Criminal Code Act 1995

Section 3

The only offences against laws of the Commonwealth are those offences created by, or under the authority of, this Code or any other Act.

Note: Under subsection 38(1) of the Acts Interpretation Act 1901, Act means an Act passed by the Parliament of the Commonwealth.

Chapter 2—General principles of criminal responsibility

Part 2.1—Purpose and application

Division 2

2.1 Purpose

The purpose of this Chapter is to codify the general principles of criminal responsibility under laws of the Commonwealth. It contains all the general principles of criminal responsibility that apply to any offence, irrespective of how the offence is created.

2.2 Application

(1) This Chapter applies to all offences against this Code.

(2) Subject to section 2.3, this Chapter applies on and after 15 December 2001 to all other offences.

(3) Section 11.6 applies to all offences.

2.3 Application of provisions relating to intoxication

Subsections 4.2(6) and (7) and Division 8 apply to all offences. For the purpose of interpreting those provisions in connection with an offence, the other provisions of this Chapter may be considered, whether or not those other provisions apply to the offence concerned.

Part 2.2—The elements of an offence

Division 3—General

3.1 Elements

(1) An offence consists of physical elements and fault elements.

(2) However, the law that creates the offence may provide that there is no fault element for one or more physical elements.

(3) The law that creates the offence may provide different fault elements for different physical elements.

3.2 Establishing guilt in respect of offences

In order for a person to be found guilty of committing an offence the following must be proved:

(a) the existence of such physical elements as are, under the law creating the offence, relevant to establishing guilt;

(b) in respect of each such physical element for which a fault element is required, one of the fault elements for the physical element.

Note 1: See Part 2.6 on proof of criminal responsibility.

Note 2: See Part 2.7 on geographical jurisdiction.

Division 4—Physical elements

4.1 Physical elements

(1) A physical element of an offence may be:

(a) conduct; or

(b) a result of conduct; or

(2) In this Code:

conduct means an act, an omission to perform an act or a state of affairs.

engage in conduct means:

(a) do an act; or

(b) omit to perform an act.

4.2 Voluntariness

(1) Conduct can only be a physical element if it is voluntary.

(2) Conduct is only voluntary if it is a product of the will of the person whose conduct it is.

(3) The following are examples of conduct that is not voluntary:

(a) a spasm, convulsion or other unwilled bodily movement;

(b) an act performed during sleep or unconsciousness;

(4) An omission to perform an act is only voluntary if the act omitted is one which the person is capable of performing.

(5) If the conduct constituting an offence consists only of a state of affairs, the state of affairs is only voluntary if it is one over which the person is capable of exercising control.

(6) Evidence of self‑induced intoxication cannot be considered in determining whether conduct is voluntary.

(7) Intoxication is self‑induced unless it came about:

(a) involuntarily; or

(b) as a result of fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force.

4.3 Omissions

An omission to perform an act can only be a physical element if:

(a) the law creating the offence makes it so; or

(b) the law creating the offence impliedly provides that the offence is committed by an omission to perform an act that there is a duty to perform by a law of the Commonwealth, a State or a Territory, or at common law.

Division 5—Fault elements

5.1 Fault elements

(1) A fault element for a particular physical element may be intention, knowledge, recklessness or negligence.

(2) Subsection (1) does not prevent a law that creates a particular offence from specifying other fault elements for a physical element of that offence.

5.2 Intention

(1) A person has intention with respect to conduct if he or she means to engage in that conduct.

(2) A person has intention with respect to a circumstance if he or she believes that it exists or will exist.

(3) A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.

5.3 Knowledge

A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.

5.4 Recklessness

(1) A person is reckless with respect to a circumstance if:

(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and

(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

(2) A person is reckless with respect to a result if:

(a) he or she is aware of a substantial risk that the result will occur; and

(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

(3) The question whether taking a risk is unjustifiable is one of fact.

(4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.

5.5 Negligence

A person is negligent with respect to a physical element of an offence if his or her conduct involves:

(a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and

(b) such a high risk that the physical element exists or will exist;

that the conduct merits criminal punishment for the offence.

5.6 Offences that do not specify fault elements

(1) If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element.

(2) If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.

Note: Under subsection 5.4(4), recklessness can be established by proving intention, knowledge or recklessness.

Division 6—Cases where fault elements are not required

6.1 Strict liability

(1) If a law that creates an offence provides that the offence is an offence of strict liability:

(a) there are no fault elements for any of the physical elements of the offence; and

(b) the defence of mistake of fact under section 9.2 is available.

(2) If a law that creates an offence provides that strict liability applies to a particular physical element of the offence:

(a) there are no fault elements for that physical element; and

(b) the defence of mistake of fact under section 9.2 is available in relation to that physical element.

(3) The existence of strict liability does not make any other defence unavailable.

6.2 Absolute liability

(1) If a law that creates an offence provides that the offence is an offence of absolute liability:

(a) there are no fault elements for any of the physical elements of the offence; and

(b) the defence of mistake of fact under section 9.2 is unavailable.

(2) If a law that creates an offence provides that absolute liability applies to a particular physical element of the offence:

(a) there are no fault elements for that physical element; and

(b) the defence of mistake of fact under section 9.2 is unavailable in relation to that physical element.

(3) The existence of absolute liability does not make any other defence unavailable.

Part 2.3—Circumstances in which there is no criminal responsibility

Note: This Part sets out defences that are generally available. Defences that apply to a more limited class of offences are dealt with elsewhere in this Code and in other laws.

Division 7—Circumstances involving lack of capacity

7.1 Children under 10

A child under 10 years old is not criminally responsible for an offence.

7.2 Children over 10 but under 14

(1) A child aged 10 years or more but under 14 years old can only be criminally responsible for an offence if the child knows that his or her conduct is wrong.

(2) The question whether a child knows that his or her conduct is wrong is one of fact. The burden of proving this is on the prosecution.

7.3 Mental impairment

(1) A person is not criminally responsible for an offence if, at the time of carrying out the conduct constituting the offence, the person was suffering from a mental impairment that had the effect that:

(a) the person did not know the nature and quality of the conduct; or

(b) the person did not know that the conduct was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong); or

(2) The question whether the person was suffering from a mental impairment is one of fact.

(3) A person is presumed not to have been suffering from such a mental impairment. The presumption is only displaced if it is proved on the balance of probabilities (by the prosecution or the defence) that the person was suffering from such a mental impairment.

(4) The prosecution can only rely on this section if the court gives leave.

(5) The tribunal of fact must return a special verdict that a person is not guilty of an offence because of mental impairment if and only if it is satisfied that the person is not criminally responsible for the offence only because of a mental impairment.

(6) A person cannot rely on a mental impairment to deny voluntariness or the existence of a fault element but may rely on this section to deny criminal responsibility.

(7) If the tribunal of fact is satisfied that a person carried out conduct as a result of a delusion caused by a mental impairment, the delusion cannot otherwise be relied on as a defence.

(8) In this Code:

mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.

(9) The reference in subsection (8) to mental illness is a reference to an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary external stimuli. However, such a condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.

Division 8—Intoxication

8.1 Definition—self‑induced intoxication

For the purposes of this Division, intoxication is self‑induced unless it came about:

(a) involuntarily; or

(b) as a result of fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force.

8.2 Intoxication (offences involving basic intent)

(1) Evidence of self‑induced intoxication cannot be considered in determining whether a fault element of basic intent existed.

(2) A fault element of basic intent is a fault element of intention for a physical element that consists only of conduct.

Note: A fault element of intention with respect to a circumstance or with respect to a result is not a fault element of basic intent.

(3) This section does not prevent evidence of self‑induced intoxication being taken into consideration in determining whether conduct was accidental.

(4) This section does not prevent evidence of self‑induced intoxication being taken into consideration in determining whether a person had a mistaken belief about facts if the person had considered whether or not the facts existed.

(5) A person may be regarded as having considered whether or not facts existed if:

(a) he or she had considered, on a previous occasion, whether those facts existed in circumstances surrounding that occasion; and

(b) he or she honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.

8.3 Intoxication (negligence as fault element)

(1) If negligence is a fault element for a particular physical element of an offence, in determining whether that fault element existed in relation to a person who is intoxicated, regard must be had to the standard of a reasonable person who is not intoxicated.

(2) However, if intoxication is not self‑induced, regard must be had to the standard of a reasonable person intoxicated to the same extent as the person concerned.

8.4 Intoxication (relevance to defences)

(1) If any part of a defence is based on actual knowledge or belief, evidence of intoxication may be considered in determining whether that knowledge or belief existed.

(2) If any part of a defence is based on reasonable belief, in determining whether that reasonable belief existed, regard must be had to the standard of a reasonable person who is not intoxicated.

(3) If a person’s intoxication is not self‑induced, in determining whether any part of a defence based on reasonable belief exists, regard must be had to the standard of a reasonable person intoxicated to the same extent as the person concerned.

(4) If, in relation to an offence:

(a) each physical element has a fault element of basic intent; and

(b) any part of a defence is based on actual knowledge or belief;

evidence of self‑induced intoxication cannot be considered in determining whether that knowledge or belief existed.

(5) A fault element of basic intent is a fault element of intention for a physical element that consists only of conduct.

Note: A fault element of intention with respect to a circumstance or with respect to a result is not a fault element of basic intent.

8.5 Involuntary intoxication

A person is not criminally responsible for an offence if the person’s conduct constituting the offence was as a result of intoxication that was not self‑induced.

Division 9—Circumstances involving mistake or ignorance

9.1 Mistake or ignorance of fact (fault elements other than negligence)

(1) A person is not criminally responsible for an offence that has a physical element for which there is a fault element other than negligence if:

(a) at the time of the conduct constituting the physical element, the person is under a mistaken belief about, or is ignorant of, facts; and

(b) the existence of that mistaken belief or ignorance negates any fault element applying to that physical element.

(2) In determining whether a person was under a mistaken belief about, or was ignorant of, facts, the tribunal of fact may consider whether the mistaken belief or ignorance was reasonable in the circumstances.

9.2 Mistake of fact (strict liability)

(1) A person is not criminally responsible for an offence that has a physical element for which there is no fault element if:

(a) at or before the time of the conduct constituting the physical element, the person considered whether or not facts existed, and is under a mistaken but reasonable belief about those facts; and

(b) had those facts existed, the conduct would not have constituted an offence.

(2) A person may be regarded as having considered whether or not facts existed if:

(a) he or she had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and

(b) he or she honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.

Note: Section 6.2 prevents this section applying in situations of absolute liability.

9.3 Mistake or ignorance of statute law

(1) A person can be criminally responsible for an offence even if, at the time of the conduct constituting the offence, he or she is mistaken about, or ignorant of, the existence or content of an Act that directly or indirectly creates the offence or directly or indirectly affects the scope or operation of the offence.

(2) Subsection (1) does not apply, and the person is not criminally responsible for the offence in those circumstances, if the Act is expressly to the contrary effect.

9.4 Mistake or ignorance of subordinate legislation

(1) A person can be criminally responsible for an offence even if, at the time of the conduct constituting the offence, he or she is mistaken about, or ignorant of, the existence or content of the subordinate legislation that directly or indirectly creates the offence or directly or indirectly affects the scope or operation of the offence.

(2) Subsection (1) does not apply, and the person is not criminally responsible for the offence in those circumstances, if:

(a) the subordinate legislation is expressly to the contrary effect; or

(i) has not been made available to the public (by means of the Register under the Legislation Act 2003 or otherwise); and

(ii) has not otherwise been made available to persons likely to be affected by it in such a way that the person would have become aware of its contents by exercising due diligence.

(3) In this section:

available includes available by sale.

subordinate legislation means an instrument of a legislative character made directly or indirectly under an Act, or in force directly or indirectly under an Act.

9.5 Claim of right

(1) A person is not criminally responsible for an offence that has a physical element relating to property if:

(a) at the time of the conduct constituting the offence, the person is under a mistaken belief about a proprietary or possessory right; and

(b) the existence of that right would negate a fault element for any physical element of the offence.

(2) A person is not criminally responsible for any other offence arising necessarily out of the exercise of the proprietary or possessory right that he or she mistakenly believes to exist.

(3) This section does not negate criminal responsibility for an offence relating to the use of force against a person.

Division 10—Circumstances involving external factors

10.1 Intervening conduct or event

A person is not criminally responsible for an offence that has a physical element to which absolute liability or strict liability applies if:

(a) the physical element is brought about by another person over whom the person has no control or by a non‑human act or event over which the person has no control; and

(b) the person could not reasonably be expected to guard against the bringing about of that physical element.

10.2 Duress

(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence under duress.

(2) A person carries out conduct under duress if and only if he or she reasonably believes that:

(a) a threat has been made that will be carried out unless an offence is committed; and

(b) there is no reasonable way that the threat can be rendered ineffective; and

(3) This section does not apply if the threat is made by or on behalf of a person with whom the person under duress is voluntarily associating for the purpose of carrying out conduct of the kind actually carried out.

10.3 Sudden or extraordinary emergency

(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency.

(2) This section applies if and only if the person carrying out the conduct reasonably believes that:

(a) circumstances of sudden or extraordinary emergency exist; and

(b) committing the offence is the only reasonable way to deal with the emergency; and

10.4 Self‑defence

(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in self‑defence.

(2) A person carries out conduct in self‑defence if and only if he or she believes the conduct is necessary:

(a) to defend himself or herself or another person; or

(b) to prevent or terminate the unlawful imprisonment of himself or herself or another person; or

(d) to prevent criminal trespass to any land or premises; or

(e) to remove from any land or premises a person who is committing criminal trespass;

and the conduct is a reasonable response in the circumstances as he or she perceives them.

(3) This section does not apply if the person uses force that involves the intentional infliction of death or really serious injury:

(a) to protect property; or

(b) to prevent criminal trespass; or

(4) This section does not apply if:

(a) the person is responding to lawful conduct; and

(b) he or she knew that the conduct was lawful.

However, conduct is not lawful merely because the person carrying it out is not criminally responsible for it.

10.5 Lawful authority

A person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by or under a law.

Part 2.4—Extensions of criminal responsibility

Division 11

11.1 Attempt

(1) A person who attempts to commit an offence commits the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.

(2) For the person to be guilty, the person’s conduct must be more than merely preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact.

(3) For the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted.

Note: Under section 3.2, only one of the fault elements of intention or knowledge would need to be established in respect of each physical element of the offence attempted.

(3A) Subsection (3) has effect subject to subsection (6A).

(4) A person may be found guilty even if:

(a) committing the offence attempted is impossible; or

(b) the person actually committed the offence attempted.

(5) A person who is found guilty of attempting to commit an offence cannot be subsequently charged with the completed offence.

(6) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of attempting to commit that offence.

(6A) Any special liability provisions that apply to an offence apply also to the offence of attempting to commit that offence.

(7) It is not an offence to attempt to commit an offence against section 11.2 (complicity and common purpose), section 11.2A (joint commission), section 11.3 (commission by proxy), section 11.5 (conspiracy to commit an offence) or section 135.4 (conspiracy to defraud).

11.2 Complicity and common purpose

(1) A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly.

(2) For the person to be guilty:

(a) the person’s conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person; and

(b) the offence must have been committed by the other person.

(3) For the person to be guilty, the person must have intended that:

(a) his or her conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed; or

(b) his or her conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed.

(3A) Subsection (3) has effect subject to subsection (6).

(4) A person cannot be found guilty of aiding, abetting, counselling or procuring the commission of an offence if, before the offence was committed, the person:

(a) terminated his or her involvement; and

(b) took all reasonable steps to prevent the commission of the offence.

(5) A person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the other person has not been prosecuted or has not been found guilty.

(6) Any special liability provisions that apply to an offence apply also for the purposes of determining whether a person is guilty of that offence because of the operation of subsection (1).

(7) If the trier of fact is satisfied beyond reasonable doubt that a person either:

(a) is guilty of a particular offence otherwise than because of the operation of subsection (1); or

(b) is guilty of that offence because of the operation of subsection (1);

but is not able to determine which, the trier of fact may nonetheless find the person guilty of that offence.

11.2A Joint commission

Joint commission

(1) If:

(a) a person and at least one other party enter into an agreement to commit an offence; and

(b) either:

(i) an offence is committed in accordance with the agreement (within the meaning of subsection (2)); or

(ii) an offence is committed in the course of carrying out the agreement (within the meaning of subsection (3));

the person is taken to have committed the joint offence referred to in whichever of subsection (2) or (3) applies and is punishable accordingly.

Offence committed in accordance with the agreement

(2) An offence is committed in accordance with the agreement if:

(a) the conduct of one or more parties in accordance with the agreement makes up the physical elements consisting of conduct of an offence (the joint offence) of the same type as the offence agreed to; and

(b) to the extent that a physical element of the joint offence consists of a result of conduct—that result arises from the conduct engaged in; and

(c) to the extent that a physical element of the joint offence consists of a circumstance—the conduct engaged in, or a result of the conduct engaged in, occurs in that circumstance.

Offence committed in the course of carrying out the agreement

(3) An offence is committed in the course of carrying out the agreement if the person is reckless about the commission of an offence (the joint offence) that another party in fact commits in the course of carrying out the agreement.

Intention to commit an offence

(4) For a person to be guilty of an offence because of the operation of this section, the person and at least one other party to the agreement must have intended that an offence would be committed under the agreement.

Agreement may be non‑verbal etc.

(5) The agreement:

(a) may consist of a non‑verbal understanding; and

(b) may be entered into before, or at the same time as, the conduct constituting any of the physical elements of the joint offence was engaged in.

Termination of involvement etc.

(6) A person cannot be found guilty of an offence because of the operation of this section if, before the conduct constituting any of the physical elements of the joint offence concerned was engaged in, the person:

(a) terminated his or her involvement; and

(b) took all reasonable steps to prevent that conduct from being engaged in.

Person may be found guilty even if another party not prosecuted etc.

(7) A person may be found guilty of an offence because of the operation of this section even if:

(a) another party to the agreement has not been prosecuted or has not been found guilty; or

(b) the person was not present when any of the conduct constituting the physical elements of the joint offence was engaged in.

Special liability provisions apply

(8) Any special liability provisions that apply to the joint offence apply also for the purposes of determining whether a person is guilty of that offence because of the operation of this section.

11.3 Commission by proxy

A person who:

(a) has, in relation to each physical element of an offence, a fault element applicable to that physical element; and

(b) procures conduct of another person that (whether or not together with conduct of the procurer) would have constituted an offence on the part of the procurer if the procurer had engaged in it;

is taken to have committed that offence and is punishable accordingly.

11.4 Incitement

(1) A person who urges the commission of an offence commits the offence of incitement.

(2) For the person to be guilty, the person must intend that the offence incited be committed.

(2A) Subsection (2) has effect subject to subsection (4A).

(3) A person may be found guilty even if committing the offence incited is impossible.

(4) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of incitement in respect of that offence.

(4A) Any special liability provisions that apply to an offence apply also to the offence of incitement in respect of that offence.

(5) It is not an offence to incite the commission of an offence against section 11.1 (attempt), this section or section 11.5 (conspiracy).

Penalty:

(a) if the offence incited is punishable by life imprisonment—imprisonment for 10 years; or

(b) if the offence incited is punishable by imprisonment for 14 years or more, but is not punishable by life imprisonment—imprisonment for 7 years; or

(c) if the offence incited is punishable by imprisonment for 10 years or more, but is not punishable by imprisonment for 14 years or more—imprisonment for 5 years; or

(d) if the offence is otherwise punishable by imprisonment—imprisonment for 3 years or for the maximum term of imprisonment for the offence incited, whichever is the lesser; or

(e) if the offence incited is not punishable by imprisonment—the number of penalty units equal to the maximum number of penalty units applicable to the offence incited.

Note: Under section 4D of the Crimes Act 1914, these penalties are only maximum penalties. Subsection 4B(2) of that Act allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment. If a body corporate is convicted of the offence, subsection 4B(3) of that Act allows a court to impose a fine of an amount not greater than 5 times the maximum fine that the court could impose on an individual convicted of the same offence. Penalty units are defined in section 4AA of that Act.

11.5 Conspiracy

(1) A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, commits the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed.

Note: Penalty units are defined in section 4AA of the Crimes Act 1914.

(2) For the person to be guilty:

(a) the person must have entered into an agreement with one or more other persons; and

(b) the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and

(2A) Subsection (2) has effect subject to subsection (7A).

(3) A person may be found guilty of conspiracy to commit an offence even if:

(a) committing the offence is impossible; or

(b) the only other party to the agreement is a body corporate; or

(i) a person who is not criminally responsible;

(ii) a person for whose benefit or protection the offence exists; or

(d) subject to paragraph (4)(a), all other parties to the agreement have been acquitted of the conspiracy.

(4) A person cannot be found guilty of conspiracy to commit an offence if:

(a) all other parties to the agreement have been acquitted of the conspiracy and a finding of guilt would be inconsistent with their acquittal; or

(b) he or she is a person for whose benefit or protection the offence exists.

(5) A person cannot be found guilty of conspiracy to commit an offence if, before the commission of an overt act pursuant to the agreement, the person:

(a) withdrew from the agreement; and

(b) took all reasonable steps to prevent the commission of the offence.

(6) A court may dismiss a charge of conspiracy if it thinks that the interests of justice require it to do so.

(7) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of conspiracy to commit that offence.

(7A) Any special liability provisions that apply to an offence apply also to the offence of conspiracy to commit that offence.

(8) Proceedings for an offence of conspiracy must not be commenced without the consent of the Director of Public Prosecutions. However, a person may be arrested for, charged with, or remanded in custody or on bail in connection with, an offence of conspiracy before the necessary consent has been given.

11.6 References in Acts to offences

(1) A reference in a law of the Commonwealth to an offence against a law of the Commonwealth (including this Code) includes a reference to an offence against section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) of this Code that relates to such an offence.

(2) A reference in a law of the Commonwealth (including this Code) to a particular offence includes a reference to an offence against section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) of this Code that relates to that particular offence.

(3) Subsection (1) or (2) does not apply if a law of the Commonwealth is expressly or impliedly to the contrary effect.

(4) In particular, an express reference in a law of the Commonwealth to:

(a) an offence against, under or created by the Crimes Act 1914; or

(b) an offence against, under or created by a particular provision of the Crimes Act 1914; or

(d) an offence arising out of a particular provision; or

(e) an offence against, under or created by the Taxation Administration Act 1953;

does not mean that the first‑mentioned law is impliedly to the contrary effect.

Note: Sections 11.2 (complicity and common purpose), 11.2A (joint commission), and 11.3 (commission by proxy) of this Code operate as extensions of principal offences and are therefore not referred to in this section.

Part 2.5—Corporate criminal responsibility

Division 12

12.1 General principles

(1) This Code applies to bodies corporate in the same way as it applies to individuals. It so applies with such modifications as are set out in this Part, and with such other modifications as are made necessary by the fact that criminal liability is being imposed on bodies corporate rather than individuals.

(2) A body corporate may be found guilty of any offence, including one punishable by imprisonment.

Note: Section 4B of the Crimes Act 1914 enables a fine to be imposed for offences that only specify imprisonment as a penalty.

12.2 Physical elements

If a physical element of an offence is committed by an employee, agent or officer of a body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, the physical element must also be attributed to the body corporate.

12.3 Fault elements other than negligence

(1) If intention, knowledge or recklessness is a fault element in relation to a physical element of an offence, that fault element must be attributed to a body corporate that expressly, tacitly or impliedly authorised or permitted the commission of the offence.

(2) The means by which such an authorisation or permission may be established include:

(a) proving that the body corporate’s board of directors intentionally, knowingly or recklessly carried out the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence; or

(b) proving that a high managerial agent of the body corporate intentionally, knowingly or recklessly engaged in the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence; or

(c) proving that a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to non‑compliance with the relevant provision; or

(d) proving that the body corporate failed to create and maintain a corporate culture that required compliance with the relevant provision.

(3) Paragraph (2)(b) does not apply if the body corporate proves that it exercised due diligence to prevent the conduct, or the authorisation or permission.

(4) Factors relevant to the application of paragraph (2)(c) or (d) include:

(a) whether authority to commit an offence of the same or a similar character had been given by a high managerial agent of the body corporate; and

(b) whether the employee, agent or officer of the body corporate who committed the offence believed on reasonable grounds, or entertained a reasonable expectation, that a high managerial agent of the body corporate would have authorised or permitted the commission of the offence.

(5) If recklessness is not a fault element in relation to a physical element of an offence, subsection (2) does not enable the fault element to be proved by proving that the board of directors, or a high managerial agent, of the body corporate recklessly engaged in the conduct or recklessly authorised or permitted the commission of the offence.

(6) In this section:

board of directors means the body (by whatever name called) exercising the executive authority of the body corporate.

corporate culture means an attitude, policy, rule, course of conduct or practice existing within the body corporate generally or in the part of the body corporate in which the relevant activities takes place.

high managerial agent means an employee, agent or officer of the body corporate with duties of such responsibility that his or her conduct may fairly be assumed to represent the body corporate’s policy.

12.4 Negligence

(1) The test of negligence for a body corporate is that set out in section 5.5.

(2) If:

(a) negligence is a fault element in relation to a physical element of an offence; and

(b) no individual employee, agent or officer of the body corporate has that fault element;

that fault element may exist on the part of the body corporate if the body corporate’s conduct is negligent when viewed as a whole (that is, by aggregating the conduct of any number of its employees, agents or officers).

(3) Negligence may be evidenced by the fact that the prohibited conduct was substantially attributable to:

(a) inadequate corporate management, control or supervision of the conduct of one or more of its employees, agents or officers; or

(b) failure to provide adequate systems for conveying relevant information to relevant persons in the body corporate.

12.5 Mistake of fact (strict liability)

(1) A body corporate can only rely on section 9.2 (mistake of fact (strict liability)) in respect of conduct that would, apart from this section, constitute an offence on its part if:

(a) the employee, agent or officer of the body corporate who carried out the conduct was under a mistaken but reasonable belief about facts that, had they existed, would have meant that the conduct would not have constituted an offence; and

(b) the body corporate proves that it exercised due diligence to prevent the conduct.

(2) A failure to exercise due diligence may be evidenced by the fact that the prohibited conduct was substantially attributable to:

(a) inadequate corporate management, control or supervision of the conduct of one or more of its employees, agents or officers; or

(b) failure to provide adequate systems for conveying relevant information to relevant persons in the body corporate.

12.6 Intervening conduct or event

A body corporate cannot rely on section 10.1 (intervening conduct or event) in respect of a physical element of an offence brought about by another person if the other person is an employee, agent or officer of the body corporate.

Part 2.6—Proof of criminal responsibility

Division 13

13.1 Legal burden of proof—prosecution

(1) The prosecution bears a legal burden of proving every element of an offence relevant to the guilt of the person charged.

Note: See section 3.2 on what elements are relevant to a person’s guilt.

(2) The prosecution also bears a legal burden of disproving any matter in relation to which the defendant has discharged an evidential burden of proof imposed on the defendant.

(3) In this Code:

legal burden, in relation to a matter, means the burden of proving the existence of the matter.

13.2 Standard of proof—prosecution

(1) A legal burden of proof on the prosecution must be discharged beyond reasonable doubt.

(2) Subsection (1) does not apply if the law creating the offence specifies a different standard of proof.

13.3 Evidential burden of proof—defence

(1) Subject to section 13.4, a burden of proof that a law imposes on a defendant is an evidential burden only.

(2) A defendant who wishes to deny criminal responsibility by relying on a provision of Part 2.3 (other than section 7.3) bears an evidential burden in relation to that matter.

(3) A defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter. The exception, exemption, excuse, qualification or justification need not accompany the description of the offence.

(4) The defendant no longer bears the evidential burden in relation to a matter if evidence sufficient to discharge the burden is adduced by the prosecution or by the court.

(5) The question whether an evidential burden has been discharged is one of law.

(6) In this Code:

evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

13.4 Legal burden of proof—defence

A burden of proof that a law imposes on the defendant is a legal burden if and only if the law expressly:

(a) specifies that the burden of proof in relation to the matter in question is a legal burden; or

(b) requires the defendant to prove the matter; or

13.5 Standard of proof—defence

A legal burden of proof on the defendant must be discharged on the balance of probabilities.

13.6 Use of averments

A law that allows the prosecution to make an averment is taken not to allow the prosecution:

(a) to aver any fault element of an offence; or

(b) to make an averment in prosecuting for an offence that is directly punishable by imprisonment.

Part 2.7—Geographical jurisdiction

Division 14—Standard geographical jurisdiction

14.1 Standard geographical jurisdiction

(1) This section may apply to a particular offence in either of the following ways:

(a) unless the contrary intention appears, this section applies to the following offences:

(i) a primary offence, where the provision creating the offence commences at or after the commencement of this section;

(ii) an ancillary offence, to the extent to which it relates to a primary offence covered by subparagraph (i);

(b) if a law of the Commonwealth provides that this section applies to a particular offence—this section applies to that offence.

Note: In the case of paragraph (b), the expression offence is given an extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(1).

(2) If this section applies to a particular offence, a person does not commit the offence unless:

(a) the conduct constituting the alleged offence occurs:

(i) wholly or partly in Australia; or

(ii) wholly or partly on board an Australian aircraft or an Australian ship; or

(b) the conduct constituting the alleged offence occurs wholly outside Australia and a result of the conduct occurs:

(i) wholly or partly in Australia; or

(ii) wholly or partly on board an Australian aircraft or an Australian ship; or

(i) the alleged offence is an ancillary offence;

(ii) the conduct constituting the alleged offence occurs wholly outside Australia;

(iii) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship.

Defence—primary offence

(3) If this section applies to a particular offence, a person does not commit the offence if:

(aa) the alleged offence is a primary offence; and

(a) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and

(b) there is not in force in:

(i) the foreign country where the conduct constituting the alleged offence occurs; or

(ii) the part of the foreign country where the conduct constituting the alleged offence occurs;

a law of that foreign country, or a law of that part of that foreign country, that creates an offence that corresponds to the first‑mentioned offence.

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

(4) For the purposes of the application of subsection 13.3(3) to an offence, subsection (3) of this section is taken to be an exception provided by the law creating the offence.

Defence—ancillary offence

(5) If this section applies to a particular offence, a person does not commit the offence if:

(a) the alleged offence is an ancillary offence; and

(b) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and

(c) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and

(d) there is not in force in:

(i) the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur; or

(ii) the part of the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur;

a law of that foreign country, or a law of that part of that foreign country, that creates an offence that corresponds to the primary offence.

Note: A defendant bears an evidential burden in relation to the matters in subsection (5). See subsection 13.3(3).

(6) For the purposes of the application of subsection 13.3(3) to an offence, subsection (5) of this section is taken to be an exception provided by the law creating the offence.

Division 15—Extended geographical jurisdiction

15.1 Extended geographical jurisdiction—category A

(1) If a law of the Commonwealth provides that this section applies to a particular offence, a person does not commit the offence unless:

(a) the conduct constituting the alleged offence occurs:

(i) wholly or partly in Australia; or

(ii) wholly or partly on board an Australian aircraft or an Australian ship; or

(b) the conduct constituting the alleged offence occurs wholly outside Australia and a result of the conduct occurs:

(i) wholly or partly in Australia; or

(ii) wholly or partly on board an Australian aircraft or an Australian ship; or

(i) at the time of the alleged offence, the person is an Australian citizen; or

(ii) at the time of the alleged offence, the person is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or

(d) all of the following conditions are satisfied:

(i) the alleged offence is an ancillary offence;

(ii) the conduct constituting the alleged offence occurs wholly outside Australia;

Note: The expression offence is given an extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(1).

Defence—primary offence

(2) If a law of the Commonwealth provides that this section applies to a particular offence, a person does not commit the offence if:

(aa) the alleged offence is a primary offence; and

(a) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and

(b) the person is neither:

(i) an Australian citizen; nor

(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and

(i) the foreign country where the conduct constituting the alleged offence occurs; or

(ii) the part of the foreign country where the conduct constituting the alleged offence occurs;

a law of that foreign country, or a law of that part of that foreign country, that creates an offence that corresponds to the first‑mentioned offence.

Note: A defendant bears an evidential burden in relation to the matters in subsection (2). See subsection 13.3(3).

(3) For the purposes of the application of subsection 13.3(3) to an offence, subsection (2) of this section is taken to be an exception provided by the law creating the offence.

Defence—ancillary offence

(4) If a law of the Commonwealth provides that this section applies to a particular offence, a person does not commit the offence if:

(a) the alleged offence is an ancillary offence; and

(b) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and

(d) the person is neither:

(i) an Australian citizen; nor

(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and

(e) there is not in force in:

(i) the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur; or

a law of that foreign country, or a law of that part of that foreign country, that creates an offence that corresponds to the primary offence.

Note: A defendant bears an evidential burden in relation to the matters in subsection (4). See subsection 13.3(3).

(5) For the purposes of the application of subsection 13.3(3) to an offence, subsection (4) of this section is taken to be an exception provided by the law creating the offence.

15.2 Extended geographical jurisdiction—category B

(1) If a law of the Commonwealth provides that this section applies to a particular offence, a person does not commit the offence unless:

(a) the conduct constituting the alleged offence occurs:

(i) wholly or partly in Australia; or

(ii) wholly or partly on board an Australian aircraft or an Australian ship; or

(b) the conduct constituting the alleged offence occurs wholly outside Australia and a result of the conduct occurs:

(i) wholly or partly in Australia; or

(ii) wholly or partly on board an Australian aircraft or an Australian ship; or

(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;

Note: The expression offence is given an extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(1).

Defence—primary offence

(2) If a law of the Commonwealth provides that this section applies to a particular offence, a person does not commit the offence if:

(aa) the alleged offence is a primary offence; and

(a) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and

(b) the person is neither:

(i) an Australian citizen; nor

(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and

(i) the foreign country where the conduct constituting the alleged offence occurs; or

(ii) the part of the foreign country where the conduct constituting the alleged offence occurs;

a law of that foreign country, or a law of that part of that foreign country, that creates an offence that corresponds to the first‑mentioned offence.

Note: A defendant bears an evidential burden in relation to the matters in subsection (2). See subsection 13.3(3).

(3) For the purposes of the application of subsection 13.3(3) to an offence, subsection (2) of this section is taken to be an exception provided by the law creating the offence.

Defence—ancillary offence

(4) If a law of the Commonwealth provides that this section applies to a particular offence, a person does not commit the offence if:

(a) the alleged offence is an ancillary offence; and

(b) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and

(d) the person is neither:

(i) an Australian citizen; nor

(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and

(e) there is not in force in:

(i) the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur; or

a law of that foreign country, or a law of that part of that foreign country, that creates an offence that corresponds to the primary offence.

Note: A defendant bears an evidential burden in relation to the matters in subsection (4). See subsection 13.3(3).

(5) For the purposes of the application of subsection 13.3(3) to an offence, subsection (4) of this section is taken to be an exception provided by the law creating the offence.

15.3 Extended geographical jurisdiction—category C

(1) If a law of the Commonwealth provides that this section applies to a particular offence, the offence applies:

(a) whether or not the conduct constituting the alleged offence occurs in Australia; and

(b) whether or not a result of the conduct constituting the alleged offence occurs in Australia.

Note: The expression offence is given an extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(1).

Defence—primary offence

(2) If a law of the Commonwealth provides that this section applies to a particular offence, a person is not guilty of the offence if:

(aa) the alleged offence is a primary offence; and

(a) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and

(b) the person is neither:

(i) an Australian citizen; nor

(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and

(i) the foreign country where the conduct constituting the alleged offence occurs; or

(ii) the part of the foreign country where the conduct constituting the alleged offence occurs;

a law of that foreign country, or that part of that foreign country, that creates an offence that corresponds to the first‑mentioned offence.

Note: A defendant bears an evidential burden in relation to the matters in subsection (2). See subsection 13.3(3).

(3) For the purposes of the application of subsection 13.3(3) to an offence, subsection (2) of this section is taken to be an exception provided by the law creating the offence.

Defence—ancillary offence

(4) If a law of the Commonwealth provides that this section applies to a particular offence, a person is not guilty of the offence if:

(a) the alleged offence is an ancillary offence; and

(b) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and

(d) the person is neither:

(i) an Australian citizen; nor

(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and

(e) there is not in force in:

(i) the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur; or

a law of that foreign country, or a law of that part of that foreign country, that creates an offence that corresponds to the primary offence.

Note: A defendant bears an evidential burden in relation to the matters in subsection (4). See subsection 13.3(3).

(5) For the purposes of the application of subsection 13.3(3) to an offence, subsection (4) of this section is taken to be an exception provided by the law creating the offence.

15.4 Extended geographical jurisdiction—category D

If a law of the Commonwealth provides that this section applies to a particular offence, the offence applies:

(a) whether or not the conduct constituting the alleged offence occurs in Australia; and

(b) whether or not a result of the conduct constituting the alleged offence occurs in Australia.

Note: The expression offence is given an extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(1).

Division 16—Miscellaneous

16.1 Attorney‑General’s consent required for prosecution if alleged conduct occurs wholly in a foreign country in certain circumstances

(1) Proceedings for an offence must not be commenced without the Attorney‑General’s written consent if:

(a) section 14.1, 15.1, 15.2, 15.3 or 15.4 applies to the offence; and

(b) the conduct constituting the alleged offence occurs wholly in a foreign country; and

(i) an Australian citizen; nor

(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

(2) However, a person may be arrested for, charged with, or remanded in custody or released on bail in connection with an offence before the necessary consent has been given.

16.2 When conduct taken to occur partly in Australia

Sending things

(1) For the purposes of this Part, if a person sends a thing, or causes a thing to be sent:

(a) from a point outside Australia to a point in Australia; or

(b) from a point in Australia to a point outside Australia;

that conduct is taken to have occurred partly in Australia.

Sending electronic communications

(2) For the purposes of this Part, if a person sends, or causes to be sent, an electronic communication:

(a) from a point outside Australia to a point in Australia; or

(b) from a point in Australia to a point outside Australia;

that conduct is taken to have occurred partly in Australia.

Point

(3) For the purposes of this section, point includes a mobile or potentially mobile point, whether on land, underground, in the atmosphere, underwater, at sea or anywhere else.

16.3 Meaning of Australia

(1) For the purposes of the application of this Part to a particular primary offence, Australia has the same meaning it would have if it were used in a geographical sense in the provision creating the primary offence.

(2) For the purposes of the application of this Part to a particular ancillary offence, Australia has the same meaning it would have if it were used in a geographical sense in the provision creating the primary offence to which the ancillary offence relates.

(3) For the purposes of this Part, if a provision creating an offence extends to an external Territory, it is to be assumed that if the expression Australia were used in a geographical sense in that provision, that expression would include that external Territory.

(4) This section does not affect the meaning of the expressions Australian aircraft, Australian citizen or Australian ship.

16.4 Result of conduct

A reference in this Part to a result of conduct constituting an offence is a reference to a result that is a physical element of the offence (within the meaning of subsection 4.1(1)).

Chapter 4—The integrity and security of the international community and foreign governments

Division 70—Bribery of foreign public officials

70.1 Definitions

In this Division:

benefit includes any advantage and is not limited to property.

business advantage means an advantage in the conduct of business.

control, in relation to a company, body or association, includes control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights.

duty, in relation to a foreign public official, means any authority, duty, function or power that:

(a) is conferred on the official; or

(b) that the official holds himself or herself out as having.

foreign government body means:

(a) the government of a foreign country or of part of a foreign country; or

(b) an authority of the government of a foreign country; or

(d) a foreign local government body or foreign regional government body; or

(e) a foreign public enterprise.

foreign public enterprise means a company or any other body or association where:

(a) in the case of a company—one of the following applies:

(i) the government of a foreign country or of part of a foreign country holds more than 50% of the issued share capital of the company;

(ii) the government of a foreign country or of part of a foreign country holds more than 50% of the voting power in the company;

(iii) the government of a foreign country or of part of a foreign country is in a position to appoint more than 50% of the company’s board of directors;

(iv) the directors (however described) of the company are accustomed or under an obligation (whether formal or informal) to act in accordance with the directions, instructions or wishes of the government of a foreign country or of part of a foreign country;

(v) the government of a foreign country or of part of a foreign country is in a position to exercise control over the company; and

(b) in the case of any other body or association—either of the following applies:

(i) the members of the executive committee (however described) of the body or association are accustomed or under an obligation (whether formal or informal) to act in accordance with the directions, instructions or wishes of the government of a foreign country or of part of a foreign country;

(ii) the government of a foreign country or of part of a foreign country is in a position to exercise control over the body or association; and

(i) enjoys special legal rights or a special legal status under a law of a foreign country or of part of a foreign country; or

(ii) enjoys special benefits or privileges under a law of a foreign country or of part of a foreign country;

because of the relationship of the company, body or association with the government of the foreign country or of the part of the foreign country, as the case may be.

foreign public official means:

(a) an employee or official of a foreign government body; or

(b) an individual who performs work for a foreign government body under a contract; or

(c) an individual who holds or performs the duties of an appointment, office or position under a law of a foreign country or of part of a foreign country; or

(d) an individual who holds or performs the duties of an appointment, office or position created by custom or convention of a foreign country or of part of a foreign country; or

(e) an individual who is otherwise in the service of a foreign government body (including service as a member of a military force or police force); or

(f) a member of the executive, judiciary or magistracy of a foreign country or of part of a foreign country; or

(g) an employee of a public international organisation; or

(h) an individual who performs work for a public international organisation under a contract; or

(i) an individual who holds or performs the duties of an office or position in a public international organisation; or

(j) an individual who is otherwise in the service of a public international organisation; or

(k) a member or officer of the legislature of a foreign country or of part of a foreign country; or

(l) an individual who:

(i) is an authorised intermediary of a foreign public official covered by any of the above paragraphs; or

(ii) holds himself or herself out to be the authorised intermediary of a foreign public official covered by any of the above paragraphs.

public international organisation means:

(a) an organisation:

(i) of which 2 or more countries, or the governments of 2 or more countries, are members; or

(ii) that is constituted by persons representing 2 or more countries, or representing the governments of 2 or more countries; or

(b) an organisation established by, or a group of organisations constituted by:

(i) organisations of which 2 or more countries, or the governments of 2 or more countries, are members; or

(ii) organisations that are constituted by the representatives of 2 or more countries, or the governments of 2 or more countries; or

(i) an organ of, or office within, an organisation described in paragraph (a) or (b); or

(ii) a commission, council or other body established by an organisation so described or such an organ; or

(iii) a committee, or subcommittee of a committee, of an organisation described in paragraph (a) or (b), or of such an organ, council or body.

share includes stock.

70.2 Bribing a foreign public official

(1) A person commits an offence if:

(a) the person:

(i) provides a benefit to another person; or

(ii) causes a benefit to be provided to another person; or

(iii) offers to provide, or promises to provide, a benefit to another person; or

(iv) causes an offer of the provision of a benefit, or a promise of the provision of a benefit, to be made to another person; and

(b) the benefit is not legitimately due to the other person; and

(c) the first‑mentioned person does so with the intention of influencing a foreign public official (who may be the other person) in the exercise of the official’s duties as a foreign public official in order to:

(i) obtain or retain business; or

(ii) obtain or retain a business advantage that is not legitimately due to the recipient, or intended recipient, of the business advantage (who may be the first‑mentioned person).

Note: For defences see sections 70.3 and 70.4.

(1A) For the purposes of paragraph (1)(c):

(a) the first‑mentioned person does not need to intend to influence a particular foreign public official; and

(b) business, or a business advantage, does not need to be actually obtained or retained.

Benefit that is not legitimately due

(2) For the purposes of this section, in working out if a benefit is not legitimately due to a person in a particular situation, disregard the following:

(a) the fact that the benefit may be, or be perceived to be, customary, necessary or required in the situation;

(b) the value of the benefit;

Business advantage that is not legitimately due

(3) For the purposes of this section, in working out if a business advantage is not legitimately due to a person in a particular situation, disregard the following:

(a) the fact that the business advantage may be customary, or perceived to be customary, in the situation;

(b) the value of the business advantage;

Penalty for individual

(4) An offence against subsection (1) committed by an individual is punishable on conviction by imprisonment for not more than 10 years, a fine not more than 10,000 penalty units, or both.

Penalty for body corporate

(5) An offence against subsection (1) committed by a body corporate is punishable on conviction by a fine not more than the greatest of the following:

(a) 100,000 penalty units;

(b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the conduct constituting the offence—3 times the value of that benefit;

(c) if the court cannot determine the value of that benefit—10% of the annual turnover of the body corporate during the period (the turnover period) of 12 months ending at the end of the month in which the conduct constituting the offence occurred.

(6) 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.

(7) Expressions used in subsection (6) that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning in that subsection as they have in that Act.

(8) 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.

