
(ii) the reliability, security or operation, of any such data.
Penalty: 10 years imprisonment.
(3) A person may be guilty of an offence against this section even if there is or will be no actual impairment to:
(a) access to data held in a computer; or
(b) the reliability, security or operation, of any such data.
(4) A conviction for an offence against this section is an alternative verdict to a charge for an offence against section 477.3 (unauthorised impairment of electronic communication).
477.3 Unauthorised impairment of electronic communication
(1) A person commits an offence if:
(a) the person causes any unauthorised impairment of electronic communication to or from a computer; and
(b) the person knows that the impairment is unauthorised.
Penalty: 10 years imprisonment.
(3) A conviction for an offence against this section is an alternative verdict to a charge for an offence against section 477.2 (unauthorised modification of data to cause impairment).
Division 478—Other computer offences
478.1 Unauthorised access to, or modification of, restricted data
(1) A person commits an offence if:
(a) the person causes any unauthorised access to, or modification of, restricted data; and
(b) the person intends to cause the access or modification; and
(c) the person knows that the access or modification is unauthorised.
Penalty: 2 years imprisonment.
(3) In this section:
restricted data means data:
(a) held in a computer; and
(b) to which access is restricted by an access control system associated with a function of the computer.
478.2 Unauthorised impairment of data held on a computer disk etc.
A person commits an offence if:
(a) the person causes any unauthorised impairment of the reliability, security or operation of data held on:
(i) a computer disk; or
(ii) a credit card; or
(iii) another device used to store data by electronic means; and
(b) the person intends to cause the impairment; and
(c) the person knows that the impairment is unauthorised.
Penalty: 2 years imprisonment.
478.3 Possession or control of data with intent to commit a computer offence
(1) A person commits an offence if:
(a) the person has possession or control of data; and
(b) the person has that possession or control with the intention that the data be used, by the person or another person, in:
(i) committing an offence against Division 477; or
(ii) facilitating the commission of such an offence.
Penalty: 3 years imprisonment.
(2) A person may be found guilty of an offence against this section even if committing the offence against Division 477 is impossible.
No offence of attempt
(3) It is not an offence to attempt to commit an offence against this section.
Meaning of possession or control of data
(4) In this section, a reference to a person having possession or control of data includes a reference to the person:
(a) having possession of a computer or data storage device that holds or contains the data; or
(b) having possession of a document in which the data is recorded; or
(c) having control of data held in a computer that is in the possession of another person (whether inside or outside Australia).
478.4 Producing, supplying or obtaining data with intent to commit a computer offence
(1) A person commits an offence if:
(a) the person produces, supplies or obtains data; and
(b) the person does so with the intention that the data be used, by the person or another person, in:
(i) committing an offence against Division 477; or
(ii) facilitating the commission of such an offence.
Penalty: 3 years imprisonment.
(2) A person may be found guilty of an offence against this section even if committing the offence against Division 477 is impossible.
No offence of attempt
(3) It is not an offence to attempt to commit an offence against this section.
Meaning of producing, supplying or obtaining data
(4) In this section, a reference to a person producing, supplying or obtaining data includes a reference to the person:
(a) producing, supplying or obtaining data held or contained in a computer or data storage device; or
(b) producing, supplying or obtaining a document in which the data is recorded.
Part 10.8—Financial information offences
480.1 Definitions
(1) In this Part:
ADI (authorised deposit‑taking institution) means a corporation that is an ADI for the purposes of the Banking Act 1959.
dealing in personal financial information includes supplying or using financial information.
deception means an intentional or reckless deception, whether by words or other conduct, and whether as to fact or as to law, and includes:
(a) a deception as to the intentions of the person using the deception or any other person; and
(b) conduct by a person that causes a computer, a machine or an electronic device to make a response that the person is not authorised to cause it to do.
dishonest has the meaning given by section 480.2.
obtaining personal financial information includes possessing or making personal financial information.
personal financial information means information relating to a person that may be used (whether alone or in conjunction with other information) to access funds, credit or other financial benefits.
(2) For the purposes of this Part, a person is taken to obtain or deal in personal information without the consent of the person to whom the information relates if the consent of that person is obtained by any deception.
(3) This Part extends to personal information relating to:
(a) an individual; or
(b) a corporation; or
(c) a living or dead person.
480.2 Dishonesty
(1) For the purposes of this Part, dishonest means:
(a) dishonest according to the standards of ordinary people; and
(b) known by the defendant to be dishonest according to the standards of ordinary people.
(2) In a prosecution for an offence against this Part, the determination of dishonesty is a matter for the trier of fact.
480.3 Constitutional application of this Part
This Part applies to personal financial information only if:
(a) the funds concerned represent amounts that have been deposited with or lent to, or are otherwise to be provided or made available by, an ADI or a constitutional corporation; or
(b) the credit or other financial benefits concerned are provided, or made available, by an ADI or a constitutional corporation.
480.4 Dishonestly obtaining or dealing in personal financial information
A person commits an offence if the person:
(a) dishonestly obtains, or deals in, personal financial information; and
(b) obtains, or deals in, that information without the consent of the person to whom the information relates.
Penalty: Imprisonment for 5 years.
480.5 Possession or control of thing with intent to dishonestly obtain or deal in personal financial information
(1) A person commits an offence if:
(a) the person has possession or control of any thing; and
(b) the person has that possession or control with the intention that the thing be used:
(i) by the person; or
(ii) by another person;
to commit an offence against section 480.4 (dishonestly obtaining or dealing in personal financial information) or to facilitate the commission of that offence.