70.3 Defence—conduct lawful in foreign public official’s country

(1) A person does not commit an offence against section 70.2 in the cases set out in the following table:

Defence of lawful conduct
Item	In a case where the person’s conduct occurred in relation to this kind of foreign public official...	and if it were assumed that the person’s conduct had occurred wholly...	this written law requires or permits the provision of the benefit ...
1	an employee or official of a foreign government body	in the place where the central administration of the body is located	a written law in force in that place
2	an individual who performs work for a foreign government body under a contract	in the place where the central administration of the body is located	a written law in force in that place
3	an individual who holds or performs the duties of an appointment, office or position under a law of a foreign country or of part of a foreign country	in the foreign country or in the part of the foreign country, as the case may be	a written law in force in the foreign country or in the part of the foreign country, as the case may be
4	an individual who holds or performs the duties of an appointment, office or position created by custom or convention of a foreign country or of part of a foreign country	in the foreign country or in the part of the foreign country, as the case may be	a written law in force in the foreign country or in the part of the foreign country, as the case may be
5	an individual who is otherwise in the service of a foreign government body (including service as a member of a military force or police force)	in the place where the central administration of the body is located	a written law in force in that place
6	a member of the executive, judiciary or magistracy of a foreign country or of part of a foreign country	in the foreign country or in the part of the foreign country, as the case may be	a written law in force in the foreign country or in the part of the foreign country, as the case may be
7	an employee of a public international organisation	in the place where the headquarters of the organisation is located	a written law in force in that place
8	an individual who performs work for a public international organisation under a contract	in the place where the headquarters of the organisation is located	a written law in force in that place
9	an individual who holds or performs the duties of a public office or position in a public international organisation	in the place where the headquarters of the organisation is located	a written law in force in that place
10	an individual who is otherwise in the service of a public international organisation	in the place where the headquarters of the organisation is located	a written law in force in that place
11	a member or officer of the legislature of a foreign country or of part of a foreign country	in the foreign country or in the part of the foreign country, as the case may be	a written law in force in the foreign country or in the part of the foreign country, as the case may be

Note: A defendant bears an evidential burden in relation to the matter in subsection (1). See subsection 13.3(3).

(2) A person does not commit an offence against section 70.2 if:

(a) the person’s conduct occurred in relation to a foreign public official covered by paragraph (l) of the definition of foreign public official in section 70.1 (which deals with intermediaries of foreign public officials covered by other paragraphs of that definition); and

(b) assuming that the first‑mentioned person’s conduct had occurred instead in relation to:

(i) the other foreign public official of whom the first‑mentioned foreign public official was an authorised intermediary; or

(ii) the other foreign public official in relation to whom the first‑mentioned foreign public official held himself or herself out to be an authorised intermediary;

subsection (1) would have applied in relation to the first‑mentioned person.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2). See subsection 13.3(3).

(3) To avoid doubt, if:

(a) a person’s conduct occurred in relation to a foreign public official covered by 2 or more paragraphs of the definition of foreign public official in section 70.1; and

(b) at least one of the corresponding items in subsection (1) is applicable to the conduct of the first‑mentioned person;

subsection (1) applies to the conduct of the first‑mentioned person.

70.4 Defence—facilitation payments

(1) A person does not commit an offence against section 70.2 if:

(a) the value of the benefit was of a minor nature; and

(b) the person’s conduct was engaged in for the sole or dominant purpose of expediting or securing the performance of a routine government action of a minor nature; and

(c) as soon as practicable after the conduct occurred, the person made a record of the conduct that complies with subsection (3); and

(d) any of the following subparagraphs applies:

(i) the person has retained that record at all relevant times;

(ii) that record has been lost or destroyed because of the actions of another person over whom the first‑mentioned person had no control, or because of a non‑human act or event over which the first‑mentioned person had no control, and the first‑mentioned person could not reasonably be expected to have guarded against the bringing about of that loss or that destruction;

(iii) a prosecution for the offence is instituted more than 7 years after the conduct occurred.

Note: A defendant bears an evidential burden in relation to the matter in subsection (1). See subsection 13.3(3).

Routine government action

(2) For the purposes of this section, a routine government action is an action of a foreign public official that:

(a) is ordinarily and commonly performed by the official; and

(b) is covered by any of the following subparagraphs:

(i) granting a permit, licence or other official document that qualifies a person to do business in a foreign country or in a part of a foreign country;

(ii) processing government papers such as a visa or work permit;

(iii) providing police protection or mail collection or delivery;

(iv) scheduling inspections associated with contract performance or related to the transit of goods;

(v) providing telecommunications services, power or water;

(vi) loading and unloading cargo;

(vii) protecting perishable products, or commodities, from deterioration;

(viii) any other action of a similar nature; and

(i) whether to award new business; or

(ii) whether to continue existing business with a particular person; or

(iii) the terms of new business or existing business; and

(d) does not involve encouraging a decision about:

(i) whether to award new business; or

(ii) whether to continue existing business with a particular person; or

(iii) the terms of new business or existing business.

Content of records

(3) A record of particular conduct engaged in by a person complies with this subsection if the record sets out:

(a) the value of the benefit concerned; and

(b) the date on which the conduct occurred; and

(d) if that foreign public official is not the other person mentioned in paragraph 70.2(1)(a)—the identity of that other person; and

(e) particulars of the routine government action that was sought to be expedited or secured by the conduct; and

(f) the person’s signature or some other means of verifying the person’s identity.

70.5 Territorial and nationality requirements

(1) A person does not commit an offence against section 70.2 unless:

(a) the conduct constituting the alleged offence occurs:

(i) wholly or partly in Australia; or

(ii) wholly or partly on board an Australian aircraft or an Australian ship; or

(b) the conduct constituting the alleged offence occurs wholly outside Australia and:

(i) at the time of the alleged offence, the person is an Australian citizen; or

(ii) at the time of the alleged offence, the person is a resident of Australia; or

(iii) at the time of the alleged offence, the person is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

Note: The expression offence against section 70.2 is given an extended meaning by subsections 11.2(1), 11.2A(1) and 11.6(2).

(2) Proceedings for an offence against section 70.2 must not be commenced without the Attorney‑General’s written consent if:

(a) the conduct constituting the alleged offence occurs wholly outside Australia; and

(b) at the time of the alleged offence, the person alleged to have committed the offence is:

(i) a resident of Australia; and

(ii) not an Australian citizen.

(3) However, a person may be arrested for, charged with, or remanded in custody or released on bail in connection with an offence against section 70.2 before the necessary consent has been given.

70.6 Saving of other laws

This Division is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory.

Division 71—Offences against United Nations and associated personnel

71.1 Purpose

The purpose of this Division is to protect United Nations and associated personnel and give effect to the Convention on the Safety of United Nations and Associated Personnel.

71.2 Murder of a UN or associated person

(1) A person commits an offence if:

(a) the person’s conduct causes the death of another person; and

(b) that other person is a UN or associated person; and

(d) the first‑mentioned person intends to cause, or is reckless as to causing, the death of the UN or associated person or any other person by the conduct.

Penalty: Imprisonment for life.

Note: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.

(2) Strict liability applies to paragraphs (1)(b) and (c).

71.3 Manslaughter of a UN or associated person

(1) A person commits an offence if:

(a) the person’s conduct causes the death of another person; and

(b) that other person is a UN or associated person; and

(d) the first‑mentioned person intends to cause, or is reckless as to causing, serious harm to the UN or associated person or any other person by the conduct.

Penalty: Imprisonment for 25 years.

Note: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.

(2) Strict liability applies to paragraphs (1)(b) and (c).

71.4 Intentionally causing serious harm to a UN or associated person

(1) A person commits an offence if:

(a) the person’s conduct causes serious harm to another person; and

(b) that other person is a UN or associated person; and

(d) the first‑mentioned person intends to cause serious harm to the UN or associated person or any other person by the conduct.

Penalty: Imprisonment for 20 years.

Penalty (aggravated offence): Imprisonment for 25 years.

Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.

Note 2: Section 71.13 defines aggravated offence.

(2) Strict liability applies to paragraphs (1)(b) and (c).

71.5 Recklessly causing serious harm to a UN or associated person

(1) A person commits an offence if:

(a) the person’s conduct causes serious harm to another person; and

(b) that other person is a UN or associated person; and

(d) the first‑mentioned person is reckless as to causing serious harm to the UN or associated person or any other person by the conduct.

Penalty: Imprisonment for 15 years.

Penalty (aggravated offence): Imprisonment for 19 years.

Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.

Note 2: Section 71.13 defines aggravated offence.

(2) Strict liability applies to paragraphs (1)(b) and (c).

71.6 Intentionally causing harm to a UN or associated person

(1) A person commits an offence if:

(a) the person’s conduct causes harm to another person without the consent of that person; and

(b) that other person is a UN or associated person; and

(d) the first‑mentioned person intends to cause harm to the UN or associated person or any other person by the conduct.

Penalty: Imprisonment for 10 years.

Penalty (aggravated offence): Imprisonment for 13 years.

Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.

Note 2: Section 71.13 defines aggravated offence.

(2) Strict liability applies to paragraphs (1)(b) and (c).

71.7 Recklessly causing harm to a UN or associated person

(1) A person commits an offence if:

(a) the person’s conduct causes harm to another person without the consent of that person; and

(b) that other person is a UN or associated person; and

(d) the first‑mentioned person is reckless as to causing harm to the UN or associated person or any other person by the conduct.

Penalty: Imprisonment for 7 years.

Penalty (aggravated offence): Imprisonment for 9 years.

Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.

Note 2: Section 71.13 defines aggravated offence.

(2) Strict liability applies to paragraphs (1)(b) and (c).

71.8 Unlawful sexual penetration

(1) A person commits an offence if:

(a) the person sexually penetrates another person without the consent of that person; and

(b) that other person is a UN or associated person; and

(d) the first‑mentioned person knows about, or is reckless as to, the lack of consent.

Penalty: Imprisonment for 15 years.

Penalty (aggravated offence): Imprisonment for 20 years.

Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.

Note 2: Section 71.13 defines aggravated offence.

(2) Strict liability applies to paragraphs (1)(b) and (c).

(3) In this section:

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

(4) In this section, being reckless as to a lack of consent to sexual penetration includes not giving any thought to whether or not the person is consenting to sexual penetration.

(5) In this section, the genitalia or others parts of the body of a person include surgically constructed genitalia or other parts of the body of the person.

71.9 Kidnapping a UN or associated person

(1) A person commits an offence if:

(a) the person takes or detains another person without his or her consent; and

(b) that other person is a UN or associated person; and

(d) the first‑mentioned person takes or detains the UN or associated person with the intention of:

(i) holding him or her to ransom or as a hostage; or

(ii) taking or sending him or her out of the country; or

(iii) committing a serious offence against him or her or another person.

Penalty: Imprisonment for 15 years.

Penalty (aggravated offence): Imprisonment for 19 years.

Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.

Note 2: Section 71.13 defines aggravated offence.

(2) Strict liability applies to paragraphs (1)(b) and (c).

(3) In this section, serious offence means an offence under a law of the Commonwealth, a State or Territory or a foreign law the maximum penalty for which is death, or imprisonment for not less than 12 months.

71.10 Unlawful detention of UN or associated person

(1) A person commits an offence if:

(a) the person takes or detains another person without that other person’s consent; and

(b) that other person is a UN or associated person; and

Penalty: Imprisonment for 5 years.

Penalty (aggravated offence): Imprisonment for 6 years.

Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.

Note 2: Section 71.13 defines aggravated offence.

(2) Strict liability applies to paragraphs (1)(b) and (c).

71.11 Intentionally causing damage to UN or associated person’s property etc.

(1) A person commits an offence if:

(a) the person’s conduct causes damage to official premises, private accommodation or a means of transportation (the property); and

(b) the property is occupied or used by a UN or associated person; and

(d) that person is the UN or associated person referred to in paragraph (b); and

(e) the UN or associated person is engaged in a UN operation that is not a UN enforcement action; and

(f) the first‑mentioned person intends to cause the damage to the property; and

(g) the first‑mentioned person is reckless as to the danger to the person referred to in paragraph (c).

Penalty: Imprisonment for 10 years.

Note: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.

(2) Strict liability applies to paragraphs (1)(b), (d) and (e).

71.12 Threatening to commit other offences

A person commits an offence if the person:

(a) threatens to commit an offence (the threatened offence) under any of sections 71.2 to 71.11; and

(b) intends to compel any other person to do or omit to do an act by making the threat.

Penalty:

(a) if the threatened offence is the offence under section 71.2 (murder of a UN or associated person)—imprisonment for 10 years; or

(b) if the threatened offence is the offence under section 71.3, 71.4, 71.5, 71.8 or 71.9 (manslaughter of, causing serious harm to, kidnapping, or sexually penetrating, a UN or associated person)—imprisonment for 7 years; or

(c) if the threatened offence is the offence under section 71.6 or 71.11 (causing harm to, or damaging the property etc. of, a UN or associated person)—imprisonment for 5 years; or

(d) if the threatened offence is the offence under section 71.7 or 71.10 (recklessly causing harm to, or unlawful detention of, a UN or associated person)—imprisonment for 3 years.

Note: Section 71.23 defines UN or associated person.

71.13 Aggravated offences

(1) For the purposes of this Division, an offence against section 71.4, 71.5, 71.6, 71.7, 71.8, 71.9 or 71.10 is an aggravated offence if:

(a) the offence was committed during the deliberate and systematic infliction of severe pain over a period of time; or

(b) the offence was committed by the use or threatened use of an offensive weapon; or

(2) If the prosecution intends to prove an aggravated offence, the charge must allege the relevant aggravated offence.

(3) In order to prove an aggravated offence, the prosecution must prove that the defendant intended to commit, or was reckless as to committing, the matters referred to in paragraph (1)(a), (b) or (c).

(4) In this section:

offensive weapon includes:

(a) an article made or adapted for use for causing injury to, or incapacitating, a person; or

(b) an article where the person who has the article intends, or threatens to use, the article to cause injury to, or to incapacitate, another person.

71.14 Defence—activities involving serious harm

A person is not criminally responsible for an offence against section 71.4 or 71.5 if the conduct causing serious harm to another person is engaged in by the first‑mentioned person:

(a) for the purpose of benefiting the other person or in pursuance of a socially acceptable function or activity; and

(b) having regard to the purpose, function or activity, the conduct was reasonable.

Note 1: If a person causes less than serious harm to another person, the prosecution is obliged to prove that the harm was caused without the consent of the person harmed (see for example section 71.6).

Note 2: A defendant bears an evidential burden in relation to the matter in this section, see subsection 13.3(3).

71.15 Defence—medical or hygienic procedures

A person is not criminally responsible for an offence against section 71.8 in respect of any sexual penetration carried out in the course of a procedure in good faith for medical or hygienic purposes.

Note: A defendant bears an evidential burden in relation to the matter in this section, see subsection 13.3(3).

71.16 Jurisdictional requirement

A person commits an offence under this Division only if:

(a) the conduct constituting the alleged offence occurs:

(i) wholly or partly in Australia; or

(ii) wholly or partly on board an Australian aircraft or an Australian ship; or

(b) the conduct constituting the alleged offence occurs wholly outside Australia and:

(i) at the time of the alleged offence, the person is an Australian citizen; or

(ii) at the time of the alleged offence, the person is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or

(iii) at the time of the alleged offence, the person is a stateless person whose habitual residence is in Australia; or

(iv) the conduct is subject to the jurisdiction of another State Party to the Convention established in accordance with paragraph 1 or 2 of article 10 and the person enters Australia; or

(d) by engaging in the conduct constituting the alleged offence, the person intends to compel a legislative, executive or judicial institution of the Commonwealth, a State or a Territory to do or omit to do an act.

71.17 Exclusion of this Division if State/Territory laws provide for corresponding offences

(1) A State or Territory court does not have jurisdiction to determine a charge of an offence under this Division if the conduct constituting the offence also constitutes an offence (the State offence) against the law of that State or Territory.

(2) If:

(a) a prosecution is brought against a person under this Division; and

(b) a court finds that there is a corresponding State offence;

then this section does not prevent the person from being prosecuted for the State offence.

71.18 Double jeopardy

If a person has been convicted or acquitted of an offence in respect of conduct under the law of a foreign country, the person cannot be convicted of an offence under this Division in respect of that conduct.

71.19 Saving of other laws

This Division is not intended to exclude or limit the operation of any other law of the Commonwealth or of a State or Territory.

71.20 Bringing proceedings under this Division

(1) Proceedings for an offence under this Division must not be commenced without the Attorney‑General’s written consent.

(2) However, a person may be arrested, charged, remanded in custody, or released on bail, in connection with an offence under this Division before the necessary consent has been given.

71.21 Ministerial certificates relating to proceedings

(1) The Foreign Affairs Minister may issue a certificate stating any of the following matters:

(a) the Convention entered into force for Australia on a specified day;

(b) the Convention remains in force for Australia or any other State Party on a specified day;

(c) a matter relevant to the establishment of jurisdiction by a State Party under paragraph 1 or 2 of article 10 of the Convention;

(d) a matter relevant to whether a person is or was a UN or associated person;

(e) a matter relevant to whether an operation is or was a UN operation.

(2) The Immigration Minister may issue a certificate stating that:

(a) a person is or was an Australian citizen at a particular time; or

(b) a person is or was a stateless person whose habitual residence is or was in Australia.

(3) In any proceedings, a certificate under this section is prima facie evidence of the matters in the certificate.

71.22 Jurisdiction of State courts preserved

For the purposes of section 38 of the Judiciary Act 1903, a matter arising under this Act, including a question of interpretation of the Convention, is taken not to be a matter arising directly under a treaty.

71.23 Definitions

(1) In this Division:

associated personnel means:

(a) persons assigned by a government, or an intergovernmental organisation, with the agreement of the competent organ of the United Nations; or

(b) persons engaged by the Secretary‑General of the United Nations, a specialised agency or the International Atomic Energy Agency; or

(c) persons deployed by a humanitarian non‑governmental organisation or agency under an agreement with the Secretary‑General of the United Nations, a specialised agency or the International Atomic Energy Agency;

to carry out activities in support of the fulfilment of the mandate of a UN operation.

Convention means the Convention on the Safety of United Nations and Associated Personnel, done at New York on 9 December 1994.

Note: The text of the Convention is set out in Australian Treaty Series 1995 No. 1. In 2000 this was available in the Australian Treaties Library of the Department of Foreign Affairs and Trade, accessible through that Department’s website.

Foreign Affairs Minister means the Minister administering the Diplomatic Privileges and Immunities Act 1967.

Immigration Minister means the Minister administering the Migration Act 1958.

UN enforcement action means a UN operation:

(a) that is authorised by the Security Council as an enforcement action under Chapter VII of the Charter of the United Nations; and

(b) in which any of the UN or associated personnel are engaged as combatants against organised armed forces; and

UN operation means an operation established by the competent organ of the United Nations in accordance with the Charter of the United Nations and conducted under United Nations authority and control if:

(a) the operation is for the purpose of maintaining or restoring international peace and security; or

(b) the Security Council or the General Assembly has declared, for the purposes of the Convention, that there exists an exceptional risk to the safety of the personnel engaged in the operation.

UN or associated person means a person who is a member of any UN personnel or associated personnel.

UN personnel means:

(a) persons engaged or deployed by the Secretary‑General of the United Nations as members of the military, police or civilian components of a UN operation; or

(b) any other officials or experts on mission of the United Nations, its specialised agencies or the International Atomic Energy Agency who are present in an official capacity in the area where a UN operation is being conducted.

(2) In this Division, a person’s conduct causes death or harm if it substantially contributes to the death or harm.

Division 72—Explosives and lethal devices

Subdivision A—International terrorist activities using explosive or lethal devices

72.1 Purpose

The purpose of this Subdivision is to create offences relating to international terrorist activities using explosive or lethal devices and give effect to the International Convention for the Suppression of Terrorist Bombings, done at New York on 15 December 1997.

Note: The text of the Convention is available in the Australian Treaties Library of the Department of Foreign Affairs and Trade, accessible through that Department’s website.

72.2 ADF members not liable for prosecution

Nothing in this Subdivision makes a member of the Australian Defence Force acting in connection with the defence or security of Australia liable to be prosecuted for an offence.

72.3 Offences

(1) A person commits an offence if:

(a) the person intentionally delivers, places, discharges or detonates a device; and

(b) the device is an explosive or other lethal device and the person is reckless as to that fact; and

(i) a place of public use; or

(ii) a government facility; or

(iii) a public transportation system; or

(iv) an infrastructure facility; and

(d) the person intends to cause death or serious harm.

Penalty: Imprisonment for life.

(2) A person commits an offence if:

(a) the person intentionally delivers, places, discharges or detonates a device; and

(b) the device is an explosive or other lethal device and the person is reckless as to that fact; and

(i) a place of public use; or

(ii) a government facility; or

(iii) a public transportation system; or

(iv) an infrastructure facility; and

(d) the person intends to cause extensive destruction to the place, facility or system; and

(e) the person is reckless as to whether that intended destruction results or is likely to result in major economic loss.

Penalty: Imprisonment for life.

(3) Strict liability applies to paragraphs (1)(c) and (2)(c).

Note: A court that is sentencing a person who has been convicted of an offence against this section must warn the person about continuing detention orders (see section 105A.23).

72.4 Jurisdictional requirement

(1) A person commits an offence under this Subdivision only if one or more of the following paragraphs applies and the circumstances relating to the alleged offence are not exclusively internal (see subsection (2)):

(a) the conduct constituting the alleged offence occurs:

(i) wholly or partly in Australia; or

(ii) wholly or partly on board an Australian ship or an Australian aircraft;

(b) at the time of the alleged offence, the person is an Australian citizen;

(d) the conduct is subject to the jurisdiction of another State Party to the Convention established in accordance with paragraph 1 or 2 of Article 6 of the Convention and the person is in Australia;

(e) the alleged offence is committed against a government facility of the Commonwealth, or of a State or Territory, that is located outside Australia;

(f) the alleged offence is committed against:

(i) an Australian citizen; or

(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory;

(g) by engaging in the conduct constituting the alleged offence, the person intends to compel a legislative, executive or judicial institution of the Commonwealth, a State or a Territory to do or omit to do an act.

(2) The circumstances relating to the alleged offence are exclusively internal if:

(a) the conduct constituting the alleged offence occurs wholly within Australia; and

(b) the alleged offender is an Australian citizen; and

(c) all of the persons against whom the offence is committed are Australian citizens or bodies corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and

(d) the alleged offender is in Australia; and

(e) no other State Party to the Convention has a basis under paragraph 1 or 2 of Article 6 of the Convention for exercising jurisdiction in relation to the conduct.

72.5 Saving of other laws

This Subdivision is not intended to exclude or limit the operation of any other law of the Commonwealth or of a State or Territory.

72.6 Double jeopardy and foreign offences

If a person has been convicted or acquitted of an offence in respect of conduct under the law of a foreign country, the person cannot be convicted of an offence under this Subdivision in respect of that conduct.

72.7 Bringing proceedings under this Subdivision

(1) Proceedings for an offence under this Subdivision must not be commenced without the Attorney‑General’s written consent.

(2) However, a person may be arrested, charged, remanded in custody, or released on bail, in connection with an offence under this Subdivision before the necessary consent has been given.

(3) In determining whether to bring proceedings for an offence under this Subdivision, the Attorney‑General must have regard to the terms of the Convention, including paragraph 2 of Article 19.

(4) In determining whether to bring proceedings for an offence under this Subdivision, the Attorney‑General must also have regard to:

(a) whether the conduct constituting the offence also gives rise to an offence under a law of a State or Territory; and

(b) whether a prosecution relating to the conduct under the State or Territory law has been or will be commenced.

72.8 Ministerial certificates relating to proceedings

(1) The Minister administering the Charter of the United Nations Act 1945 may issue a certificate stating any of the following matters:

(a) that the Convention entered into force for Australia on a specified day;

(b) that the Convention remains in force for Australia or any other State Party on a specified day;

(c) a matter relevant to the establishment of jurisdiction by a State Party under paragraph 1 or 2 of Article 6 of the Convention.

(2) The Minister administering the Australian Citizenship Act 2007 may issue a certificate stating that:

(a) a person is or was an Australian citizen at a particular time; or

(b) a person is or was a stateless person whose habitual residence is or was in Australia at a particular time.

(3) In any proceedings, a certificate under this section is prima facie evidence of the matters in the certificate.

72.9 Jurisdiction of State courts preserved

For the purposes of section 38 of the Judiciary Act 1903, a matter arising under this Subdivision, including a question of interpretation of the Convention, is taken not to be a matter arising directly under a treaty.

72.10 Definitions

In this Subdivision:

Convention means the Convention referred to in section 72.1.

explosive or other lethal device has the same meaning as in the Convention.

government facility has the same meaning as State or government facility has in the Convention.

infrastructure facility has the same meaning as in the Convention.

place of public use has the same meaning as in the Convention.

public transportation system has the same meaning as in the Convention.

Subdivision B—Plastic explosives

72.11 Purpose

The purpose of this Subdivision is to create offences relating to plastic explosives and give effect to the Convention on the Marking of Plastic Explosives.

Note: The Convention requires the introduction of detection agents into plastic explosives so as to render the explosives detectable by vapour detection means. This is known as the marking of the explosives.

72.12 Trafficking in unmarked plastic explosives etc.

(1) A person commits an offence if:

(a) the person traffics in a substance; and

(b) the substance is a plastic explosive; and

(d) the trafficking is not authorised under section 72.18, 72.19, 72.22 or 72.23.

Penalty: Imprisonment for 10 years.

(2) The fault element for paragraph (1)(b) is recklessness.

(3) Strict liability applies to paragraphs (1)(c) and (d).

Note 1: For the marking requirements, see section 72.33.

Note 2: For defences, see section 72.16.

72.13 Importing or exporting unmarked plastic explosives etc.

(1) A person commits an offence if:

(a) the person imports or exports a substance; and

(b) the substance is a plastic explosive; and

(d) the import or export is not authorised under section 72.18, 72.19, 72.22 or 72.23.

Penalty: Imprisonment for 10 years.

(2) The fault element for paragraph (1)(b) is recklessness.

(3) Strict liability applies to paragraphs (1)(c) and (d).

Note 1: For the marking requirements, see section 72.33.

Note 2: For defences, see section 72.16.

72.14 Manufacturing unmarked plastic explosives etc.

(1) A person commits an offence if:

(a) the person:

(i) engages in the manufacture of a substance; or

(ii) exercises control or direction over the manufacture of a substance; and

(b) the substance is a plastic explosive; and

(d) the manufacture is not authorised under section 72.18.

Penalty: Imprisonment for 10 years.

(2) The fault element for paragraph (1)(b) is recklessness.

(3) Strict liability applies to paragraphs (1)(c) and (d).

Note 1: For the marking requirements, see section 72.33.

Note 2: For defences, see section 72.16.

72.15 Possessing unmarked plastic explosives etc.

(1) A person commits an offence if:

(a) the person possesses a substance; and

(b) the substance is a plastic explosive; and

(d) the possession is not authorised under section 72.18, 72.19, 72.22 or 72.23.

Penalty: Imprisonment for 2 years.

(2) The fault element for paragraph (1)(b) is recklessness.

(3) Strict liability applies to paragraphs (1)(c) and (d).

Note 1: For the marking requirements, see section 72.33.

Note 2: For defences, see section 72.16.

72.16 Defences

(1) If:

(a) a person is charged with an offence against section 72.12, 72.13, 72.14 or 72.15; and

(b) the prosecution alleges that the plastic explosive breached a particular marking requirement;

it is a defence if the defendant proves that he or she had no reasonable grounds for suspecting that the plastic explosive breached that marking requirement.

Note 1: A defendant bears a legal burden in relation to the matter in subsection (1) (see section 13.4).

Note 2: For the marking requirements, see section 72.33.

(2) If:

(a) a person is charged with an offence against section 72.12, 72.13 or 72.15; and

(b) the prosecution alleges that the plastic explosive breached the second marking requirement;

it is a defence if the defendant proves that, at the time of the alleged offence:

(d) the concentration of the detection agent in the plastic explosive was not less than the minimum manufacture concentration for the detection agent; and

(e) the detection agent was homogenously distributed throughout the plastic explosive.

Note 1: A defendant bears a legal burden in relation to the matter in subsection (2) (see section 13.4).

Note 2: For the marking requirements, see section 72.33.

Note 3: For minimum manufacture concentration, see section 72.34.

72.17 Packaging requirements for plastic explosives

(1) A person commits an offence if:

(a) the person manufactures a substance; and

(b) the substance is a plastic explosive; and

(c) within 24 hours after the manufacture of the plastic explosive, the person does not cause the plastic explosive to be contained, enclosed or packaged in a wrapper with:

(i) the expression “PLASTIC EXPLOSIVE” (in upper‑case lettering); and

(ii) the date of manufacture of the plastic explosive; and

(iii) if the plastic explosive is of a prescribed type—that type; and

(iv) if the plastic explosive contains a detection agent for the purpose of meeting the first marking requirement—the name of the detection agent; and

(v) if the plastic explosive contains a detection agent for the purpose of meeting the first marking requirement—the concentration of the detection agent in the plastic explosive at the time of manufacture, expressed as a percentage by mass;

legibly displayed on the outer surface of the wrapper.

Penalty: Imprisonment for 2 years.

(2) The fault element for paragraphs (1)(b) and (c) is recklessness.

72.18 Authorisation for research etc.

Authorisation

(1) A responsible Minister may, by writing, authorise:

(a) the trafficking in; or

(b) the import, export, manufacture or possession of;

an unmarked plastic explosive.

(2) A responsible Minister must not give an authorisation under subsection (1) in relation to an unmarked plastic explosive unless the responsible Minister is satisfied that:

(a) the plastic explosive is for use exclusively for one or more of the following:

(i) research, development or testing of new or modified explosives;

(ii) development or testing of explosives detection equipment;

(iii) training in explosives detection;

(iv) forensic science; or

(b) both:

(i) the plastic explosive is an integral part of an explosive device that was manufactured exclusively for defence purposes; and

(ii) the explosive device is for use exclusively for defence purposes; or

(c) the plastic explosive will, within 3 years after the commencement of this section, become an integral part of an explosive device manufactured exclusively for defence purposes.

(3) An authorisation under subsection (1) must specify the grounds on which it was given.

Conditions and restrictions

(4) An authorisation under subsection (1) is subject to such conditions and restrictions as are specified in the authorisation.

(5) A responsible Minister must not give an authorisation under subsection (1) in relation to an unmarked plastic explosive on grounds covered by paragraph (2)(a) unless the authorisation is subject to a condition imposing a limit as to the quantity of the plastic explosive.

Criteria

(6) In exercising a power conferred by this section in relation to:

(a) the trafficking in; or

(b) the import, export, manufacture or possession of;

an unmarked plastic explosive, a responsible Minister must have regard to:

(d) whether the trafficking, import, export, manufacture or possession is reasonable; and

(e) such other matters (if any) as the responsible Minister considers relevant.

72.19 Authorisation for defence and police purposes—15 year limit

Authorisation

(1) A responsible Minister may, by writing, authorise:

(a) the trafficking in; or

(b) the import, export or possession of;

an unmarked plastic explosive that was manufactured before the commencement of this section.

(2) A responsible Minister must not give an authorisation under subsection (1) in relation to an unmarked plastic explosive unless the responsible Minister is satisfied that the plastic explosive is exclusively for use in connection with:

(a) the operation of the Australian Defence Force; or

(b) the operation in Australia of a visiting force (within the meaning of the Defence (Visiting Forces) Act 1963); or

(i) the Australian Federal Police; or

(ii) the police force or police service of a State or Territory.

Conditions and restrictions

(3) An authorisation under subsection (1) is subject to such conditions and restrictions as are specified in the authorisation.

Criteria

(4) In exercising a power conferred by this section in relation to:

(a) the trafficking in; or

(b) the import, export or possession of;

an unmarked plastic explosive, a responsible Minister must have regard to:

(d) whether the trafficking, import, export or possession is reasonable; and

(e) such other matters (if any) as the responsible Minister considers relevant.

Sunset

(5) This section ceases to have effect at the end of 15 years after its commencement.

72.22 Authorisation for overseas defence purposes—7 day limit

(1) A member of the Australian Defence Force is authorised to possess, import or traffic in an unmarked plastic explosive if:

(a) the plastic explosive was obtained in the course of the operation outside Australia of the Australian Defence Force; and

(b) the member believes on reasonable grounds that there is insufficient time to obtain an authorisation under this Subdivision because of:

(i) an emergency; or

(ii) any other sudden or unexpected circumstances.

(2) An authorisation under subsection (1) ceases to have effect at the end of the seventh day after the day on which the plastic explosive was obtained.

72.23 Authorisation for overseas Australian Federal Police purposes—7 day limit

(1) A member of the Australian Federal Police is authorised to possess, import or traffic in an unmarked plastic explosive if:

(a) the plastic explosive was obtained in the course of the operation outside Australia of the Australian Federal Police; and

(b) the member believes on reasonable grounds that there is insufficient time to obtain an authorisation under this Subdivision because of:

(i) an emergency; or

(ii) any other sudden or unexpected circumstances.

(2) An authorisation under subsection (1) ceases to have effect at the end of the seventh day after the day on which the plastic explosive was obtained.

72.24 Forfeited plastic explosives

(1) If a court:

(a) convicts a person of an offence against this Subdivision in relation to a plastic explosive; or

(b) makes an order under section 19B of the Crimes Act 1914 in respect of a person charged with an offence against this Subdivision in relation to a plastic explosive;

the court may order the forfeiture to the Commonwealth of the plastic explosive.

(2) A plastic explosive forfeited to the Commonwealth under subsection (1) becomes the property of the Commonwealth.

(3) A plastic explosive forfeited to the Commonwealth under subsection (1) is to be dealt with in such manner as a responsible Minister directs.

(4) Without limiting subsection (3), a responsible Minister may direct that a plastic explosive forfeited to the Commonwealth under subsection (1) be:

(a) destroyed; or

(b) used exclusively for one or more of the purposes covered by paragraph 72.18(2)(a).

Note 1: See also section 10.5 (lawful authority).

Note 2: See also section 229 of the Customs Act 1901 (forfeiture of goods that have been unlawfully imported or exported).

72.25 Surrendered plastic explosives

(1) A person may surrender a plastic explosive to the Commonwealth at a place, and in a manner, prescribed for the purposes of this subsection.

(2) A plastic explosive surrendered to the Commonwealth under subsection (1) becomes the property of the Commonwealth.

(3) A plastic explosive surrendered to the Commonwealth under subsection (1) is to be dealt with in such manner as a responsible Minister directs.

(4) Without limiting subsection (3), a responsible Minister may direct that a plastic explosive surrendered to the Commonwealth under subsection (1) be:

(a) destroyed; or

(b) used exclusively for one or more of the purposes covered by paragraph 72.18(2)(a).

Note: See also section 10.5 (lawful authority).

72.26 Destruction of plastic explosives obtained overseas for defence purposes

A member of the Australian Defence Force may destroy an unmarked plastic explosive if the plastic explosive was obtained in the course of the operation outside Australia of the Australian Defence Force.

72.27 Destruction of plastic explosives obtained overseas for Australian Federal Police purposes

A member of the Australian Federal Police may destroy an unmarked plastic explosive if the plastic explosive was obtained in the course of the operation outside Australia of the Australian Federal Police.

72.28 Delegation by AFP Minister

(1) The AFP Minister may, by writing, delegate to:

(a) the Secretary of the Department administered by that Minister; or

(b) an SES employee, or an acting SES employee, in that Department, where the employee occupies or acts in a position with a classification of Senior Executive Band 3;

all or any of the AFP Minister’s powers under sections 72.18, 72.19, 72.24 and 72.25.

(2) A delegate is, in the exercise of a power delegated under subsection (1), subject to the written directions of the AFP Minister.

72.29 Delegation by Minister for Defence

(1) The Minister for Defence may, by writing, delegate to:

(a) an SES employee, or an acting SES employee, in the Department of Defence, where the employee occupies or acts in a position with a classification of Senior Executive Band 3; or

(b) an officer of the Australian Navy who holds the rank of Vice‑Admiral or a higher rank; or

(d) an officer of the Australian Air Force who holds the rank of Air Marshal or a higher rank; or

(e) an officer of the Australian Defence Force who is on deployment as the Commander of an Australian Task Force, contingent or force element that is operating outside Australia;

all or any of the powers of the Minister for Defence under sections 72.18, 72.19, 72.24 and 72.25.

(2) A delegate must not exercise a power delegated under subsection (1) unless the exercise of the power relates to:

(a) the operation of the Australian Defence Force; or

(b) the operation in Australia of a visiting force (within the meaning of the Defence (Visiting Forces) Act 1963); or

(c) the operation outside Australia of a person who, under a contract, performs services for the Australian Defence Force.

(3) A delegate is, in the exercise of a power delegated under subsection (1), subject to the written directions of the Minister for Defence.

72.30 Review by Administrative Appeals Tribunal of authorisation decisions

(1) An application may be made to the Administrative Appeals Tribunal for review of a decision refusing to give an authorisation under subsection 72.18(1) or 72.19(1).

(2) An application may be made to the Administrative Appeals Tribunal for review of a decision to specify a condition or restriction in an authorisation under subsection 72.18(1) or 72.19(1), but such an application may only be made by a person to whom the authorisation applies.

72.31 Geographical jurisdiction

Section 15.2 (extended geographical jurisdiction—category B) applies to each offence against this Subdivision.

72.32 Saving of other laws

This Subdivision is not intended to exclude or limit the operation of any other law of the Commonwealth or of a State or Territory.

72.33 Marking requirements

(1) This section sets out the 2 marking requirements for a plastic explosive.

Concentration of detection agent at time of manufacture

(2) The first marking requirement is that, at the time of the manufacture of the plastic explosive, all of the following conditions were satisfied:

(a) the plastic explosive contained a detection agent;

(b) the concentration of the detection agent in the plastic explosive was not less than the minimum manufacture concentration for the detection agent;

Note: For minimum manufacture concentration, see section 72.34.

Freshness

(3) The second marking requirement is that less than 10 years have elapsed since the manufacture of the plastic explosive.

Interpretation

(4) In determining whether a plastic explosive manufactured before the commencement of this section breached the first marking requirement, assume that this section and sections 72.34 and 72.36 had been in force at the time of manufacture.

72.34 Detection agents and minimum manufacture concentrations

For the purposes of this Subdivision, the following table defines:

(a) detection agent; and

(b) the minimum manufacture concentration for each detection agent.

Detection agents and minimum manufacture concentrations
Item	Detection agent	Minimum manufacture concentration
1	Ethylene glycol dinitrate (EGDN) (molecular formula: C2H4(NO3)2) (molecular weight: 152)	0.2% by mass
2	2,3‑Dimethyl‑2,3‑dinitrobutane (DMNB) (molecular formula: C6H12(NO2)2) (molecular weight: 176)	1% by mass
3	para‑Mononitrotoluene (p‑MNT) (molecular formula: C7H7NO2) (molecular weight: 137)	0.5% by mass
4	a substance prescribed for the purposes of this table item	the concentration prescribed for the purposes of this table item in relation to the substance

72.35 Presumption as to concentration of detection agent

(1) This section applies in relation to a prosecution for an offence against this Subdivision.

(2) If no detection agent can be detected in a sample of a plastic explosive when tested using:

(a) a method generally accepted in the scientific community as a reliable means of measuring the concentration of detection agents in plastic explosives; or

(b) a method prescribed for the purposes of this paragraph;

it is presumed, unless the contrary is proved, that the plastic explosive breaches the first marking requirement.

Note: A defendant bears a legal burden in relation to proving the contrary (see section 13.4).

72.36 Definitions

In this Subdivision:

AFP Minister means the Minister administering the Australian Federal Police Act 1979.

Convention on the Marking of Plastic Explosives means:

(a) the Convention on the Marking of Plastic Explosives for the Purpose of Detection, done at Montreal on 1 March 1991; or

(b) if:

(i) the Convention is amended; and

(ii) the amendment binds Australia;

the Convention as so amended.

Note: In 2006, the text of the Convention was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

Department of Defence means the Department that deals with matters relating to defence.

detection agent has the meaning given by section 72.34.

explosive device includes the following:

(a) a bomb;

(b) a grenade;

(d) a missile;

(e) a perforator;

(f) a projectile;

(g) a rocket;

(h) a shaped charge;

(i) a shell.

export includes take from Australia.

first marking requirement has the meaning given by subsection 72.33(2).

high explosive means an explosive with a velocity of detonation that is greater than the velocity of sound in the explosive (typically greater than 340 metres per second), and includes the following:

(a) cyclotetramethylenetetranitramine (HMX);

(b) pentaerythritol tetranitrate (PETN);

import includes bring into Australia.

manufacture a substance means any process by which a substance is produced, and includes the following:

(a) the process of transforming a substance into a different substance;

(b) the reprocessing of a substance.

marking requirement has the meaning given by section 72.33.

minimum manufacture concentration has the meaning given by section 72.34.

Minister for Defence means the Minister administering the Defence Act 1903.

plastic explosive means an explosive product (including an explosive product in flexible or elastic sheet form) that is:

(a) formulated with:

(i) one or more high explosives which in their pure form have a vapour pressure less than 10¯4 Pa at a temperature of 25°C; and

(ii) a binder material; and

(b) as a mixture, malleable or flexible at normal room temperature.

possess a substance includes the following:

(a) receive or obtain possession of the substance;

(b) have control over the disposition of the substance (whether or not the substance is in the custody of the person);

responsible Minister means:

(a) the AFP Minister; or

(b) the Minister for Defence.

second marking requirement has the meaning given by subsection 72.33(3).

traffic in a substance means:

(a) transfer the substance; or

(b) offer the substance for sale; or

(d) prepare the substance for transfer with the intention of transferring any of it or believing that another person intends to transfer any of it; or

(e) transport or deliver the substance with the intention of transferring any of it or believing that another person intends to transfer any of it; or

(f) guard or conceal the substance with the intention of transferring any of it or the intention of assisting another person to transfer any of it; or

(g) possess the substance with the intention of transferring any of it.

For the purposes of paragraph (d), preparing a substance for transfer includes packaging the substance or separating the substance into discrete units.

transfer means transfer ownership or possession.

unmarked plastic explosive means a plastic explosive that breaches a marking requirement.

wrapper, in relation to a plastic explosive, means a wrapper the inner surface of which is in contact with the plastic explosive.

Subdivision C—Cluster munitions and explosive bomblets

72.37 Purpose

The purpose of this Subdivision is to create offences relating to cluster munitions and explosive bomblets and give effect to the Convention on Cluster Munitions.

72.38 Offences relating to cluster munitions

Doing acts with a cluster munition

(1) A person commits an offence if the person does any of the following with a cluster munition:

(a) uses it;

(b) develops, produces or otherwise acquires it;

(d) transfers it to anyone.

Penalty: Imprisonment for 10 years.

Promoting acts with a cluster munition

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

(a) the first person assists, encourages or induces another person to do any of the following acts with a cluster munition:

(i) use it;

(ii) develop, produce or otherwise acquire it;

(iii) stockpile or retain it;

(iv) transfer it to anyone; and

(b) the other person does the act; and

Penalty: Imprisonment for 10 years.

Geographical jurisdiction

(3) Section 15.2 (extended geographical jurisdiction—category B) applies to an offence against this section.

Relationship with other provisions

(4) Division 11 does not apply in relation to an offence against subsection (2).

Note 1: Later sections of this Subdivision set out defences.

Note 2: This section relates to Articles 1 and 9 of the Convention on Cluster Munitions.

72.39 Defence—acquisition or retention authorised by Defence Minister

(1) Section 72.38 does not apply to the acquisition or retention of a cluster munition authorised under subsection (2).

Note: A defendant bears an evidential burden in relation to the matter in subsection (1): see subsection 13.3(3).

(2) The Minister administering the Explosives Act 1961 may authorise, in writing, specified members of the Australian Defence Force or other specified Commonwealth public officials to acquire or retain specified cluster munitions for one or more of the following purposes:

(a) the development of, and training in, cluster munition and explosive submunition detection, clearance or destruction techniques;

(b) the development of cluster munition counter‑measures;

Note 1: For specification by class see the Acts Interpretation Act 1901.

Note 2: This section relates to paragraphs 6 and 7 of Article 3 of the Convention on Cluster Munitions.

(3) The regulations may prescribe requirements relating to authorisations under subsection (2).

(4) An authorisation made under subsection (2) is not a legislative instrument.

(5) The Minister described in subsection (2) may delegate his or her power under that subsection to:

(a) the Secretary of the Department administered by that Minister; or

(b) an SES employee in that Department.

Note: For the definition of SES employee see the Acts Interpretation Act 1901.

72.40 Defence—transfer for destruction etc.

Transfer to foreign party to Convention on Cluster Munitions

(1) Section 72.38 does not apply to the transfer of a cluster munition to a party to the Convention on Cluster Munitions for one or more of the following purposes:

(a) the development of, and training in, cluster munition and explosive submunition detection, clearance or destruction techniques;

(b) the development of cluster munition counter‑measures;

Note 1: A defendant bears an evidential burden in relation to the matter in subsection (1): see subsection 13.3(3).

Note 2: This subsection relates to paragraph 7 of Article 3 of the Convention on Cluster Munitions.

Intended transfer to Australian Defence Force

(2) Subsections (3) and (4) have effect if:

(a) a person has a cluster munition; and

(b) the person gives notice to a police officer or member of the Australian Defence Force that the person wishes to transfer the munition to a member of the Australian Defence Force or other Commonwealth public official; and

(c) the person gives notice without delay after the first time the person has the cluster munition after the commencement of this subsection.

(3) Subsection 72.38(1) does not apply to the person stockpiling or retaining the cluster munition at any time before the person transfers it to a member of the Australian Defence Force or other Commonwealth public official.

(4) Subsection 72.38(1) does not apply to the person transferring the cluster munition to a member of the Australian Defence Force or other Commonwealth public official.

Note: A defendant bears an evidential burden in relation to the matters in subsection (2) and whichever of subsections (3) and (4) is relevant: see subsection 13.3(3).

72.41 Defence—acts by Australians in military cooperation with countries not party to Convention on Cluster Munitions

A person who is an Australian citizen, is a member of the Australian Defence Force or is performing services under a Commonwealth contract does not commit an offence against section 72.38 by doing an act if:

(a) the act is done in the course of military cooperation or operations with a foreign country that is not a party to the Convention on Cluster Munitions; and

(b) the act is not connected with the Commonwealth:

(i) using a cluster munition; or

(ii) developing, producing or otherwise acquiring a cluster munition; or

(iii) stockpiling or retaining a cluster munition; or

(iv) transferring a cluster munition; and

(c) the act does not consist of expressly requesting the use of a cluster munition in a case where the choice of munitions used is within the Commonwealth’s exclusive control.

Note 1: A defendant bears an evidential burden in relation to the matter in this section: see subsection 13.3(3).

Note 2: The expression offence against section 72.38 is given an extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(2).

Note 3: This section relates to paragraphs 3 and 4 of Article 21 of the Convention on Cluster Munitions.

72.42 Defence—acts by military personnel of countries not party to Convention on Cluster Munitions

(1) Section 72.38 does not apply to the stockpiling, retention or transfer of a cluster munition that:

(a) is done by:

(i) a member of the armed forces of a foreign country that is not a party to the Convention on Cluster Munitions; or

(ii) a person who is connected with such forces as described in subsection (2) and is neither an Australian citizen nor a resident of Australia; and

(b) is done in connection with the use by those forces of any of the following in Australia in the course of military cooperation or operations with the Australian Defence Force:

(i) a base;

(ii) an aircraft of any part of those forces or an aircraft being commanded or piloted by a member of those forces in the course of his or her duties as such a member;

(iii) a ship of any part of those forces or a ship being operated or commanded by a member of those forces in the course of his or her duties as such a member.

Note: A defendant bears an evidential burden in relation to the matter in this section: see subsection 13.3(3).

(2) This subsection covers a person with any of the following connections with the armed forces of a foreign country that is not a party to the Convention on Cluster Munitions:

(a) the person is employed by, or in the service of, any of those forces;

(b) the person is serving with an organisation accompanying any of those forces;

(c) the person is attached to or accompanying those forces and is subject to the law of that country governing any of the armed forces of that country.

72.43 Forfeiture of cluster munition

(1) This section applies if a court:

(a) convicts someone of an offence against subsection 72.38(1); or

(b) makes an order under section 19B of the Crimes Act 1914 relating to an offence against subsection 72.38(1).

Note: The expression offence against subsection 72.38(1) is given an extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(2).

(2) The court may order forfeiture to the Commonwealth of any cluster munition involved in the offence.

(3) A cluster munition ordered to be forfeited to the Commonwealth becomes the Commonwealth’s property.

72.44 Application of this Subdivision to explosive bomblets

This Subdivision applies in relation to explosive bomblets in the same way as it applies in relation to cluster munitions.

72.45 Definitions

In this Subdivision:

cluster munition has the meaning given by paragraph 2 of Article 2 of the Convention on Cluster Munitions.

Convention on Cluster Munitions means the Convention on Cluster Munitions done at Dublin on 30 May 2008.

Note: In 2012, the text of the Convention was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

explosive bomblet has the meaning given by paragraph 13 of Article 2 of the Convention on Cluster Munitions.

explosive submunition has the meaning given by paragraph 3 of Article 2 of the Convention on Cluster Munitions.

police officer means:

(a) a member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979); or

(b) a special member of the Australian Federal Police (within the meaning of that Act); or

transfer has the meaning given by paragraph 8 of Article 2 of the Convention on Cluster Munitions.

Note: Imports and exports are some examples of transfers.

Division 73—People smuggling and related offences

Subdivision A—People smuggling offences

73.1 Offence of people smuggling

(1) A person (the first person) is guilty of an offence if:

(a) the first person organises or facilitates the entry of another person (the other person) into a foreign country (whether or not via Australia); and

(b) the entry of the other person into the foreign country does not comply with the requirements under that country’s law for entry into the country; and

Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.

(2) Absolute liability applies to the paragraph (1)(c) element of the offence.

(3) For the purposes of this Code, an offence against subsection (1) is to be known as the offence of people smuggling.

73.2 Aggravated offence of people smuggling (danger of death or serious harm etc.)

(1) A person (the first person) commits an offence against this section if the first person commits the offence of people smuggling (the underlying offence) in relation to another person (the victim) and either or both of the following apply:

(b) in committing the underlying offence, the first person subjects the victim to cruel, inhuman or degrading treatment;

(i) the first person’s conduct gives rise to a danger of death or serious harm to the victim; and

(ii) the first person is reckless as to the danger of death or serious harm to the victim that arises from the conduct.

Penalty: Imprisonment for 20 years or 2,000 penalty units, or both.

(2) There is no fault element for the physical element of conduct described in subsection (1), that the first person commits the underlying offence, other than the fault elements (however described), if any, for the underlying offence.

(2A) To avoid doubt, the first person may be convicted of an offence against this section even if the first person has not been convicted of the underlying offence.

73.3 Aggravated offence of people smuggling (at least 5 people)

(1) A person (the first person) is guilty of an offence if:

(a) the first person organises or facilitates the entry of a group of at least 5 persons (the other persons) into a foreign country (whether or not via Australia); and

(b) the entry of at least 5 of the other persons into the foreign country does not comply with the requirements under that country’s law for entry into that country; and

(c) at least 5 of the other persons whose entry into the foreign country is covered by paragraph (b) are not citizens or permanent residents of the foreign country.

Penalty: Imprisonment for 20 years or 2,000 penalty units, or both.

(2) Absolute liability applies to the paragraph (1)(c) element of the offence.

(3) If, on a trial for an offence against subsection (1), the trier of fact is not satisfied that the defendant is guilty of that offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence against subsection 73.1(1), the trier of fact may find the defendant not guilty of an offence against subsection (1) but guilty of an offence against subsection 73.1(1), so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

73.3A Supporting the offence of people smuggling

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

(a) the first person provides material support or resources to another person or an organisation (the receiver); and

(b) the support or resources aids the receiver, or a person or organisation other than the receiver, to engage in conduct constituting the offence of people smuggling.

Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.

(2) Subsection (1) does not apply if the conduct constituting the offence of people smuggling relates, or would relate, to:

(a) the first person; or

(b) a group of persons that includes the first person.

(3) To avoid doubt, the first person commits an offence against subsection (1) even if the offence of people smuggling is not committed.

73.4 Jurisdictional requirement

A person commits an offence against this Subdivision only if:

(a) both:

(i) the person is an Australian citizen or a resident of Australia; and

(ii) the conduct constituting the alleged offence occurs wholly outside Australia; or

(b) both:

(i) the conduct constituting the alleged offence occurs wholly or partly in Australia; and

(ii) a result of the conduct occurs, or is intended by the person to occur, outside Australia.

73.5 Attorney‑General’s consent required

(1) Proceedings for an offence against this Subdivision must not be commenced without the Attorney‑General’s written consent.

(2) However, a person may be arrested, charged, remanded in custody or released on bail in connection with an offence against this Subdivision before the necessary consent has been given.

Subdivision B—Document offences related to people smuggling and unlawful entry into foreign countries

73.6 Meaning of travel or identity document

(1) For the purposes of this Subdivision, a document is a travel or identity document if it is:

(a) a travel document; or

(b) an identity document.

73.7 Meaning of false travel or identity document

(1) For the purposes of this Subdivision, a travel or identity document is a false travel or identity document if, and only if:

(a) the document, or any part of the document:

(i) purports to have been made in the form in which it is made by a person who did not make it in that form; or

(ii) purports to have been made in the form in which it is made on the authority of a person who did not authorise its making in that form; or

(b) the document, or any part of the document:

(i) purports to have been made in the terms in which it is made by a person who did not make it in those terms; or

(ii) purports to have been made in the terms in which it is made on the authority of a person who did not authorise its making in those terms; or

(i) purports to have been altered in any respect by a person who did not alter it in that respect; or

(ii) purports to have been altered in any respect on the authority of a person who did not authorise its alteration in that respect; or

(d) the document, or any part of the document:

(i) purports to have been made or altered by a person who did not exist; or

(ii) purports to have been made or altered on the authority of a person who did not exist; or

(e) the document, or any part of the document, purports to have been made or altered on a date on which, at a time at which, at a place at which, or otherwise in circumstances in which, it was not made or altered.

(2) For the purposes of this Subdivision, a person is taken to make a false travel or identity document if the person alters a document so as to make it a false travel or identity document (whether or not it was already a false travel or identity document before the alteration).

(3) This section has effect as if a document that purports to be a true copy of another document were the original document.

73.8 Making, providing or possessing a false travel or identity document

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

(a) the first person makes, provides or possesses a false travel or identity document; and

(b) the first person intends that the document will be used to facilitate the entry of another person (the other person) into a foreign country, where the entry of the other person into the foreign country would not comply with the requirements under that country’s law for entry into the country; and

(i) having obtained (whether directly or indirectly) a benefit to do so; or

(ii) with the intention of obtaining (whether directly or indirectly) a benefit.

Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.

73.9 Providing or possessing a travel or identity document issued or altered dishonestly or as a result of threats

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

(a) the first person provides or possesses a travel or identity document; and

(b) the first person knows that:

(i) the issue of the travel or identity document; or

(ii) an alteration of the travel or identity document;

has been obtained dishonestly or by threats; and

(c) the first person intends that the document will be used to facilitate the entry of another person (the other person) into a foreign country, where the entry of the other person into the foreign country would not comply with the requirements under that country’s law for entry into the country; and

(d) the first person provided or possessed the document:

(i) having obtained (whether directly or indirectly) a benefit to do so; or

(ii) with the intention of obtaining (whether directly or indirectly) a benefit.

Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.

(2) For the purposes of subsection (1), a threat may be:

(a) express or implied; or

(b) conditional or unconditional.

(3) For the purposes of subsection (1), dishonest means:

(a) dishonest according to the standards of ordinary people; and

(b) known by the defendant to be dishonest according to the standards of ordinary people.

(4) In a prosecution for an offence against this section, the determination of dishonesty is a matter for the trier of fact.

73.10 Providing or possessing a travel or identity document to be used by a person who is not the rightful user

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

(a) the first person provides or possesses a travel or identity document; and

(d) the first person provided or possessed the document:

(i) having obtained (whether directly or indirectly) a benefit to do so; or

(ii) with the intention of obtaining (whether directly or indirectly) a benefit.

Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.

73.11 Taking possession of or destroying another person’s travel or identity document

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

(a) the first person takes possession of, or destroys, a travel or identity document that applies to another person (the other person); and

(b) the first person does so intending to conceal the other person’s identity or nationality; and

(c) at the time of doing so, the first person intends to organise or facilitate the entry of the other person into a foreign country:

(i) having obtained, or with the intention of obtaining, whether directly or indirectly, a benefit to organise or facilitate that entry; and

(ii) where the entry of the other person into the foreign country would not comply with the requirements under that country’s law for entry into the country.

Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.

73.12 Jurisdictional requirement

Section 15.2 (extended geographical jurisdiction—category B) applies to an offence against this Subdivision.

Chapter 5—The security of the Commonwealth

Part 5.1—Treason and related offences

Division 80—Treason, urging violence and advocating terrorism or genocide

Subdivision A—Preliminary

80.1A Definitions

In this Division:

organisation means:

(a) a body corporate; or

(b) an unincorporated body;

whether or not the body is based outside Australia, consists of persons who are not Australian citizens, or is part of a larger organisation.

party includes a person, body or group of any kind.

80.1AAA Expressions also used in the Australian Security Intelligence Organisation Act 1979

The meaning of an expression in this Division does not affect the meaning of that expression in the Australian Security Intelligence Organisation Act 1979, unless that Act expressly provides otherwise.

Subdivision B—Treason

80.1 Treason

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

(a) causes the death of the Sovereign, the heir apparent of the Sovereign, the consort of the Sovereign, the Governor‑General or the Prime Minister; or

(b) causes harm to the Sovereign, the Governor‑General or the Prime Minister resulting in the death of the Sovereign, the Governor‑General or the Prime Minister; or

(c) causes harm to the Sovereign, the Governor‑General or the Prime Minister, or imprisons or restrains the Sovereign, the Governor‑General or the Prime Minister; or

(d) levies war, or does any act preparatory to levying war, against the Commonwealth; or

(g) instigates a person who is not an Australian citizen to make an armed invasion of the Commonwealth or a Territory of the Commonwealth.

Penalty: Imprisonment for life.

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

(a) receives or assists another person who, to his or her knowledge, has committed an offence against this Subdivision (other than this subsection) with the intention of allowing him or her to escape punishment or apprehension; or

(b) knowing that another person intends to commit an offence against this Subdivision (other than this subsection), does not inform a constable of it within a reasonable time or use other reasonable endeavours to prevent the commission of the offence.

Penalty: Imprisonment for life.

(8) In this section:

constable means a member or special member of the Australian Federal Police or a member of the police force or police service of a State or Territory.

80.1AA Treason—assisting enemy to engage in armed conflict

(1) A person commits an offence if:

(a) a party (the enemy) is engaged in armed conflict involving the Commonwealth or the Australian Defence Force; and

(b) the enemy is declared in a Proclamation made under section 80.1AB; and

(d) the person intends that the conduct will materially assist the enemy to engage in armed conflict involving the Commonwealth or the Australian Defence Force; and

(e) the conduct materially assists the enemy to engage in armed conflict involving the Commonwealth or the Australian Defence Force; and

(f) at the time the person engages in the conduct:

(i) the person knows that the person is an Australian citizen or a resident of Australia; or

(ii) the person knows that the person has voluntarily put himself or herself under the protection of the Commonwealth; or

(iii) the person is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

Note 1: There is a defence in section 80.3 for acts done in good faith.

Note 2: If a body corporate is convicted of an offence against subsection (1), subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 10,000 penalty units.

Penalty: Imprisonment for life.

(2) Strict liability applies to paragraph (1)(b) and subparagraph (1)(f)(iii).

(3) Absolute liability applies to paragraph (1)(e).

(4) Subsection (1) does not apply to engagement in conduct solely by way of, or for the purposes of, the provision of aid or assistance of a humanitarian nature.

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

80.1AB Proclamation of enemy engaged in armed conflict

The Governor‑General may, by Proclamation, declare a party to be an enemy engaged in armed conflict involving the Commonwealth or the Australian Defence Force.

Note: See subsection 80.1AA(1) for the effect of the Proclamation.

80.1AC Treachery

A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct involves the use of force or violence; and

(i) the Constitution; or

(ii) the Government of the Commonwealth, of a State or of a Territory; or

(iii) the lawful authority of the Government of the Commonwealth.

Note 1: There is a defence in section 80.3 for acts done in good faith.

Note 2: If a body corporate is convicted of an offence against subsection (1), subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 10,000 penalty units.

Penalty: Imprisonment for life.

Subdivision C—Urging violence and advocating terrorism or genocide

80.2 Urging violence against the Constitution etc.

Urging the overthrow of the Constitution or Government by force or violence

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

(a) the first person intentionally urges another person to overthrow by force or violence:

(i) the Constitution; or

(ii) the Government of the Commonwealth, of a State or of a Territory; or

(iii) the lawful authority of the Government of the Commonwealth; and

(b) the first person does so intending that force or violence will occur.

Penalty: Imprisonment for 7 years.

Note: For intention, see section 5.2.

(2) Recklessness applies to the element of the offence under subsection (1) that it is:

(a) the Constitution; or

(b) the Government of the Commonwealth, a State or a Territory; or

that the first person urges the other person to overthrow.

Urging interference in Parliamentary elections or constitutional referenda by force or violence

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

(a) the first person intentionally urges another person to interfere, by force or violence, with lawful processes for:

(i) an election of a member or members of a House of the Parliament; or

(ii) a referendum; and

(b) the first person does so intending that force or violence will occur.

Penalty: Imprisonment for 7 years.

Note: For intention, see section 5.2.

(4) Recklessness applies to the element of the offence under subsection (3) that it is lawful processes for an election of a member or members of a House of the Parliament, or for a referendum, that the first person urges the other person to interfere with.

Note: There is a defence in section 80.3 for acts done in good faith.

80.2A Urging violence against groups

Offences

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

(a) the first person intentionally urges another person, or a group, to use force or violence against a group (the targeted group); and

(b) the first person does so intending that force or violence will occur; and

(c) the targeted group is distinguished by race, religion, nationality, national or ethnic origin or political opinion; and

(d) the use of the force or violence would threaten the peace, order and good government of the Commonwealth.

Penalty: Imprisonment for 7 years.

Note: For intention, see section 5.2.

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

(a) the first person intentionally urges another person, or a group, to use force or violence against a group (the targeted group); and

(b) the first person does so intending that force or violence will occur; and

Penalty: Imprisonment for 5 years.

Note: For intention, see section 5.2.

(3) The fault element for paragraphs (1)(c) and (2)(c) is recklessness.

Note: For recklessness, see section 5.4.

Alternative verdict

(4) Subsection (5) applies if, in a prosecution for an offence (the prosecuted offence) against subsection (1), the trier of fact:

(a) is not satisfied that the defendant is guilty of the offence; but

(b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence (the alternative offence) against subsection (2).

(5) The trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

Note: There is a defence in section 80.3 for acts done in good faith.

80.2B Urging violence against members of groups

Offences

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

(a) the first person intentionally urges another person, or a group, to use force or violence against a person (the targeted person); and

(b) the first person does so intending that force or violence will occur; and

(c) the first person does so because of his or her belief that the targeted person is a member of a group (the targeted group); and

(d) the targeted group is distinguished by race, religion, nationality, national or ethnic origin or political opinion; and

(e) the use of the force or violence would threaten the peace, order and good government of the Commonwealth.

Penalty: Imprisonment for 7 years.

Note: For intention, see section 5.2.

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

(a) the first person intentionally urges another person, or a group, to use force or violence against a person (the targeted person); and

(b) the first person does so intending that force or violence will occur; and

(c) the first person does so because of his or her belief that the targeted person is a member of a group (the targeted group); and

(d) the targeted group is distinguished by race, religion, nationality, national or ethnic origin or political opinion.

Penalty: Imprisonment for 5 years.

Note: For intention, see section 5.2.

(3) For the purposes of paragraphs (1)(c) and (2)(c), it is immaterial whether the targeted person actually is a member of the targeted group.

(4) The fault element for paragraphs (1)(d) and (2)(d) is recklessness.

Note: For recklessness, see section 5.4.

Alternative verdict

(5) Subsection (6) applies if, in a prosecution for an offence (the prosecuted offence) against subsection (1), the trier of fact:

(a) is not satisfied that the defendant is guilty of the offence; but

(b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence (the alternative offence) against subsection (2).

(6) The trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

Note: There is a defence in section 80.3 for acts done in good faith.

80.2C Advocating terrorism

(1) A person commits an offence if:

(a) the person advocates:

(i) the doing of a terrorist act; or

(ii) the commission of a terrorism offence referred to in subsection (2); and

(b) the person engages in that conduct reckless as to whether another person will:

(i) engage in a terrorist act; or

(ii) commit a terrorism offence referred to in subsection (2).

Note: There is a defence in section 80.3 for acts done in good faith.

Penalty: Imprisonment for 5 years.

(2) A terrorism offence is referred to in this subsection if:

(a) the offence is punishable on conviction by imprisonment for 5 years or more; and

(b) the offence is not:

(i) an offence against section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) to the extent that it relates to a terrorism offence; or

(ii) a terrorism offence that a person is taken to have committed because of section 11.2 (complicity and common purpose), 11.2A (joint commission) or 11.3 (commission by proxy).

Definitions

(3) In this section:

advocates: a person advocates the doing of a terrorist act or the commission of a terrorism offence if the person counsels, promotes, encourages or urges the doing of a terrorist act or the commission of a terrorism offence.

terrorism offence has the same meaning as in subsection 3(1) of the Crimes Act 1914.

terrorist act has the same meaning as in section 100.1.

(4) A reference in this section to advocating the doing of a terrorist act or the commission of a terrorism offence includes a reference to:

(a) advocating the doing of a terrorist act or the commission of a terrorism offence, even if a terrorist act or terrorism offence does not occur; and

(b) advocating the doing of a specific terrorist act or the commission of a specific terrorism offence; and

80.2D Advocating genocide

(1) A person commits an offence if:

(a) the person advocates genocide; and

(b) the person engages in that conduct reckless as to whether another person will engage in genocide.

Note: There is a defence in section 80.3 for acts done in good faith.

Penalty: Imprisonment for 7 years.

Double jeopardy

(2) A person cannot be tried by a federal court or a court of a State or Territory for an offence against subsection (1) if the person has already been convicted or acquitted by the International Criminal Court for an offence constituted by substantially the same conduct as constituted the offence against subsection (1).

Definitions

(3) In this section:

advocate means counsel, promote, encourage or urge.

genocide means the commission of an offence against Subdivision B (genocide) of Division 268, other than:

(a) an offence against section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) to the extent that it relates to an offence against that Subdivision; or

(b) an offence against that Subdivision that a person is taken to have committed because of section 11.2 (complicity and common purpose), 11.2A (joint commission) or 11.3 (commission by proxy).

(4) A reference in this section to advocating genocide includes a reference to:

(a) advocating genocide, even if genocide does not occur; and

(b) advocating the commission of a specific offence that is genocide; and

Subdivision D—Common provisions

80.3 Defence for acts done in good faith

(1) Subdivisions B and C, and sections 83.1 and 83.4, do not apply to a person who:

(a) tries in good faith to show that any of the following persons are mistaken in any of his or her counsels, policies or actions:

(i) the Sovereign;

(ii) the Governor‑General;

(iii) the Governor of a State;

(iv) the Administrator of a Territory;

(v) an adviser of any of the above;

(vi) a person responsible for the government of another country; or

(b) points out in good faith errors or defects in the following, with a view to reforming those errors or defects:

(i) the Government of the Commonwealth, a State or a Territory;

(ii) the Constitution;

(iii) legislation of the Commonwealth, a State, a Territory or another country;

(iv) the administration of justice of or in the Commonwealth, a State, a Territory or another country; or

(c) urges in good faith another person to attempt to lawfully procure a change to any matter established by law, policy or practice in the Commonwealth, a State, a Territory or another country; or

(d) points out in good faith any matters that are producing, or have a tendency to produce, feelings of ill‑will or hostility between different groups, in order to bring about the removal of those matters; or

(e) does anything in good faith in connection with an industrial dispute or an industrial matter; or

(f) publishes in good faith a report or commentary about a matter of public interest.

Note: A defendant bears an evidential burden in relation to the matter in subsection (1). See subsection 13.3(3).

(2) In considering a defence under subsection (1), the Court may have regard to any relevant matter, including whether the acts were done:

(a) for a purpose intended to be prejudicial to the safety or defence of the Commonwealth; or

(b) with the intention of assisting a party:

(i) engaged in armed conflict involving the Commonwealth or the Australian Defence Force; and

(ii) declared in a Proclamation made under section 80.1AB to be an enemy engaged in armed conflict involving the Commonwealth or the Australian Defence Force; or

(f) with the intention of causing violence or creating public disorder or a public disturbance.

(3) Without limiting subsection (2), in considering a defence under subsection (1) in respect of an offence against Subdivision C, the Court may have regard to any relevant matter, including whether the acts were done:

(a) in the development, performance, exhibition or distribution of an artistic work; or

(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

80.4 Extended geographical jurisdiction for offences

(1) Subject to subsection (2), section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this Division.

(2) Section 15.2 (extended geographical jurisdiction—category B) applies to an offence against section 80.1AC or subsection 80.2A(2), 80.2B(2) or 80.2C(1).

80.6 Division not intended to exclude State or Territory law

It is the intention of the Parliament that this Division is not to apply to the exclusion of a law of a State or a Territory to the extent that the law is capable of operating concurrently with this Division.

Division 82—Sabotage

Subdivision A—Preliminary

82.1 Definitions

In this Division:

advantage: conduct will not advantage the national security of a foreign country if the conduct will advantage Australia’s national security to an equivalent extent.

damage to public infrastructure: conduct results in damage to public infrastructure if any of the following paragraphs apply in relation to public infrastructure:

(a) the conduct destroys it or results in its destruction;

(b) the conduct involves interfering with it, or abandoning it, resulting in it being lost or rendered unserviceable;

(d) the conduct limits or prevents access to it or any part of it by persons who are ordinarily entitled to access it or that part of it;

(e) the conduct results in it or any part of it becoming defective or being contaminated;

(f) the conduct significantly degrades its quality;

(g) if it is an electronic system—the conduct seriously disrupts it.

foreign principal has the meaning given by section 90.2.

national security has the meaning given by section 90.4.

prejudice: embarrassment alone is not sufficient to prejudice Australia’s national security.

public infrastructure: see section 82.2.

82.2 Public infrastructure

Public infrastructure

(1) Public infrastructure means any of the following:

(a) any infrastructure, facility, premises, network or electronic system that belongs to the Commonwealth;

(b) defence premises within the meaning of Part VIA of the Defence Act 1903;

(d) any part of the infrastructure of a telecommunications network within the meaning of the Telecommunications Act 1997;

(e) any infrastructure, facility, premises, network or electronic system (including an information, telecommunications or financial system) that:

(i) provides or relates to providing the public with utilities or services (including transport of people or goods) of any kind, or relates to food (within the meaning of the Food Standards Australia New Zealand Act 1991) intended for the public; and

(ii) is located in Australia; and

(iii) belongs to or is operated by a constitutional corporation or is used to facilitate constitutional trade and commerce;

(f) food (within the meaning of the Food Standards Australia New Zealand Act 1991) that:

(i) is intended for the public; and

(ii) is produced, distributed or sold by a constitutional corporation or for the purposes of, or in the course of, constitutional trade and commerce.

(2) For the purposes of the application of paragraph (1)(a) or (e) in relation to property within the meaning of Chapter 7, whether the property belongs to the Commonwealth or a constitutional corporation is to be determined in the same way as it would be under Chapter 7 (see section 130.2).

Fault element for offences in relation to public infrastructure

(3) For the purposes of a reference, in an element of an offence, to public infrastructure within the meaning of this Division, absolute liability applies:

(a) in relation to public infrastructure within the meaning of paragraph (1)(a)—to the element that the infrastructure, facility, premises, network or electronic system belongs to the Commonwealth; and

(b) in relation to public infrastructure within the meaning of paragraph (1)(e)—to the element that the infrastructure, facility, premises, network or electronic system belongs to or is operated by a constitutional corporation or is used to facilitate constitutional trade or commerce; and

(c) in relation to public infrastructure within the meaning of paragraph (1)(f)—to the element that the food is produced, distributed or sold by a constitutional corporation or for the purposes of, or in the course of, constitutional trade and commerce.

82.2A Expressions also used in the Australian Security Intelligence Organisation Act 1979

Subdivision B—Offences

82.3 Offence of sabotage involving foreign principal with intention as to national security

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct results in damage to public infrastructure; and

(i) prejudice Australia’s national security; or

(ii) advantage the national security of a foreign country; and

(d) any of the following circumstances exists:

(i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal;

(ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal.

Penalty: Imprisonment for 25 years.

(2) For the purposes of subparagraph (1)(c)(ii), the person:

(a) does not need to have in mind a particular foreign country; and

(b) may have in mind more than one foreign country.

(3) For the purposes of paragraph (1)(d), the person:

(a) does not need to have in mind a particular foreign principal; and

(b) may have in mind more than one foreign principal.

Note: An alternative verdict may be available for an offence against this section (see section 82.12).

82.4 Offence of sabotage involving foreign principal reckless as to national security

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct results in damage to public infrastructure; and

(i) prejudice Australia’s national security; or

(ii) advantage the national security of a foreign country; and

(d) any of the following circumstances exists:

(i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal;

(ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal.

Penalty: Imprisonment for 20 years.

(2) For the purposes of subparagraph (1)(c)(ii), the person:

(a) does not need to have in mind a particular foreign country; and

(b) may have in mind more than one foreign country.

(3) For the purposes of paragraph (1)(d), the person:

(a) does not need to have in mind a particular foreign principal; and

(b) may have in mind more than one foreign principal.

Note: An alternative verdict may be available for an offence against this section (see section 82.12).

82.5 Offence of sabotage with intention as to national security

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct results in damage to public infrastructure; and

(i) prejudice Australia’s national security; or

(ii) advantage the national security of a foreign country.

Penalty: Imprisonment for 20 years.

(2) For the purposes of subparagraph (1)(c)(ii), the person:

(a) does not need to have in mind a particular foreign country; and

(b) may have in mind more than one foreign country.

Note: An alternative verdict may be available for an offence against this section (see section 82.12).

82.6 Offence of sabotage reckless as to national security

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct results in damage to public infrastructure; and

(i) prejudice Australia’s national security; or

(ii) advantage the national security of a foreign country.

Penalty: Imprisonment for 15 years.

(2) For the purposes of paragraph (1)(c), the person:

(a) does not need to have in mind a particular foreign country; and

(b) may have in mind more than one foreign country.

82.7 Offence of introducing vulnerability with intention as to national security

A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct has the result that an article or thing, or software, becomes vulnerable:

(i) to misuse or impairment; or

(ii) to being accessed or modified by a person not entitled to access or modify it; and

(d) the person engages in the conduct with the intention that prejudice to Australia’s national security will occur (whether at the time or at a future time).

Note: An alternative verdict may be available for an offence against this section (see section 82.12).

Penalty: Imprisonment for 15 years.

82.8 Offence of introducing vulnerability reckless as to national security

A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct has the result that an article or thing, or software, becomes vulnerable:

(i) to misuse or impairment; or

(ii) to being accessed or modified by a person not entitled to access or modify it; and

(d) the person engages in the conduct reckless as to whether prejudice to Australia’s national security will occur (whether at the time or at a future time).

Penalty: Imprisonment for 10 years.

82.9 Preparing for or planning sabotage offence

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the person does so with the intention of preparing for, or planning, an offence against this Division (other than this section).

Penalty: Imprisonment for 7 years.

(2) Section 11.1 (attempt) does not apply to an offence against subsection (1).

(3) Subsection (1) applies:

(a) whether or not an offence against this Division is committed; and

(b) whether or not the person engages in the conduct in preparation for, or planning, a specific offence against a provision of this Division; and

(c) whether or not the person engages in the conduct in preparation for, or planning, more than one offence against this Division.

82.10 Defences

(1) It is a defence to a prosecution for an offence by a person against this Division if:

(a) the person is, at the time of the offence, a public official; and

(b) the person engaged in the conduct in good faith in the course of performing duties as a public official; and

Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).

(2) It is a defence to a prosecution for an offence by a person against this Division if:

(a) the person is, at the time of the offence:

(i) an owner or operator of the public infrastructure; or

(ii) acting on behalf of, or with the consent of, an owner or operator of the public infrastructure; and

(b) the person engaged in the conduct in good faith; and

(d) the conduct is reasonable in the circumstances for the purpose of exercising that lawful authority.

Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).

82.11 Geographical jurisdiction

Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this Division.

82.12 Alternative verdicts

(1) If, on a trial of a person for an offence specified in column 1 of an item in the following table, the trier of fact:

(a) is not satisfied that the person is guilty of that offence; and

(b) is satisfied beyond reasonable doubt that the person is guilty of an offence against a provision specified in column 2 of that item;

it may find the person not guilty of the offence specified in column 1 but guilty of an offence specified in column 2.

Alternative verdicts
Item	Column 1 For an offence against:	Column 2 The alternative verdict is an offence against:
1	section 82.3 (sabotage involving foreign principal with intention as to national security)	any of the following: (a) section 82.4 (sabotage involving foreign principal reckless as to national security); (b) section 82.5 (sabotage with intention as to national security); (c) section 82.6 (sabotage reckless as to national security)
2	section 82.4 (sabotage involving foreign principal reckless as to national security)	section 82.6 (sabotage reckless as to national security)
3	section 82.5 (sabotage with intention as to national security)	section 82.6 (sabotage reckless as to national security)
4	section 82.7 (introducing vulnerability with intention as to national security)	section 82.8 (introducing vulnerability reckless as to national security)

(2) Subsection (1) only applies if the person has been accorded procedural fairness in relation to the finding of guilt for the offence specified in column 2.

82.13 Consent of Attorney‑General required for prosecutions

(1) Proceedings for the commitment of a person for trial for an offence against this Division must not be instituted without the written consent of the Attorney‑General.

(2) However, the following steps may be taken (but no further steps in proceedings may be taken) without consent having been given:

(a) a person may be arrested for the offence and a warrant for such an arrest may be issued and executed;

(b) a person may be charged with the offence;

(3) Nothing in subsection (2) prevents the discharge of the accused if proceedings are not continued within a reasonable time.

(4) In deciding whether to consent, the Attorney‑General must consider whether the conduct might be authorised by section 82.10.

Division 83—Other threats to security

83.1A Expressions also used in the Australian Security Intelligence Organisation Act 1979

83.1 Advocating mutiny

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

(a) the advocate engages in conduct; and

(b) the conduct involves advocating mutiny; and

(c) the advocate engages in the conduct reckless as to whether the result will be that a defence member (within the meaning of the Defence Force Discipline Act 1982) will take part in a mutiny; and

(d) at the time the advocate engages in the conduct:

(i) the advocate knows that the advocate is an Australian citizen or a resident of Australia; or

(ii) the advocate knows that the advocate has voluntarily put himself or herself under the protection of the Commonwealth; or

(iii) the advocate is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

Note: The defence in section 80.3 for acts done in good faith applies to this offence.

Penalty: Imprisonment for 7 years.

(1A) For the purposes of this section:

(a) a person advocates mutiny if the person counsels, promotes, encourages or urges mutiny; and

(b) a reference to advocating mutiny includes a reference to:

(i) advocating mutiny even if mutiny does not occur; and

(ii) advocating a specific mutiny; and

(iii) advocating more than one mutiny.

(2) A mutiny is a combination between persons who are, or at least 2 of whom are, members of the Australian Defence Force:

(a) to overthrow lawful authority in the Australian Defence Force or in a force of another country that is acting in cooperation with the Australian Defence Force; or

(b) to resist such lawful authority in such a manner as to substantially prejudice the operational efficiency of the Australian Defence Force or of, or of a part of, a force of another country that is acting in cooperation with the Australian Defence Force.

(3) Strict liability applies to subparagraph (1)(d)(iii).

(4) Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this section.

83.2 Assisting prisoners of war to escape

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct assists one or more prisoners of war (within the meaning of Article 4 of the Third Geneva Convention) to escape from custody; and

(d) the conduct takes place in the context of an international armed conflict.

Penalty: Imprisonment for 15 years.

(2) Absolute liability applies to paragraph (1)(d).

(3) Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this section.

83.3 Military‑style training involving foreign government principal etc.

Offence in relation to military‑style training

(1) A person commits an offence if:

(a) the person provides, receives, or participates in, training; and

(b) the training involves using arms or practising military exercises, movements or evolutions; and

(i) the training is provided on behalf of a foreign government principal within the meaning of Part 5.2 (see section 90.3) or a foreign political organisation within the meaning of that Part (see section 90.1);

(ii) the training is directed, funded or supervised by a foreign government principal or foreign political organisation, or a person acting on behalf of a foreign government principal or foreign political organisation.

Penalty: Imprisonment for 20 years.

Defence—authorised by written agreement

(2) Subsection (1) does not apply to a person in relation to conduct engaged in by the person that is authorised by a written agreement to which the Commonwealth is a party.

Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).

Defence—solely for service with armed force other than terrorist organisation

(3) Subsection (1) does not apply in relation to training a person provides, receives or participates in, if the provision, receipt or participation is solely in the course of, and as part of, the person’s service in any capacity in or with:

(a) the armed forces of the government of a foreign country; or

(b) any other armed force, if a declaration under subsection 119.8(1) covers the person and the circumstances of the person’s service in or with the force.

Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).

(4) However, subsection (3) does not apply if:

(a) at the time the person engages in the conduct:

(i) the person is in or with an organisation; or

(ii) the training is funded partly by an organisation; and

(b) the organisation is:

(i) a listed terrorist organisation within the meaning of Part 5.3 (see section 100.1); or

(ii) a prescribed organisation within the meaning of Part 5.5 (see section 117.1).

Defence—humanitarian assistance etc.

(4A) Subsection (1) does not apply to a person in relation to conduct engaged in by the person solely or primarily for one or more of the following purposes:

(a) providing aid of a humanitarian nature;

(b) performing an official duty for:

(i) the United Nations or an agency of the United Nations; or

(ii) the International Committee of the Red Cross.

Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).

Geographical jurisdiction

(5) Section 15.2 (extended geographical jurisdiction—category B) applies to an offence against this section.

83.4 Interference with political rights and duties

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct involves the use of force or violence, or intimidation, or the making of threats of any kind; and

(c) the conduct results in interference with the exercise or performance, in Australia by any other person, of an Australian democratic or political right or duty; and

(d) the right or duty arises under the Constitution or a law of the Commonwealth.

Note: The defence in section 80.3 for acts done in good faith applies to this offence.

Penalty: Imprisonment for 3 years.

(2) Absolute liability applies to paragraph (1)(d).

83.5 Consent of Attorney‑General required for prosecutions

(1) Proceedings for the commitment of a person for trial for an offence against this Division must not be instituted without the written consent of the Attorney‑General.

(2) However, the following steps may be taken (but no further steps in proceedings may be taken) without consent having been given:

(a) a person may be arrested for the offence and a warrant for such an arrest may be issued and executed;

(b) a person may be charged with the offence;

(3) Nothing in subsection (2) prevents the discharge of the accused if proceedings are not continued within a reasonable time.

(4) In deciding whether to consent, the Attorney‑General must consider whether the conduct might be authorised in a way mentioned in:

(a) for an offence against section 83.3—subsection 83.3(2), (3) or (4A); and

(b) for an offence against section 83.1 or 83.4—section 80.3.

Part 5.2—Espionage and related offences

Division 90—Preliminary

90.1 Definitions

(1) In this Part:

advantage: conduct will not advantage the national security of a foreign country if the conduct will advantage Australia’s national security to an equivalent extent.

article includes any thing, substance or material.

concerns: information or an article concerns Australia’s national security if the information or article relates to, or is connected with, or is of interest or importance to, or affects, Australia’s national security.

deal: a person deals with information or an article if the person does any of the following in relation to the information or article:

(a) receives or obtains it;

(b) collects it;

(d) makes a record of it;

(e) copies it;

(f) alters it;

(g) conceals it;

(h) communicates it;

(i) publishes it;

(j) makes it available.

Note: See also the definition of make available in this subsection and subsection (2).

foreign government principal has the meaning given by section 90.3.

foreign political organisation includes:

(a) a foreign political party; and

(b) a foreign organisation that exists primarily to pursue political objectives; and

foreign principal has the meaning given by section 90.2.

information means information of any kind, whether true or false and whether in a material form or not, and includes:

(a) an opinion; and

(b) a report of a conversation.

make available information or an article includes:

(a) place it somewhere it can be accessed by another person; and

(b) give it to an intermediary to give to the intended recipient; and

(c) describe how to obtain access to it, or describe methods that are likely to facilitate access to it (for example, set out the name of a website, an IP address, a URL, a password, or the name of a newsgroup).

national security has the meaning given by section 90.4.

prejudice: embarrassment alone is not sufficient to prejudice Australia’s national security.

record, in relation to information, means a record of information in any form, including but not limited to, a document, paper, database, software system or other article or system containing information or from which information can be derived.

security classification has the meaning given by section 90.5.

sketch includes a representation of a place or thing.

(2) In this Part, dealing with information or an article includes:

(a) dealing with all or part of the information or article; and

(b) dealing only with the substance, effect or description of the information or article.

(4) This Part applies to and in relation to a document or article regardless of who made it and what information it contains.

90.2 Definition of foreign principal

Each of the following is a foreign principal:

(a) a foreign government principal;

(aa) a foreign political organisation;

(b) a public international organisation within the meaning of Division 70 (see section 70.1);

(d) an entity or organisation owned, directed or controlled by a foreign principal within the meaning of paragraph (aa), (b) or (c);

(e) an entity or organisation owned, directed or controlled by 2 or more foreign principals within the meaning of paragraph (a), (aa), (b) or (c).

90.3 Definition of foreign government principal

Each of the following is a foreign government principal:

(a) the government of a foreign country or of part of a foreign country;

(b) an authority of the government of a foreign country;

(d) a foreign local government body or foreign regional government body;

(e) a company to which any of the subparagraphs of paragraph (a) of the definition of foreign public enterprise in section 70.1 applies;

(f) a body or association to which either of the subparagraphs of paragraph (b) of the definition of foreign public enterprise in section 70.1 applies;

(h) an entity or organisation owned, directed or controlled:

(i) by a foreign government principal within the meaning of any other paragraph of this definition; or

(ii) by 2 or more such foreign government principals that are foreign government principals in relation to the same foreign country.

90.4 Definition of national security

(1) The national security of Australia or a foreign country means any of the following:

(a) the defence of the country;

(b) the protection of the country or any part of it, or the people of the country or any part of it, from activities covered by subsection (2);

(d) the carrying out of the country’s responsibilities to any other country in relation to the matter mentioned in paragraph (c) or an activity covered by subsection (2);

(e) the country’s political, military or economic relations with another country or other countries.

(2) For the purposes of subsection (1), this subsection covers the following activities relating to a country, whether or not directed from, or committed within, the country:

(a) espionage;

(b) sabotage;

(d) political violence;

(e) activities intended and likely to obstruct, hinder or interfere with the performance by the country’s defence force of its functions or with the carrying out of other activities by or for the country for the purposes of its defence or safety;

(f) foreign interference.

90.5 Definition of security classification

(1) Security classification means:

(a) a classification of secret or top secret that is applied in accordance with the policy framework developed by the Commonwealth for the purpose (or for purposes that include the purpose) of identifying information:

(i) for a classification of secret—that, if disclosed in an unauthorised manner, could be expected to cause serious damage to the national interest, organisations or individuals; or

(ii) for a classification of top secret—that, if disclosed in an unauthorised manner, could be expected to cause exceptionally grave damage to the national interest; or

(b) any equivalent classification or marking prescribed by the regulations.

(1A) For the purposes of a reference, in an element of an offence in this Part, to security classification, strict liability applies to the element that:

(a) a classification is applied in accordance with the policy framework developed by the Commonwealth for the purpose (or for purposes that include the purpose) of identifying the information mentioned in subparagraph (1)(a)(i) or (ii); or

(b) a classification or marking is prescribed by the regulations as mentioned in paragraph (1)(b).

(2) Before the Governor‑General makes regulations for the purposes of subsection (1), the Minister must be satisfied that the regulations are not inconsistent with the policy framework mentioned in paragraph (1)(a).

(3) Despite subsection 14(2) of the Legislation Act 2003, regulations made for the purposes of subsection (1) of this section may prescribe a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time, if the instrument or other writing is publicly available.

90.6 Expressions also used in the Australian Security Intelligence Organisation Act 1979

The meaning of an expression in this Part does not affect the meaning of that expression in the Australian Security Intelligence Organisation Act 1979, unless that Act expressly provides otherwise.

Division 91—Espionage

Subdivision A—Espionage

91.1 Espionage—dealing with information etc. concerning national security which is or will be communicated or made available to foreign principal

Intention as to national security

(1) A person commits an offence if:

(a) the person deals with information or an article; and

(b) the information or article:

(i) has a security classification; or

(ii) concerns Australia’s national security; and

(i) prejudice Australia’s national security; or

(ii) advantage the national security of a foreign country; and

(d) the conduct results or will result in the information or article being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal.

Note: An alternative verdict may be available for an offence against this subsection (see section 93.5).

Penalty: Imprisonment for life.

Reckless as to national security

(2) A person commits an offence if:

(a) the person deals with information or an article; and

(b) the information or article:

(i) has a security classification; or

(ii) concerns Australia’s national security; and

(i) prejudice Australia’s national security; or

(ii) advantage the national security of a foreign country; and

(d) the conduct results or will result in the information or article being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal.

Penalty: Imprisonment for 25 years.

Other matters

(4) For the purposes of subparagraphs (1)(c)(ii) and (2)(c)(ii), the person:

(a) does not need to have in mind a particular foreign country; and

(b) may have in mind more than one foreign country.

(5) For the purposes of paragraphs (1)(d) and (2)(d), the person:

(a) does not need to have in mind a particular foreign principal; and

(b) may have in mind more than one foreign principal.

91.2 Espionage—dealing with information etc. which is or will be communicated or made available to foreign principal

Intention as to national security

(1) A person commits an offence if:

(a) the person deals with information or an article; and

(b) the person intends that the person’s conduct will prejudice Australia’s national security; and

(c) the conduct results or will result in the information or article being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal.

Note: An alternative verdict may be available for an offence against this subsection (see section 93.5).

Penalty: Imprisonment for 25 years.

Reckless as to national security

(2) A person commits an offence if:

(a) the person deals with information or an article; and

(b) the person is reckless as to whether the person’s conduct will prejudice Australia’s national security; and

(c) the conduct results or will result in the information or article being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal.

Penalty: Imprisonment for 20 years.

Other matters

(3) For the purposes of paragraphs (1)(c) and (2)(c):

(a) the person does not need to have in mind a particular foreign principal; and

(b) the person may have in mind more than one foreign principal.

91.3 Espionage—security classified information etc.

(1) A person commits an offence if:

(a) the person deals with information or an article; and

(aa) the person deals with the information or article for the primary purpose of communicating the information or article, or making it available, to a foreign principal or a person acting on behalf of a foreign principal; and

(b) the person’s conduct results or will result in the information or article being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal; and

Penalty: Imprisonment for 20 years.

(2) For the purposes of paragraphs (1)(aa) and (b):

(a) the person does not need to have in mind a particular foreign principal; and

(b) the person may have in mind more than one foreign principal.

(3) Strict liability applies to paragraph (1)(aa).

91.4 Defences

(1) It is a defence to a prosecution for an offence by a person against this Subdivision that the person dealt with the information or article:

(a) in accordance with a law of the Commonwealth; or

(b) in accordance with an arrangement or agreement to which the Commonwealth is party and which allows for the exchange of information or articles; or

Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).

(2) It is a defence to a prosecution for an offence by a person against this Subdivision that the information or article the person deals with is information or an article that has already been communicated or made available to the public with the authority of the Commonwealth.

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

(3) It is a defence to a prosecution for an offence by a person against section 91.1, in which the prosecution relies on subparagraph 91.1(1)(c)(ii) or (2)(c)(ii), or against section 91.3, if:

(a) the person did not make or obtain the information or article by reason of any of the following:

(i) the person being, or having been, a Commonwealth officer (within the meaning of Part 5.6);

(ii) the person being otherwise engaged to perform work for a Commonwealth entity;

(iii) an arrangement or agreement to which the Commonwealth or a Commonwealth entity is party and which allows for the exchange of information; and

(b) the information or article has already been communicated, or made available, to the public (the prior publication); and

(d) at the time the person deals with the information or article, the person believes that doing so will not prejudice Australia’s national security; and

(e) having regard to the nature, extent and place of the prior publication, the person has reasonable grounds for that belief.

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

91.5 Matters affecting sentencing for offence against subsection 91.1(1)

(1) In determining the sentence to be passed in respect of a person for an offence against subsection 91.1(1) (punishable by life imprisonment), the court must take into account any circumstances set out in paragraph 91.6(1)(b) that exist in relation to the commission of the offence.

(2) However, the court need only take the circumstances into account so far as the circumstances are known to the court and relevant.

(3) The circumstances are in addition to any other matters the court must take into account (for example, the matters mentioned in section 16A of the Crimes Act 1914).

91.6 Aggravated espionage offence

(1) A person commits an offence against this section if:

(a) the person commits an offence against section 91.1 (other than subsection 91.1(1)), 91.2 or 91.3 (the underlying offence); and

(b) any of the following circumstances exist in relation to the commission of the underlying offence:

(ii) the person dealt with information or an article from a foreign intelligence agency;

(iii) the person dealt with 5 or more records or articles each of which has a security classification;

(iv) the person altered a record or article to remove or conceal its security classification;

(v) at the time the person dealt with the information or article, the person held an Australian Government security clearance allowing access to information that has, or articles that have, a security classification of at least secret.

Penalty:

(a) if the penalty for the underlying offence is imprisonment for 25 years—imprisonment for life; or

(b) if the penalty for the underlying offence is imprisonment for 20 years—imprisonment for 25 years.

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

(4) To avoid doubt, a person does not commit an underlying offence for the purposes of paragraph (1)(a) if the person has a defence to the underlying offence.

(5) To avoid doubt, the person may be convicted of an offence against this section even if the person has not been convicted of the underlying offence.

Note: An alternative verdict may be available for an offence against this section (see section 93.5).

91.7 Geographical jurisdiction

Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this Subdivision.

Subdivision B—Espionage on behalf of foreign principal

91.8 Espionage on behalf of foreign principal

Intention as to national security

(1) A person commits an offence if:

(a) the person deals with information or an article; and

(b) the person intends that the person’s conduct will:

(i) prejudice Australia’s national security; or

(ii) advantage the national security of a foreign country; and

(c) the person is reckless as to whether the conduct involves the commission, by the person or any other person, of an offence against Subdivision A (espionage); and

(d) any of the following circumstances exists:

(i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal;

(ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal.

Note: An alternative verdict may be available for an offence against this subsection (see section 93.5).

Penalty: Imprisonment for 25 years.

Reckless as to national security

(2) A person commits an offence if:

(a) the person deals with information or an article; and

(b) the person is reckless as to whether the person’s conduct will:

(i) prejudice Australia’s national security; or

(ii) advantage the national security of a foreign country; and

(c) the person is reckless as to whether the conduct involves the commission, by the person or any other person, of an offence against Subdivision A (espionage); and

(d) any of the following circumstances exists:

(i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal;

(ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal.

Penalty: Imprisonment for 20 years.

Conduct on behalf of foreign principal

(3) A person commits an offence if:

(a) the person deals with information or an article; and

(b) the person is reckless as to whether the person’s conduct involves the commission, by the person or any other person, of an offence against Subdivision A (espionage); and

(i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal;

(ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal.

Penalty: Imprisonment for 15 years.

Other matters

(4) For the purposes of subparagraphs (1)(b)(ii) and (2)(b)(ii), the person:

(a) does not need to have in mind a particular foreign country; and

(b) may have in mind more than one foreign country.

(5) For the purposes of paragraphs (1)(d), (2)(d) and (3)(c), the person:

(a) does not need to have in mind a particular foreign principal; and

(b) may have in mind more than one foreign principal.

91.9 Defences

(1) It is a defence to a prosecution for an offence by a person against this Subdivision that the person dealt with the information or article:

(a) in accordance with a law of the Commonwealth; or

(b) in accordance with an arrangement or agreement to which the Commonwealth is party and which allows for the exchange of information or articles; or

Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).

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

91.10 Geographical jurisdiction

Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this Subdivision.

Subdivision C—Espionage‑related offences

91.11 Offence of soliciting or procuring an espionage offence or making it easier to do so

(1) A person commits an offence if:

(a) the person engages in conduct in relation to another person (the target); and

(b) the person engages in the conduct with the intention of soliciting or procuring, or making it easier to solicit or procure, the target to deal with information or an article in a way that would constitute an offence against Subdivision A (espionage) or B (espionage on behalf of foreign principal); and

(i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal;

(ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal.

Penalty: Imprisonment for 15 years.

(2) For the purposes of paragraph (1)(c):

(a) the person does not need to have in mind a particular foreign principal; and

(b) the person may have in mind more than one foreign principal.

(3) A person may commit an offence against subsection (1):

(a) even if an offence against Subdivision A or B is not committed; and

(b) even if it is impossible for the target to deal with information or an article in a way that would constitute an offence against Subdivision A or B; and

(c) even if the person does not have in mind particular information or a particular article, or a particular dealing or kind of dealing with information or an article, at the time the person engages in conduct in relation to the target; and

(d) whether it is a single dealing, or multiple dealings, that the person intends to solicit or procure or make it easier to solicit or procure.

(4) Section 11.1 (attempt) does not apply to an offence against subsection (1).

91.12 Offence of preparing for an espionage offence

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the person does so with the intention of preparing for, or planning, an offence against Subdivision A (espionage) or B (espionage on behalf of foreign principal).

Penalty: Imprisonment for 15 years.

(2) Section 11.1 (attempt) does not apply to an offence against subsection (1).

(3) Subsection (1) applies:

(a) whether or not an offence against Subdivision A or B is committed; and

(b) whether or not the person engages in the conduct in preparation for, or planning, a specific offence against a provision of Subdivision A or B; and

(c) whether or not the person engages in the conduct in preparation for, or planning, more than one offence against Subdivision A or B.

91.13 Defences

It is a defence to a prosecution for an offence by a person against this Subdivision that the person dealt with the information or article:

(a) in accordance with a law of the Commonwealth; or

(b) in accordance with an arrangement or agreement to which the Commonwealth is party and which allows for the exchange of information or articles; or

Note: A defendant bears an evidential burden in relation to the matters in this section (see subsection 13.3(3)).

91.14 Geographical jurisdiction

Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this Subdivision.

Division 92—Foreign interference

Subdivision A—Preliminary

92.1 Definitions

In this Division:

deception means an intentional or reckless deception, whether by words or other conduct, and whether as to fact or as to law, and includes:

(a) a deception as to the intentions of the person using the deception or any other person; and

(b) conduct by a person that causes a computer, a machine or an electronic device to make a response that the person is not authorised to cause it to do.

menaces has the same meaning as in Part 7.5 (see section 138.2).

Subdivision B—Foreign interference

92.2 Offence of intentional foreign interference

Interference generally

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) any of the following circumstances exists:

(i) the person engages in the conduct on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal;

(ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal; and

(i) influence a political or governmental process of the Commonwealth or a State or Territory; or

(ii) influence the exercise (whether or not in Australia) of an Australian democratic or political right or duty; or

(iii) support intelligence activities of a foreign principal; or

(iv) prejudice Australia’s national security; and

(d) any part of the conduct:

(i) is covert or involves deception; or

(ii) involves the person making a threat to cause serious harm, whether to the person to whom the threat is made or any other person; or

(iii) involves the person making a demand with menaces.

Note: An alternative verdict may be available for an offence against this subsection (see section 93.5).

Penalty: Imprisonment for 20 years.

Interference involving targeted person

(2) A person commits an offence if:

(a) the person engages in conduct; and

(b) any of the following circumstances exists:

(i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal;

(ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal; and

(i) in relation to a political or governmental process of the Commonwealth or a State or Territory; or

(ii) in the target’s exercise (whether or not in Australia) of any Australian democratic or political right or duty; and

(d) the person conceals from, or fails to disclose to, the target the circumstance mentioned in paragraph (b).

Note: An alternative verdict may be available for an offence against this subsection (see section 93.5).

Penalty: Imprisonment for 20 years.

Other matters

(3) For the purposes of paragraphs (1)(b) and (2)(b):

(a) the person does not need to have in mind a particular foreign principal; and

(b) the person may have in mind more than one foreign principal.

92.3 Offence of reckless foreign interference

Interference generally

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) any of the following circumstances exists:

(i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal;

(ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal; and

(i) influence a political or governmental process of the Commonwealth or a State or Territory; or

(ii) influence the exercise (whether or not in Australia) of an Australian democratic or political right or duty; or

(iii) support intelligence activities of a foreign principal; or

(iv) prejudice Australia’s national security; and

(d) any part of the conduct:

(i) is covert or involves deception; or

(ii) involves the person making a threat to cause serious harm, whether to the person to whom the threat is made or any other person; or

(iii) involves the person making a demand with menaces.

Penalty: Imprisonment for 15 years.

Interference involving targeted person

(2) A person commits an offence if:

(a) the person engages in conduct; and

(b) any of the following circumstances exists:

(i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal;

(ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal; and

(i) in relation to a political or governmental process of the Commonwealth or a State or Territory; or

(ii) in the target’s exercise (whether or not in Australia) of any Australian democratic or political right or duty; and

(d) the person conceals from, or fails to disclose to, the target the circumstance mentioned in paragraph (b).

Penalty: Imprisonment for 15 years.

Other matters

(3) For the purposes of paragraphs (1)(b) and (2)(b):

(a) the person does not need to have in mind a particular foreign principal; and

(b) the person may have in mind more than one foreign principal.

92.4 Offence of preparing for a foreign interference offence

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the person does so with the intention of preparing for, or planning, an offence against another provision of this Subdivision (foreign interference).

Penalty: Imprisonment for 10 years.

(2) Section 11.1 (attempt) does not apply to an offence against subsection (1).

(3) Subsection (1) applies:

(a) whether or not an offence against this Subdivision is committed; and

(b) whether or not the person engages in the conduct in preparation for, or planning, a specific offence against a provision of this Subdivision; and

(c) whether or not the person engages in the conduct in preparation for, or planning, more than one offence against this Subdivision.

92.5 Defence

It is a defence to a prosecution for an offence by a person against this Subdivision that the person engaged in the conduct:

(a) in accordance with a law of the Commonwealth; or

(b) in accordance with an arrangement or agreement to which the Commonwealth is party; or

Note: A defendant bears an evidential burden in relation to the matters in this section (see subsection 13.3(3)).

92.6 Geographical jurisdiction

Section 15.2 (extended geographical jurisdiction—category B) applies to an offence against this Subdivision.

Subdivision C—Foreign interference involving foreign intelligence agencies

92.7 Knowingly supporting foreign intelligence agency

A person commits an offence if:

(a) the person provides resources, or material support, to an organisation or a person acting on behalf of an organisation; and

(b) the person knows that the organisation is a foreign intelligence agency.

Note: An alternative verdict may be available for an offence against this section (see section 93.5).

Penalty: Imprisonment for 15 years.

92.8 Recklessly supporting foreign intelligence agency

A person commits an offence if:

(a) the person provides resources, or material support, to an organisation or a person acting on behalf of an organisation; and

(b) the organisation is a foreign intelligence agency.

Penalty: Imprisonment for 10 years.

92.9 Knowingly funding or being funded by foreign intelligence agency

A person commits an offence if:

(a) the person:

(i) directly or indirectly receives or obtains funds from, or directly or indirectly makes funds available to, an organisation or a person acting on behalf of an organisation; or

(ii) directly or indirectly collects funds for or on behalf of an organisation or a person acting on behalf of an organisation; and

(b) the person knows that the organisation is a foreign intelligence agency.

Note: An alternative verdict may be available for an offence against this section (see section 93.5).

Penalty: Imprisonment for 15 years.

92.10 Recklessly funding or being funded by foreign intelligence agency

A person commits an offence if:

(a) the person:

(i) directly or indirectly receives or obtains funds from, or directly or indirectly makes funds available to, an organisation or a person acting on behalf of an organisation; or

(ii) directly or indirectly collects funds for or on behalf of an organisation or a person acting on behalf of an organisation; and

(b) the organisation is a foreign intelligence agency.

Penalty: Imprisonment for 10 years.

92.11 Defence

It is a defence to a prosecution for an offence by a person against this Subdivision that the person engaged in the conduct:

(a) in accordance with a law of the Commonwealth; or

(b) in accordance with an arrangement or agreement to which the Commonwealth is party; or

Note: A defendant bears an evidential burden in relation to the matters in this section (see subsection 13.3(3)).

Division 92A—Theft of trade secrets involving foreign government principal

92A.1 Theft of trade secrets involving foreign government principal

(1) A person commits an offence if:

(a) the person dishonestly receives, obtains, takes, copies or duplicates, sells, buys or discloses information; and

(b) all of the following circumstances exist:

(i) the information is not generally known in trade or business, or in the particular trade or business concerned;

(ii) the information has a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were communicated;

(iii) the owner of the information has made reasonable efforts in the circumstances to prevent the information becoming generally known; and

(i) the conduct is engaged in on behalf of, or in collaboration with, a foreign government principal or a person acting on behalf of a foreign government principal;

(ii) the conduct is directed, funded or supervised by a foreign government principal or a person acting on behalf of a foreign government principal.

Penalty: Imprisonment for 15 years.

(2) For the purposes of paragraph (1)(a), dishonest means:

(a) dishonest according to the standards of ordinary people; and

(b) known by the defendant to be dishonest according to the standards of ordinary people.

(3) In a prosecution for an offence against this section, the determination of dishonesty is a matter for the trier of fact.

(4) For the purposes of paragraph (1)(c):

(a) the person does not need to have in mind a particular foreign government principal; and

(b) the person may have in mind more than one foreign government principal.

92A.2 Geographical jurisdiction

(1) Section 15.2 (extended geographical jurisdiction—category B) applies to an offence against section 92A.1.

(2) However, subsections 15.2(2) and 15.2(4) (defences for primary and ancillary offences) do not apply.

Division 93—Prosecutions and hearings

93.1 Consent of Attorney‑General required for prosecutions

(1) Proceedings for the commitment of a person for trial for an offence against this Part must not be instituted without:

(a) the written consent of the Attorney‑General; and

(b) for proceedings that relate to information or an article that has a security classification—a certification by the Attorney‑General that, at the time of the conduct that is alleged to constitute the offence, it was appropriate that the information or article had a security classification.

(2) However, the following steps may be taken (but no further steps in proceedings may be taken) without consent or certification having been obtained:

(a) a person may be arrested for the offence and a warrant for such an arrest may be issued and executed;

(b) a person may be charged with the offence;

(3) Nothing in subsection (2) prevents the discharge of the accused if proceedings are not continued within a reasonable time.

(4) In deciding whether to consent, the Attorney‑General must consider whether the conduct might be authorised:

(a) for an offence against Subdivision A of Division 91 (espionage)—in a way mentioned in section 91.4; and

(b) for an offence against Subdivision B of Division 91 (espionage on behalf of foreign principal)—in a way mentioned in section 91.9; and

(d) for an offence against Subdivision C of Division 92 (foreign interference involving foreign intelligence agencies)—in a way mentioned in section 92.11.

93.2 Hearing in camera etc.

(1) This section applies to a hearing of an application or other proceedings before a federal court, a court exercising federal jurisdiction or a court of a Territory, whether under this Act or otherwise.

(2) At any time before or during the hearing, the judge or magistrate, or other person presiding or competent to preside over the proceedings, may, if satisfied that it is in the interests of Australia’s national security:

(a) order that some or all of the members of the public be excluded during the whole or a part of the hearing; or

(b) order that no report of the whole or a specified part of, or relating to, the application or proceedings be published; or

(c) make such order and give such directions as he or she thinks necessary for ensuring that no person, without the approval of the court, has access (whether before, during or after the hearing) to any affidavit, exhibit, information or other document used in the application or the proceedings that is on the file in the court or in the records of the court.

(3) A person commits an offence if the person contravenes an order made or direction given under this section.

Penalty: Imprisonment for 5 years.

93.4 Fault elements for attempted espionage offences

Despite subsection 11.1(3), the fault element, in relation to each physical element of an offence of attempting to commit an offence against a provision of:

(a) Subdivision A of Division 91 (espionage); or

(b) Subdivision B of Division 91 (espionage on behalf of foreign principal);

is the fault element in relation to that physical element of the offence against the provision of Subdivision A or B of Division 91.

93.5 Alternative verdicts

(1) If, on a trial of a person for an offence specified in column 1 of an item in the following table, the trier of fact:

(a) is not satisfied that the person is guilty of that offence; and

(b) is satisfied beyond reasonable doubt that the person is guilty of an offence against a provision specified in column 2 of that item;

it may find the person not guilty of the offence specified in column 1 but guilty of the offence specified in column 2.

Alternative verdicts
Item	Column 1 For an offence against:	Column 2 The alternative verdict is an offence against:
1	subsection 91.1(1)	subsection 91.1(2)
2	subsection 91.2(1)	subsection 91.2(2)
3	subsection 91.6(1)	the underlying offence mentioned in paragraph 91.6(1)(a)
4	subsection 91.8(1)	subsection 91.8(2)
5	subsection 92.2(1)	subsection 92.3(1)
6	subsection 92.2(2)	subsection 92.3(2)
7	section 92.7	section 92.8
8	section 92.9	section 92.10

(2) Subsection (1) only applies if the person has been accorded procedural fairness in relation to the finding of guilt for the offence specified in column 2.

Division 94—Forfeiture

94.1 Forfeiture of articles etc.

A sketch, article, record or document which is dealt with in contravention of this Part is forfeited to the Commonwealth.

Part 5.3—Terrorism

Division 100—Preliminary

100.1 Definitions

(1) In this Part:

AFP member means:

(a) a member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979); or

(b) a special member of the Australian Federal Police (within the meaning of that Act).

AFP Minister means the Minister administering the Australian Federal Police Act 1979.

ASIO affiliate has the same meaning as in the Australian Security Intelligence Organisation Act 1979.

ASIO employee has the same meaning as in the Australian Security Intelligence Organisation Act 1979.

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

confirmed control order means an order made under section 104.16.

constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.

continued preventative detention order means an order made under section 105.12.

control order means an interim control order or a confirmed control order.

corresponding State preventative detention law means a law of a State or Territory that is, or particular provisions of a law of a State or Territory that are, declared by the regulations to correspond to Division 105 of this Act.

engage in a hostile activity has the meaning given by subsection 117.1(1).

express amendment of the provisions of this Part or Chapter 2 means the direct amendment of the provisions (whether by the insertion, omission, repeal, substitution or relocation of words or matter).

frisk search means:

(a) a search of a person conducted by quickly running the hands over the person’s outer garments; and

(b) an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person.

funds means:

(a) property and assets of every kind, whether tangible or intangible, movable or immovable, however acquired; and

(b) legal documents or instruments in any form, including electronic or digital, evidencing title to, or interest in, such property or assets, including, but not limited to, bank credits, travellers cheques, bank cheques, money orders, shares, securities, bonds, debt instruments, drafts and letters of credit.

identification material, in relation to a person, means prints of the person’s hands, fingers, feet or toes, recordings of the person’s voice, samples of the person’s handwriting or photographs (including video recordings) of the person, but does not include tape recordings made for the purposes of section 23U or 23V of the Crimes Act 1914.

initial preventative detention order means an order made under section 105.8.

interim control order means an order made under section 104.4, 104.7 or 104.9.

issuing authority:

(a) for initial preventative detention orders—means a senior AFP member; and

(b) for continued preventative detention orders—means a person appointed under section 105.2.

issuing court means:

(a) the Federal Court of Australia; or

(b) the Federal Circuit and Family Court of Australia (Division 2).

lawyer means a person enrolled as a legal practitioner of a federal court or the Supreme Court of a State or Territory.

listed terrorist organisation means an organisation that is specified by the regulations for the purposes of paragraph (b) of the definition of terrorist organisation in section 102.1.

ordinary search means a search of a person or of articles in the possession of a person that may include:

(a) requiring the person to remove his or her overcoat, coat or jacket and any gloves, shoes or hat; and

(b) an examination of those items.

organisation means a body corporate or an unincorporated body, whether or not the body:

(a) is based outside Australia; or

(b) consists of persons who are not Australian citizens; or

police officer means:

(a) an AFP member; or

(b) a member (however described) of a police force of a State or Territory.

prescribed authority has the same meaning as in Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979.

preventative detention order means an order under section 105.8 or 105.12.

prohibited contact order means an order made under section 105.15 or 105.16.

referring State has the meaning given by section 100.2.

seizable item means anything that:

(a) would present a danger to a person; or

(b) could be used to assist a person to escape from lawful custody; or

senior AFP member means:

(a) the Commissioner of the Australian Federal Police; or

(b) a Deputy Commissioner of the Australian Federal Police; or

superior court means:

(a) the High Court; or

(b) the Federal Court of Australia; or

(d) the Supreme Court of a State or Territory; or

(e) the District Court (or equivalent) of a State or Territory.

terrorist act means an action or threat of action where:

(a) the action falls within subsection (2) and does not fall within subsection (3); and

(b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and

(i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or

(ii) intimidating the public or a section of the public.

tracking device means any electronic device capable of being used to determine or monitor the location of a person or an object or the status of an object.

(2) Action falls within this subsection if it:

(a) causes serious harm that is physical harm to a person; or

(b) causes serious damage to property; or

(d) endangers a person’s life, other than the life of the person taking the action; or

(e) creates a serious risk to the health or safety of the public or a section of the public; or

(f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:

(i) an information system; or

(ii) a telecommunications system; or

(iii) a financial system; or

(iv) a system used for the delivery of essential government services; or

(v) a system used for, or by, an essential public utility; or

(vi) a system used for, or by, a transport system.

(3) Action falls within this subsection if it:

(a) is advocacy, protest, dissent or industrial action; and

(b) is not intended:

(i) to cause serious harm that is physical harm to a person; or

(ii) to cause a person’s death; or

(iii) to endanger the life of a person, other than the person taking the action; or

(iv) to create a serious risk to the health or safety of the public or a section of the public.

(4) In this Division:

(a) a reference to any person or property is a reference to any person or property wherever situated, within or outside Australia; and

(b) a reference to the public includes a reference to the public of a country other than Australia.

Note: A court that is sentencing a person who has been convicted of an offence against this Part, the maximum penalty for which is 7 or more years of imprisonment, must warn the person about continuing detention orders (see section 105A.23).

100.2 Referring States

(1) A State is a referring State if the Parliament of the State has referred the matters covered by subsections (2) and (3) to the Parliament of the Commonwealth for the purposes of paragraph 51(xxxvii) of the Constitution:

(a) if and to the extent that the matters are not otherwise included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference under paragraph 51(xxxvii) of the Constitution); and

(b) if and to the extent that the matters are included in the legislative powers of the Parliament of the State.

This subsection has effect subject to subsection (5).

(2) This subsection covers the matters to which the referred provisions relate to the extent of making laws with respect to those matters by including the referred provisions in this Code.

(3) This subsection covers the matter of terrorist acts, and of actions relating to terrorist acts, to the extent of making laws with respect to that matter by making express amendment of this Part or Chapter 2.

(4) A State is a referring State even if a law of the State provides that the reference to the Commonwealth Parliament of either or both of the matters covered by subsections (2) and (3) is to terminate in particular circumstances.

(5) A State ceases to be a referring State if a reference by the State of either or both of the matters covered by subsections (2) and (3) terminate.

(6) In this section:

referred provisions means the provisions of Part 5.3 of this Code as inserted by the Criminal Code Amendment (Terrorism) Act 2002, to the extent to which they deal with matters that are included in the legislative powers of the Parliaments of the States.

100.3 Constitutional basis for the operation of this Part

Operation in a referring State

(1) The operation of this Part in a referring State is based on:

(a) the legislative powers that the Commonwealth Parliament has under section 51 of the Constitution (other than paragraph 51(xxxvii)); and

(b) the legislative powers that the Commonwealth Parliament has in respect of matters to which this Part relates because those matters are referred to it by the Parliament of the referring State under paragraph 51(xxxvii) of the Constitution.

Note: The State reference fully supplements the Commonwealth Parliament’s other powers by referring the matters to the Commonwealth Parliament to the extent to which they are not otherwise included in the legislative powers of the Commonwealth Parliament.

Operation in a non‑referring State

(2) The operation of this Part in a State that is not a referring State is based on the legislative powers that the Commonwealth Parliament has under section 51 of the Constitution (other than paragraph 51(xxxvii)).

Note: Subsection 100.4(5) identifies particular powers that are being relied on.

Operation in a Territory

(3) The operation of this Part in the Northern Territory, the Australian Capital Territory or an external Territory is based on:

(a) the legislative powers that the Commonwealth Parliament has under section 122 of the Constitution to make laws for the government of that Territory; and

(b) the legislative powers that the Commonwealth Parliament has under section 51 of the Constitution (other than paragraph 51(xxxvii)).

Despite subsection 22(3) of the Acts Interpretation Act 1901, this Part as applying in those Territories is a law of the Commonwealth.

Operation outside Australia

(4) The operation of this Part outside Australia and the external Territories is based on:

(a) the legislative powers that the Commonwealth Parliament has under paragraph 51(xxix) of the Constitution; and

(b) the other legislative powers that the Commonwealth Parliament has under section 51 of the Constitution (other than paragraph 51(xxxvii)).

100.4 Application of provisions

Part generally applies to all terrorist acts and preliminary acts

(1) Subject to subsection (4), this Part applies to the following conduct:

(a) all actions or threats of action that constitute terrorist acts (no matter where the action occurs, the threat is made or the action, if carried out, would occur);

(b) all actions (preliminary acts) that relate to terrorist acts but do not themselves constitute terrorist acts (no matter where the preliminary acts occur and no matter where the terrorist acts to which they relate occur or would occur).

Note: See the following provisions:

(a) subsection 101.1(2);

(b) subsection 101.2(4);

(d) subsection 101.5(4);

(e) subsection 101.6(3);

(f) section 102.9.

Operation in relation to terrorist acts and preliminary acts occurring in a State that is not a referring State

(2) Subsections (4) and (5) apply to conduct if the conduct is itself a terrorist act and:

(a) the terrorist act consists of an action and the action occurs in a State that is not a referring State; or

(b) the terrorist act consists of a threat of action and the threat is made in a State that is not a referring State.

(3) Subsections (4) and (5) also apply to conduct if the conduct is a preliminary act that occurs in a State that is not a referring State and:

(a) the terrorist act to which the preliminary act relates consists of an action and the action occurs, or would occur, in a State that is not a referring State; or

(b) the terrorist act to which the preliminary act relates consists of a threat of action and the threat is made, or would be made, in a State that is not a referring State.

(4) Notwithstanding any other provision in this Part, this Part applies to the conduct only to the extent to which the Parliament has power to legislate in relation to:

(a) if the conduct is itself a terrorist act—the action or threat of action that constitutes the terrorist act; or

(b) if the conduct is a preliminary act—the action or threat of action that constitutes the terrorist act to which the preliminary act relates.

(5) Without limiting the generality of subsection (4), this Part applies to the action or threat of action if:

(a) the action affects, or if carried out would affect, the interests of:

(i) the Commonwealth; or

(ii) an authority of the Commonwealth; or

(iii) a constitutional corporation; or

(b) the threat is made to:

(i) the Commonwealth; or

(ii) an authority of the Commonwealth; or

(iii) a constitutional corporation; or

(d) the action takes place, or if carried out would take place, in a Commonwealth place; or

(e) the threat is made in a Commonwealth place; or

(f) the action involves, or if carried out would involve, the use of a postal service or other like service; or

(g) the threat is made using a postal or other like service; or

(h) the action involves, or if carried out would involve, the use of an electronic communication; or

(i) the threat is made using an electronic communication; or

(j) the action disrupts, or if carried out would disrupt, trade or commerce:

(i) between Australia and places outside Australia; or

(ii) among the States; or

(iii) within a Territory, between a State and a Territory or between 2 Territories; or

(k) the action disrupts, or if carried out would disrupt:

(i) banking (other than State banking not extending beyond the limits of the State concerned); or

(ii) insurance (other than State insurance not extending beyond the limits of the State concerned); or

(l) the action is, or if carried out would be, an action in relation to which the Commonwealth is obliged to create an offence under international law; or

(m) the threat is one in relation to which the Commonwealth is obliged to create an offence under international law.

(6) To avoid doubt, subsections (2) and (3) apply to a State that is not a referring State at a particular time even if no State is a referring State at that time.

100.5 Application of Acts Interpretation Act 1901

(1) The Acts Interpretation Act 1901, as in force on the day on which Schedule 1 to the Criminal Code Amendment (Terrorism) Act 2003 commences, applies to this Part.

(2) Amendments of the Acts Interpretation Act 1901 made after that day do not apply to this Part.

(3) Despite subsections (1) and (2), sections 2D, 2E and 2F of the Acts Interpretation Act 1901 apply to this Part.

100.6 Concurrent operation intended

(1) This Part is not intended to exclude or limit the concurrent operation of any law of a State or Territory.

(2) Without limiting subsection (1), this Part is not intended to exclude or limit the concurrent operation of a law of a State or Territory that makes:

(a) an act or omission that is an offence against a provision of this Part; or

(b) a similar act or omission;

an offence against the law of the State or Territory.

(3) Subsection (2) applies even if the law of the State or Territory does any one or more of the following:

(a) provides for a penalty for the offence that differs from the penalty provided for in this Part;

(b) provides for a fault element in relation to the offence that differs from the fault elements applicable to the offence under this Part;

(c) provides for a defence in relation to the offence that differs from the defences applicable to the offence under this Part.

(4) If:

(a) an act or omission of a person is an offence under this Part and is also an offence under the law of a State or Territory; and

(b) the person has been punished for the offence under the law of the State or Territory;

the person is not liable to be punished for the offence under this Part.

100.7 Regulations may modify operation of this Part to deal with interaction between this Part and State and Territory laws

(1) The regulations may modify the operation of this Part so that:

(a) provisions of this Part do not apply to a matter that is dealt with by a law of a State or Territory specified in the regulations; or

(b) no inconsistency arises between the operation of a provision of this Part and the operation of a State or Territory law specified in the regulations.

(2) Without limiting subsection (1), regulations made for the purposes of that subsection may provide that the provision of this Part does not apply to:

(a) a person specified in the regulations; or

(b) a body specified in the regulations; or

(d) a person or body specified in the regulations in the circumstances specified in the regulations.

(3) In this section:

matter includes act, omission, body, person or thing.

100.8 Approval for changes to or affecting this Part

(1) This section applies to:

(a) an express amendment of this Part (including this section); and

(b) an express amendment of Chapter 2 that applies only to this Part (whether or not it is expressed to apply only to this Part).

(2) An express amendment to which this section applies is not to be made unless the amendment is approved by:

(a) a majority of the group consisting of the States, the Australian Capital Territory and the Northern Territory; and

(b) at least 4 States.

Division 101—Terrorism

101.1 Terrorist acts

(1) A person commits an offence if the person engages in a terrorist act.

Penalty: Imprisonment for life.

(2) Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against subsection (1).

101.2 Providing or receiving training connected with terrorist acts

(1) A person commits an offence if:

(a) the person provides or receives training; and

(b) the training is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and

Penalty: Imprisonment for 25 years.

(2) A person commits an offence if:

(a) the person provides or receives training; and

(b) the training is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and

Penalty: Imprisonment for 15 years.

(3) A person commits an offence under this section even if:

(a) a terrorist act does not occur; or

(b) the training is not connected with preparation for, the engagement of a person in, or assistance in a specific terrorist act; or

(c) the training is connected with preparation for, the engagement of a person in, or assistance in more than one terrorist act.

(4) Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this section.

(5) If, in a prosecution for an offence (the prosecuted offence) against a subsection of this section, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence (the alternative offence) against another subsection of this section, the trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

101.4 Possessing things connected with terrorist acts

(1) A person commits an offence if:

(a) the person possesses a thing; and

(b) the thing is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and

Penalty: Imprisonment for 15 years.

(2) A person commits an offence if:

(a) the person possesses a thing; and

(b) the thing is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and

Penalty: Imprisonment for 10 years.

(3) A person commits an offence under subsection (1) or (2) even if:

(a) a terrorist act does not occur; or

(b) the thing is not connected with preparation for, the engagement of a person in, or assistance in a specific terrorist act; or

(c) the thing is connected with preparation for, the engagement of a person in, or assistance in more than one terrorist act.

(4) Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this section.

(5) Subsections (1) and (2) do not apply if the possession of the thing was not intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act.

Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3)).

(6) If, in a prosecution for an offence (the prosecuted offence) against a subsection of this section, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence (the alternative offence) against another subsection of this section, the trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

101.5 Collecting or making documents likely to facilitate terrorist acts

(1) A person commits an offence if:

(a) the person collects or makes a document; and

(b) the document is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and

Penalty: Imprisonment for 15 years.

(2) A person commits an offence if:

(a) the person collects or makes a document; and

(b) the document is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and

Penalty: Imprisonment for 10 years.

(3) A person commits an offence under subsection (1) or (2) even if:

(a) a terrorist act does not occur; or

(b) the document is not connected with preparation for, the engagement of a person in, or assistance in a specific terrorist act; or

(c) the document is connected with preparation for, the engagement of a person in, or assistance in more than one terrorist act.

(4) Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this section.

(5) Subsections (1) and (2) do not apply if the collection or making of the document was not intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act.

Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3)).

101.6 Other acts done in preparation for, or planning, terrorist acts

(1) A person commits an offence if the person does any act in preparation for, or planning, a terrorist act.

Penalty: Imprisonment for life.

(2) A person commits an offence under subsection (1) even if:

(a) a terrorist act does not occur; or

(b) the person’s act is not done in preparation for, or planning, a specific terrorist act; or

(3) Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against subsection (1).

Division 102—Terrorist organisations

Subdivision A—Definitions

102.1 Definitions

(1) In this Division:

advocate has the meaning given by subsection (1A).

associate: a person associates with another person if the person meets or communicates with the other person.

close family member of a person means:

(a) the person’s spouse or de facto partner; or

(b) a parent, step‑parent or grandparent 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.

Note: See also subsection (19).

member of an organisation includes:

(a) a person who is an informal member of the organisation; and

(b) a person who has taken steps to become a member of the organisation; and

recruit includes induce, incite and encourage.

terrorist organisation means:

(a) an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or

(b) an organisation that is specified by the regulations for the purposes of this paragraph (see subsections (2), (3) and (4)).

Definition of advocates

(1A) In this Division, an organisation advocates the doing of a terrorist act if:

(a) the organisation directly or indirectly counsels, promotes, encourages or urges the doing of a terrorist act; or

(b) the organisation directly or indirectly provides instruction on the doing of a terrorist act; or

(c) the organisation directly praises the doing of a terrorist act in circumstances where there is a substantial risk that such praise might have the effect of leading a person (regardless of his or her age or any mental impairment that the person might suffer) to engage in a terrorist act.

Terrorist organisation regulations

(2) Before the Governor‑General makes a regulation specifying an organisation for the purposes of paragraph (b) of the definition of terrorist organisation in this section, the AFP Minister must be satisfied on reasonable grounds that the organisation:

(a) is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or

(b) advocates the doing of a terrorist act.

(2A) Before the Governor‑General makes a regulation specifying an organisation for the purposes of paragraph (b) of the definition of terrorist organisation in this section, the AFP Minister must arrange for the Leader of the Opposition in the House of Representatives to be briefed in relation to the proposed regulation.

(3) Regulations for the purposes of paragraph (b) of the definition of terrorist organisation in this section cease to have effect on the third anniversary of the day on which they take effect. To avoid doubt, this subsection does not prevent:

(a) the repeal of those regulations; or

(b) the cessation of effect of those regulations under subsection (4); or

(c) the making of new regulations the same in substance as those regulations (whether the new regulations are made or take effect before or after those regulations cease to have effect because of this subsection).

(4) If:

(a) an organisation is specified by regulations made for the purposes of paragraph (b) of the definition of terrorist organisation in this section; and

(b) the AFP Minister ceases to be satisfied of either of the following (as the case requires):

(i) that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act;

(ii) that the organisation advocates the doing of a terrorist act;

the AFP Minister must, by written notice published in the Gazette, make a declaration to the effect that the AFP Minister has ceased to be so satisfied. The regulations, to the extent to which they specify the organisation, cease to have effect when the declaration is made.

(5) To avoid doubt, subsection (4) does not prevent the organisation from being subsequently specified by regulations made for the purposes of paragraph (b) of the definition of terrorist organisation in this section if the AFP Minister becomes satisfied as mentioned in subsection (2).

(17) If:

(a) an organisation (the listed organisation) is specified in regulations made for the purposes of paragraph (b) of the definition of terrorist organisation in this section; and

(b) an individual or an organisation (which may be the listed organisation) makes an application (the de‑listing application) to the AFP Minister for a declaration under subsection (4) in relation to the listed organisation; and

(c) the de‑listing application is made on the grounds that there is no basis for the AFP Minister to be satisfied that the listed organisation:

(i) is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or

(ii) advocates the doing of a terrorist act;

as the case requires;

the AFP Minister must consider the de‑listing application.

(18) Subsection (17) does not limit the matters that may be considered by the AFP Minister for the purposes of subsection (4).

(19) For the purposes of this Division, the close 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 close family member of the person.

(20) In this section, a reference to the doing of a terrorist act includes:

(a) a reference to the doing of a terrorist act, even if a terrorist act does not occur; and

(b) a reference to the doing of a specific terrorist act; and

102.1AA Including or removing names of prescribed terrorist organisations

(1) This section applies if the AFP Minister is satisfied on reasonable grounds that:

(a) an organisation is specified in regulations made for the purposes of paragraph (b) of the definition of terrorist organisation in subsection 102.1(1); and

(b) the organisation:

(i) is referred to by another name (the alias), in addition to, or instead of, a name used to specify the organisation in the regulations; or

(ii) no longer uses a name (the former name) used in the regulations to specify the organisation.

(2) The AFP Minister may, by legislative instrument, amend the regulations to do either or both of the following:

(a) include the alias in the regulations if the AFP Minister is satisfied as referred to in subparagraph (1)(b)(i);

(b) remove the former name from the regulations if the AFP Minister is satisfied as referred to in subparagraph (1)(b)(ii).

(3) Amendment of regulations under subsection (2) does not:

(a) prevent the further amendment or repeal of the regulations by regulations made under section 5 of this Act for the purposes of paragraph (b) of the definition of terrorist organisation in subsection 102.1(1); or

(b) affect when the amended regulations cease to have effect under section 102.1.

(4) The AFP Minister may not, by legislative instrument made under this section, amend the regulations to remove entirely an organisation that has been prescribed.

(5) To avoid doubt, this section does not affect the power under section 5 of this Act to make regulations for the purposes of paragraph (b) of the definition of terrorist organisation in subsection 102.1(1).

102.1A Reviews by Parliamentary Joint Committee on Intelligence and Security

Disallowable instruments

(1) This section applies in relation to the following disallowable instruments:

(a) a regulation that specifies an organisation for the purposes of paragraph (b) of the definition of terrorist organisation in section 102.1;

(b) an instrument made under section 102.1AA.

Review of disallowable instrument

(2) The Parliamentary Joint Committee on Intelligence and Security may:

(a) review the disallowable instrument as soon as possible after the making of the instrument; and

(b) report the Committee’s comments and recommendations to each House of the Parliament before the end of the applicable disallowance period for that House.

Review of disallowable instrument—extension of disallowance period

(3) If the Committee’s report on a review of a disallowable instrument is tabled in a House of the Parliament:

(a) during the applicable disallowance period for that House; and

(b) on or after the eighth sitting day of the applicable disallowance period;

then Part 2 of Chapter 3 of the Legislation Act 2003 has effect, in relation to that disallowable instrument and that House, as if each period of 15 sitting days referred to in that Part were extended in accordance with the table:

Extension of applicable disallowance period
Item	If the Committee’s report is tabled in that House...	extend the period of 15 sitting days by...
1	on the fifteenth sitting day of the applicable disallowance period	8 sitting days of that House
2	on the fourteenth sitting day of the applicable disallowance period	7 sitting days of that House
3	on the thirteenth sitting day of the applicable disallowance period	6 sitting days of that House
4	on the twelfth sitting day of the applicable disallowance period	5 sitting days of that House
5	on the eleventh sitting day of the applicable disallowance period	4 sitting days of that House
6	on the tenth sitting day of the applicable disallowance period	3 sitting days of that House
7	on the ninth sitting day of the applicable disallowance period	2 sitting days of that House
8	on the eighth sitting day of the applicable disallowance period	1 sitting day of that House

Applicable disallowance period

(4) The applicable disallowance period for a House of the Parliament means the period of 15 sitting days of that House after the disallowable instrument, or a copy of the disallowable instrument, was laid before that House in accordance with section 38 of the Legislation Act 2003.

Subdivision B—Offences

102.2 Directing the activities of a terrorist organisation

(1) A person commits an offence if:

(a) the person intentionally directs the activities of an organisation; and

(b) the organisation is a terrorist organisation; and

Penalty: Imprisonment for 25 years.

(2) A person commits an offence if:

(a) the person intentionally directs the activities of an organisation; and

(b) the organisation is a terrorist organisation; and

Penalty: Imprisonment for 15 years.

102.3 Membership of a terrorist organisation

(1) A person commits an offence if:

(a) the person intentionally is a member of an organisation; and

(b) the organisation is a terrorist organisation; and

Penalty: Imprisonment for 10 years.

(2) Subsection (1) does not apply if the person proves that he or she took all reasonable steps to cease to be a member of the organisation as soon as practicable after the person knew that the organisation was a terrorist organisation.

Note: A defendant bears a legal burden in relation to the matter in subsection (2) (see section 13.4).

102.4 Recruiting for a terrorist organisation

(1) A person commits an offence if:

(a) the person intentionally recruits a person to join, or participate in the activities of, an organisation; and

(b) the organisation is a terrorist organisation; and

Penalty: Imprisonment for 25 years.

(2) A person commits an offence if:

(a) the person intentionally recruits a person to join, or participate in the activities of, an organisation; and

(b) the organisation is a terrorist organisation; and

Penalty: Imprisonment for 15 years.

102.5 Training involving a terrorist organisation

(1) A person commits an offence if:

(a) the person does any of the following:

(i) intentionally provides training to an organisation;

(ii) intentionally receives training from an organisation;

(iii) intentionally participates in training with an organisation; and

(b) the organisation is a terrorist organisation; and

Penalty: Imprisonment for 25 years.

(2) A person commits an offence if:

(a) the person does any of the following:

(i) intentionally provides training to an organisation;

(ii) intentionally receives training from an organisation;

(iii) intentionally participates in training with an organisation; and

(b) the organisation is a terrorist organisation that is covered by paragraph (b) of the definition of terrorist organisation in subsection 102.1(1).

Penalty: Imprisonment for 25 years.

(3) Subject to subsection (4), strict liability applies to paragraph (2)(b).

(4) Subsection (2) does not apply unless the person is reckless as to the circumstance mentioned in paragraph (2)(b).

Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3)).

102.6 Getting funds to, from or for a terrorist organisation

(1) A person commits an offence if:

(a) the person intentionally:

(i) receives funds from, or makes funds available to, an organisation (whether directly or indirectly); or

(ii) collects funds for, or on behalf of, an organisation (whether directly or indirectly); and

(b) the organisation is a terrorist organisation; and

Penalty: Imprisonment for 25 years.

(2) A person commits an offence if:

(a) the person intentionally:

(i) receives funds from, or makes funds available to, an organisation (whether directly or indirectly); or

(ii) collects funds for, or on behalf of, an organisation (whether directly or indirectly); and

(b) the organisation is a terrorist organisation; and

Penalty: Imprisonment for 15 years.

(3) Subsections (1) and (2) do not apply to the person’s receipt of funds from the organisation if the person proves that he or she received the funds solely for the purpose of the provision of:

(a) legal representation for a person in proceedings relating to this Division; or

(aa) legal advice or legal representation in connection with the question of whether the organisation is a terrorist organisation; or

(b) assistance to the organisation for it to comply with a law of the Commonwealth or a State or Territory.

Note: A defendant bears a legal burden in relation to the matter in subsection (3) (see section 13.4).

102.7 Providing support to a terrorist organisation

(1) A person commits an offence if:

(a) the person intentionally provides to an organisation support or resources that would help the organisation engage in an activity described in paragraph (a) of the definition of terrorist organisation in this Division; and

(b) the organisation is a terrorist organisation; and

Penalty: Imprisonment for 25 years.

(2) A person commits an offence if:

(b) the organisation is a terrorist organisation; and

Penalty: Imprisonment for 15 years.

102.8 Associating with terrorist organisations

(1) A person commits an offence if:

(a) on 2 or more occasions:

(i) the person intentionally associates with another person who is a member of, or a person who promotes or directs the activities of, an organisation; and

(ii) the person knows that the organisation is a terrorist organisation; and

(iii) the association provides support to the organisation; and

(iv) the person intends that the support assist the organisation to expand or to continue to exist; and

(v) the person knows that the other person is a member of, or a person who promotes or directs the activities of, the organisation; and

(b) the organisation is a terrorist organisation because of paragraph (b) of the definition of terrorist organisation in this Division (whether or not the organisation is a terrorist organisation because of paragraph (a) of that definition also).

Penalty: Imprisonment for 3 years.

(2) A person commits an offence if:

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

(b) the person intentionally associates with another person who is a member of, or a person who promotes or directs the activities of, an organisation; and

(d) the association provides support to the organisation; and

(e) the person intends that the support assist the organisation to expand or to continue to exist; and

(f) the person knows that the other person is a member of, or a person who promotes or directs the activities of, the organisation; and

(g) the organisation is a terrorist organisation because of paragraph (b) of the definition of terrorist organisation in this Division (whether or not the organisation is a terrorist organisation because of paragraph (a) of that definition also).

Penalty: Imprisonment for 3 years.

(3) Strict liability applies to paragraphs (1)(b) and (2)(g).

(4) This section does not apply if:

(a) the association is with a close family member and relates only to a matter that could reasonably be regarded (taking into account the person’s cultural background) as a matter of family or domestic concern; or

(b) the association is in a place being used for public religious worship and takes place in the course of practising a religion; or

(d) the association is only for the purpose of providing legal advice or legal representation in connection with:

(i) criminal proceedings or proceedings related to criminal proceedings (including possible criminal proceedings in the future); or

(ii) the question of whether the organisation is a terrorist organisation; or

(iii) a decision made or proposed to be made under Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979, or proceedings relating to such a decision or proposed decision; or

(iv) a listing or proposed listing under section 15 of the Charter of the United Nations Act 1945 or an application or proposed application to revoke such a listing, or proceedings relating to such a listing or application or proposed listing or application; or

(v) proceedings conducted by a military commission of the United States of America established under a Military Order of 13 November 2001 made by the President of the United States of America and entitled “Detention, Treatment, and Trial of Certain Non‑Citizens in the War Against Terrorism”; or

(vi) proceedings for a review of a decision relating to a passport or other travel document or to a failure to issue such a passport or other travel document (including a passport or other travel document that was, or would have been, issued by or on behalf of the government of a foreign country).

Note: A defendant bears an evidential burden in relation to the matters in subsection (4). See subsection 13.3(3).

(5) This section does not apply unless the person is reckless as to the circumstance mentioned in paragraph (1)(b) and (2)(g) (as the case requires).

Note: A defendant bears an evidential burden in relation to the matter in subsection (5). See subsection 13.3(3).

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

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

(7) A person who is convicted of an offence under subsection (1) in relation to the person’s conduct on 2 or more occasions is not liable to be punished for an offence under subsection (1) for other conduct of the person that takes place:

(a) at the same time as that conduct; or

(b) within 7 days before or after any of those occasions.

Subdivision C—General provisions relating to offences

102.9 Extended geographical jurisdiction for offences

Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this Division.

102.10 Alternative verdicts

(1) This section applies if, in a prosecution for an offence (the prosecuted offence) against a subsection of a section of this Division, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence (the alternative offence) against another subsection of that section.

(2) The trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

Division 103—Financing terrorism

103.1 Financing terrorism

(1) A person commits an offence if:

(a) the person provides or collects funds; and

(b) the person is reckless as to whether the funds will be used to facilitate or engage in a terrorist act.

Penalty: Imprisonment for life.

Note: Intention is the fault element for the conduct described in paragraph (1)(a). See subsection 5.6(1).

(2) A person commits an offence under subsection (1) even if:

(a) a terrorist act does not occur; or

(b) the funds will not be used to facilitate or engage in a specific terrorist act; or

103.2 Financing a terrorist

(1) A person commits an offence if:

(a) the person intentionally:

(i) makes funds available to another person (whether directly or indirectly); or

(ii) collects funds for, or on behalf of, another person (whether directly or indirectly); and

(b) the first‑mentioned person is reckless as to whether the other person will use the funds to facilitate or engage in a terrorist act.

Penalty: Imprisonment for life.

(2) A person commits an offence under subsection (1) even if:

(a) a terrorist act does not occur; or

(b) the funds will not be used to facilitate or engage in a specific terrorist act; or

103.3 Extended geographical jurisdiction for offences

Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this Division.

Division 104—Control orders

Subdivision A—Objects of this Division

104.1 Objects of this Division

The objects of this Division are to allow obligations, prohibitions and restrictions to be imposed on a person by a control order for one or more of the following purposes:

(a) protecting the public from a terrorist act;

(b) preventing the provision of support for or the facilitation of a terrorist act;

(c) preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country.

Subdivision B—Making an interim control order

104.2 AFP Minister’s consent to request an interim control order

(1) A senior AFP member must not request an interim control order in relation to a person without the AFP Minister’s written consent.

Note: However, in urgent circumstances, a senior AFP member may request an interim control order without first obtaining the AFP Minister’s consent (see Subdivision C).

(2) A senior AFP member may only seek the AFP Minister’s written consent to request an interim control order in relation to a person if the member:

(a) suspects on reasonable grounds that the order in the terms to be requested would substantially assist in preventing a terrorist act; or

(b) suspects on reasonable grounds that the person has:

(i) provided training to, received training from or participated in training with a listed terrorist organisation; or

(ii) engaged in a hostile activity in a foreign country; or

(iii) been convicted in Australia of an offence relating to terrorism, a terrorist organisation (within the meaning of subsection 102.1(1)) or a terrorist act (within the meaning of section 100.1); or

(iv) been convicted in a foreign country of an offence that is constituted by conduct that, if engaged in in Australia, would constitute a terrorism offence (within the meaning of subsection 3(1) of the Crimes Act 1914); or

(c) suspects on reasonable grounds that the order in the terms to be requested would substantially assist in preventing the provision of support for or the facilitation of a terrorist act; or

(d) suspects on reasonable grounds that the person has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country.

(3) In seeking the AFP Minister’s consent, the member must give the AFP Minister:

(a) a draft of the interim control order to be requested; and

(aa) the following:

(i) a statement of the facts relating to why the order should be made;

(ii) if the member is aware of any facts relating to why the order should not be made—a statement of those facts; and

(b) if the person is at least 18 years of age and the member has information about the person’s age—that information; and

(ba) if the person is under 18 years of age—information about the person’s age; and

Note: An interim control order cannot be requested in relation to a person who is under 14 years of age (see section 104.28).

(3A) To avoid doubt, paragraph (3)(c) does not require any information to be included in the summary if disclosure of that information is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004).

(4) The AFP Minister’s consent may be made subject to the member making changes required by the AFP Minister to the draft of the interim control order to be requested.

(5) To avoid doubt, a senior AFP member may seek the AFP Minister’s consent to request an interim control order in relation to a person even if:

(a) such a request has previously been made in relation to the person; or

(b) the person is detained in custody.

Note: An interim control order in relation to a person who is detained in custody does not begin to be in force until the person is released from custody (see paragraph 104.5(1)(d)).

(6) In subsection (2), a reference to a terrorist act includes:

(a) a reference to a terrorist act that does not occur; and

(b) a reference to a specific terrorist act; and

104.3 Requesting the court to make an interim control order

If the AFP Minister consents to the request under section 104.2, the senior AFP member may request an interim control order by giving an issuing court the following:

(a) a request the information in which is sworn or affirmed by the member;

(b) all that is required under subsection 104.2(3) (incorporating any change made to the draft of the interim control order under subsection 104.2(4));

(d) the following:

(i) an explanation as to why each of the proposed obligations, prohibitions or restrictions should be imposed on the person;

(ii) if the member is aware of any facts relating to why any of those obligations, prohibitions or restrictions should not be imposed on the person—a statement of those facts;

(e) the following:

(i) the outcomes and particulars of all previous requests for interim control orders (including the outcomes of the hearings to confirm the orders) in relation to the person;

(ii) the outcomes and particulars of all previous applications for variations of control orders made in relation to the person;

(iii) the outcomes and particulars of all previous applications for revocations of control orders made in relation to the person;

(iv) the outcomes and particulars of all previous applications for preventative detention orders in relation to the person;

(v) information (if any) that the member has about any periods for which the person has been detained under an order made under a corresponding State preventative detention law;

(f) a copy of the AFP Minister’s consent.

Note: The member might commit an offence if the draft request is false or misleading (see sections 137.1 and 137.2).

104.4 Making an interim control order

(1) The issuing court may make an order under this section in relation to the person, but only if:

(a) the senior AFP member has requested it in accordance with section 104.3; and

(b) the court has received and considered such further information (if any) as the court requires; and

(i) that making the order would substantially assist in preventing a terrorist act; or

(ii) that the person has provided training to, received training from or participated in training with a listed terrorist organisation; or

(iii) that the person has engaged in a hostile activity in a foreign country; or

(iv) that the person has been convicted in Australia of an offence relating to terrorism, a terrorist organisation (within the meaning of subsection 102.1(1)) or a terrorist act (within the meaning of section 100.1); or

(v) that the person has been convicted in a foreign country of an offence that is constituted by conduct that, if engaged in in Australia, would constitute a terrorism offence (within the meaning of subsection 3(1) of the Crimes Act 1914); or

(vi) that making the order would substantially assist in preventing the provision of support for or the facilitation of a terrorist act; or

(vii) that the person has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country; and

(d) the court is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of:

(i) protecting the public from a terrorist act; or

(ii) preventing the provision of support for or the facilitation of a terrorist act; or

(iii) preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country.

(2) For the purposes of paragraph (1)(d), in determining whether each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, the court must take into account:

(a) as a paramount consideration in all cases—the objects of this Division (see section 104.1); and

(b) as a primary consideration in the case where the person is 14 to 17 years of age—the best interests of the person; and

(c) as an additional consideration in all cases—the impact of the obligation, prohibition or restriction on the person’s circumstances (including the person’s financial and personal circumstances).

(2A) In determining what is in the best interests of a person for the purposes of paragraph (2)(b), the court must take into account the following:

(a) the age, maturity, sex and background (including lifestyle, culture and traditions) of the person;

(b) the physical and mental health of the person;

(d) the right of the person to receive an education;

(e) the right of the person to practise his or her religion;

(f) any other matter the court considers relevant.

(3) The court need not include in the order an obligation, prohibition or restriction that was sought by the senior AFP member if the court is not satisfied as mentioned in paragraph (1)(d) in respect of that obligation, prohibition or restriction.

(4) In paragraphs (1)(c) and (d), a reference to a terrorist act includes:

(a) a reference to a terrorist act that does not occur; and

(b) a reference to a specific terrorist act; and

104.5 Terms of an interim control order

(1) If the issuing court makes the interim control order, the order must:

(a) state that the court is satisfied of the matters mentioned in paragraphs 104.4(1)(c) and (d); and

(b) specify the name of the person to whom the order relates; and

(c) specify all of the obligations, prohibitions and restrictions mentioned in subsection (3) that are to be imposed on the person by the order; and

(d) state that the order does not begin to be in force until:

(i) it is served personally on the person; and

(ii) if the person is detained in custody—the person is released from custody; and

(e) specify a day on which the person may attend the court for the court to:

(i) confirm (with or without variation) the interim control order; or

(ii) declare the interim control order to be void; or

(iii) revoke the interim control order; and

(f) specify the period during which the confirmed control order is to be in force, which must not end more than 12 months after the day on which the interim control order is made; and

(g) state that the person’s lawyer may attend a specified place in order to obtain a copy of the interim control order; and

(h) set out a summary of the grounds on which the order is made.

Note 1: An interim control order made in relation to a person must be served on the person at least 48 hours before the day specified as mentioned in paragraph (1)(e) (see section 104.12).

Note 2: If the person is 14 to 17 years of age, then a confirmed control order must not end more than 3 months after the day on which the interim control order is made (see section 104.28).

(1A) The day specified for the purposes of paragraph (1)(e) must be as soon as practicable, but at least 7 days, after the order is made.

(1B) In specifying a day for the purposes of paragraph (1)(e), the issuing court must take into account:

(a) that the persons mentioned in subsection 104.14(1) may need to prepare in order to adduce evidence or make submissions to the court in relation to the confirmation of the order; and

(aa) if the person to whom the order relates is detained in custody—any other matter relating to the person’s detention that the court considers relevant; and

(b) any other matter the court considers relevant.

(1C) To avoid doubt, if the person is detained in custody, the person has a right to attend court on the day specified for the purposes of paragraph (1)(e).

(2) Paragraph (1)(f) does not prevent the making of successive control orders in relation to the same person.

(2AA) To avoid doubt, if a control order is in force in relation to a person, the control order does not cease to be in force merely because the person is detained in custody.

Note: However, if a person is detained in custody, and a control order is made in relation to the person, the control order does not begin to be in force until the person is released from custody (see paragraph (1)(d)).

(2A) To avoid doubt, paragraph (1)(h) does not require any information to be included in the summary if disclosure of that information is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004).

Obligations, prohibitions and restrictions

(3) The obligations, prohibitions and restrictions that the court may impose on the person by the order are the following:

(a) a prohibition or restriction on the person being at specified areas or places;

(b) a prohibition or restriction on the person leaving Australia;

(c) a requirement that the person remain at specified premises between specified times each day, or on specified days, but for no more than 12 hours within any 24 hours;

(d) a requirement that the person wear a tracking device;

(e) a prohibition or restriction on the person communicating or associating with specified individuals;

(f) a prohibition or restriction on the person accessing or using specified forms of telecommunication or other technology (including the internet);

(g) a prohibition or restriction on the person possessing or using specified articles or substances;

(h) a prohibition or restriction on the person carrying out specified activities (including in respect of his or her work or occupation);

(i) a requirement that the person report to specified persons at specified times and places;

(j) a requirement that the person allow himself or herself to be photographed;

(k) a requirement that the person allow impressions of his or her fingerprints to be taken;

(l) a requirement that the person participate in specified counselling or education.

Note: Restrictions apply to the use of photographs or impressions of fingerprints taken as mentioned in paragraphs (3)(j) and (k) (see section 104.22).

(3A) If the court imposes a requirement under paragraph (3)(d) that the person wear a tracking device, then the court must also impose on the person by the order a requirement that the person do all of the following:

(a) take steps specified in the order (if any) and reasonable steps to ensure that the tracking device and any equipment necessary for the operation of the tracking device are or remain in good working order;

(b) report to persons specified in the order (if any), at the times and places specified in the order (if any), for the purposes of having the tracking device inspected;

(c) if the person becomes aware that the tracking device or any equipment necessary for the operation of the tracking device is not in good working order—notify an AFP member as soon as practicable, but no later than 4 hours, after becoming so aware.

(3B) If the court imposes a requirement under paragraph (3)(d) that the person wear a tracking device, then the court must also include in the order an authorisation for one or more AFP members:

(a) to take steps specified in the order to ensure that the tracking device and any equipment necessary for the operation of the tracking device are or remain in good working order; and

(b) to enter one or more premises specified in the order for the purposes of installing any equipment necessary for the operation of the tracking device.

Communicating and associating

(4) Subsection 102.8(4) applies to paragraph (3)(e) and the person’s communication or association in the same way as that subsection applies to section 102.8 and a person’s association.

(5) This section does not affect the person’s right to contact, communicate or associate with the person’s lawyer unless the person’s lawyer is a specified individual as mentioned in paragraph (3)(e). If the person’s lawyer is so specified, the person may contact, communicate or associate with any other lawyer who is not so specified.

Counselling and education

(6) A person is required to participate in specified counselling or education as mentioned in paragraph (3)(l) only if the person agrees, at the time of the counselling or education, to participate in the counselling or education.

Subdivision C—Making an urgent interim control order

104.6 Requesting an urgent interim control order by electronic means

(1) A senior AFP member may request, by telephone, fax, email or other electronic means, an issuing court to make an interim control order in relation to a person if:

(a) the member considers it necessary to use such means because of urgent circumstances; and

(b) the member suspects the matters mentioned in subsection 104.2(2) on reasonable grounds.

(2) The AFP Minister’s consent under section 104.2 is not required before the request is made.

Note: However, if the AFP Minister’s consent is not obtained before the member makes the request, the AFP Minister’s consent must be obtained within 8 hours of the member making the request (see section 104.10).

(3) The issuing court may require communication by voice to the extent that is practicable in the circumstances.

(4) The request must include the following:

(a) all that is required under paragraphs 104.3(b) to (e) in respect of an ordinary request for an interim control order;

(b) an explanation as to why the making of the interim control order is urgent;

Note: The member might commit an offence if the request is false or misleading (see sections 137.1 and 137.2).

(5) The information and the explanation included in the request must be sworn or affirmed by the member, but do not have to be sworn or affirmed before the request is made.

Note: Subsection 104.7(5) requires the information and the explanation to be sworn or affirmed within 24 hours.

104.7 Making an urgent interim control order by electronic means

(1) Before making an order in response to a request under section 104.6, the issuing court must:

(a) consider the information and the explanation included in the request; and

(b) receive and consider such further information (if any) as the court requires.

(2) If the issuing court is satisfied that an order should be made urgently, the court may complete the same form of order that would be made under sections 104.4 and 104.5.

Procedure after urgent interim control order is made

(3) If the issuing court makes the order, the court must inform the senior AFP member, by telephone, fax, email or other electronic means, of:

(a) the terms of the order; and

(b) the day on which, and the time at which, it was completed.

(4) The member must then complete a form of order in terms substantially corresponding to those given by the issuing court, stating on the form:

(a) the name of the court; and

(b) the day on which, and the time at which, the order was completed.

(5) Within 24 hours of being informed under subsection (3), the member must give or transmit the following to the issuing court:

(a) the form of order completed by the member;

(b) if the information and the explanation included in the request were not already sworn or affirmed—that information and explanation duly sworn or affirmed;

(6) The issuing court must attach to the documents provided under subsection (5) the form of order the court has completed.

104.8 Requesting an urgent interim control order in person

(1) A senior AFP member may request, in person, an issuing court to make an interim control order in relation to a person without first obtaining the AFP Minister’s consent under section 104.2 if:

(a) the member considers it necessary to request the order without the consent because of urgent circumstances; and

(b) the member suspects the matters mentioned in subsection 104.2(2) on reasonable grounds.

Note: The AFP Minister’s consent must be obtained within 8 hours of making the request (see section 104.10).

(2) The request must include the following:

(a) all that is required under paragraphs 104.3(a) to (e) in respect of an ordinary request for an interim control order;

(b) an explanation that is sworn or affirmed as to why the making of the interim control order without first obtaining the AFP Minister’s consent is urgent.

Note: The member might commit an offence if the request is false or misleading (see sections 137.1 and 137.2).

104.9 Making an urgent interim control order in person

(1) Before making an order in response to a request under section 104.8, the issuing court must:

(a) consider the information and the explanation included in the request; and

(b) receive and consider such further information (if any) as the court requires.

(2) If the issuing court is satisfied that an order should be made urgently, the court may make the same order that would be made under sections 104.4 and 104.5.

(3) Within 24 hours of the order being made under subsection (2), the member must:

(a) give or transmit a copy of the order to the issuing court; and

(b) either:

(i) give or transmit a copy of the AFP Minister’s consent to request the order to the court; or

(ii) notify the court in writing that the AFP Minister’s consent was not obtained.

Note: Section 104.10 deals with the AFP Minister’s consent.

104.10 Obtaining the AFP Minister’s consent within 8 hours

(1) If the AFP Minister’s consent to request an interim control order was not first sought before making a request under section 104.6 or 104.8, the senior AFP member who made the request must, in accordance with subsection 104.2(3), seek that consent within 8 hours of making the request.

(2) In any case, if the AFP Minister:

(a) refuses his or her consent to request the order; or

(b) has not given his or her consent to request the order;

within 8 hours of the request being made, the order immediately ceases to be in force.

Note: However, the senior AFP member can seek the AFP Minister’s consent to request a new interim control order in relation to the person (see subsection 104.2(5)).

(3) If the order ceases to be in force under subsection (2), the senior AFP member must, as soon as practicable:

(a) notify the court that the order has ceased to be in force; and

(b) if the order has been served on the person in relation to whom it was made:

(i) annotate the order to indicate that it has ceased to be in force; and

(ii) cause the annotated order to be served personally on the person.

Note: For the personal service of documents on a person detained in custody, see section 104.28B.

104.11 Court to assume that exercise of power not authorised by urgent interim control order

If:

(a) it is material, in any proceedings, for a court to be satisfied that an interim control order was duly made under section 104.7; and

(b) the form of order completed by the relevant issuing court is not produced in evidence;

the first‑mentioned court is to assume, unless the contrary is proved, that the order was not duly made.

Subdivision CA—Varying an interim control order

104.11A Varying an interim control order

(1) An application to vary an interim control order may be made to the issuing court by:

(a) the person in relation to whom the order is made; or

(b) a senior AFP member.

Note: For example, an application may be made to vary an interim control order to reflect a change in the mobile telephone number of the person in relation to whom the order is made.

(2) The issuing court may vary the interim control order, but only if the court is satisfied that:

(a) written consent to the variation has been given by:

(i) if the application is made by the person in relation to whom the order is made—a senior AFP member; or

(ii) if the application is made by a senior AFP member—the person in relation to whom the order is made; and

(b) the variation does not involve adding any obligations, prohibitions or restrictions to the order; and

(3) A variation begins to be in force when the order for the variation is made, or at a later time ordered by the issuing court.

Subdivision D—Confirming an interim control order

104.12 Service, explanation and notification of an interim control order

Service and explanation of an interim control order

(1) As soon as practicable after an interim control order is made in relation to a person, and at least 48 hours before the day specified as mentioned in paragraph 104.5(1)(e), an AFP member:

(a) must serve the order personally on the person; and

(b) must inform the person of the following:

(i) the effect of the order;

(ii) the period for which the order (if confirmed) is in force;

(iii) the effect of sections 104.12A, 104.13, 104.14, 104.18 and 104.27 (and section 104.22 if appropriate);

(iiia) that the person has a right to obtain legal advice and legal representation;

(iv) that the person may have appeal and review rights in relation to the decision of the issuing court to make the order;

(v) the person’s right to attend court on the day specified for the purposes of paragraph 104.5(1)(e);

(vi) the right of the person or one or more representatives of the person, and (if relevant) the right of the Queensland public interest monitor, to adduce evidence or make submissions under subsection 104.14(1) if the order is confirmed;

(vii) that the person may have appeal and review rights in relation to any decision of the issuing court to confirm the order;

(viii) the person’s right to apply under section 104.18 for an order revoking or varying the order if it is confirmed;

(ix) the right of the person or one or more representatives of the person, and (if relevant) the right of the Queensland public interest monitor, to adduce evidence or make submissions under subsection 104.19(3) or 104.23(4) in relation to an application to revoke or vary the order if it is confirmed; and

(c) must ensure that the person understands the information provided under paragraph (b) (taking into account the person’s age, language skills, mental capacity and any other relevant factor).

Note: For the personal service of documents on a person detained in custody, see section 104.28B.

(3) Paragraphs (1)(b) and (c) do not apply if the actions of the person in relation to whom the interim control order has been made make it impracticable for the AFP member to comply with those paragraphs.

(3A) Paragraphs (1)(b) and (c) do not apply if the person in relation to whom the interim control order has been made is detained in custody and it is impracticable for the AFP member to comply with those paragraphs.

(4) A failure to comply with paragraph (1)(c) does not make the control order ineffective to any extent.

If person is resident, or order made, in Queensland

(5) If:

(a) the person in relation to whom the interim control order is made is a resident of Queensland; or

(b) the issuing court that made the interim control order did so in Queensland;

an AFP member must give to the Queensland public interest monitor a copy of the order.

If person is 14 to 17

(6) As soon as practicable after an interim control order is made in relation to a person who is 14 to 17 years of age, and at least 48 hours before the day specified as mentioned in paragraph 104.5(1)(e), an AFP member must take reasonable steps to serve a copy of the order personally on at least one parent or guardian of the person.

104.12A Election to confirm control order

(1) At least 48 hours before the day specified in an interim control order as mentioned in paragraph 104.5(1)(e), the senior AFP member who requested the order must:

(a) elect whether to confirm the order on the specified day; and

(b) give a written notification to the issuing court that made the order of the member’s election.

(2) If the senior AFP member elects to confirm the order, an AFP member must:

(a) serve personally on the person in relation to whom the order is made:

(i) a copy of the notification; and

(ii) a copy of the documents mentioned in paragraphs 104.2(3)(aa) and 104.3(d); and

(iii) any other written details required to enable the person to understand and respond to the substance of the facts, matters and circumstances which will form the basis of the confirmation of the order; and

(b) if the person is a resident of Queensland, or the court made the order in Queensland—give the Queensland public interest monitor a copy of the documents mentioned in paragraph (a); and

(c) if the person is 14 to 17 years of age—take reasonable steps to serve a copy of the documents mentioned in paragraph (a) personally on at least one parent or guardian of the person.

Note: For the personal service of documents on a person detained in custody, see section 104.28B.

(3) To avoid doubt, subsection (2) does not require any information to be served or given if disclosure of that information is likely:

(a) to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004); or

(b) to be protected by public interest immunity; or

(d) to put at risk the safety of the community, law enforcement officers or intelligence officers.

The fact that information of a kind mentioned in this subsection is not required to be disclosed does not imply that such information is required to be disclosed in other provisions of this Part that relate to the disclosure of information.

(4) If the senior AFP member elects not to confirm the order, and the order has already been served on the person, then:

(a) the order immediately ceases to be in force; and

(b) an AFP member must:

(i) annotate the order to indicate that it has ceased to be in force; and

(ii) cause the annotated order and a copy of the notification to be served personally on the person; and

(iii) if the person is a resident of Queensland, or the court made the order in Queensland—give the Queensland public interest monitor a copy of the annotated order and the notification; and

(iv) if the person is 14 to 17 years of age—cause reasonable steps to be taken to serve a copy of the annotated order and the notification personally on at least one parent or guardian of the person.

Note: For the personal service of documents on a person detained in custody, see section 104.28B.

104.13 Lawyer may request a copy of an interim control order

(1) A lawyer of the person in relation to whom an interim control order is made may attend the place specified in the order as mentioned in paragraph 104.5(1)(g) in order to obtain a copy of the order.

(2) This section does not:

(a) require more than one person to give the lawyer a copy of the order; or

(b) entitle the lawyer to request, be given a copy of, or see, a document other than the order.

104.14 Confirming an interim control order

When this section applies

(1A) This section applies if:

(a) an interim control order is made in relation to a person; and

(b) an election is made under section 104.12A to confirm the order; and

(c) the issuing court is satisfied on the balance of probabilities that section 104.12 and subsection 104.12A(2) have been complied with in relation to the order.

Who may adduce evidence or make submissions

(1) On the day specified as mentioned in paragraph 104.5(1)(e), the following persons may adduce evidence (including by calling witnesses or producing material), or make submissions, to the issuing court in relation to the confirmation of the order:

(a) the senior AFP member who requested the interim control order;

(b) one or more other AFP members;

(d) one or more representatives of the person;

(e) if:

(i) the person is a resident of Queensland; or

(ii) the court made the interim control order in Queensland;

the Queensland public interest monitor.

(2) Subsection (1) does not otherwise limit the power of the court to control proceedings in relation to the confirmation of an interim control order.

(3) Subject to subsection (3A), before taking action under this section, the court must consider:

(a) the original request for the interim control order; and

(b) any evidence adduced, and any submissions made, under subsection (1) in respect of the order.

(3A) To avoid doubt, in proceedings under this section, the issuing court:

(a) must take judicial notice of the fact that the original request for the interim control order was made in particular terms; but

(b) may only take action on evidence adduced, and submissions made, under subsection (1) in relation to the confirmation of the order.

Note: The Evidence Act 1995 covers the admissibility of evidence adduced under subsection (1).

Failure of person or representative etc. to attend

(4) The court may confirm the order without variation if none of the following persons attend the court on the specified day:

(a) the person in relation to whom the order is made;

(b) a representative of the person;

(c) if the person is a resident of Queensland, or the court made the order in Queensland—the Queensland public interest monitor.

Attendance of person or representative etc.

(5) The court may take the action mentioned in subsection (6) or (7) if any of the following persons attend the court on the specified day:

(a) the person in relation to whom the order is made;

(b) a representative of the person;

(c) if the person is a resident of Queensland, or the court made the order in Queensland—the Queensland public interest monitor.

(6) The court may declare, in writing, the order to be void if the court is satisfied that, at the time of making the order, there were no grounds on which to make the order.

(7) Otherwise, the court may:

(a) revoke the order if, at the time of confirming the order, the court is not satisfied as mentioned in paragraph 104.4(1)(c); or

(b) confirm and vary the order by removing one or more obligations, prohibitions or restrictions if, at the time of confirming the order, the court is satisfied as mentioned in paragraph 104.4(1)(c) but is not satisfied as mentioned in paragraph 104.4(1)(d); or

(c) confirm the order without variation if, at the time of confirming the order, the court is satisfied as mentioned in paragraphs 104.4(1)(c) and (d).

Note: If the court confirms the interim control order, the court must make a new order under section 104.16.

104.15 When a declaration, or a revocation, variation or confirmation of a control order, is in force

(1) If the court declares the interim control order to be void under section 104.14, the order is taken never to have been in force.

(2) If the court revokes the interim control order under section 104.14, the order ceases to be in force when the court revokes the order.

(3) If the court confirms the interim control order (with or without variation) under section 104.14 then:

(a) the interim control order ceases to be in force; and

(b) the confirmed control order begins to be in force;

when the court makes a corresponding order under section 104.16.

104.16 Terms of a confirmed control order

(1) If the issuing court confirms the interim control order under section 104.14, the court must make a corresponding order that:

(a) states that the court is satisfied of the matters mentioned in paragraphs 104.4(1)(c) and (d); and

(b) specifies the name of the person to whom the order relates; and

(c) specifies all of the obligations, prohibitions and restrictions mentioned in subsection 104.5(3) that are to be imposed on the person by the order; and

(d) specifies the period during which the order is to be in force, which must not end more than 12 months after the day on which the interim control order was made; and

(e) states that the person’s lawyer may attend a specified place in order to obtain a copy of the confirmed control order.

Note: If the person is 14 to 17 years of age, then a confirmed control order must not end more than 3 months after the day on which the interim control order is made (see section 104.28).

(2) Paragraph (1)(d) does not prevent the making of successive control orders in relation to the same person.

104.17 Service of a declaration, or a revocation, variation or confirmation of a control order

(1) As soon as practicable after an interim control order is declared to be void, revoked or confirmed (with or without variation) under section 104.14, an AFP member must:

(a) serve the declaration, the revocation or the confirmed control order personally on the person; and

(b) if the court confirms the interim order (with or without variation)—inform the person of the following:

(i) that the person may have appeal and review rights in relation to the decision of the issuing court to confirm the order;

(ii) the person’s right to apply under section 104.18 for an order revoking or varying the order;

(iii) the right of the person or one or more representatives of the person, and (if relevant) the right of the Queensland public interest monitor, to adduce evidence or make submissions under subsection 104.19(3) or 104.23(4) in relation to an application to revoke or vary the order; and

(c) if paragraph (b) applies—ensure that the person understands the information provided under that paragraph (taking into account the person’s age, language skills, mental capacity and any other relevant factor).

Note: For the personal service of documents on a person detained in custody, see section 104.28B.

(2) Paragraphs (1)(b) and (c) do not apply if the actions of the person in relation to whom the interim control order has been declared void, revoked or confirmed make it impracticable for the AFP member to comply with those paragraphs.

(2A) Paragraphs (1)(b) and (c) do not apply if the person in relation to whom the interim control order has been declared void, revoked or confirmed is detained in custody and it is impracticable for the AFP member to comply with those paragraphs.

(3) A failure to comply with paragraph (1)(c) does not make the control order ineffective to any extent.

If person is 14 to 17

(4) If the person is 14 to 17 years of age, then as soon as practicable after the interim control order is declared to be void, revoked or confirmed (with or without variation) under section 104.14, an AFP member must take reasonable steps to serve a copy of the declaration, revocation or confirmed control order personally on at least one parent or guardian of the person.

Subdivision E—Rights in respect of a control order

104.18 Application by the person for a revocation or variation of a control order

(1) A person in relation to whom a confirmed control order is made may apply to an issuing court for the court to revoke or vary the order under section 104.20.

(2) The person may make the application at any time after the order is served on the person.

(3) The person must give written notice of both the application and the grounds on which the revocation or variation is sought to the following persons:

(a) the Commissioner of the Australian Federal Police;

(b) if:

(i) the person in relation to whom the order is made is a resident of Queensland; or

(ii) the court will hear the application in Queensland;

the Queensland public interest monitor.

(4) The following persons may adduce additional evidence (including by calling witnesses or producing material), or make additional submissions, to the court in relation to the application to revoke or vary the order:

(a) the Commissioner;

(b) one or more other AFP members;

(d) one or more representatives of the person;

(e) if paragraph (3)(b) applies—the Queensland public interest monitor.

(5) Subsection (4) does not otherwise limit the power of the court to control proceedings in relation to an application to revoke or vary a confirmed control order.

104.19 Application by the AFP Commissioner for a revocation or variation of a control order

(1) While a confirmed control order is in force, the Commissioner of the Australian Federal Police must cause an application to be made to an issuing court:

(a) to revoke the order, under section 104.20, if the Commissioner is satisfied that the grounds on which the order was confirmed have ceased to exist; and

(b) to vary the order, under that section, by removing one or more obligations, prohibitions or restrictions, if the Commissioner is satisfied that those obligations, prohibitions or restrictions should no longer be imposed on the person.

(2) The Commissioner must cause written notice of both the application and the grounds on which the revocation or variation is sought to be given to the following persons:

(a) the person in relation to whom the order is made;

(b) if:

(i) the person in relation to whom the order is made is a resident of Queensland; or

(ii) the court will hear the application in Queensland;

the Queensland public interest monitor.

(2A) If the person is 14 to 17 years of age, the Commissioner must cause reasonable steps to be taken to give written notice of both the application and the grounds on which the revocation or variation is sought to at least one parent or guardian of the person.

(3) The following persons may adduce additional evidence (including by calling witnesses or producing material), or make additional submissions, to the court in relation to the application to revoke or vary the order:

(a) the Commissioner;

(b) one or more other AFP members;

(d) one or more representatives of the person;

(e) if paragraph (2)(b) applies—the Queensland public interest monitor.

(4) Subsection (3) does not otherwise limit the power of the court to control proceedings in relation to an application to revoke or vary a confirmed control order.

104.20 Revocation or variation of a control order

(1) If an application is made under section 104.18 or 104.19 in respect of a confirmed control order, the court may:

(a) revoke the order if, at the time of considering the application, the court is not satisfied as mentioned in paragraph 104.4(1)(c); or

(b) vary the order by removing one or more obligations, prohibitions or restrictions if, at the time of considering the application, the court is satisfied as mentioned in paragraph 104.4(1)(c) but is not satisfied as mentioned in paragraph 104.4(1)(d); or

(c) dismiss the application if, at the time of considering the application, the court is satisfied as mentioned in paragraphs 104.4(1)(c) and (d).

(2) A revocation or variation begins to be in force when the court revokes or varies the order.

(3) As soon as practicable after a confirmed control order in relation to a person is revoked or varied, an AFP member must:

(a) serve the revocation or variation personally on the person; and

(b) if the person is 14 to 17 years of age—take reasonable steps to serve a copy of the revocation or variation personally on at least one parent or guardian of the person.

Note: For the personal service of documents on a person detained in custody, see section 104.28B.

104.21 Lawyer may request a copy of a control order

(1) If a control order is confirmed or varied under section 104.14, 104.20 or 104.24, a lawyer of the person in relation to whom the control order is made may attend the place specified in the order as mentioned in paragraph 104.16(1)(e) or 104.25(d) in order to obtain a copy of the order.

(2) This section does not:

(a) require more than one person to give the lawyer a copy of the order; or

(b) entitle the lawyer to request, be given a copy of, or see, a document other than the order.

104.22 Treatment of photographs and impressions of fingerprints

(1) A photograph, or an impression of fingerprints, taken as mentioned in paragraph 104.5(3)(j) or (k) must only be used for the purpose of ensuring compliance with the relevant control order.

(2) If:

(a) a period of 12 months elapses after the control order ceases to be in force; and

(b) proceedings in respect of the control order have not been brought, or have been brought and discontinued or completed, within that period;

the photograph or the impression must be destroyed as soon as practicable after the end of that period.

(3) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct contravenes subsection (1).

Penalty: Imprisonment for 2 years.

Subdivision F—Adding obligations, prohibitions or restrictions to a control order

104.23 Application by the AFP Commissioner for addition of obligations, prohibitions or restrictions

(1) The Commissioner of the Australian Federal Police may cause an application to be made to an issuing court to vary, under section 104.24, a confirmed control order, by adding one or more obligations, prohibitions or restrictions mentioned in subsection 104.5(3) to the order, if the Commissioner:

(a) suspects on reasonable grounds that the varied order in the terms to be sought would substantially assist in preventing a terrorist act; or

(b) suspects on reasonable grounds that the person has:

(i) provided training to, received training from or participated in training with a listed terrorist organisation; or

(ii) engaged in a hostile activity in a foreign country; or

(c) suspects on reasonable grounds that the varied order in the terms to be sought would substantially assist in preventing the provision of support for or the facilitation of a terrorist act; or

(d) suspects on reasonable grounds that the person has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country.

(2) The Commissioner must cause the court to be given:

(a) a copy of the additional obligations, prohibitions and restrictions to be imposed on the person by the order; and

(b) the following:

(i) an explanation as to why each of those obligations, prohibitions and restrictions should be imposed on the person; and

(ii) if the Commissioner is aware of any facts relating to why any of those obligations, prohibitions or restrictions should not be imposed on the person—a statement of those facts; and

(d) if the person is at least 18 years of age and the Commissioner has information about the person’s age—that information; and

(e) if the person is under 18 years of age—information about the person’s age.

Note 1: A control order cannot be made in relation to a person who is under 14 years of age (see section 104.28).

Note 2: An offence might be committed if the application is false or misleading (see sections 137.1 and 137.2).

(3) As soon as practicable after an application is made under subsection (1), the Commissioner must:

(a) cause the documents mentioned in subsection (3AA) to be served personally on the person in relation to whom the order is made; and

(b) if the person is a resident of Queensland, or the court will hear the application in Queensland—cause the documents mentioned in subsection (3AA) to be given to the Queensland public interest monitor; and

(c) if the person is 14 to 17 years of age—cause reasonable steps to be taken to serve the documents mentioned in subsection (3AA) personally on at least one parent or guardian of the person.

(3AA) The documents are the following:

(a) written notice of the application and the grounds on which the variation is sought;

(b) a copy of the documents mentioned in paragraph (2)(b);

(c) any other written details required to enable the person in relation to whom the order is made to understand and respond to the substance of the facts, matters and circumstances which will form the basis of the variation of the order.

(3A) To avoid doubt, subsections (3) and (3AA) do not require any information to be given if disclosure of that information is likely:

(a) to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004); or

(b) to be protected by public interest immunity; or

(d) to put at risk the safety of the community, law enforcement officers or intelligence officers.

(a) the Commissioner;

(b) one or more other AFP members;

(d) one or more representatives of the person;

(e) if paragraph (3)(b) applies—the Queensland public interest monitor.

(5) Subsection (4) does not otherwise limit the power of the court to control proceedings in relation to an application to vary a confirmed control order.

(6) In subsection (1), a reference to a terrorist act includes:

(a) a reference to a terrorist act that does not occur; and

(b) a reference to a specific terrorist act; and

104.24 Varying a control order

(1) If an application is made under section 104.23, the issuing court may vary the control order, but only if:

(a) an application has been made in accordance with section 104.23; and

(b) the court is satisfied on the balance of probabilities that each of the additional obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of:

(i) protecting the public from a terrorist act; or

(ii) preventing the provision of support for or the facilitation of a terrorist act; or

(iii) preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country.

(2) For the purposes of paragraph (1)(b), in determining whether each of the additional obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, the court must take into account:

(a) as a paramount consideration in all cases—the objects of this Division (see section 104.1); and

(b) as a primary consideration in the case where the person is 14 to 17 years of age—the best interests of the person; and

(2A) In determining what is in the best interests of the person for the purposes of paragraph (2)(b), the court must take into account the matters referred to in subsection 104.4(2A).

(3) The court need not include in the order an obligation, prohibition or restriction that was sought if the court is not satisfied as mentioned in paragraph (1)(b) in respect of that obligation, prohibition or restriction.

(4) In paragraph (1)(b), a reference to a terrorist act includes:

(a) a reference to a terrorist act that does not occur; and

(b) a reference to a specific terrorist act; and

104.25 Terms of a varied control order

If the issuing court varies the control order under section 104.24, the following must be included in the order:

(a) a statement that the court is satisfied of the matter mentioned in paragraph 104.24(1)(b); and

(b) the additional obligations, prohibitions and restrictions that are to be imposed on the person by the varied order; and

(c) a statement that the variation of the order does not begin to be in force until the varied order is served personally on the person; and

(d) a statement that the person’s lawyer may attend a specified place in order to obtain a copy of the varied order.

104.26 Service and explanation of a varied control order

(1) As soon as practicable after a control order is varied under section 104.24, an AFP member:

(a) must serve the varied order personally on the person; and

(b) must inform the person that the order has been varied to impose additional obligations, prohibitions and restrictions; and

(i) the effect of the additional obligations, prohibitions and restrictions;

(ii) the effect of sections 104.18, 104.21 and 104.27 (and section 104.22 if appropriate);

(iii) that the person may have appeal and review rights in relation to the decision of the issuing court to vary the order;

(iv) the person’s right to apply under section 104.18 for an order revoking or varying the order;

(v) the right of the person or one or more representatives of the person, and (if relevant) the right of the Queensland public interest monitor, to adduce evidence or make submissions under subsection 104.19(3) or 104.23(4) in relation to an application to revoke or vary the order; and

(d) must ensure that the person understands the information provided under paragraph (c) (taking into account the person’s age, language skills, mental capacity and any other relevant factor).

Note: For the personal service of documents on a person detained in custody, see section 104.28B.

(3) Paragraphs (1)(c) and (d) do not apply if the actions of the person in relation to whom the control order has been made make it impracticable for the AFP member to comply with those paragraphs.

(3A) Paragraphs (1)(b), (c) and (d) do not apply if the person in relation to whom the control order has been made is detained in custody and it is impracticable for the AFP member to comply with those paragraphs.

(4) A failure to comply with paragraph (1)(d) does not make the control order ineffective to any extent.

If person is 14 to 17

(5) As soon as practicable after a control order in relation to a person who is 14 to 17 years of age is varied under section 104.24, an AFP member must take reasonable steps to serve a copy of the varied order personally on at least one parent or guardian of the person.

Subdivision G—Offences relating to control orders

104.27 Offence for contravening a control order

A person commits an offence if:

(a) a control order is in force in relation to the person; and

(b) the person contravenes the order.

Penalty: Imprisonment for 5 years.

104.27A Offence relating to tracking devices

(1) A person commits an offence if:

(a) a control order is in force in relation to the person; and

(b) the control order requires the person to wear a tracking device; and

(d) the conduct results in interference with, or disruption or loss of, a function of the tracking device.

Penalty: Imprisonment for 5 years.

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

(a) the perpetrator knows that, or is reckless as to whether, a control order is in force in relation to another person; and

(b) the perpetrator knows that, or is reckless as to whether, the control order requires the other person to wear a tracking device; and

(d) the conduct results in interference with, or disruption or loss of, a function of the tracking device.

Penalty: Imprisonment for 5 years.

Subdivision H—Special rules for young people (14 to 17)

104.28 Special rules for young people

Rule for people under 14

(1) A control order cannot be requested, made or confirmed in relation to a person who is under 14 years of age.

Rule for people 14 to 17

(2) If an issuing court is satisfied that a person in relation to whom an interim control order is being made or confirmed is 14 to 17 years of age, the period during which the confirmed control order is to be in force must not end more than 3 months after the day on which the interim control order is made by the court.

(3) Subsection (2) does not prevent the making of successive control orders in relation to the same person.

Young person’s right to legal representation

(4) If an issuing court is satisfied, in proceedings relating to a control order, that:

(a) the person to whom the control order relates, or the person in relation to whom the control order is requested, is at least 14 but under 18; and

(b) the person does not have a lawyer acting in relation to the proceedings;

the court must appoint a lawyer to act for the person in relation to the proceedings.

(5) However, the issuing court is not required to appoint a lawyer if:

(a) the proceedings are ex parte proceedings relating to a request for an interim control order; or

(b) the person refused a lawyer previously appointed under subsection (4) during proceedings relating to:

(i) the control order; or

(ii) if the control order is a confirmed control order—the interim control order that was confirmed.

(6) The regulations may provide in relation to the appointing of lawyers under subsection (4) (including in relation to lawyers appointed under that subsection).

Subdivision I—Miscellaneous

104.28A Interlocutory proceedings

(1) Proceedings in relation to a request under section 104.3, 104.6 or 104.8 to make an interim control order are taken to be interlocutory proceedings for all purposes (including for the purpose of section 75 of the Evidence Act 1995).

(2) The following proceedings are taken not to be interlocutory proceedings for any purpose (including for the purpose of section 75 of the Evidence Act 1995):

(a) proceedings in relation to the confirmation under section 104.14 of an interim control order;

(b) proceedings in relation to an application under section 104.18, 104.19 or 104.23 to revoke or vary a confirmed control order.

104.28AA Costs in control order proceedings

(1) In proceedings in relation to a control order (including proceedings to vary or revoke a control order), an issuing court must not make an order for costs against the person in relation to whom the control order is sought (or has been made).

(2) However, subsection (1) does not apply to the extent that the court is satisfied that the person has acted unreasonably in the conduct of the proceedings.

104.28B Giving documents to persons detained in custody

(1) A document that is required under this Division to be given to a person (the prisoner) personally who is detained in custody at a prison is taken to have been given to the prisoner at the time referred to in paragraph (3)(b) if the document is given to the following person (the recipient):

(a) the legal representative of the prisoner;

(b) if the prisoner does not have a legal representative—the chief executive officer (however described) of the prison, or a delegate of the chief executive officer.

Note: The obligation to inform the prisoner of the matters referred to in paragraphs 104.12(1)(b), 104.17(1)(b) and 104.26(1)(b) and (c) might not apply if it is impracticable for an AFP member to comply with the obligation (see subsections 104.12(3A), 104.17(2A) and 104.26(3A)).

(2) The recipient must, as soon as reasonably practicable, give the document to the prisoner personally.

(3) Once the recipient has done so, he or she must notify the Court and the person who gave the recipient the document, in writing:

(a) that the document has been given to the prisoner; and

(b) of the day that document was so given.

104.29 Reporting requirements

(1) The AFP Minister must, as soon as practicable after each 30 June, cause to be prepared a report about the operation of this Division, Division 5 of Part IAAB of the Crimes Act 1914 (monitoring warrants), and the rest of that Part to the extent that it relates to that Division, during the year ended on that 30 June.

(2) Without limiting subsection (1), a report relating to a year must include the following matters:

(a) the number of interim control orders made under:

(i) section 104.4; and

(ii) section 104.7; and

(iii) section 104.9;

(aa) the number of interim control orders in respect of which an election was made under section 104.12A not to confirm the order;

(b) the number of control orders confirmed under section 104.14;

(d) the number of control orders revoked under sections 104.14 and 104.20;

(e) the number of control orders varied under sections 104.14, 104.20 and 104.24;

(f) particulars of:

(i) any complaints made or referred to the Commonwealth Ombudsman that related to control orders; and

(ii) any information given under section 40SA of the Australian Federal Police Act 1979 that related to control orders and raised an AFP conduct or practices issue (within the meaning of that Act);

(g) the number of monitoring warrants issued under Division 5 of Part IAAB of the Crimes Act 1914;

(h) the number of such warrants executed under that Division;

(i) the report prepared by the Ombudsman under subsection 3ZZUH(1) of the Crimes Act 1914;

(j) for control orders relating to people who are 14 to 17 years of age—the matters referred to in paragraphs (a) to (i) in so far as those matters specifically relate to those control orders.

(3) The AFP Minister must cause copies of the report to be laid before each House of the Parliament within 15 sitting days of that House after the report is completed.

104.30 Requirement to notify AFP Minister of declarations, revocations or variations

The Commissioner must cause:

(a) the AFP Minister to be notified in writing if:

(i) a control order is declared to be void under section 104.14; or

(ii) a control order is revoked under section 104.14 or 104.20; or

(iii) a control order is varied under section 104.14, 104.20 or 104.24; and

(b) the AFP Minister to be given a copy of the varied order (if appropriate).

104.31 Queensland public interest monitor functions and powers not affected

This Division does not affect a function or power that the Queensland public interest monitor, or a Queensland deputy public interest monitor, has under a law of Queensland.

104.32 Sunset provision

(1) A control order that is in force at the end of 7 December 2022 ceases to be in force at that time.

(2) A control order cannot be requested, made or confirmed after 7 December 2022.

Division 105—Preventative detention orders

Subdivision A—Preliminary

105.1 Object

The object of this Division is to allow a person to be taken into custody and detained for a short period of time in order to:

(a) prevent a terrorist act that is capable of being carried out, and could occur, within the next 14 days from occurring; or

(b) preserve evidence of, or relating to, a recent terrorist act.

Note: Section 105.42 provides that, while a person is being detained under a preventative detention order, the person may only be questioned for very limited purposes.

105.2 Issuing authorities for continued preventative detention orders

(1) The Attorney‑General may, by writing, appoint as an issuing authority for continued preventative detention orders:

(a) a person who is a judge of a State or Territory Supreme Court; or

(b) a person who is a Judge of the Federal Court of Australia or of the Federal Circuit and Family Court of Australia (Division 2); or

(d) a person who:

(i) has served as a judge in one or more superior courts for a period of 5 years; and

(ii) no longer holds a commission as a judge of a superior court; or

(e) a person who:

(i) holds an appointment to the Administrative Appeals Tribunal as President or Deputy President; and

(ii) is enrolled as a legal practitioner of a federal court or of the Supreme Court of a State or Territory; and

(iii) has been enrolled for at least 5 years.

(2) The Attorney‑General must not appoint a person unless:

(a) the person has, by writing, consented to being appointed; and

(b) the consent is in force.

105.3 Police officer detaining person under a preventative detention order

If:

(a) a number of police officers are detaining, or involved in the detention of, a person under a preventative detention order at a particular time; and

(b) an obligation is expressed in this Division to be imposed on the police officer detaining the person;

the obligation is imposed at that time on:

(d) if those police officers include 2 or more AFP members—the most senior of those AFP members; or

(e) if those police officers do not include an AFP member—the most senior of those police officers.

Note: See also paragraph 105.27(2)(c).

Subdivision B—Preventative detention orders

105.4 Basis for applying for, and making, preventative detention orders

(1) An AFP member may apply for a preventative detention order in relation to a person only if the AFP member meets the requirements of subsection (4) or (6).

(2) An issuing authority may make a preventative detention order in relation to a person only if the issuing authority meets the requirements of subsection (4) or (6).

Note: For the definition of issuing authority, see subsection 100.1(1) and section 105.2.

(3) The person in relation to whom the preventative detention order is applied for, or made, is the subject for the purposes of this section.

(4) A person meets the requirements of this subsection if:

(a) in the case of an AFP member—the member suspects, on reasonable grounds, that the subject:

(i) will engage in a terrorist act; or

(ii) possesses a thing that is connected with the preparation for, or the engagement of a person in, a terrorist act; or

(iii) has done an act in preparation for, or planning, a terrorist act; and

(b) in the case of an issuing authority—the issuing authority is satisfied there are reasonable grounds to suspect that the subject:

(i) will engage in a terrorist act; or

(ii) possesses a thing that is connected with the preparation for, or the engagement of a person in, a terrorist act; or

(iii) has done an act in preparation for, or planning, a terrorist act; and

(c) the person is satisfied that making the order would substantially assist in preventing a terrorist act occurring; and

(d) the person is satisfied that detaining the subject for the period for which the person is to be detained under the order is reasonably necessary for the purpose referred to in paragraph (c).

(5) A terrorist act referred to in subsection (4) must be one that:

(a) for paragraphs (4)(a) and (c)—the AFP member suspects, on reasonable grounds; or

(b) for paragraphs (4)(b) and (c)—the issuing authority is satisfied there are reasonable grounds to suspect;

is capable of being carried out, and could occur, within the next 14 days.

(6) A person meets the requirements of this subsection if the person is satisfied that:

(a) a terrorist act has occurred within the last 28 days; and

(b) it is reasonably necessary to detain the subject to preserve evidence of, or relating to, the terrorist act; and

(c) detaining the subject for the period for which the person is to be detained under the order is reasonably necessary for the purpose referred to in paragraph (b).

(7) An issuing authority may refuse to make a preventative detention order unless the AFP member applying for the order gives the issuing authority any further information that the issuing authority requests concerning the grounds on which the order is sought.

105.5 No preventative detention order in relation to person under 16 years of age

(1) A preventative detention order cannot be applied for, or made, in relation to a person who is under 16 years of age.

Note: See also section 105.39 and subsections 105.43(4) to (9) and (11) for the special rules for people who are under 18 years of age.

(2) If:

(a) a person is being detained under a preventative detention order or a purported preventative detention order; and

(b) the police officer who is detaining the person is satisfied on reasonable grounds that the person is under 16 years of age;

the police officer must:

(c) if the police officer is an AFP member—release the person, as soon as practicable, from detention under the order or purported order; or

(d) if the police officer is not an AFP member—inform a senior AFP member, as soon as practicable, of the police officer’s reasons for being satisfied that the person is under 16 years of age.

(3) If:

(a) a senior AFP member is informed by a police officer under paragraph (2)(d); and

(b) the senior AFP member is satisfied on reasonable grounds that the person being detained is under 16 years of age;

the senior AFP member must arrange to have the person released, as soon as practicable, from detention under the order or purported order.

105.5A Special assistance for person with inadequate knowledge of English language or disability

If the police officer who is detaining a person under a preventative detention order has reasonable grounds to believe that the person is unable, because of inadequate knowledge of the English language or a disability, to communicate with reasonable fluency in that language:

(a) the police officer has an obligation under subsection 105.31(3) to arrange for the assistance of an interpreter in informing the person about:

(i) the effect of the order or any extension, or further extension, of the order; and

(ii) the person’s rights in relation to the order; and

(b) the police officer has an obligation under subsection 105.37(3A) to give the person reasonable assistance to:

(i) choose a lawyer to act for the person in relation to the order; and

(ii) contact the lawyer.

105.6 Restrictions on multiple preventative detention orders

Preventative detention orders under this Division

(1) If:

(a) an initial preventative detention order is made in relation to a person on the basis of assisting in preventing a terrorist act occurring within a particular period; and

(b) the person is taken into custody under the order;

another initial preventative detention order cannot be applied for, or made, in relation to the person on the basis of assisting in preventing the same terrorist act occurring within that period.

Note: It will be possible to apply for, and make, another initial preventative detention order in relation to the person on the basis of preserving evidence of, or relating to, the terrorist act if it occurs.

(2) If:

(a) an initial preventative detention order is made in relation to a person on the basis of assisting in preventing a terrorist act occurring within a particular period; and

(b) the person is taken into custody under the order;

another initial preventative detention order cannot be applied for, or made, in relation to the person on the basis of assisting in preventing a different terrorist act occurring within that period unless the application, or the order, is based on information that became available to be put before an issuing authority only after the initial preventative detention order referred to in paragraph (a) was made.

(3) If:

(a) an initial preventative detention order is made in relation to a person on the basis of preserving evidence of, or relating to, a terrorist act; and

(b) the person is taken into custody under the order;

another initial preventative detention order cannot be applied for, or made, in relation to the person on the basis of preserving evidence of, or relating to, the same terrorist act.

Detention orders under corresponding State preventative detention laws

(4) If:

(a) an order for a person’s detention is made under a corresponding State preventative detention law on the basis of assisting in preventing a terrorist act occurring within a particular period; and

(b) the person is taken into custody under that order;

an initial preventative detention order cannot be applied for, or made, under this Division in relation to the person on the basis of assisting in preventing the same terrorist act occurring within that period.

(5) If:

(b) the person is taken into custody under that order;

an initial preventative detention order cannot be applied for, or made, under this Division in relation to the person on the basis of assisting in preventing a different terrorist act occurring within that period unless the application, or the order, is based on information that became available to be put before an issuing authority only after the order referred to in paragraph (a) was made.

(6) If:

(a) an order for a person’s detention is made under a corresponding State preventative detention law on the basis of preserving evidence of, or relating to, a terrorist act; and

(b) the person is taken into custody under that order;

an initial preventative detention order cannot be applied for, or made, under this Division in relation to the person on the basis of preserving evidence of, or relating to, the same terrorist act.

105.7 Application for initial preventative detention order

(1) An AFP member may apply to an issuing authority for an initial preventative detention order in relation to a person.

Note 1: Senior AFP members are issuing authorities for initial preventative detention orders (see the definition of issuing authority in subsection 100.1(1)).

Note 2: For the definition of senior AFP member, see subsection 100.1(1).

(2) The application must:

(a) be made either:

(i) in writing (other than writing by means of an electronic communication); or

(ii) if the AFP member considers it necessary because of urgent circumstances—orally in person or by telephone, or by fax, email or other electronic means of communication; and

(b) set out the facts and other grounds on which the AFP member considers that the order should be made; and

(c) specify the period for which the person is to be detained under the order and set out the facts and other grounds on which the AFP member considers that the person should be detained for that period; and

(d) set out the information (if any) that the applicant has about the person’s age; and

(e) set out the following:

(i) the outcomes and particulars of all previous applications for preventative detention orders in relation to the person;

(ii) the outcomes and particulars of all previous requests for interim control orders (including the outcomes of the hearings to confirm the orders) in relation to the person;

(iii) the outcomes and particulars of all previous applications for variations of control orders made in relation to the person;

(iv) the outcomes of all previous applications for revocations of control orders made in relation to the person; and

(f) set out the information (if any) that the applicant has about any periods for which the person has been detained under an order made under a corresponding State preventative detention law; and

(g) set out a summary of the grounds on which the AFP member considers that the order should be made.

Note: Sections 137.1 and 137.2 create offences for providing false or misleading information or documents.

(2A) To avoid doubt, paragraph (2)(g) does not require any information to be included in the summary if disclosure of that information is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004).

(2B) If the application is made orally, information given by the AFP member to the issuing authority in connection with the application must be verified or given on oath or affirmation, unless the issuing authority is satisfied that it is not practical to administer an oath or affirmation to the member.

(3) If:

(a) an initial preventative detention order is made in relation to a person on the basis of assisting in preventing a terrorist act occurring within a particular period; and

(b) the person is taken into custody under the order; and

(c) an application is made for another initial preventative detention order in relation to the person on the basis of assisting in preventing a different terrorist act occurring within that period;

the application must also identify the information on which the application is based that became available to be put before an issuing authority only after the initial preventative detention order referred to in paragraph (a) was made.

Note: See subsection 105.6(2).

(4) If:

(b) the person is taken into custody under that order; and

(c) an application is made for an initial preventative detention order in relation to the person on the basis of assisting in preventing a different terrorist act occurring within that period;

the application must also identify the information on which the application is based that became available to be put before an issuing authority only after the order referred to in paragraph (a) was made.

Note: See subsection 105.6(5).

105.8 Senior AFP member may make initial preventative detention order

(1) On application by an AFP member, an issuing authority may, subject to subsection (1A), make an initial preventative detention order under this section in relation to a person.

Note 1: Senior AFP members are issuing authorities for initial preventative detention orders (see the definition of issuing authority in subsection 100.1(1)).

Note 2: For the definition of senior AFP member, see subsection 100.1(1).

(1A) If the application is made orally in person or by telephone, or by fax, email or other electronic means of communication, the issuing authority must not make the order unless the issuing authority is satisfied that it is necessary, because of urgent circumstances, to apply for the order by such means.

(2) Subsection (1) has effect subject to sections 105.4, 105.5 and 105.6.

(3) An initial preventative detention order under this section is an order that the person specified in the order may be:

(a) taken into custody; and

(b) detained during the period that:

(i) starts when the person is first taken into custody under the order; and

(ii) ends a specified period of time after the person is first taken into custody under the order.

(4) The order must be in writing.

(5) The period of time specified in the order under subparagraph (3)(b)(ii) must not exceed 24 hours.

(6) An initial preventative detention order under this section must set out:

(a) any of the following:

(i) the true name of the person in relation to whom the order is made;

(ii) if, after reasonable inquiries have been made, the person’s true name is not known but an alias is known for the person—the alias of the person in relation to whom the order is made;

(iii) if, after reasonable inquiries have been made, the person’s true name is not known and no alias is known for the person—a description sufficient to identify the person in relation to whom the order is made; and

(b) the period during which the person may be detained under the order; and

(d) the date and time after which the person may not be taken into custody under the order; and

(e) a summary of the grounds on which the order is made.

Note: Paragraph (d)—see subsection 105.9(2).

(6A) To avoid doubt, paragraph (6)(e) does not require any information to be included in the summary if disclosure of that information is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004).

(7) If the person in relation to whom the order is made is:

(a) under 18 years of age; or

(b) incapable of managing his or her affairs;

the order may provide that the period each day for which the person is entitled to have contact with another person under subsection 105.39(2) is the period of more than 2 hours that is specified in the order.

(7A) If the order is made on an application that was made orally (see subparagraph 105.7(2)(a)(ii)), the issuing authority must either:

(a) ensure that there is an audio, or audio‑visual, recording of the application; or

(b) as soon as practicable after the order is made, make a written record of the details of the application, including any information given in support of it.

(8) The senior AFP member nominated under subsection 105.19(5) in relation to the initial preventative detention order must, as soon as reasonably practicable after the order is made:

(a) notify the Commonwealth Ombudsman in writing of the making of the order; and

(b) give the Commonwealth Ombudsman a copy of the order; and

(c) if the person in relation to whom the order is made is taken into custody under the order—notify the Commonwealth Ombudsman in writing that the person has been taken into custody under the order; and

(d) notify the Parliamentary Joint Committee on Intelligence and Security in writing of the making of the order.

105.9 Duration of initial preventative detention order

(1) An initial preventative detention order in relation to a person starts to have effect when it is made.

Note: The order comes into force when it is made and authorises the person to be taken into custody (see paragraph 105.8(3)(a)). The period for which the person may then be detained under the order only starts to run when the person is first taken into custody under the order (see subparagraph 105.8(3)(b)(i)).

(2) An initial preventative detention order in relation to a person ceases to have effect at the end of the period of 48 hours after the order is made if the person has not been taken into custody under the order within that period.

(3) If the person is taken into custody under the order within 48 hours after the order is made, the order ceases to have effect when whichever of the following first occurs:

(a) the end of:

(i) the period specified in the order as the period during which the person may be detained under the order; or

(ii) if that period is extended or further extended under section 105.10—that period as extended or further extended;

(b) the revocation of the order under section 105.17.

Note 1: The order does not cease to have effect merely because the person is released from detention under the order.

Note 2: An AFP member may apply under section 105.11 for a continued preventative detention order in relation to the person to allow the person to continue to be detained for up to 48 hours after the person is first taken into custody under the initial preventative detention order.

105.10 Extension of initial preventative detention order

(1) If:

(a) an initial preventative detention order is made in relation to a person; and

(b) the order is in force in relation to the person;

an AFP member may apply to an issuing authority for initial preventative detention orders for an extension, or a further extension, of the period for which the order is to be in force in relation to the person.

(2) The application must:

(a) be made in writing; and

(b) set out the facts and other grounds on which the AFP member considers that the extension, or further extension, is reasonably necessary for the purpose for which the order was made; and

(c) set out the outcomes and particulars of all previous applications for extensions, or further extensions, of the order.

Note: Paragraph (b)—see subsections 105.4(4) and (6) for the purpose for which a preventative detention order may be made.

(3) The issuing authority may extend, or further extend, the period for which the order is to be in force in relation to the person if the issuing authority is satisfied that detaining the person under the order for the period as extended, or further extended, is reasonably necessary for the purpose for which the order was made.

(4) The extension, or further extension, must be made in writing.

(5) The period as extended, or further extended, must end no later than 24 hours after the person is first taken into custody under the order.

105.10A Notice of application for continued preventative detention order

An AFP member who proposes to apply for a continued preventative detention order in relation to a person under section 105.11 must, before applying for the order:

(a) notify the person of the proposed application; and

(b) inform the person that, when the proposed application is made, any material that the person gives the AFP member in relation to the proposed application will be put before the issuing authority for continued preventative detention orders to whom the application is made.

Note: The AFP member who applies for the order must put the material before the issuing authority—see subsection 105.11(5).

105.11 Application for continued preventative detention order

(1) If an initial preventative detention order is in force in relation to a person in relation to a terrorist act, an AFP member may apply to an issuing authority in relation to continued preventative detention orders for a continued preventative detention order in relation to the person in relation to the terrorist act.

Note: Certain judges, AAT members and retired judges are issuing authorities for continued preventative detention orders (see the definition of issuing authority in subsection 100.1(1) and section 105.2).

(2) The application must:

(a) be made in writing; and

(b) set out the facts and other grounds on which the AFP member considers that the order should be made; and

(c) specify the period for which the person is to continue to be detained under the order and set out the facts and other grounds on which the AFP member considers that the person should continue to be detained for that period; and

(d) set out the information (if any) that the applicant has about the person’s age; and

(e) set out the following:

(i) the outcomes and particulars of all previous applications for preventative detention orders in relation to the person;

(ii) the outcomes and particulars of all previous requests for interim control orders (including the outcomes of the hearings to confirm the orders) in relation to the person;

(iii) the outcomes and particulars of all previous applications for variations of control orders made in relation to the person;

(iv) the outcomes of all previous applications for revocations of control orders made in relation to the person; and

(f) set out the information (if any) that the applicant has about any periods for which the person has been detained under an order made under a corresponding State preventative detention law; and

(g) set out a summary of the grounds on which the AFP member considers that the order should be made.

Note: Sections 137.1 and 137.2 create offences for providing false or misleading information or documents.

(3) Subparagraph (2)(e)(i) does not require the application to set out details in relation to the application that was made for the initial preventative detention order in relation to which the continued preventative detention order is sought.

(3A) To avoid doubt, paragraph (2)(g) does not require any information to be included in the summary if disclosure of that information is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004).

(4) The information in the application must be sworn or affirmed by the AFP member.

(5) The AFP member applying for the continued preventative detention order in relation to the person must put before the issuing authority to whom the application is made any material in relation to the application that the person has given the AFP member.

105.12 Judge, AAT member or retired judge may make continued preventative detention order

(1) On application by an AFP member, an issuing authority may make a continued preventative detention order under this section in relation to a person if:

(a) an initial preventative detention order is in force in relation to the person; and

(b) the person has been taken into custody under the order (whether or not the person is being detained under the order).

(2) Subsection (1) has effect subject to sections 105.4, 105.5 and 105.6. Section 105.4 requires the issuing authority to consider afresh the merits of making the order and to be satisfied, after taking into account relevant information (including any information that has become available since the initial preventative detention order was made), of the matters referred to in subsection 105.4(4) or (6) before making the order.

(3) A continued preventative detention order under this section is an order that the person specified in the order may be detained during a further period that:

(a) starts at the end of the period during which the person may be detained under the initial preventative detention order; and

(b) ends a specified period of time after the person is first taken into custody under the initial preventative detention order.

(4) The order must be in writing.

(5) The period of time specified under paragraph (3)(b) must not exceed 48 hours.

(6) A continued preventative detention order under this section must set out:

(a) any of the following:

(i) the true name of the person in relation to whom the order is made;

(ii) if, after reasonable inquiries have been made, the person’s true name is not known but an alias is known for the person—the alias of the person in relation to whom the order is made;

(b) the further period during which the person may be detained under the order; and

(d) a summary of the grounds on which the order is made.

(6A) To avoid doubt, paragraph (6)(d) does not require any information to be included in the summary if disclosure of that information is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004).

(7) If the person in relation to whom the order is made is:

(a) under 18 years of age; or

(b) incapable of managing his or her affairs;

(8) The senior AFP member nominated under subsection 105.19(5) in relation to the continued preventative detention order must, as soon as reasonably practicable after the order is made:

(a) notify the Commonwealth Ombudsman in writing of the making of the order; and

(b) give the Commonwealth Ombudsman a copy of the order; and

105.13 Duration of continued preventative detention order

(1) A continued preventative detention order in relation to a person starts to have effect when it is made.

Note: The order comes into force when it is made. The period for which the person may be detained under the order, however, only starts to run when the period during which the person may be detained under the initial preventative detention order ends (see paragraph 105.12(3)(a)).

(2) A continued preventative detention order in relation to a person ceases to have effect when whichever of the following first occurs:

(a) the end of:

(i) the period specified in the order as the further period during which the person may be detained; or

(ii) if that period is extended or further extended under section 105.14—that period as extended or further extended;

(b) the revocation of the order under section 105.17.

Note: The order does not cease to have effect merely because the person is released from detention under the order.

105.14 Extension of continued preventative detention order

(1) If:

(a) an initial preventative detention order is made in relation to a person; and

(b) a continued preventative detention order is made in relation to the person in relation to that initial preventative detention order; and

an AFP member may apply to an issuing authority for continued preventative detention orders for an extension, or a further extension, of the period for which the continued preventative detention order is to be in force in relation to the person.

(2) The application must:

(a) be made in writing; and

(b) set out the facts and other grounds on which the AFP member considers that the extension, or further extension, is reasonably necessary for the purpose for which the order was made; and

(c) set out the outcomes and particulars of all previous applications for extensions, or further extensions, of the continued preventative detention order.

Note: Paragraph (b)—see subsections 105.4(4) and (6) for the purpose for which a preventative detention order may be made.

(3) The information in the application must be sworn or affirmed by the AFP member.

(4) The issuing authority may extend, or further extend, the period for which the continued preventative detention order is to be in force in relation to the person if the issuing authority is satisfied that detaining the person under the order for the period as extended, or further extended, is reasonably necessary for the purpose for which the order was made.

(5) The extension, or further extension, must be made in writing.

(6) The period as extended, or further extended, must end no later than 48 hours after the person is first taken into custody under the initial preventative detention order.

105.14A Basis for applying for, and making, prohibited contact order

(1) An AFP member may apply for a prohibited contact order in relation to a person only if the AFP member meets the requirements of subsection (4).

(2) An issuing authority for initial preventative detention orders, or continued preventative detention orders, may make a prohibited contact order in relation to a person’s detention under a preventative detention order only if the issuing authority meets the requirements of subsection (4).

(3) The person in relation to whose detention the prohibited contact order is applied for, or made, is the subject for the purposes of this section.

(4) A person meets the requirements of this subsection if the person is satisfied that making the prohibited contact order is reasonably necessary:

(a) to avoid a risk to action being taken to prevent a terrorist act occurring; or

(b) to prevent serious harm to a person; or

(d) to prevent interference with the gathering of information about:

(i) a terrorist act; or

(ii) the preparation for, or the planning of, a terrorist act; or

(e) to avoid a risk to:

(i) the arrest of a person who is suspected of having committed an offence against this Part; or

(ii) the taking into custody of a person in relation to whom a preventative detention order is in force, or in relation to whom a preventative detention order is likely to be made; or

(iii) the service on a person of a control order.

(5) An issuing authority may refuse to make a prohibited contact order unless the AFP member applying for the order gives the issuing authority any further information that the issuing authority requests concerning the grounds on which the order is sought.

105.15 Prohibited contact order (person in relation to whom preventative detention order is being sought)

(1) An AFP member who applies to an issuing authority for a preventative detention order in relation to a person (the subject) may also apply for a prohibited contact order under this section in relation to the subject’s detention under the preventative detention order.

(1A) The application for the prohibited contact order may be made either:

(a) in writing (other than writing by means of an electronic communication); or

(b) if the AFP member considers it necessary because of urgent circumstances—orally in person or by telephone, or by fax, email or other electronic means of communication.

(2) The application must set out:

(a) the terms of the order sought; and

(b) the facts and other grounds on which the AFP member considers that the order should be made.

(3) If:

(a) a continued preventative detention order is being applied for; and

(b) the application for the prohibited contact order is made in accordance with paragraph (1A)(a);

the information in the application for the prohibited contact order must be sworn or affirmed by the AFP member.

(3A) If:

(a) a continued preventative detention order is being applied for; and

(b) the application for the prohibited contact order is made in accordance with paragraph (1A)(b);

the information in the application for the prohibited contact order must be sworn or affirmed by the AFP member unless the issuing authority is satisfied that it is not practical to administer an oath or affirmation to the member.

(4) If the issuing authority makes the preventative detention order, the issuing authority may, subject to subsection (4A), make a prohibited contact order under this section that the subject is not, while being detained under the preventative detention order, to contact the person specified in the prohibited contact order.

Note: Section 105.14A sets out the basis on which the order may be made.

(4A) If the application for the prohibited contact order is made orally in person or by telephone, or by fax, email or other electronic means of communication, the issuing authority must not make the order unless the issuing authority is satisfied that it was necessary, because of urgent circumstances, to apply for the order by such means.

(5) The prohibited contact order must be in writing.

(6) The senior AFP member nominated under subsection 105.19(5) in relation to the preventative detention order must:

(a) notify the Commonwealth Ombudsman in writing of the making of the prohibited contact order; and

(b) give the Commonwealth Ombudsman a copy of the prohibited contact order; and

(c) notify the Parliamentary Joint Committee on Intelligence and Security in writing of the making of the prohibited contact order.

(7) If the prohibited contact order is made on an application that was made orally, the issuing authority must either:

(a) ensure that there is an audio, or audio‑visual, recording of the application; or

(b) as soon as practicable after the order is made, make a written record of the details of the application, including any information given in support of it.

105.16 Prohibited contact order (person in relation to whom preventative detention order is already in force)

(1) If a preventative detention order is in force in relation to a person (the subject), an AFP member may apply to an issuing authority for preventative detention orders of that kind for a prohibited contact order under this section in relation to the subject’s detention under the preventative detention order.

(1A) The application may be made either:

(a) in writing (other than writing by means of an electronic communication); or

(b) if the AFP member considers it necessary because of urgent circumstances—orally in person or by telephone, or by fax, email or other electronic means of communication.

(2) The application must set out:

(a) the terms of the order sought; and

(b) the facts and other grounds on which the AFP member considers that the order should be made.

(3) If:

(a) the preventative detention order is a continued preventative detention order; and

(b) the application for the prohibited contact order is made in accordance with paragraph (1A)(a);

the information in the application for the prohibited contact order must be sworn or affirmed by the AFP member.

(3A) If:

(a) the preventative detention order is a continued preventative detention order; and

(b) the application for the prohibited contact order is made in accordance with paragraph (1A)(b);

(4) The issuing authority may, subject to subsection (4A), make a prohibited contact order under this section that the subject is not, while being detained under the preventative detention order, to contact the person specified in the prohibited contact order.

Note: Section 105.14A sets out the basis on which the order may be made.

(5) The prohibited contact order must be in writing.

(6) The senior AFP member nominated under subsection 105.19(5) in relation to the preventative detention order must:

(a) notify the Commonwealth Ombudsman in writing of the making of the prohibited contact order; and

(b) give the Commonwealth Ombudsman a copy of the prohibited contact order; and

(c) notify the Parliamentary Joint Committee on Intelligence and Security in writing of the making of the prohibited contact order.

(7) If the prohibited contact order is made on an application that was made orally, the issuing authority must either:

(a) ensure there is an audio, or audio‑visual, recording of the application; or

(b) as soon as practicable after the order is made, make a written record of the details of the application, including any information given in support of it.

105.17 Revocation of preventative detention order or prohibited contact order

Preventative detention order

(1) If:

(a) a preventative detention order is in force in relation to a person; and

(b) the police officer who is detaining the person under the order is satisfied that the grounds on which the order was made have ceased to exist;

the police officer must:

(c) if the police officer is an AFP member—apply to an issuing authority for preventative detention orders of that kind for the revocation of the order; or

(d) if the police officer is not an AFP member—inform a senior AFP member of the police officer’s reasons for being satisfied that the grounds on which the order was made have ceased to exist.

(2) If:

(a) a senior AFP member is informed by a police officer under paragraph (1)(d); and

(b) the senior AFP member is satisfied that the grounds on which the preventative detention order was made have ceased to exist;

the senior AFP member must apply to an issuing authority for preventative detention orders of that kind for the revocation of the order.

(3) If:

(a) a preventative detention order is in force in relation to a person; and

(b) an issuing authority for preventative detention orders of that kind is satisfied, on application by an AFP member, that the grounds on which the order was made have ceased to exist;

the issuing authority must revoke the order.

Prohibited contact order

(4) If:

(a) a prohibited contact order is in force in relation to a person’s detention under a preventative detention order; and

(b) the police officer who is detaining the person under the preventative detention order is satisfied that the grounds on which the prohibited contact order was made have ceased to exist;

the police officer must:

(c) if the police officer is an AFP member—apply to an issuing authority for preventative detention orders of that kind for the revocation of the prohibited contact order; or

(d) if the police officer is not an AFP member—inform a senior AFP member of the police officer’s reasons for being satisfied that the grounds on which the prohibited contact order was made have ceased to exist.

(5) If:

(a) a senior AFP member is informed by a police officer under paragraph (4)(d); and

(b) the senior AFP member is satisfied that the grounds on which the prohibited contact order was made in relation to the person’s detention under the preventative detention order have ceased to exist;

the senior AFP member must apply to an issuing authority for preventative detention orders of that kind for the revocation of the prohibited contact order.

(6) If:

(a) a prohibited contact order is in force in relation to a person’s detention under a preventative detention order; and

(b) an issuing authority for preventative detention orders of that kind is satisfied, on application by an AFP member, that the grounds on which the prohibited contact order was made have ceased to exist;

the issuing authority must revoke the prohibited contact order.

Detainee’s right to make representations about revocation of preventative detention order

(7) A person being detained under a preventative detention order may make representations to the senior AFP member nominated under subsection 105.19(5) in relation to the order with a view to having the order revoked.

105.18 Status of person making continued preventative detention order

(1) An issuing authority who makes:

(a) a continued preventative detention order; or

(b) a prohibited contact order in relation to a person’s detention under a continued preventative detention order;

has, in the performance of his or her duties under this Subdivision, the same protection and immunity as a Justice of the High Court.

(2) A function of:

(a) making or revoking a continued preventative detention order; or

(b) extending, or further extending, the period for which a continued preventative detention order is to be in force; or

(c) making or revoking a prohibited contact order in relation to a person’s detention under a continued preventative detention order;

that is conferred on a judge or a member of the Administrative Appeals Tribunal is conferred on the judge or member of the Administrative Appeals Tribunal in a personal capacity and not as a court or a member of a court.

Subdivision C—Carrying out preventative detention orders

105.19 Power to detain person under preventative detention order

General powers given by preventative detention order

(1) While a preventative detention order is in force in relation to a person:

(a) any police officer may take the person into custody; and

(b) any police officer may detain the person.

(2) A police officer, in taking a person into custody under and in detaining a person under a preventative detention order, has the same powers and obligations as the police officer would have if the police officer were arresting the person, or detaining the person, for an offence.

(3) In subsection (2):

offence means:

(a) if the police officer is an AFP member—an offence against a law of the Commonwealth; or

(b) if the police officer is not an AFP member—an offence against a law of the State or Territory of whose police force the police officer is a member.

(4) Subsection (2) does not apply to the extent to which particular powers, and the obligations associated with those powers, are provided for in this Subdivision or Subdivision D or E.

Nominated senior AFP member

(5) If a preventative detention order is made in relation to person, the Commissioner of the Australian Federal Police must nominate a senior AFP member (the nominated senior AFP member) to oversee the exercise of powers under, and the performance of obligations in relation to, the preventative detention order.

(6) The nominated senior AFP member must be someone who was not involved in the making of the application for the preventative detention order.

(7) The nominated senior AFP member must:

(a) oversee the exercise of powers under, and the performance of obligations in relation to, the preventative detention order; and

(b) without limiting paragraph (a), ensure that the provisions of section 105.17 (which deals with revocation of preventative detention orders and prohibited contact orders) are complied with in relation to the preventative detention order; and

(8) The following persons:

(a) the person being detained under the preventative detention order;

(b) a lawyer acting for that person in relation to the preventative detention order;

are entitled to make representations to the nominated senior AFP member in relation to:

(d) the exercise of powers under, and the performance of obligations in relation to, the preventative detention order; and

(e) without limiting paragraph (a), compliance with the provisions of section 105.17 (which deals with revocation of preventative detention orders and prohibited contact orders) in relation to the preventative detention order; and

(f) the person’s treatment in connection with the person’s detention under the preventative detention order.

(9) The Commissioner of the Australian Federal Police may, in writing, delegate to a senior AFP member the Commissioner’s powers under subsection (5).

105.20 Endorsement of order with date and time person taken into custody

As soon as practicable after a person is first taken into custody under an initial preventative detention order, the police officer who is detaining the person under the order must endorse on the order the date on which, and time at which, the person is first taken into custody under the order.

105.21 Requirement to provide name etc.

(1) If a police officer believes on reasonable grounds that a person whose name or address is, or whose name and address are, unknown to the police officer may be able to assist the police officer in executing a preventative detention order, the police officer may request the person to provide his or her name or address, or name and address, to the police officer.

(2) If a police officer:

(a) makes a request of a person under subsection (1); and

(b) informs the person of the reason for the request; and

(d) complies with subsection (4) if the person makes a request under that subsection;

the person must not:

(e) refuse or fail to comply with the request; or

(f) give a name or address that is false in a material particular.

Penalty: 20 penalty units.

(3) Subsection (2) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3)).

(4) If a police officer who makes a request of a person under subsection (1) is requested by the person to provide to the person any of the following:

(a) his or her name;

(b) the address of his or her place of duty;

(d) his or her rank if he or she does not have an identification number;

the police officer must not:

(e) refuse or fail to comply with the request; or

(f) give a name, address, number or rank that is false in a material particular.

Penalty: 5 penalty units.

105.22 Power to enter premises

(1) Subject to subsection (2), if:

(a) a preventative detention order is in force in relation to a person; and

(b) a police officer believes on reasonable grounds that the person is on any premises;

the police officer may enter the premises, using such force as is necessary and reasonable in the circumstances and with such assistance from other police officers as is necessary, at any time of the day or night for the purpose of searching the premises for the person or taking the person into custody.

(2) A police officer must not enter a dwelling house under subsection (1) at any time during the period commencing at 9 pm on a day and ending at 6 am on the following day unless the police officer believes on reasonable grounds that:

(a) it would not be practicable to take the person into custody, either at the dwelling house or elsewhere, at another time; or

(b) it is necessary to do so in order to prevent the concealment, loss or destruction of evidence of, or relating to, a terrorist act.

(3) In subsection (2):

dwelling house includes a conveyance, and a room in a hotel, motel, boarding house or club, in which people ordinarily retire for the night.

105.23 Power to conduct a frisk search

A police officer who takes a person into custody under a preventative detention order, or who is present when the person is taken into custody, may, if the police officer suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying any seizable items:

(a) conduct a frisk search of the person at, or soon after, the time when the person is taken into custody; and

(b) seize any seizable items found as a result of the search.

105.24 Power to conduct an ordinary search

(a) evidence of, or relating to, a terrorist act; or

(b) a seizable item;

conduct an ordinary search of the person at, or soon after, the time when the person is taken into custody, and seize any such thing found as a result of the search.

105.25 Warrant under Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979

(1) This section applies if:

(a) a person is being detained under a preventative detention order; and

(b) a warrant under Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 is in force in relation to the person; and

(c) a copy of the warrant is given to the police officer who is detaining the person under the preventative detention order.

(2) The police officer must take such steps as are necessary to ensure that the person may be dealt with in accordance with the warrant.

(3) Without limiting subsection (2), the police officer may, under section 105.26, release the person from detention under the preventative detention order so that the person may be dealt with in accordance with the warrant.

Note: If the police officer is not an AFP member, the police officer will need to obtain the approval of a senior AFP member before releasing the person from detention (see subsection 105.26(2)).

(4) To avoid doubt, the fact that the person is released from detention under the preventative detention order so that the person may be questioned before a prescribed authority under the warrant does not extend the period for which the preventative detention order remains in force in relation to the person.

Note: See paragraph 105.26(7)(a).

105.26 Release of person from preventative detention

(1) The police officer who is detaining a person under a preventative detention order may release the person from detention under the order.

Note: A person may be released, for example, so that the person may be arrested and otherwise dealt with under the provisions of Division 4 of Part IAA, and Part IC, of the Crimes Act 1914.

(2) If the police officer detaining the person under the order is not an AFP member:

(a) the police officer must not release the person from detention without the approval of a senior AFP member; and

(b) the senior AFP member must approve the person’s release if the person is being released so that the person may be dealt with in accordance with a warrant under Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979.

(3) The police officer who releases the person from detention under the preventative detention order must give the person a written statement that the person is being released from that detention. The statement must be signed by the police officer.

(4) Subsection (3) does not apply if the police officer releases the person from detention so that the person may be dealt with:

(a) in accordance with a warrant under Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979; or

(b) under the provisions of Division 4 of Part IAA, and Part IC, of the Crimes Act 1914.

(5) To avoid doubt, a person may be taken to have been released from detention under a preventative detention order even if:

(a) the person is informed that he or she is being released from detention under the order; and

(b) the person is taken into custody on some other basis immediately after the person is informed that he or she is being released from detention under the order.

(6) To avoid doubt, a person is taken not to be detained under a preventative detention order during a period during which the person is released from detention under the order.

Note: During this period, the provisions of this Division that apply to a person who is being detained under a preventative detention order (for example, section 105.34 which deals with the people the person may contact) do not apply to the person.

(7) To avoid doubt:

(a) the release of the person under subsection (1) from detention under the preventative detention order does not extend the period for which the preventative detention order remains in force; and

(b) a person released under subsection (1) from detention under a preventative detention order may again be taken into custody and detained under the order at any time while the order remains in force in relation to the person.

Note: Paragraph (a)—this means that the time for which the person may be detained under the order continues to run while the person is released.

105.27 Arrangement for detainee to be held in State or Territory prison or remand centre

(1) A senior AFP member may arrange for a person (the subject) who is being detained under a preventative detention order to be detained under the order at a prison or remand centre of a State or Territory.

(2) If an arrangement is made under subsection (1):

(a) the preventative detention order is taken to authorise the person in charge of the prison or remand centre to detain the subject at the prison or remand centre while the order is in force in relation to the subject; and

(b) section 105.33 applies in relation to the subject’s detention under the order at the prison or remand centre as if:

(i) the person in charge of that prison or remand centre; or

(ii) any other person involved in the subject’s detention at that prison or remand centre;

were a person exercising authority under the order or implementing or enforcing the order; and

(c) the senior AFP member who makes the arrangement is taken, while the subject is detained at the prison or remand centre, to be the AFP member detaining the subject for the purposes of Subdivisions D and E of this Division.

(3) The arrangement under subsection (1) may include provision for the Commonwealth meeting the expenses of the subject’s detention at the prison or remand centre.

Subdivision D—Informing person detained about preventative detention order

105.28 Effect of initial preventative detention order to be explained to person detained

(1) As soon as practicable after a person is first taken into custody under an initial preventative detention order, the police officer who is detaining the person under the order must inform the person of the matters covered by subsection (2).

Note 1: A contravention of this subsection may be an offence under section 105.45.

Note 2: A contravention of this subsection does not affect the lawfulness of the person’s detention under the order (see subsection 105.31(5)).

(2) The matters covered by this subsection are:

(a) the fact that the preventative detention order has been made in relation to the person; and

(b) the period during which the person may be detained under the order; and

(c) the restrictions that apply to the people the person may contact while the person is being detained under the order; and

(d) the fact that an application may be made under section 105.11 for an order that the person continue to be detained for a further period; and

(da) the person’s entitlement under subsection 105.17(7) to make representations to the senior AFP member nominated under subsection 105.19(5) in relation to the order with a view to having the order revoked; and

(e) any right the person has to make a complaint to the Commonwealth Ombudsman under the Ombudsman Act 1976 in relation to:

(i) the application for, or the making of, the preventative detention order; or

(ii) the treatment of the person by an AFP member in connection with the person’s detention under the order; and

(ea) any right the person has to give information under section 40SA of the Australian Federal Police Act 1979 in relation to:

(i) the application for, or the making of, the preventative detention order; or

(ii) the treatment of the person by an AFP member in connection with the person’s detention under the order; and

(f) any right the person has to complain to an officer or authority of a State or Territory in relation to the treatment of the person by a member of the police force of that State or Territory in connection with the person’s detention under the order; and

(g) the fact that the person may seek from a federal court a remedy relating to:

(i) the order; or

(ii) the treatment of the person in connection with the person’s detention under the order; and

(h) the person’s entitlement under section 105.37 to contact a lawyer; and

(i) the name and work telephone number of the senior AFP member who has been nominated under subsection 105.19(5) to oversee the exercise of powers under, and the performance of obligations in relation to, the order.

Note: Paragraph (g)—see section 105.51.

(2A) Without limiting paragraph (2)(c), the police officer detaining the person under the order must inform the person under that paragraph about the persons that he or she may contact under section 105.35 or 105.39.

(3) Paragraph (2)(c) does not require the police officer to inform the person being detained of:

(a) the fact that a prohibited contact order has been made in relation to the person’s detention; or

(b) the name of a person specified in a prohibited contact order that has been made in relation to the person’s detention.

105.29 Effect of continued preventative detention order to be explained to person detained

(1) As soon as practicable after a continued preventative detention order (the continued order) is made in relation to a person, the police officer who is detaining the person must inform the person of the matters covered by subsection (2).

Note 1: A contravention of this subsection may be an offence under section 105.45.

Note 2: A contravention of this subsection does not affect the lawfulness of the person’s detention under the order (see subsection 105.31(5)).

(2) The matters covered by this subsection are:

(a) the fact that the continued order has been made in relation to the person; and

(b) the further period during which the person may continue to be detained under the continued order; and

(c) the restrictions that apply to the people the person may contact while the person is being detained under the continued order; and

(ca) the person’s entitlement under subsection 105.17(7) to make representations to the senior AFP member nominated under subsection 105.19(5) in relation to the order with a view to having the order revoked; and

(d) any right the person has to make a complaint to the Commonwealth Ombudsman under the Ombudsman Act 1976 in relation to:

(i) the application for the continued order; or

(ii) the treatment of the person by an AFP member in connection with the person’s detention under the continued order; and

(da) any right the person has to give information under section 40SA of the Australian Federal Police Act 1979 in relation to:

(i) the application for the continued order; or

(ii) the treatment of the person by an AFP member in connection with the person’s detention under the continued order; and

(e) any right the person has to complain to an officer or authority of a State or Territory about the treatment of the person by a member of the police force of that State or Territory in connection with the person’s detention under the continued order; and

(f) the fact that the person may seek from a federal court a remedy relating to:

(i) the continued order; or

(ii) the treatment of the person in connection with the person’s detention under the continued order; and

(g) the person’s entitlement under section 105.37 to contact a lawyer; and

(h) the name and work telephone number of the senior AFP member who has been nominated under subsection 105.19(5) to oversee the exercise of powers under, and the performance of obligations in relation to, the continued order.

Note: Paragraph (f)—see section 105.51.

(3) Paragraph (2)(c) does not require the police officer to inform the person being detained of:

(a) the fact that a prohibited contact order has been made in relation to the person’s detention; or

(b) the name of a person specified in a prohibited contact order that has been made in relation to the person’s detention.

105.30 Person being detained to be informed of extension of preventative detention order

If a preventative detention order is extended, or further extended, under section 105.10 or 105.14, the police officer detaining the person under the order must inform the person of the extension, or further extension, as soon as practicable after the extension, or further extension, is made.

Note 1: A contravention of this subsection may be an offence under section 105.45.

Note 2: A contravention of this subsection does not affect the lawfulness of the person’s detention under the order (see subsection 105.31(5)).

105.31 Compliance with obligations to inform

(1) Subsection 105.28(1) or 105.29(1) or section 105.30 does not apply if the actions of the person being detained under the preventative detention order make it impracticable for the police officer to comply with that subsection.

Note: A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3)).

(2) The police officer detaining the person under the preventative detention order complies with subsection 105.28(1) or 105.29(1) if the police officer informs the person in substance of the matters covered by subsection 105.28(2) or 105.29(2) (even if this is not done in language of a precise or technical nature).

(3) The police officer who is detaining the person under the preventative detention order must arrange for the assistance of an interpreter in complying with subsection 105.28(1) or 105.29(1) or section 105.30 if the police officer has reasonable grounds to believe that the person is unable, because of inadequate knowledge of the English language or a disability, to communicate with reasonable fluency in that language.

(4) Without limiting subsection (3), the assistance of the interpreter may be provided by telephone.

(5) The lawfulness of a person’s detention under a preventative detention order is not affected by a failure to comply with subsection 105.28(1) or 105.29(1), section 105.30 or subsection (3) of this section.

105.32 Copy of preventative detention order

(3) Despite subsection 105.19(2), a police officer does not need to have a copy of the order with him or her, or to produce a copy of the order to the person being taken into custody, when the police officer takes the person into custody.

(4) As soon as practicable after a continued preventative detention order is made in relation to a person in relation to whom an initial preventative detention order is in force, the police officer who is detaining the person under the initial preventative detention order, or the continued preventative detention order, must give the person a copy of the continued preventative detention order.

(5) As soon as practicable after a preventative detention order is extended, or further extended, under section 105.10 or 105.14, the police officer who is detaining the person under the preventative detention order must give the person a copy of the extension or further extension.

(6) A person who is being detained under a preventative detention order may request a police officer who is detaining the person to arrange for a copy of:

(a) the order; or

to be given to a lawyer acting for the person in relation to the order.

Note 1: Section 105.37 deals with the person’s right to contact a lawyer and the obligation of the police officer detaining the person to give the person assistance to choose a lawyer.

Note 2: Section 105.40 prevents the person from contacting a lawyer who is specified in a prohibited contact order.

(7) The police officer must make arrangements for a copy of the order, or the extension or further extension, to be given to the lawyer as soon as practicable after the request is made.

(8) Without limiting subsection (7), the copy of the order, or the extension, may be faxed or emailed to the lawyer.

(9) To avoid doubt, subsection (7) does not entitle the lawyer to be given a copy of, or see, a document other than the order, or the extension or further extension.

(10) Nothing in this section requires a copy of a prohibited contact order to be given to a person.

(11) The police officer who gives:

(a) the person being detained under an initial preventative detention order; or

(b) a lawyer acting for the person;

a copy of the initial preventative detention order under this section must endorse on the copy the date on which, and time at which, the person was first taken into custody under the order.

(12) The lawfulness of a person’s detention under a preventative detention order is not affected by a failure to comply with subsection (1), (4), (5), (7) or (11).

Subdivision E—Treatment of person detained

105.33 Humane treatment of person being detained

A person being taken into custody, or being detained, under a preventative detention order:

(a) must be treated with humanity and with respect for human dignity; and

(b) must not be subjected to cruel, inhuman or degrading treatment;

by anyone exercising authority under the order or implementing or enforcing the order.

Note: A contravention of this section may be an offence under section 105.45.

105.33A Detention of persons under 18

(1) Subject to subsection (2), the police officer detaining a person who is under 18 years of age under a preventative detention order must ensure that the person is not detained together with persons who are 18 years of age or older.

Note: A contravention of this subsection may be an offence under section 105.45.

(2) Subsection (1) does not apply if a senior AFP member approves the person being detained together with persons who are 18 years of age or older.

(3) The senior AFP member may give an approval under subsection (2) only if there are exceptional circumstances justifying the giving of the approval.

(4) An approval under subsection (2) must:

(a) be given in writing; and

(b) set out the exceptional circumstances that justify the giving of the approval.

105.34 Restriction on contact with other people

Except as provided by sections 105.35, 105.36, 105.37 and 105.39, while a person is being detained under a preventative detention order, the person:

(a) is not entitled to contact another person; and

(b) may be prevented from contacting another person.

Note 1: This section will not apply to the person if the person is released from detention under the order (even though the order may still be in force in relation to the person).

Note 2: A person’s entitlement to contact other people under sections 105.35, 105.37 and 105.39 may be subject to a prohibited contact order made under section 105.15 or 105.16 (see section 105.40).

105.35 Contacting family members etc.

(1) The person being detained is entitled to contact:

(a) one of his or her family members; and

(b) if he or she:

(i) lives with another person and that other person is not a family member of the person being detained; or

(ii) lives with other people and those other people are not family members of the person being detained;

that other person or one of those other people; and

(d) if he or she employs people in a business—one of the people he or she employs in that business; and

(e) if he or she engages in a business together with another person or other people—that other person or one of those other people; and

(f) if the police officer detaining the person being detained agrees to the person contacting another person—that person;

by telephone, fax or email but solely for the purposes of letting the person contacted know that the person being detained is safe but is not able to be contacted for the time being.

(2) To avoid doubt, the person being detained is not entitled, under subsection (1), to disclose:

(a) the fact that a preventative detention order has been made in relation to the person; or

(b) the fact that the person is being detained; or

(3) 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

(d) a brother, sister, step‑brother or step‑sister of the person; or

(e) a guardian or carer of the person.

(4) 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.

105.36 Contacting Ombudsman etc.

(1) The person being detained is entitled to contact:

(a) the Commonwealth Ombudsman in accordance with subsections 7(3) to (5) of the Ombudsman Act 1976; or

(b) a person referred to in subsection 40SA(1) of the Australian Federal Police Act 1979 in accordance with section 40SB of that Act.

Note 1: Subsections 7(3) to (5) of the Ombudsman Act 1976 provide for the manner in which a person who is in custody may make a complaint to the Commonwealth Ombudsman under that Act.

Note 2: Section 40SB of the Australian Federal Police Act 1979 provides for the manner in which a person who is in custody may give information under section 40SA of that Act.

(2) If the person being detained has the right, under a law of a State or Territory, to complain to an officer or authority of the State or Territory about the treatment of the person by a member of the police force of that State or Territory in connection with the person’s detention under the order, the person is entitled to contact that officer or authority to make a complaint in accordance with that law.

105.37 Contacting lawyer

(1) The person being detained is entitled to contact a lawyer but solely for the purpose of:

(a) obtaining advice from the lawyer about the person’s legal rights in relation to:

(i) the preventative detention order; or

(ii) the treatment of the person in connection with the person’s detention under the order; or

(b) arranging for the lawyer to act for the person in relation to, and instructing the lawyer in relation to, proceedings in a federal court for a remedy relating to:

(i) the preventative detention order; or

(ii) the treatment of the person in connection with the person’s detention under the order; or

(c) arranging for the lawyer to act for the person in relation to, and instructing the lawyer in relation to, a complaint to the Commonwealth Ombudsman under the Ombudsman Act 1976 in relation to:

(i) the application for, or the making of, the preventative detention order; or

(ii) the treatment of the person by an AFP member in connection with the person’s detention under the order; or

(ca) arranging for the lawyer to act for the person in relation to, and instructing the lawyer in relation to, the giving of information under section 40SA of the Australian Federal Police Act 1979 in relation to:

(i) the application for, or the making of, the preventative detention order; or

(ii) the treatment of the person by an AFP member in connection with the person’s detention under the order; or

(d) arranging for the lawyer to act for the person in relation to, and instructing the lawyer in relation to, a complaint to an officer or authority of a State or Territory about the treatment of the person by a member of the police force of that State or Territory in connection with the person’s detention under the order; or

(e) arranging for the lawyer to act for the person in relation to an appearance, or hearing, before a court that is to take place while the person is being detained under the order.

(2) The form of contact that the person being detained is entitled to have with a lawyer under subsection (1) includes:

(a) being visited by the lawyer; and

(b) communicating with the lawyer by telephone, fax or email.

(3) If:

(a) the person being detained asks to be allowed to contact a particular lawyer under subsection (1); and

(b) either:

(i) the person is not entitled to contact that lawyer because of section 105.40 (prohibited contact order); or

(ii) the person is not able to contact that lawyer;

the police officer who is detaining the person must give the person reasonable assistance to choose another lawyer for the person to contact under subsection (1).

(3A) If the police officer who is detaining a person under a preventative detention order has reasonable grounds to believe that:

(a) the person is unable, because of inadequate knowledge of the English language, or a disability, to communicate with reasonable fluency in that language; and

(b) the person may have difficulties in choosing or contacting a lawyer because of that inability;

the police officer must give the person reasonable assistance (including, if appropriate, by arranging for the assistance of an interpreter) to choose and contact a lawyer under subsection (1).

(4) In recommending lawyers to the person being detained as part of giving the person assistance under subsection (3) or (3A), the police officer who is detaining the person may give priority to lawyers who have been given a security clearance at an appropriate level by the Australian Government Security Vetting Agency or by another Commonwealth, State or Territory agency that is authorised or approved by the Commonwealth to issue security clearances.

(5) Despite subsection (4) but subject to section 105.40, the person being detained is entitled under this section to contact a lawyer who does not have a security clearance of the kind referred to in subsection (4).

105.38 Monitoring contact under section 105.35 or 105.37

(1) The contact the person being detained has with another person under section 105.35 or 105.37 may take place only if it is conducted in such a way that the contact, and the content and meaning of the communication that takes place during the contact, can be effectively monitored by a police officer exercising authority under the preventative detention order.

(2) The contact may take place in a language other than English only if the content and meaning of the communication that takes place during the contact can be effectively monitored with the assistance of an interpreter.

(3) Without limiting subsection (2), the interpreter referred to in that subsection may be a police officer.

(4) If the person being detained indicates that he or she wishes the contact to take place in a language other than English, the police officer who is detaining the person must:

(a) arrange for the services of an appropriate interpreter to be provided if it is reasonably practicable to do so during the period during which the person is being detained; and

(b) if it is reasonably practicable to do so—arrange for those services to be provided as soon as practicable.

(5) Any communication between:

(a) a person who is being detained under a preventative detention order; and

(b) a lawyer;

for a purpose referred to in paragraph 105.37(1)(a), (b), (c), (ca), (d) or (e) is not admissible in evidence against the person in any proceedings in a court.

105.39 Special contact rules for person under 18 or incapable of managing own affairs

(1) This section applies if the person being detained under a preventative detention order:

(a) is under 18 years of age; or

(b) is incapable of managing his or her affairs.

(2) The person is entitled, while being detained under the order, to have contact with:

(a) a parent or guardian of the person; or

(b) another person who:

(i) is able to represent the person’s interests; and

(ii) is, as far as practicable in the circumstances, acceptable to the person and to the police officer who is detaining the person; and

(iii) is not an AFP member; and

(iv) is not an AFP employee (within the meaning of the Australian Federal Police Act 1979); and

(v) is not a member (however described) of a police force of a State or Territory; and

(vi) is not an ASIO employee or an ASIO affiliate.

(3) To avoid doubt:

(a) if the person being detained (the detainee) has 2 parents or 2 or more guardians, the detainee is entitled, subject to section 105.40, to have contact under subsection (2) with each of those parents or guardians; and

(b) the detainee is entitled to disclose the following to a person with whom the detainee has contact under subsection (2):

(i) the fact that a preventative detention order has been made in relation to the detainee;

(ii) the fact that the detainee is being detained;

(iii) the period for which the detainee is being detained.

(4) The form of contact that the person being detained is entitled to have with another person under subsection (2) includes:

(a) being visited by that other person; and

(b) communicating with that other person by telephone, fax or email.

(5) The period for which the person being detained is entitled to have contact with another person each day under subsection (2) is:

(a) 2 hours; or

(b) such longer period as is specified in the preventative detention order.

Note: Paragraph (b)—see subsections 105.8(7) and 105.12(7).

(6) Despite subsection (5), the police officer who is detaining the person may permit the person to have contact with a person under subsection (2) for a period that is longer than the period provided for in subsection (5).

(7) The contact that the person being detained has with another person under subsection (2) must be conducted in such a way that the content and meaning of any communication that takes place during the contact can be effectively monitored by a police officer exercising authority under the preventative detention order.

(8) If the communication that takes place during the contact takes place in a language other than English, the contact may continue only if the content and meaning of the communication in that language can be effectively monitored with the assistance of an interpreter.

(9) Without limiting subsection (8), the interpreter referred to in that subsection may be a police officer.

(10) If the person being detained indicates that he or she wishes the communication that takes place during the contact to take place in a language other than English, the police officer who is detaining the person must:

(a) arrange for the services of an appropriate interpreter to be provided if it is reasonably practicable to do so during the period during which the person is being detained; and

(b) if it is reasonably practicable to do so—arrange for those services to be provided as soon as practicable.

105.40 Entitlement to contact subject to prohibited contact order

Sections 105.35, 105.37 and 105.39 have effect subject to any prohibited contact order made in relation to the person’s detention.

105.41 Disclosure offences

Person being detained

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

(a) the subject is being detained under a preventative detention order; and

(b) the subject discloses to another person:

(i) the fact that a preventative detention order has been made in relation to the subject; or

(ii) the fact that the subject is being detained; or

(iii) the period for which the subject is being detained; and

(d) the disclosure is not one that the subject is entitled to make under section 105.36, 105.37 or 105.39.

Penalty: Imprisonment for 5 years.

Lawyer

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

(a) a person being detained under a preventative detention order (the detainee) contacts the lawyer under section 105.37; and

(b) the lawyer discloses to another person:

(i) the fact that a preventative detention order has been made in relation to the detainee; or

(ii) the fact that the detainee is being detained; or

(iii) the period for which the detainee is being detained; or

(iv) any information that the detainee gives the lawyer in the course of the contact; and

(d) the disclosure is not made for the purposes of:

(i) proceedings in a federal court for a remedy relating to the preventative detention order or the treatment of the detainee in connection with the detainee’s detention under the order; or

(ii) a complaint to the Commonwealth Ombudsman under the Ombudsman Act 1976 in relation to the application for, or making of, the preventative detention order or the treatment of the detainee by an AFP member in connection with the detainee’s detention under the order; or

(iia) the giving of information under section 40SA of the Australian Federal Police Act 1979 in relation to the application for, or making of, the preventative detention order or the treatment of the detainee by an AFP member in connection with the detainee’s detention under the order; or

(iii) a complaint to an officer or authority of a State or Territory about the treatment of the detainee by a member of the police force of that State or Territory in connection with the detainee’s detention under the order; or

(iv) making representations to the senior AFP member nominated under subsection 105.19(5) in relation to the order, or another police officer involved in the detainee’s detention, about the exercise of powers under the order, the performance of obligations in relation to the order or the treatment of the detainee in connection with the detainee’s detention under the order.

Penalty: Imprisonment for 5 years.

Person having special contact with detainee who is under 18 years of age or incapable of managing own affairs

(3) A person (the parent/guardian) commits an offence if:

(a) a person being detained under a preventative detention order (the detainee) has contact with the parent/guardian under section 105.39; and

(b) the parent/guardian discloses to another person:

(i) the fact that a preventative detention order has been made in relation to the detainee; or

(ii) the fact that the detainee is being detained; or

(iii) the period for which the detainee is being detained; or

(iv) any information that the detainee gives the parent/guardian in the course of the contact; and

(d) the disclosure occurs while the detainee is being detained under the order; and

(e) the disclosure is not made for the purposes of:

(i) a complaint to the Commonwealth Ombudsman under the Ombudsman Act 1976 in relation to the application for, or the making of, the preventative detention order or the treatment of the detainee by an AFP member in connection with the detainee’s detention under the order; or

(ia) the giving of information under section 40SA of the Australian Federal Police Act 1979 in relation to the application for, or the making of, the preventative detention order or the treatment of the detainee by an AFP member in connection with the detainee’s detention under the order; or

(ii) a complaint to an officer or authority of a State or Territory about the treatment of the detainee by a member of the police force of that State or Territory in connection with the detainee’s detention under the order; or

(iii) making representations to the senior AFP member nominated under subsection 105.19(5) in relation to the order, or another police officer involved in the detainee’s detention, about the exercise of powers under the order, the performance of obligations in relation to the order or the treatment of the detainee in connection with the detainee’s detention under the order.

Penalty: Imprisonment for 5 years.

(4) To avoid doubt, a person does not contravene subsection (3) merely by letting another person know that the detainee is safe but is not able to be contacted for the time being.

(4A) A person (the parent/guardian) commits an offence if:

(a) the parent/guardian is a parent or guardian of a person who is being detained under a preventative detention order (the detainee); and

(b) the detainee has contact with the parent/guardian under section 105.39; and

(c) while the detainee is being detained under the order, the parent/guardian discloses information of the kind referred to in paragraph (3)(b) to another parent or guardian of the detainee (the other parent/guardian); and

(d) when the disclosure is made, the detainee has not had contact with the other parent/guardian under section 105.39 while being detained under the order; and

(e) the parent/guardian does not, before making the disclosure, inform the senior AFP member nominated under subsection 105.19(5) in relation to the order that the parent/guardian is proposing to disclose information of that kind to the other parent/guardian.

Penalty: Imprisonment for 5 years.

(4B) If:

(a) a person (the parent/guardian) is a parent or guardian of a person being detained under a preventative detention order (the detainee); and

(b) the parent/guardian informs the senior AFP member nominated under subsection 105.19(5) in relation to the order that the parent/guardian proposes to disclose information of the kind referred to in paragraph (3)(b) to another parent or guardian of the detainee (the other parent/guardian);

that senior AFP member may inform the parent/guardian that the detainee is not entitled to contact the other parent/guardian under section 105.39.

Note: The parent/guardian may commit an offence against subsection (2) if the other parent/guardian is a person the detainee is not entitled to have contact with under section 105.39 and the parent/guardian does disclose information of that kind to the other parent/guardian. This is because of the operation of paragraph (3)(c).

Interpreter assisting in monitoring contact with detainee

(5) A person (the interpreter) commits an offence if:

(a) the interpreter is an interpreter who assists in monitoring the contact that a person being detained under a preventative detention order (the detainee) has with someone while the detainee is being detained under the order; and

(b) the interpreter discloses to another person:

(i) the fact that a preventative detention order has been made in relation to the detainee; or

(ii) the fact that the detainee is being detained; or

(iii) the period for which the detainee is being detained; or

(iv) any information that interpreter obtains in the course of assisting in the monitoring of that contact; and

Penalty: Imprisonment for 5 years.

Passing on improperly disclosed information

(6) A person (the disclosure recipient) commits an offence if:

(a) a person (the earlier discloser) discloses to the disclosure recipient:

(i) the fact that a preventative detention order has been made in relation to a person; or

(ii) the fact that a person is being detained under a preventative detention order; or

(iii) the period for which a person is being detained under a preventative detention order; or

(iv) any information that a person who is being detained under a preventative detention order communicates to a person while the person is being detained under the order; and

(b) the disclosure by the earlier discloser to the disclosure recipient contravenes:

(i) subsection (1), (2), (3) or (5); or

(ii) this subsection; and

(d) the disclosure by the disclosure recipient occurs while the person referred to in subparagraph (a)(i), (ii), (iii) or (iv) is being detained under the order.

Penalty: Imprisonment for 5 years.

Police officer or interpreter monitoring contact with lawyer

(7) A person (the monitor) commits an offence if:

(a) the monitor is:

(i) a police officer who monitors; or

(ii) an interpreter who assists in monitoring;

contact that a person being detained under a preventative detention order (the detainee) has with a lawyer under section 105.37 while the detainee is being detained under the order; and

(b) information is communicated in the course of that contact; and

(d) the monitor discloses that information to another person.

Penalty: Imprisonment for 5 years.

Note: See also subsection 105.38(5).

105.42 Questioning of person prohibited while person is detained

(1) A police officer must not question a person while the person is being detained under a preventative detention order except for the purposes of:

(a) determining whether the person is the person specified in the order; or

(b) ensuring the safety and well‑being of the person being detained; or

(c) allowing the police officer to comply with a requirement of this Division in relation to the person’s detention under the order.

Note 1: This subsection will not apply to the person if the person is released from detention under the order (even though the order may still be in force in relation to the person).

Note 2: A contravention of this subsection may be an offence under section 105.45.

(2) An ASIO employee or an ASIO affiliate must not question a person while the person is being detained under a preventative detention order.

Note 1: This subsection will not apply to the person if the person is released from detention under the order (even though the order may still be in force in relation to the person).

Note 2: A contravention of this subsection may be an offence under section 105.45.

(3) An AFP member, or an ASIO employee or an ASIO affiliate, must not question a person while the person is being detained under an order made under a corresponding State preventative detention law.

Note 1: This subsection will not apply to the person if the person is released from detention under the order (even though the order may still be in force in relation to the person).

Note 2: A contravention of this subsection may be an offence under section 105.45.

(4) If a police officer questions a person while the person is being detained under a preventative detention order, the police officer who is detaining the person must ensure that:

(a) a video recording is made of the questioning if it is practicable to do so; or

(b) an audio recording is made of the questioning if it is not practicable for a video recording to be made of the questioning.

Note: A contravention of this subsection may be an offence under section 105.45.

(5) Subsection (4) does not apply if:

(a) the questioning occurs to:

(i) ensure the safety and well being of the person being detained; or

(ii) determine whether the person is the person specified in the order; and

(b) complying with subsection (4) is not practicable because of the seriousness and urgency of the circumstances in which the questioning occurs.

Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3)).

(6) A recording made under subsection (4) must be kept for the period of 12 months after the recording is made.

105.43 Taking fingerprints, recordings, samples of handwriting or photographs

(1) A police officer must not take identification material from a person who is being detained under a preventative detention order except in accordance with this section.

Note: A contravention of this subsection may be an offence under section 105.45.

(2) A police officer who is of the rank of sergeant or higher may take identification material from the person, or cause identification material from the person to be taken, if:

(a) the person consents in writing; or

(b) the police officer believes on reasonable grounds that it is necessary to do so for the purpose of confirming the person’s identity as the person specified in the order.

(3) A police officer may use such force as is necessary and reasonable in the circumstances to take identification material from a person under this section.

(4) Subject to this section, a police officer must not take identification material (other than hand prints, fingerprints, foot prints or toe prints) from the person if the person:

(a) is under 18 years of age; or

(b) is incapable of managing his or her affairs;

unless a Judge of the Federal Circuit and Family Court of Australia (Division 2) orders that the material be taken.

Note: A contravention of this subsection may be an offence under section 105.45.

(5) In deciding whether to make such an order, the Judge of the Federal Circuit and Family Court of Australia (Division 2) must have regard to:

(a) the age, or any disability, of the person; and

(b) such other matters as the Judge of the Federal Circuit and Family Court of Australia (Division 2) thinks fit.

(6) The taking of identification material from a person who:

(a) is under 18 years of age; or

(b) is incapable of managing his or her affairs;

must be done in the presence of:

(d) if a parent or guardian of the person is not acceptable to the person—another appropriate person.

Note 1: For appropriate person, see subsection (11).

Note 2: A contravention of this subsection may be an offence under section 105.45.

(7) Despite this section, identification material may be taken from a person who is under 18 years of age and is capable of managing his or her affairs if:

(a) subsections (8) and (9) are satisfied; or

(b) subsection (8) or (9) is satisfied (but not both) and a Judge of the Federal Circuit and Family Court of Australia (Division 2) orders that the material be taken.

In deciding whether to make such an order, the Judge of the Federal Circuit and Family Court of Australia (Division 2) must have regard to the matters set out in subsection (5).

(8) This subsection applies if the person agrees in writing to the taking of the material.

(9) This subsection applies if either:

(a) a parent or guardian of the person; or

(b) if a parent or guardian is not acceptable to the person—another appropriate person;

agrees in writing to the taking of the material.

Note: For appropriate person, see subsection (11).

(10) Despite this section, identification material may be taken from a person who:

(a) is at least 18 years of age; and

(b) is capable of managing his or her affairs;

if the person consents in writing.

(11) A reference in this section to an appropriate person in relation to a person (the subject) who is under 18 years of age, or incapable of managing his or her affairs, is a reference to a person who:

(a) is capable of representing the subject’s interests; and

(b) as far as is practicable in the circumstances, is acceptable to the subject and the police officer who is detaining the subject; and

(i) an AFP member;

(ii) an AFP employee (within the meaning of the Australian Federal Police Act 1979);

(iii) a member (however described) of a police force of a State or Territory;

(iv) an ASIO employee or an ASIO affiliate.

105.44 Use of identification material

(1) This section applies if identification material is taken under section 105.43 from a person being detained under a preventative detention order.

(2) The material may be used only for the purpose of determining whether the person is the person specified in the order.

Note: A contravention of this subsection may be an offence under section 105.45.

(3) If:

(a) a period of 12 months elapses after the identification material is taken; and

(b) proceedings in respect of:

(i) the preventative detention order; or

(ii) the treatment of the person in connection with the person’s detention under the order;

have not been brought, or have been brought and discontinued or completed, within that period;

the material must be destroyed as soon as practicable after the end of that period.

105.45 Offences of contravening safeguards

A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct contravenes:

(i) subsection 105.28(1); or

(ii) subsection 105.29(1); or

(iii) section 105.30; or

(iv) section 105.33; or

(iva) subsection 105.33A(1); or

(v) subsection 105.42(1), (2), (3) or (4); or

(vi) subsection 105.43(1), (4) or (6); or

(vii) subsection 105.44(2).

Penalty: Imprisonment for 2 years.

Subdivision F—Miscellaneous

105.46 Nature of functions of Judge of the Federal Circuit and Family Court of Australia (Division 2)

(1) A function of making an order conferred on a Judge of the Federal Circuit and Family Court of Australia (Division 2) by section 105.43 is conferred on the Judge of the Federal Circuit and Family Court of Australia (Division 2) in a personal capacity and not as a court or a member of a court.

(2) Without limiting the generality of subsection (1), an order made by a Judge of the Federal Circuit and Family Court of Australia (Division 2) under section 105.43 has effect only by virtue of this Act and is not to be taken by implication to be made by a court.

(3) A Judge of the Federal Circuit and Family Court of Australia (Division 2) performing a function of, or connected with, making an order under section 105.43 has the same protection and immunity as if he or she were performing that function as, or as a member of, the Federal Circuit and Family Court of Australia (Division 2).

105.47 Annual report

(1) The AFP Minister must, as soon as practicable after each 30 June, cause to be prepared a report about the operation of this Division during the year ended on that 30 June.

(2) Without limiting subsection (1), a report relating to a year must include the following matters:

(a) the number of initial preventative detention orders made under section 105.8 during the year;

(b) the number of continued preventative detention orders made under section 105.12 during the year;

(d) particulars of:

(i) any complaints made or referred to the Commonwealth Ombudsman during the year that related to the detention of a person under a preventative detention order; and

(ii) any information given under section 40SA of the Australian Federal Police Act 1979 during the year that related to the detention of a person under a preventative detention order and raised an AFP conduct or practices issue (within the meaning of that Act);

(e) the number of prohibited contact orders made under sections 105.15 and 105.16 during the year;

(f) the number of preventative detention orders, and the number of prohibited contact orders, that a court has found not to have been validly made or that the Administrative Appeals Tribunal has declared to be void.

(3) The AFP Minister must cause copies of the report to be laid before each House of the Parliament within 15 sitting days of that House after the report is completed.

105.48 Certain functions and powers not affected

This Division does not affect:

(a) a function or power of the Commonwealth Ombudsman under the Ombudsman Act 1976; or

(b) a function or power of a person under Part V of the Australian Federal Police Act 1979.

105.49 Queensland public interest monitor functions and powers not affected

This Division does not affect a function or power that the Queensland public interest monitor, or a Queensland deputy public interest monitor, has under a law of Queensland.

105.50 Law relating to legal professional privilege not affected

To avoid doubt, this Division does not affect the law relating to legal professional privilege.

105.51 Legal proceedings in relation to preventative detention orders

(1) Subject to subsections (2) and (4), proceedings may be brought in a court for a remedy in relation to:

(a) a preventative detention order; or

(b) the treatment of a person in connection with the person’s detention under a preventative detention order.

(2) A court of a State or Territory does not have jurisdiction in proceedings for a remedy if:

(a) the remedy relates to:

(i) a preventative detention order; or

(ii) the treatment of a person in connection with the person’s detention under a preventative detention order; and

(b) the proceedings are commenced while the order is in force.

(3) Subsection (2) has effect despite any other law of the Commonwealth (whether passed or made before or after the commencement of this section).

(4) An application cannot be made under the Administrative Decisions (Judicial Review) Act 1977 in relation to a decision made under this Division.

Note: See paragraph (dac) of Schedule 1 to the Administrative Decisions (Judicial Review) Act 1977.

(5) An application may be made to the Administrative Appeals Tribunal for review of:

(a) a decision by an issuing authority under section 105.8 or 105.12 to make a preventative detention order; or

(b) a decision by an issuing authority in relation to a preventative detention order to extend or further extend the period for which the order is in force in relation to a person.

The application cannot be made while the order is in force.

(6) The power of the Administrative Appeals Tribunal to review a decision referred to in subsection (5) may be exercised by the Tribunal only in the Security Division of the Tribunal.

(7) The Administrative Appeals Tribunal may:

(a) declare a decision referred to in subsection (5) in relation to a preventative detention order in relation to a person to be void if the Tribunal would have set the decision aside if an application for review of the decision had been able to be made to the Tribunal while the order was in force; and

(b) determine that the Commonwealth should compensate the person in relation to the person’s detention under the order if the Tribunal declares the decision to be void under paragraph (a).

(8) If the Administrative Appeals Tribunal makes a determination under paragraph (7)(b), the Commonwealth is liable to pay the compensation determined by the Tribunal.

(9) The provisions of the Administrative Appeals Tribunal Act 1975 apply in relation to an application to the Administrative Appeals Tribunal for review of a decision referred to in subsection (5) with the modifications specified in the regulations made under this Act.

105.52 Review by State and Territory courts

(1) This section applies if:

(a) a person is detained under a preventative detention order (the Commonwealth order) that is made on the basis of:

(i) assisting in preventing a terrorist act occurring within a period; or

(ii) preserving evidence of, or relating to, a terrorist act; and

(b) the person is detained under an order (the State order) that is made under a corresponding State preventative detention law on the basis of:

(i) assisting in preventing the same terrorist act, or a different terrorist act, occurring within that period; or

(ii) preserving evidence of, or relating to, the same terrorist act; and

(i) the application for, or the making of, the State order; or

(ii) the person’s treatment in connection with the person’s detention under the State order.

(2) The court may:

(a) review the application for, or the making of, the Commonwealth order, or the person’s treatment in connection with the person’s detention under the Commonwealth order, on the same grounds as those on which the court may review the application for, or the making of, the State order, or the person’s treatment in connection with the person’s detention under the State order; and

(b) grant the same remedies in relation to the application for, or the making of, the Commonwealth order, or the person’s treatment in connection with the person’s detention under the Commonwealth order, as those the court can grant in relation to the application for, or the making of, the State order, or the person’s treatment in connection with the person’s detention under the State order.

(3) If:

(a) the person applies to the court for:

(i) review of the application for, or the making of, the Commonwealth order or the person’s treatment in connection with the person’s detention under the Commonwealth order; or

(ii) a remedy in relation to the application for, or the making of, the Commonwealth order or the person’s treatment in connection with the person’s detention under the Commonwealth order; and

(b) the person applies to the court for an order under this subsection;

the court may order the Commissioner of the Australian Federal Police to give the court, and the parties to the proceedings, the information that was put before the person who issued the Commonwealth order when the application for the Commonwealth order was made.

(4) Subsection (3) does not require information to be given to the court, or the parties to the proceedings, if the disclosure of the information is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004).

(5) This section has effect:

(a) without limiting subsection 105.51(1); and

(b) subject to subsection 105.51(2).

(6) Nothing in this section affects the operation of the National Security Information (Criminal and Civil Proceedings) Act 2004 in relation to the proceedings.

105.53 Sunset provision

(1) A preventative detention order, or a prohibited contact order, that is in force at the end of 7 December 2022 ceases to be in force at that time.

(2) A preventative detention order, and a prohibited contact order, cannot be applied for, or made, after 7 December 2022.

Division 105A—Continuing detention orders

Subdivision A—Object and definitions

105A.1 Object

The object of this Division is to ensure the safety and protection of the community by providing for the continuing detention of terrorist offenders who pose an unacceptable risk of committing serious Part 5.3 offences if released into the community.

105A.2 Definitions

In this Division:

Commonwealth law enforcement officer has the meaning given by Part 7.8.

continuing detention order means an order made under subsection 105A.7(1).

continuing detention order decision means:

(a) a decision on an application for a continuing detention order or an interim detention order; or

(b) a decision in a review of a continuing detention order to affirm, revoke or vary the order; or

continuing detention order proceeding means a proceeding under Subdivision C or D.

intelligence or security officer has the meaning given by Part 10.6.

interim detention order means an order made under subsection 105A.9(2).

prison includes any gaol, lock‑up or other place of detention.

relevant expert means any of the following persons who is competent to assess the risk of a terrorist offender committing a serious Part 5.3 offence if the offender is released into the community:

(a) a person who is:

(i) registered as a medical practitioner under a law of a State or Territory; and

(ii) a fellow of the Royal Australian and New Zealand College of Psychiatrists;

(b) any other person registered as a medical practitioner under a law of a State or Territory;

(d) any other expert.

serious Part 5.3 offence means an offence against this Part, the maximum penalty for which is 7 or more years of imprisonment.

terrorist offender: see section 105A.2A, subsection 105A.3(1) and section 105A.18.

105A.2A Persons who have escaped from custody

For the purposes of this Division (except section 105A.4), if a person escapes from custody, the person is taken to be detained in custody and serving a sentence of imprisonment until the person resumes serving the person’s sentence.

Subdivision B—Continuing detention orders

105A.3 Who a continuing detention order may apply to and effect of an order

(1) A continuing detention order may be made under section 105A.7 in relation to a person (the terrorist offender) if:

(a) the person has been convicted of:

(i) an offence against Subdivision A of Division 72 (international terrorist activities using explosive or lethal devices); or

(iii) a serious Part 5.3 offence; or

(iv) an offence against Part 5.5 (foreign incursions and recruitment), except an offence against subsection 119.7(2) or (3) (publishing recruitment advertisements); or

(v) an offence against the repealed Crimes (Foreign Incursions and Recruitment) Act 1978, except an offence against paragraph 9(1)(b) or (c) of that Act (publishing recruitment advertisements); and

(b) any of the following applies:

(i) the person is detained in custody and serving a sentence of imprisonment for the offence;

(ia) the person is detained in custody and serving a sentence of imprisonment for an offence other than the offence referred to in paragraph (a), and has been continuously detained in custody since being convicted of the offence referred to in that paragraph;

(ii) a continuing detention order or interim detention order is in force in relation to the person; and

(c) if subparagraph (b)(i) applies—the person will be at least 18 years old when the sentence referred to in that subparagraph ends; and

(d) if subparagraph (b)(ia) applies—the person will be at least 18 years old when the sentence referred to in that subparagraph ends.

Note: Before making the order, a Court must be satisfied of certain matters under section 105A.7.

(1A) To avoid doubt, subparagraph (1)(b)(ia) applies:

(a) whether the offence for which the person is serving the sentence of imprisonment is an offence against a law of the Commonwealth, a State or a Territory; and

(b) whether the sentence served for the offence referred to in paragraph (1)(a) was served concurrently or cumulatively, or both, with:

(i) the sentence referred to in subparagraph (1)(b)(ia); or

(ii) any of the other sentences served by the person since being convicted of the offence referred to in paragraph (1)(a) (the other sentences); and

(c) whether the sentence referred to in subparagraph (1)(b)(ia) or the other sentences were imposed before or after, or at the same time as, the sentence for the offence referred to in paragraph (1)(a); and

(d) whether or not the person has been continuously serving a sentence of imprisonment for an offence since being convicted of the offence referred to in paragraph (1)(a).

(2) The effect of the order is to commit the offender to detention in a prison for the period the order is in force.

Note 1: The period must not be more than 3 years (see subsection 105A.7(5)).

Note 2: An arrangement with a State or Territory must be in force for an offender to be detained at a prison of the State or Territory (see subsection 105A.21(2)).

Note 3: The offender may not be eligible to be released on bail or parole while the continuing detention order is in force (see section 105A.24).

105A.4 Treatment of a terrorist offender in a prison under a continuing detention order

(1) A terrorist offender who is detained in a prison under a continuing detention order must be treated in a way that is appropriate to his or her status as a person who is not serving a sentence of imprisonment, subject to any reasonable requirements necessary to maintain:

(a) the management, security or good order of the prison; and

(b) the safe custody or welfare of the offender or any prisoners; and

(2) The offender must not be accommodated or detained in the same area or unit of the prison as persons who are in prison for the purpose of serving sentences of imprisonment unless:

(a) it is reasonably necessary for the purposes of rehabilitation, treatment, work, education, general socialisation or other group activities; or

(b) it is necessary for the security or good order of the prison or the safe custody or welfare of the offender or prisoners; or

(d) the offender elects to be so accommodated or detained.

(3) This section does not apply if the offender is serving a sentence of imprisonment.

Subdivision C—Making a continuing detention order

105A.5 Applying for a continuing detention order

(1) The AFP Minister, or a legal representative of the AFP Minister, (the applicant) may apply to a Supreme Court of a State or Territory for a continuing detention order in relation to a terrorist offender.

(2) However, the application may not be made more than 12 months before the end of:

(a) a sentence of imprisonment referred to in:

(i) subparagraph 105A.3(1)(b)(i); or

(ii) subparagraph 105A.3(1)(b)(ia);

that the offender is serving, at the end of which the offender would be required to be released into the community; or

(b) if a continuing detention order is in force in relation to the offender—the period for which the order is in force.

(2A) The AFP Minister must ensure that reasonable inquiries are made to ascertain any facts known to any Commonwealth law enforcement officer or intelligence or security officer that would reasonably be regarded as supporting a finding that the order should not be made.

Content of application

(3) The application must:

(a) include any report or other document that the applicant intends, at the time of the application, to rely on in relation to the application; and

(aa) include:

(i) a copy of any material in the possession of the applicant; and

(ii) a statement of any facts that the applicant is aware of;

that would reasonably be regarded as supporting a finding that the order should not be made, except any information, material or facts that are likely to be protected by public interest immunity (whether the claim for public interest immunity is to be made by the AFP Minister or any other person); and

(b) include information about the offender’s age; and

Note 1: The period must not be more than 3 years (see subsection 105A.7(5)).

Note 2: Evidence may also be adduced later under section 105A.14.

Note 3: For public interest immunity, see also subsection (9).

Giving offender copy of application

(4) The applicant must, subject to subsection (5), give a copy of the application to the offender personally within 2 business days after the application is made.

Note: For giving the offender documents, see section 105A.15.

(5) The applicant is not required to give to the offender, when the applicant gives the copy of the application to the offender under subsection (4), any information included in the application if a Minister (the decision‑maker) is likely to take any of the following actions in relation to the information:

(a) give a certificate under Subdivision C of Division 2 of Part 3A of the National Security Information (Criminal and Civil Proceedings) Act 2004;

(b) seek an arrangement under section 38B of that Act;

(d) seek an order of the Court preventing or limiting disclosure of the information.

(6) However, the applicant must (subject to subsection (7)) give the offender personally a complete copy of the application if:

(a) the decision‑maker decides not to take any of the actions referred to in any of paragraphs (5)(a) to (d); or

(b) the Minister gives a certificate referred to in paragraph (5)(a); or

Note: For giving an offender documents, see section 105A.15.

(7) Subsection (6) is subject to:

(a) the certificate referred to in paragraph (5)(a); or

(b) any order made by the Court.

(8) The copy of the application must be given:

(a) within 2 business days of:

(i) the decision‑maker’s decision not to take any of the actions referred to in any of paragraphs (5)(a) to (d); or

(ii) the giving of the certificate referred to in paragraph (5)(a); or

(iii) the order referred to in paragraph (6)(c) being made; and

(b) within a reasonable period before the preliminary hearing referred to in section 105A.6.

Public interest immunity

(9) If information (however described) is excluded from an application on the basis of public interest immunity as mentioned in paragraph (3)(aa), the applicant must give written notice to the offender personally stating that the information has been excluded on the basis of public interest immunity. The notice must be given at the time that a copy of the application is given to the offender.

(10) To avoid doubt, nothing in this section imposes an obligation on the offender to satisfy the Court that a claim of public interest immunity should not be upheld.

Note: The offender may seek to access any information, material or facts that are likely to be protected by public interest immunity (for example, through a subpoena). Under the law of public interest immunity, the person claiming the immunity must make and substantiate the claim, and satisfy the Court that the claim should be upheld.

105A.6 Appointment of and assessment by relevant expert

(1) If an application for a continuing detention order is made to a Supreme Court of a State or Territory in relation to a terrorist offender, the Court must hold a preliminary hearing to determine whether to appoint one or more relevant experts.

(2) The hearing must be held within 28 days after a copy of the application is given to the offender under subsection 105A.5(4).

(3) The Court may, either at the preliminary hearing or at any later time in the proceeding, appoint one or more relevant experts if the Court considers that doing so is likely to materially assist the Court in deciding whether to make a continuing detention order in relation to the offender.

(3A) The AFP Minister, the offender, or a legal representative of the AFP Minister or offender, may nominate one or more relevant experts for the purposes of subsection (3).

(4) The relevant expert who is appointed must:

(a) conduct an assessment of the risk of the offender committing a serious Part 5.3 offence if the offender is released into the community; and

(b) provide a report of the expert’s assessment to the Court, the AFP Minister and the offender.

Note: For giving the offender documents, see section 105A.15.

Attendance and participation at assessment

(5) The offender must attend the assessment.

Note: The assessment may be conducted over a number of sessions.

(5A) None of the following is admissible in evidence against the offender in criminal or civil proceedings:

(a) the answer to a question or information given at the assessment;

(b) answering a question or giving information at the assessment.

(6) The Court must ensure that the effect of subsections (5) and (5A) and paragraph 105A.8(1)(b) is explained to the offender.

Contents of report

(7) The expert’s report may include any one or more of the following matters:

(a) the expert’s assessment of the risk of the offender committing a serious Part 5.3 offence if the offender is released into the community;

(b) reasons for that assessment;

(c) the pattern or progression to date of behaviour on the part of the offender in relation to serious Part 5.3 offences, and an indication of the nature of any likely future behaviour on his or her part in relation to serious Part 5.3 offences;

(d) efforts made to date by the offender to address the causes of his or her behaviour in relation to serious Part 5.3 offences, including whether he or she has actively participated in any rehabilitation or treatment programs;

(e) if the offender has participated in any rehabilitation or treatment programs—whether or not this participation has had a positive effect on him or her;

(f) any relevant background of the offender, including developmental and social factors;

(g) factors that might increase or decrease any risks that have been identified of the offender committing a serious Part 5.3 offence if the offender is released into the community;

(h) any other matters the expert considers relevant.

Other relevant experts

(8) This section does not prevent the AFP Minister, the offender, or a legal representative of the AFP Minister or offender, from calling his or her own relevant expert as a witness in the proceeding.

105A.7 Making a continuing detention order

(1) A Supreme Court of a State or Territory may make a written order under this subsection if:

(a) an application is made in accordance with section 105A.5 for a continuing detention order in relation to a terrorist offender; and

(b) after having regard to matters in accordance with section 105A.8, the Court is satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence if the offender is released into the community; and

(c) the Court is satisfied that there is no other less restrictive measure that would be effective in preventing the unacceptable risk.

Note 1: An example of a less restrictive measure is a control order.

Note 2: The rules of evidence and procedure for civil matters apply when the Court has regard to matters in accordance with section 105A.8, as referred to in paragraph (1)(b) of this section (see subsection 105A.8(3) and section 105A.13).

(2) Otherwise, the Court must dismiss the application.

Onus of satisfying Court

(3) The AFP Minister bears the onus of satisfying the Court of the matters referred to in paragraphs (1)(b) and (c).

Period of order

(4) The order must specify the period during which it is in force.

(5) The period must be a period of no more than 3 years that the Court is satisfied is reasonably necessary to prevent the unacceptable risk.

Court may make successive continuing detention orders

(6) To avoid doubt, subsection (5) does not prevent a Supreme Court of a State or Territory making a continuing detention order in relation to a terrorist offender that begins to be in force immediately after a previous continuing detention order in relation to the offender ceases to be in force.

105A.8 Matters a Court must have regard to in making a continuing detention order

(1) In deciding whether the Court is satisfied as referred to in paragraph 105A.7(1)(b) in relation to a terrorist offender, a Supreme Court of a State or Territory must have regard to the following matters:

(a) the safety and protection of the community;

(b) any report received from a relevant expert under section 105A.6 in relation to the offender, and the level of the offender’s participation in the assessment by the expert;

(c) the results of any other assessment conducted by a relevant expert of the risk of the offender committing a serious Part 5.3 offence, and the level of the offender’s participation in any such assessment;

(d) any report, relating to the extent to which the offender can reasonably and practicably be managed in the community, that has been prepared by:

(i) the relevant State or Territory corrective services; or

(ii) any other person or body who is competent to assess that extent;

(e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, and the level of the offender’s participation in any such programs;

(f) the level of the offender’s compliance with any obligations to which he or she is or has been subject while:

(i) on release on parole for any offence referred to in paragraph 105A.3(1)(a); or

(ii) subject to a continuing detention order or interim detention order;

(g) the offender’s history of any prior convictions for, and findings of guilt made in relation to, any offence referred to in paragraph 105A.3(1)(a);

(h) the views of the sentencing court at the time any sentence for any offence referred to in paragraph 105A.3(1)(a) was imposed on the offender;

(i) any other information as to the risk of the offender committing a serious Part 5.3 offence.

(2) Subsection (1) does not prevent the Court from having regard to any other matter the Court considers relevant.

(3) To avoid doubt, section 105A.13 (civil evidence and procedure rules in relation to continuing detention order proceedings) applies to the Court’s consideration of the matters referred to in subsections (1) and (2) of this section.

105A.9 Interim detention orders

(1) The AFP Minister, or a legal representative of the AFP Minister, may apply to a Supreme Court of a State or Territory for an interim detention order in relation to a terrorist offender if an application has been made to the Court for a continuing detention order in relation to the offender.

(1A) On receiving the application for the interim detention order, the Court must hold a hearing to determine whether to make the order.

(2) The Court may make a written order under this subsection if:

(a) the Court is satisfied that any of the following periods will end before the application for the continuing detention order has been determined:

(i) if subparagraph 105A.3(1)(b)(i) applies—the sentence of imprisonment referred to in that subparagraph that the offender is serving;

(ia) if subparagraph 105A.3(1)(b)(ia) applies—the sentence of imprisonment referred to in that subparagraph that the offender is serving;

(ii) the period for which a continuing detention order or an interim detention order is in force in relation to the offender; and

(b) the Court is satisfied that there are reasonable grounds for considering that a continuing detention order will be made in relation to the offender.

Note: More than one interim detention order can be made in relation to a person (see subsection (6)).

(3) The effect of the order is to commit the offender to detention in a prison while the order is in force.

Period of order

(4) The order must specify the period during which it is in force.

(5) The period must be a period of no more than 28 days that the Court is satisfied is reasonably necessary to determine the application for the continuing detention order.

(6) The total period of all interim detention orders made in relation to the offender before the Court makes a decision on the application for the continuing detention order must not be more than 3 months.

Treatment of certain offenders covered by interim detention orders

(7) While an interim detention order is in force in relation to the offender, section 105A.4 applies as if a continuing detention order were in force in relation to the offender.

Note: Section 105A.4 deals with the treatment of a terrorist offender who is in a prison under a continuing detention order.

Subdivision D—Review of continuing detention order

105A.10 Periodic review of continuing detention order

(1A) The AFP Minister, or a legal representative of the AFP Minister, must, before the end of the period referred to in subsection (1B), apply to a Supreme Court of a State or Territory for a review of a continuing detention order that is in force in relation to a terrorist offender.

Note: For when an application is not required to be made, see subsection (2).

(1B) The application must be made before the end of the period of 12 months after:

(a) the order began to be in force; or

(b) if the order has been reviewed under this Subdivision by a Supreme Court of a State or Territory—the most recent review ended.

(1) On receiving the application, the Court must begin the review of the order before the end of that period.

Note: For the process for reviewing a continuing detention order, see section 105A.12.

(2) Despite subsection (1), an application for a review, and a review, are not required if an application for a new continuing detention order in relation to the offender has been made and not withdrawn.

(3) The application must be made to the Court of the State or Territory where the prison in which the offender is detained is located.

(4) If an application is not made in accordance with this section, the order ceases to be in force at the end of the period referred to in subsection (1B).

105A.11 Review of continuing detention order on application

(1) A terrorist offender, or a legal representative of a terrorist offender, in relation to whom a continuing detention order is in force may apply to a Supreme Court of a State or Territory for review of the order.

Note: For the process for reviewing a continuing detention order, see section 105A.12.

(2) The Court may review the order if the Court is satisfied that:

(a) there are new facts or circumstances which would justify reviewing the order; or

(b) it would be in the interests of justice, having regard to the purposes of the order and the manner and effect of its implementation, to review the order.

(3) Otherwise, the Court must dismiss the application.

(4) The application must be made to the Supreme Court of the State or Territory where the prison in which the offender is detained is located.

105A.12 Process for reviewing a continuing detention order

(1) This section applies if, under section 105A.10 or 105A.11, a Supreme Court of a State or Territory reviews a continuing detention order that is in force in relation to a terrorist offender.

Parties to the review

(2) The parties to the review are:

(a) the AFP Minister; and

(b) the offender.

Relevant experts

(3) The Court may appoint one or more relevant experts for the purposes of the review. If the Court does so, subsections 105A.6(4) to (7) apply in relation to the review.

(3A) The AFP Minister, the offender, or a legal representative of the AFP Minister or offender, may nominate one or more relevant experts for the purposes of subsection (3).

(3B) Subsection (3) does not prevent the AFP Minister, the offender, or a legal representative of the AFP Minister or offender, from calling his or her own relevant expert as a witness in the review.

Affirming or revoking the order

(4) The Court may affirm the order if:

(a) after having regard to the matters referred to in section 105A.8, the Court is satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence if the offender is released into the community; and

(b) the Court is satisfied that there is no other less restrictive measure that would be effective in preventing the unacceptable risk.

Note 1: An example of a less restrictive measure is a control order.

Note 2: The rules of evidence and procedure for civil matters apply when the Court has regard to matters in accordance with section 105A.8, as referred to in paragraph (4)(a) of this section (see subsection 105A.8(3) and section 105A.13).

(5) Otherwise, the Court must revoke the order.

Onus of satisfying Court

(5A) The AFP Minister must ensure that reasonable inquiries are made to ascertain any facts known to any Commonwealth law enforcement officer or intelligence or security officer that would reasonably be regarded as supporting a finding that the order should not be affirmed.

(6) The AFP Minister bears the onus of satisfying the Court of the matters referred to in subsection (4).

(6A) The AFP Minister, or the legal representative of the AFP Minister, must present to the Court:

(a) a copy of any material in the possession of the AFP Minister or legal representative; and

(b) a statement of any facts that the AFP Minister or legal representative is aware of;

that would reasonably be regarded as supporting a finding that the order should not be affirmed.

Varying the period specified by the order

(7) The Court must vary the order to specify a shorter period for which the order will be in force if:

(a) the Court affirms the order under subsection (4); but

(b) the Court is not satisfied that the period currently specified is reasonably necessary to prevent the unacceptable risk.

The shorter period must be a period that the Court is satisfied is reasonably necessary to prevent the unacceptable risk.

Subdivision E—Provisions relating to continuing detention order proceedings

105A.13 Civil evidence and procedure rules in relation to continuing detention order proceedings

(1) A Supreme Court of a State or Territory must, subject to subsection (2), apply the rules of evidence and procedure for civil matters during a continuing detention order proceeding.

(2) Despite anything in the rules of evidence and procedure, the Court may receive in evidence in the proceeding evidence of:

(a) the level of the offender’s compliance with any obligations to which he or she is or has been subject while on release on parole for any offence; and

(b) the offender’s history of any prior convictions for, and findings of guilt made in relation to, any offence.

105A.14 Adducing evidence and making submissions

A party to a continuing detention order proceeding in a Supreme Court of a State or Territory may adduce evidence (including by calling witnesses or producing material), or make submissions, to the Court in relation to the proceeding.

105A.15 Giving terrorist offenders documents

(1) A document that is required to be given under this Division to a terrorist offender who is detained in a prison is taken to have been given to the offender at the time referred to in paragraph (3)(b) if the document is given to the following person (the recipient):

(a) the legal representative of the offender;

(b) if the offender does not have a legal representative—the chief executive officer (however described) of the prison, or a delegate of the chief executive officer.

(2) The recipient must, as soon as reasonably practicable, give the document to the offender personally.

(3) Once the recipient has done so, he or she must notify the Court and the person who gave the recipient the document, in writing:

(a) that the document has been given to the offender; and

(b) of the day that document was so given.

105A.15A When a terrorist offender is unable to engage a legal representative

(1) This section applies if:

(a) a continuing detention order proceeding relating to a terrorist offender is before a Supreme Court of a State or Territory; and

(b) the offender, due to circumstances beyond the offender’s control, is unable to engage a legal representative in relation to the proceeding.

(2) The Court may make either or both of the following orders:

(a) an order staying the proceeding for such period and subject to such conditions as the Court thinks fit;

(b) an order requiring the Commonwealth to bear, in accordance with the regulations (if any), all or part of the reasonable costs and expenses of the offender’s legal representation for the proceeding.

(3) The regulations may prescribe matters that the Court may, must or must not take into account in determining either or both of the following:

(a) whether circumstances are beyond the offender’s control;

(b) reasonable costs and expenses of the offender’s legal representation for the proceeding.

(4) This section does not limit any other power of the Court.

105A.16 Reasons for decisions

A Supreme Court of a State or Territory that makes a continuing detention order decision in a continuing detention order proceeding must:

(a) state the reasons for its decision; and

(b) cause those reasons to be entered in the records of the Court; and

105A.17 Right of appeal

(1) An appeal lies to the court of appeal (however described) of a State or Territory if:

(a) the Supreme Court of the State or Territory makes a continuing detention order decision; and

(b) the court of appeal has jurisdiction to hear appeals from the Supreme Court in relation to civil matters.

(2) The appeal is to be by way of rehearing. In particular, in relation to the appeal, the court of appeal:

(a) subject to this subsection, has all the powers, functions and duties that the Supreme Court has in relation to the relevant continuing detention order proceedings; and

(b) may draw inferences of fact which are not inconsistent with the findings of the Supreme Court; and

(c) may receive further evidence as to questions of fact (orally in court, by affidavit or in any other way) if the court of appeal is satisfied that there are special grounds for doing so.

(3) The appeal against the decision of the Supreme Court may be made:

(a) as of right, within 28 days after the day on which the decision was made; or

(b) by leave, within such further time as the court of appeal allows.

(4) The making of the appeal does not stay the operation of the order.

(5) This section does not limit any other right of appeal that exists apart from this section.

105A.18 Consequences of release of terrorist offender

(1) This section applies in relation to a continuing detention order proceeding if:

(a) the proceeding is any of the following:

(i) a proceeding on an application for a continuing detention order in relation to a terrorist offender;

(ii) an appeal against a decision to dismiss such an application;

(iii) an appeal against a decision to revoke a continuing detention order in relation to a terrorist offender;

(iv) an appeal against a decision (including in a review of such an order) to specify a particular period for which such an order will be in force;

(v) an appeal against a decision under section 105A.15A to stay a continuing detention order proceeding in relation to a terrorist offender (including a decision under that section to stay a proceeding for a specified period or to impose a specified condition); and

(b) before the application or appeal is determined (whether before or after the appeal is made), the offender is released from custody because:

(i) if subparagraph 105A.3(1)(b)(i) applies—the sentence of imprisonment referred to in that subparagraph that the offender was serving ends; or

(ia) if subparagraph 105A.3(1)(b)(ia) applies—the sentence of imprisonment referred to in that subparagraph that the offender was serving ends; or

(ii) the period for which a continuing detention order or an interim detention order is in force in relation to the offender ends; or

(iii) a continuing detention order in force in relation to the offender was revoked as referred to in subparagraph (a)(iii) of this subsection.

(2) For the purposes of the continuing detention order proceeding:

(a) the offender is taken to remain a terrorist offender:

(i) who is detained in custody and serving a sentence of imprisonment; or

(ii) in relation to whom a continuing detention order or interim detention order is in force;

despite being released from custody; and

(b) a reference in this Division to the offender being released into the community includes a reference to the offender remaining in the community.

Power of police officer to detain terrorist offender

(3) If a continuing detention order or interim detention order is in force in relation to the offender at any time after the offender is released as mentioned in paragraph (1)(b):

(a) any police officer may take the offender into custody; and

(b) any police officer may detain the offender;

for the purpose of giving effect to the order.

(4) A police officer, in:

(a) taking the offender into custody; or

(b) detaining the offender;

under subsection (3) has the same powers and obligations as the police officer would have if the police officer were arresting the offender, or detaining the offender, for an offence.

(5) In subsection (4):

offence means:

(a) if the police officer is an AFP member—an offence against a law of the Commonwealth; or

(b) if the police officer is not an AFP member—an offence against a law of the State or Territory of whose police force the police officer is a member.

Subdivision F—Miscellaneous

105A.19 Sharing information

Requesting information

(1) The AFP Minister may request a person prescribed by the regulations for the purposes of this subsection to give the AFP Minister information that the AFP Minister reasonably believes to be relevant to the administration or execution of this Division.

(2) The request need not be in writing.

Disclosing information

(3) The AFP Minister may disclose information to a person prescribed by the regulations for the purposes of this subsection if:

(a) the information was acquired by any of the following in the exercise of a power under, or the performance of a function or duty in connection with, this Division:

(i) the AFP Minister;

(ii) a legal representative of the AFP Minister;

(iii) the Secretary of the Department administered by the AFP Minister;

(iv) an APS employee in the Department administered by the AFP Minister; and

(b) the AFP Minister reasonably believes that the disclosure is necessary to enable the person to exercise the person’s powers, or to perform the person’s functions or duties; and

(c) if the regulations provide that information may be disclosed to the person only if specified circumstances are met—those circumstances are met.

(4) Subsection (3) applies despite any other law of the Commonwealth, a State or a Territory (whether written or unwritten).

105A.20 Delegation by the AFP Minister

The AFP Minister may, in writing, delegate any of his or her powers or functions under section 105A.19 to any of the following persons:

(a) the Secretary of the Department administered by the AFP Minister;

(b) any APS employee in that Department who performs duties in connection with the administration or execution of this Division.

105A.21 Arrangement with States and Territories

(1) The AFP Minister may arrange for a terrorist offender in relation to whom a continuing detention order or interim detention order is in force to be detained in a prison of a State or Territory.

(2) If an arrangement is made under subsection (1), the continuing detention order or interim detention order is taken to authorise the chief executive officer (however described) of the prison to detain the offender at the prison while the order is in force.

105A.22 Annual report

(1) The AFP Minister must, as soon as practicable after each 30 June, cause a report to be prepared about the operation of this Division during the year ended on that 30 June.

(2) Without limiting subsection (1), a report relating to a year must include the number of each of the following:

(a) applications for continuing detention orders made during the year;

(b) applications for interim detention orders made during the year;

(d) interim detention orders made during the year;

(e) applications for review of continuing detention orders made by terrorist offenders during the year;

(f) continuing detention orders affirmed during the year;

(g) continuing detention orders varied during the year;

(h) continuing detention orders revoked during the year.

(3) The AFP Minister must cause copies of the report to be laid before each House of the Parliament within 15 sitting days of that House after the report is completed.

105A.23 Warning about continuing detention orders when sentencing for certain offences

(1) A court that is sentencing a person who is convicted of an offence referred to in paragraph 105A.3(1)(a) must warn the person that an application may be made under this Division for a continuing detention order requiring the person to be detained in a prison after the end of the person’s sentence for the offence, or at the end of any later sentence if the person is continuously detained in custody and would otherwise be released into the community.

(2) A failure by the court to comply with subsection (1) does not:

(a) affect the validity of the sentence for the offence; or

(b) prevent an application from being made under this Division in relation to the person.

105A.24 Effect of continuing detention orders on bail or parole laws

(1) A person in relation to whom a continuing detention order or an interim detention order is in force is not eligible to be released on bail or parole until the order ceases to be in force.

(2) Subsection (1) does not prevent the person from applying, before the order ceases to be in force, to be released on bail if the person is charged with an offence while the order is in force.

Note: Although the person can apply to be released on bail, as a result of subsection (1), the person cannot be released on bail until the continuing detention order ceases to be in force.

(3) This section applies despite any law of the Commonwealth, a State or a Territory.

105A.25 Sunset provision

A continuing detention order, and an interim detention order, cannot be applied for, or made, after the end of 10 years after the day the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 received the Royal Assent.

Division 106—Transitional provisions

106.1 Saving—regulations originally made for the purposes of paragraph (c) of the definition of terrorist organisation

(1) If:

(a) regulations were made before commencement for the purposes of paragraph (c) of the definition of terrorist organisation in subsection 102.1(1), as in force before commencement; and

(b) the regulations were in force immediately before commencement;

the regulations have effect, after commencement, as if they had been made for the purposes of paragraph (b) of the definition of terrorist organisation in subsection 102.1(1), as in force after commencement.

(2) In this section, commencement means the commencement of this section.

106.2 Saving—regulations made for the purposes of paragraph (a) of the definition of terrorist organisation

(1) If:

(a) regulations were made before commencement for the purposes of paragraph (a) of the definition of terrorist organisation in subsection 102.1(1), as in force before commencement; and

(b) the regulations were in force immediately before commencement;

the regulations continue to have effect, after commencement, as if they had been made for the purposes of that paragraph, as in force after commencement.

(2) In this section, commencement means the commencement of this section.

106.3 Application provision

The amendments to this Code made by Schedule 1 to the Anti‑Terrorism Act 2005 apply to offences committed:

(a) before the commencement of this section (but not before the commencement of the particular section of the Code being amended); and

(b) after the commencement of this section.

106.4 Saving—Judges of the Federal Circuit Court

(1) An appointment that is in force immediately before the commencement day under subsection 105.2(1) in respect of a Judge of the Federal Circuit Court of Australia continues in force, on and after that day, as an appointment in respect of a Judge of the Federal Circuit and Family Court of Australia (Division 2) under that subsection.

(2) A consent that is in force immediately before the commencement day under subsection 105.2(2) in respect of a Judge of the Federal Circuit Court of Australia continues in force, on and after that day, as a consent in respect of a Judge of the Federal Circuit and Family Court of Australia (Division 2).

(3) A thing done by, or in relation to, a Judge of the Federal Circuit Court of Australia, as an issuing authority for continued preventative detention orders, under Division 105 before the commencement day has effect, on and after that day, as if it had been done by, or in relation to, a Judge of the Federal Circuit and Family Court of Australia (Division 2), as an issuing authority for continued preventative detention orders, under that Division.

(4) In this section:

commencement day means the day Schedule 2 to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 commences.

106.5 Application provisions for certain amendments in the Counter‑Terrorism Legislation Amendment (Foreign Fighters) Act 2014

(1) The amendments of section 102.1, made by Schedule 1 to the Counter‑Terrorism Legislation Amendment (Foreign Fighters) Act 2014, do not affect the continuity of any regulations that are in force for the purposes of that section immediately before the commencement of this section.

(2) Section 104.2, as amended by Schedule 1 to the Counter‑Terrorism Legislation Amendment (Foreign Fighters) Act 2014, applies to requests for interim control orders made after the commencement of this section, where the conduct in relation to which the request is made occurs before or after that commencement.

(3) Section 104.4, as amended by Schedule 1 to the Counter‑Terrorism Legislation Amendment (Foreign Fighters) Act 2014, applies to the making of orders requested after the commencement of this section, where the conduct in relation to which the request is made occurs before or after that commencement.

(4) Sections 104.6 and 104.8, as amended by Schedule 1 to the Counter‑Terrorism Legislation Amendment (Foreign Fighters) Act 2014, apply to the making of requests after the commencement of this section, where the conduct in relation to which the request is made occurs before or after that commencement.

(4A) Section 104.23, as amended by Schedule 1 to the Counter‑Terrorism Legislation Amendment (Foreign Fighters) Act 2014, applies to variations of control orders, where the relevant interim control order is requested after that commencement.

(5) Section 105.4, as amended by Schedule 1 to the Counter‑Terrorism Legislation Amendment (Foreign Fighters) Act 2014, applies in relation to applications for preventative detention orders made after the commencement of this section.

(6) Section 105.7, as amended by Schedule 1 to the Counter‑Terrorism Legislation Amendment (Foreign Fighters) Act 2014, applies in relation to applications for initial preventative detention orders made after the commencement of this section.

(7) Section 105.8, as amended by Schedule 1 to the Counter‑Terrorism Legislation Amendment (Foreign Fighters) Act 2014, applies in relation to initial preventative detention orders made after the commencement of this section.

(8) Section 105.12, as amended by Schedule 1 to the Counter‑Terrorism Legislation Amendment (Foreign Fighters) Act 2014, applies in relation to continued preventative detention orders made after the commencement of this section, regardless of when the initial preventative detention order to which the continued order relates was made.

(9) Section 105.15, as amended by Schedule 1 to the Counter‑Terrorism Legislation Amendment (Foreign Fighters) Act 2014, applies in relation to applications for prohibited contact orders made after the commencement of this section, regardless of when the application for the preventative detention order to which the prohibited contact order relates was made.

(10) Section 105.16, as amended by Schedule 1 to the Counter‑Terrorism Legislation Amendment (Foreign Fighters) Act 2014, applies in relation to applications for prohibited contact orders made after the commencement of this section, regardless of when the preventative detention order to which the prohibited contact order relates was made.

106.6 Application provisions for certain amendments in the Counter‑Terrorism Legislation Amendment Act (No. 1) 2014

(1) Section 104.1, as amended by Schedule 1 to the Counter‑Terrorism Legislation Amendment Act (No. 1) 2014, applies in relation to control orders, where the relevant interim control order is requested after the commencement of this section.

(2) Sections 104.2, 104.3, 104.10 and 104.12A, as amended by Schedule 1 to the Counter‑Terrorism Legislation Amendment Act (No. 1) 2014, apply to requests for interim control orders made after the commencement of this section, where the conduct in relation to which the request is made occurs before or after that commencement.

(3) Section 104.4 and subsection 104.5(1B), as amended by Schedule 1 to the Counter‑Terrorism Legislation Amendment Act (No. 1) 2014, apply to the making of orders requested after the commencement of this section, where the conduct in relation to which the request is made occurs before or after that commencement.

(4) Sections 104.6 and 104.8, as amended by Schedule 1 to the Counter‑Terrorism Legislation Amendment Act (No. 1) 2014, apply to the making of requests after the commencement of this section, where the conduct in relation to which the request is made occurs before or after that commencement.

(5) Section 104.14, as amended by Schedule 1 to the Counter‑Terrorism Legislation Amendment Act (No. 1) 2014, applies to confirmations of control orders, where the relevant interim control order is requested after that commencement.

(6) Sections 104.20, 104.23 and 104.24, as amended by Schedule 1 to the Counter‑Terrorism Legislation Amendment Act (No. 1) 2014, apply to variations of control orders, where the relevant interim control order is requested after that commencement.

106.7 Application provision for certain amendments in the Counter‑Terrorism Legislation Amendment Act (No. 1) 2016

(1) Division 104, as amended by Schedules 2 and 3 to the Counter‑Terrorism Legislation Amendment Act (No. 1) 2016, applies to an order made under that Division after the commencement of this section, where:

(a) the order is requested (however described) after that commencement; and

(b) the conduct in relation to which that request is made occurs before or after that commencement.

(2) Despite the amendment made by Schedule 4 to the Counter‑Terrorism Legislation Amendment Act (No. 1) 2016, Division 104 continues to apply in relation to:

(a) a request for an interim control order, where the request was made before the commencement of this section; and

(b) the making of an interim control order in response to such a request; and

(d) the revocation of such an interim control order; and

(e) the confirmation of such an interim control order (with or without variation); and

(f) the making of a confirmed control order that corresponds to such an interim control order that has been so confirmed; and

(g) the revocation or variation of such a confirmed control order; and

(h) any other proceedings under that Division that are associated with, or incidental to, a matter covered by any of the above paragraphs;

as if the amendment had not been made.

(3) Section 104.29, as amended by Schedule 8 to the Counter‑Terrorism Legislation Amendment Act (No. 1) 2016, applies in relation to any year that ends on 30 June after the commencement of this section.

(4) Division 105, as amended by Schedule 5 to the Counter‑Terrorism Legislation Amendment Act (No. 1) 2016, applies in relation to an application for the following made after the commencement of this section:

(a) a preventative detention order;

(b) an initial preventative detention order;

(d) a continued preventative detention order;

(e) an extension of a continued preventative detention order.

106.8 Application provision for amendments in the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016

(1) The amendments of section 104.2 made by the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 apply in relation to any control order, whether made before or after this section commences.

(2) The amendments of subsections 104.5(1) and (1B) and section 104.12 made by that Act apply in relation to a control order if the request for the control order is made after this section commences.

(3) Subsections 104.5(1C) and (2AA), as inserted by that Act, apply in relation to any control order, whether made before or after this section commences.

(4) The amendments of section 104.17 made by that Act apply in relation to any interim control order that is declared to be void, revoked or confirmed after this section commences.

(5) The amendments of section 104.26 made by that Act apply in relation to any control order varied after this section commences.

(6) Section 104.28B, as inserted by that Act, applies in relation to the giving of documents after this section commences.

(7) Division 105A (except section 105A.23), as inserted by that Act, applies in relation to:

(a) any person who, on the day this section commences, is detained in custody and serving a sentence of imprisonment for an offence referred to in paragraph 105A.3(1)(a) of this Code; and

(b) any person who, on or after that day, begins a sentence of imprisonment for such an offence (whether the conviction for the offence occurred before, on or after that day).

(8) Section 105A.23, as inserted by that Act, applies in relation to any sentence imposed on a person after this section commences, whether the offence in relation to which the sentence is imposed was committed before or after that commencement.

106.9 Application—Counter‑Terrorism Legislation Amendment Act (No. 1) 2018

(1) The amendment of subsection 104.5(1A) made by the Counter‑Terrorism Legislation Amendment Act (No. 1) 2018 (the amending Act) applies in relation to an interim control order made on or after the day (the commencement day) this section commences, including such an order that was requested before the commencement day.

Note 1: Section 104.5 deals with the terms of an interim control order.

Note 2: This section was inserted by the amending Act.

(2) Subdivision CA of Division 104 of this Act, as inserted by the amending Act, applies in relation to an interim control order made before, on or after the commencement day.

Note: Subdivision CA of Division 104 deals with the variation of an interim control order.

(3) Subsection 104.14(3A) of this Act, as inserted by the amending Act, applies in relation to proceedings for the confirmation of an interim control order:

(a) if the proceedings start on or after the commencement day; and

(b) whether the original request for the interim control order was made before, on or after the commencement day.

Note: Subsection 104.14(3A) deals with the evidentiary status in confirmation proceedings of such an original request.

(4) Section 104.28AA of this Act, as inserted by the amending Act, applies in relation to the proceedings in relation to a control order (including proceedings to vary or revoke a control order) if:

(a) the proceedings start on or after the commencement day; or

(b) the proceedings had started, but not ended, immediately before the commencement day.

Note: Section 104.28AA deals with costs in control order proceedings.

(5) Subsections 119.3(5A) and (6) of this Act, as substituted by the amending Act, apply in relation to a declaration of the Foreign Affairs Minister made under subsection 119.3(1) before, on or after the commencement day.

Note: Subsections 119.3(5A) and (6) deal with the revocation of declarations made under subsection 119.3(1).

106.10 Application—Counter‑Terrorism Legislation Amendment (2019 Measures No. 1) Act 2019

(1) The amendments of Division 105A made by Part 1 of Schedule 2 to the Counter‑Terrorism Legislation Amendment (2019 Measures No. 1) Act 2019 apply in relation to:

(a) any person who, on the day this section commences, is detained in custody; and

(b) any person who, on or after that day, begins a sentence of imprisonment for an offence referred to in paragraph 105A.3(1)(a) (whether the conviction for the offence occurred before, on or after that day).

(2) To avoid doubt, the amendments of Division 105A made by Part 1 of Schedule 2 to the Counter‑Terrorism Legislation Amendment (2019 Measures No. 1) Act 2019 apply in relation to a person referred to in paragraph (1)(a) of this section whose sentence of imprisonment for an offence referred to in paragraph 105A.3(1)(a) ended before the day this section commences.

(3) The amendments of section 105A.5 made by Part 2 of Schedule 2 to the Counter‑Terrorism Legislation Amendment (2019 Measures No. 1) Act 2019 apply in relation to any application for a continuing detention order made after the commencement of this section.

Part 5.4—Harming Australians

Division 115—Harming Australians

115.1 Murder of an Australian citizen or a resident of Australia

(1) A person commits an offence if:

(a) the person engages in conduct outside Australia (whether before or after 1 October 2002 or the commencement of this Code); and

(b) the conduct causes the death of another person; and

(d) the first‑mentioned person intends to cause, or is reckless as to causing, the death of the Australian citizen or resident of Australia or any other person by the conduct; and

(e) if the conduct was engaged in before 1 October 2002—at the time the conduct was engaged in, the conduct constituted an offence against a law of the foreign country, or the part of the foreign country, in which the conduct was engaged.

Note: This section commenced on 1 October 2002.

(1A) If the conduct constituting an offence against subsection (1) was engaged in before 1 October 2002, the offence is punishable on conviction by:

(a) if, at the time the conduct was engaged in, the offence mentioned in paragraph (1)(e) was punishable on conviction by a term of imprisonment (other than imprisonment for life)—a maximum penalty of imprisonment for a term of not more than that term; or

(b) otherwise—a maximum penalty of imprisonment for life.

(1B) If the conduct constituting an offence against subsection (1) was engaged in on or after 1 October 2002, the offence is punishable on conviction by a maximum penalty of imprisonment for life.

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

(3) If:

(a) a person has been convicted or acquitted of an offence in respect of conduct under a law of a foreign country or a part of a foreign country; and

(b) the person engaged in the conduct before 1 October 2002;

the person cannot be convicted of an offence against this section in respect of that conduct.

115.2 Manslaughter of an Australian citizen or a resident of Australia

(1) A person commits an offence if:

(a) the person engages in conduct outside Australia (whether before or after 1 October 2002 or the commencement of this Code); and

(b) the conduct causes the death of another person; and

(d) the first‑mentioned person intends that the conduct will cause serious harm, or is reckless as to a risk that the conduct will cause serious harm, to the Australian citizen or resident of Australia or any other person; and

Note: This section commenced on 1 October 2002.

(1A) If the conduct constituting an offence against subsection (1) was engaged in before 1 October 2002, the offence is punishable on conviction by:

(a) if, at the time the conduct was engaged in, the offence mentioned in paragraph (1)(e) was punishable on conviction by imprisonment for a term of less than 25 years—a maximum penalty of imprisonment for a term of not more than that term; or

(b) otherwise—a maximum penalty of imprisonment for a term of not more than 25 years.

(1B) If the conduct constituting an offence against subsection (1) was engaged in on or after 1 October 2002, the offence is punishable on conviction by a maximum penalty of imprisonment for a term of not more than 25 years.

(2) Absolute liability applies to paragraphs (1)(b), (c) and (e).

(3) If:

(a) a person has been convicted or acquitted of an offence in respect of conduct under a law of a foreign country or a part of a foreign country; and

(b) the person engaged in the conduct before 1 October 2002;

the person cannot be convicted of an offence against this section in respect of that conduct.

115.3 Intentionally causing serious harm to an Australian citizen or a resident of Australia

(1) A person commits an offence if:

(a) the person engages in conduct outside Australia; and

(b) the conduct causes serious harm to another person; and

(d) the first‑mentioned person intends to cause serious harm to the Australian citizen or resident of Australia or any other person by the conduct.

Penalty: Imprisonment for 20 years.

(2) Absolute liability applies to paragraph (1)(c).

115.4 Recklessly causing serious harm to an Australian citizen or a resident of Australia

(1) A person commits an offence if:

(a) the person engages in conduct outside Australia; and

(b) the conduct causes serious harm to another person; and

(d) the first‑mentioned person is reckless as to causing serious harm to the Australian citizen or resident of Australia or any other person by the conduct.

Penalty: Imprisonment for 15 years.

(2) Absolute liability applies to paragraph (1)(c).

115.5 Saving of other laws

This Division is not intended to exclude or limit the operation of any other law of the Commonwealth or of a State or Territory.

115.6 Bringing proceedings under this Division

(1) Proceedings for an offence under this Division must not be commenced without the Attorney‑General’s written consent.

(2) However, a person may be arrested, charged, remanded in custody, or released on bail, in connection with an offence under this Division before the necessary consent has been given.

115.7 Ministerial certificates relating to proceedings

(1) A Minister who administers one or more of the following Acts:

(a) the Australian Citizenship Act 2007;

(b) the Migration Act 1958;

may issue a certificate stating that a person is or was an Australian citizen or a resident of Australia at a particular time.

(2) In any proceedings, a certificate under this section is prima facie evidence of the matters in the certificate.

115.8 Geographical jurisdiction

Each offence against this Division applies:

(a) whether or not a result of the conduct constituting the alleged offence occurs in Australia; and

(b) if the alleged offence is an ancillary offence and the conduct to which the ancillary offence relates occurs outside Australia—whether or not the conduct constituting the ancillary offence occurs in Australia.

115.9 Meaning of causes death or harm

In this Division, a person’s conduct causes death or harm if it substantially contributes to the death or harm.

Part 5.5—Foreign incursions and recruitment

Division 117—Preliminary

117.1 Definitions

(1) In this Part:

AFP Minister means the Minister administering the Australian Federal Police Act 1979.

armed force does not include an armed force forming part of the Australian Defence Force.

Defence Minister means the Minister administering the Defence Force Discipline Act 1982.

engage in a hostile activity: a person engages in a hostile activity in a foreign country if the person engages in conduct in that country with the intention of achieving one or more of the following objectives (whether or not such an objective is achieved):

(a) the overthrow by force or violence of the government of that or any other foreign country (or of a part of that or any other foreign country);

(b) the engagement, by that or any other person, in action that:

(i) falls within subsection 100.1(2) but does not fall within subsection 100.1(3); and

(ii) if engaged in in Australia, would constitute a serious offence;

(d) causing the death of, or bodily injury to, a person who is the head of state of that or any other foreign country, or holds, or performs any of the duties of, a public office of that or any other foreign country (or of a part of that or any other foreign country);

(e) unlawfully destroying or damaging any real or personal property belonging to the government of that or any other foreign country (or of a part of that or any other foreign country).

Foreign Affairs Minister means the Minister administering the Diplomatic Privileges and Immunities Act 1967.

government of a foreign country or a part of a foreign country means the authority exercising effective governmental control in that foreign country or that part of that foreign country.

listed terrorist organisation has the meaning given by subsection 100.1(1).

military training means training in the use of arms or explosives, or the practice of military exercises or movements.

prescribed organisation is:

(a) an organisation that is prescribed by the regulations for the purposes of this paragraph; or

(b) an organisation referred to in paragraph (b) of the definition of terrorist organisation in subsection 102.1(1).

recruit includes induce, incite or encourage.

serious offence means an offence against a law of the Commonwealth, a State or a Territory that is punishable by imprisonment for 2 years or more.

Prescribing organisations

(2) Before the Governor‑General makes a regulation prescribing an organisation for the purposes of paragraph (a) of the definition of prescribed organisation in subsection (1), the AFP Minister must be satisfied on reasonable grounds that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering:

(a) a serious violation of human rights; or

(b) the engagement, in Australia or a foreign country allied or associated with Australia, in action that falls within subsection 100.1(2) but does not fall within subsection 100.1(3); or

(d) an act prejudicial to the security, defence or international relations (within the meaning of section 10 of the National Security Information (Criminal and Civil Proceedings) Act 2004) of Australia.

Note: A court that is sentencing a person who has been convicted of an offence against this Part (except subsection 119.7(2) or (3)) must warn the person about continuing detention orders (see section 105A.23).

117.2 Extended geographical jurisdiction—category D

Section 15.4 (extended geographical jurisdiction—category D) applies (subject to this Part) to an offence against this Part.

Division 119—Foreign incursions and recruitment

119.1 Incursions into foreign countries with the intention of engaging in hostile activities

Offence for entering foreign countries with the intention of engaging in hostile activities

(1) A person commits an offence if:

(a) the person enters a foreign country with the intention of engaging in a hostile activity in that or any other foreign country; and

(b) when the person enters the country, the person:

(i) is an Australian citizen; or

(ii) is a resident of Australia; or

(iii) is a holder under the Migration Act 1958 of a visa; or

(iv) has voluntarily put himself or herself under the protection of Australia.

Penalty: Imprisonment for life.

Offence for engaging in a hostile activity in a foreign country

(2) A person commits an offence if:

(a) the person engages in a hostile activity in a foreign country; and

(b) when the person engages in the activity, the person:

(i) is an Australian citizen; or

(ii) is a resident of Australia; or

(iii) is a holder under the Migration Act 1958 of a visa; or

(iv) has voluntarily put himself or herself under the protection of Australia.

Penalty: Imprisonment for life.

Absolute liability element

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

Note: For absolute liability, see section 6.2.

Exception

(4) Subsections (1) and (2) do not apply to an act done by a person in the course of, and as part of, the person’s service in any capacity in or with:

(a) the armed forces of the government of a foreign country; or

(b) any other armed force if a declaration under subsection 119.8(1) covers the person and the circumstances of the person’s service in or with the force.

Note 1: A defendant bears an evidential burden in relation to the matter in subsection (4): see subsection 13.3(3).

Note 2: For conduct for the defence or international relations of Australia, see section 119.9.

(5) Paragraph (4)(a) does not apply if:

(a) the person intends to engage, or engages, in a hostile activity in a foreign country while in or with an organisation; and

(b) the organisation is a prescribed organisation at the following time:

(i) for subsection (1)—the time of the entry referred to in that subsection;

(ii) for subsection (2)—the time the person engages in the hostile activity referred to in that subsection.

119.2 Entering, or remaining in, declared areas

(1) A person commits an offence if:

(a) the person enters, or remains in, an area in a foreign country; and

(b) the area is an area declared by the Foreign Affairs Minister under section 119.3; and

(i) is an Australian citizen; or

(ii) is a resident of Australia; or

(iii) is a holder under the Migration Act 1958 of a visa; or

(iv) has voluntarily put himself or herself under the protection of Australia.

Penalty: Imprisonment for 10 years.

Absolute liability element

(2) Absolute liability applies to paragraph (1)(c).

Note: For absolute liability, see section 6.2.

Exception—entering or remaining solely for legitimate purposes

(3) Subsection (1) does not apply if the person enters, or remains in, the area solely for one or more of the following purposes:

(a) providing aid of a humanitarian nature;

(b) satisfying an obligation to appear before a court or other body exercising judicial power;

(d) performing an official duty for the government of a foreign country or the government of part of a foreign country (including service in the armed forces of the government of a foreign country), where that performance would not be a violation of the law of the Commonwealth, a State or a Territory;

(e) performing an official duty for:

(i) the United Nations, or an agency of the United Nations; or

(ii) the International Committee of the Red Cross;

(f) making a news report of events in the area, where the person is working in a professional capacity as a journalist or is assisting another person working in a professional capacity as a journalist;

(g) making a bona fide visit to a family member;

(h) any other purpose prescribed by the regulations.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3).

Exception—entering or remaining solely for service with armed force other than prescribed organisation

(4) Subsection (1) does not apply if the person enters, or remains in, the area solely in the course of, and as part of, the person’s service in any capacity in or with:

(a) the armed forces of the government of a foreign country; or

(b) any other armed force if a declaration under subsection 119.8(1) covers the person and the circumstances of the person’s service in or with the force.

Note: A defendant bears an evidential burden in relation to the matter in subsection (4): see subsection 13.3(3).

(5) However, subsection (4) does not apply if:

(a) the person enters, or remains in, an area in a foreign country while in or with an organisation; and

(b) the organisation is a prescribed organisation at the time the person enters or remains in the area as referred to in paragraph (1)(a).

Note 1: For conduct for the defence or international relations of Australia, see section 119.9.

Note 2: Sections 10.1 and 10.3 also provide exceptions to subsection (1) of this section (relating to intervening conduct or event and sudden or extraordinary emergency respectively).

Sunset provision

(6) This section ceases to have effect at the end of 7 September 2024.

119.3 Declaration of areas for the purposes of section 119.2

(1) The Foreign Affairs Minister may, by legislative instrument, declare an area in a foreign country for the purposes of section 119.2 if he or she is satisfied that a listed terrorist organisation is engaging in a hostile activity in that area of the foreign country.

(2) A single declaration may cover areas in 2 or more foreign countries if the Foreign Affairs Minister is satisfied that one or more listed terrorist organisations are engaging in a hostile activity in each of those areas.

(2A) A declaration must not cover an entire country.

Requirement to brief Leader of the Opposition

(3) Before making a declaration, the Foreign Affairs Minister must arrange for the Leader of the Opposition in the House of Representatives to be briefed in relation to the proposed declaration.

Cessation of declaration

(4) A declaration ceases to have effect on the third anniversary of the day on which it takes effect. To avoid doubt, this subsection does not prevent:

(a) the revocation of the declaration; or

(b) the making of a new declaration the same in substance as the previous declaration (whether the new declaration is made or takes effect before or after the previous declaration ceases to have effect because of this subsection).

Note: An offence committed in relation to the declared area before the cessation can be prosecuted after the cessation: see section 7 of the Acts Interpretation Act 1901 as it applies because of paragraph 13(1)(a) of the Legislation Act 2003.

(5) If:

(a) an area is declared under subsection (1); and

(b) the Foreign Affairs Minister ceases to be satisfied that a listed terrorist organisation is engaging in a hostile activity in the area;

the Foreign Affairs Minister must revoke the declaration.

Note: The Foreign Affairs Minister may, for example, cease to be satisfied that a listed terrorist organisation is engaging in a hostile activity in the area if the organisation ceases to be specified in the regulations.

(5A) Even if paragraph (5)(b) does not apply in relation to a declaration, the Foreign Affairs Minister may revoke the declaration if that Minister considers it necessary or desirable to do so.

(6) To avoid doubt, if a declaration of an area is revoked under subsection (5) or (5A), the revocation of the declaration does not prevent the area from being subsequently declared under subsection (1) if the Foreign Affairs Minister becomes, or remains, satisfied as mentioned in subsection (1).

(7) The Parliamentary Joint Committee on Intelligence and Security may:

(a) review a declaration; and

(b) report the Committee’s comments and recommendations to each House of the Parliament before the end of the applicable disallowance period for that House.

Note: A declaration may be disallowed by either House of Parliament under section 42 of the Legislation Act 2003.

(8) In addition, at any time while a declaration is in effect, the Parliamentary Joint