Penalty: Imprisonment for 3 years.
(2) A person may be found guilty of an offence against subsection (1) even if committing the offence against section 480.4 (dishonestly obtaining or dealing in personal financial information) is impossible.
(3) It is not an offence to attempt to commit an offence against subsection (1).
480.6 Importation of thing with intent to dishonestly obtain or deal in personal financial information
A person commits an offence if the person:
(a) imports a thing into Australia; and
(b) does so with the intention that the thing be used:
(i) by the person; or
(ii) by another person;
in committing an offence against section 480.4 (dishonestly obtaining or dealing in personal financial information) or to facilitate the commission of that offence.
Penalty: Imprisonment for 3 years.
Part 10.9—Accounting records
Division 490—False dealing with accounting documents
490.1 Intentional false dealing with accounting documents
(1) A person commits an offence if:
(a) the person:
(i) makes, alters, destroys or conceals an accounting document; or
(ii) fails to make or alter an accounting document that the person is under a duty, under a law of the Commonwealth, a State or Territory or at common law, to make or alter; and
(b) the person intended the making, alteration, destruction or concealment of the document (or the failure to make or alter the document) to facilitate, conceal or disguise the occurrence of one or more of the following:
(i) the person receiving a benefit that is not legitimately due to the person;
(ii) the person giving a benefit that is not legitimately due to the recipient, or intended recipient, of the benefit;
(iii) another person receiving a benefit that is not legitimately due to the other person;
(iv) another person giving a benefit that is not legitimately due to the recipient, or intended recipient, of the benefit (who may be the first‑mentioned person);
(v) loss to another person that is not legitimately incurred by the other person; and
(c) one or more of the circumstances referred to in subsection (2) applies.
(2) For the purposes of paragraph (1)(c) of this section or paragraph 490.2(1)(c), the circumstances are:
(a) the person is:
(i) a constitutional corporation, or a corporation that is incorporated in a Territory; or
(ii) an officer or employee of a constitutional corporation acting in the performance of his or her duties or the carrying out of his or her functions; or
(iii) a person engaged to provide services to a constitutional corporation and acting in the course of providing those services; or
(iv) a Commonwealth public official acting in the performance of his or her duties or the carrying out of his or her functions; or
(b) the person’s act or omission referred to in paragraph (1)(a):
(i) occurs in a Territory; or
(ii) occurs outside Australia; or
(iii) concerns matters or things outside Australia; or
(iv) facilitates or conceals the commission of an offence against a law of the Commonwealth; or
(c) the accounting document:
(i) is outside Australia; or
(ii) is in a Territory; or
(iii) is kept under or for the purposes of a law of the Commonwealth; or
(iv) is kept to record the receipt or use of Australian currency.
(3) Absolute liability applies to paragraph (1)(c).
Note: For absolute liability, see section 6.2.
Penalty for individual
(4) An offence against this section 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
(5) An offence against this section 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.
490.2 Reckless false dealing with accounting documents
(1) A person commits an offence if:
(a) the person:
(i) makes, alters, destroys or conceals an accounting document; or
(ii) fails to make or alter an accounting document that the person is under a duty, under a law of the Commonwealth, a State or Territory or at common law, to make or alter; and
(b) the person is reckless as to whether the making, alteration, destruction or concealment of the document (or the failure to make or alter the document) facilitates, conceals or disguises the occurrence of one or more of the following:
(i) the person receiving a benefit that is not legitimately due to the person;
(ii) the person giving a benefit that is not legitimately due to the recipient, or intended recipient, of the benefit;
(iii) another person receiving a benefit that is not legitimately due to the other person;
(iv) another person giving a benefit that is not legitimately due to the recipient, or intended recipient, of the benefit (who may be the first‑mentioned person);
(v) loss to another person that is not legitimately incurred by the other person; and
(c) one or more of the circumstances referred to in subsection 490.1(2) applies.
(2) Absolute liability applies to paragraph (1)(c).
Note: For absolute liability, see section 6.2.
Penalty for individual
(3) An offence against this section committed by an individual is punishable on conviction by imprisonment for not more than 5 years, a fine not more than 5,000 penalty units, or both.
Penalty for body corporate
(4) An offence against this section committed by a body corporate is punishable on conviction by a fine not more than the greatest of the following:
(a) 50,000 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—1.5 times the value of that benefit;
(c) if the court cannot determine the value of that benefit—5% 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.
490.3 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.
490.4 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.
490.5 Proof of certain matters unnecessary
In a prosecution for an offence against this Division, it is not necessary to prove:
(a) the occurrence of any of the following:
(i) the defendant receiving or giving a benefit;
(ii) another person receiving or giving a benefit;
(iii) loss to another person; or
(b) that the defendant intended that a particular person receive or give a benefit, or incur a loss.
490.6 Consent to commencement of proceedings
(1) Proceedings for an offence against this Division must not be commenced without the Attorney‑General’s written consent if:
(a) the conduct constituting the alleged offence occurs wholly in a foreign country; and
(b) at the time of the alleged offence, the person alleged to have committed the offence is none of the following:
(i) an Australian citizen;
(ii) a resident of Australia;
(iii) 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 against this Division before the necessary consent has been given.
490.7 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.
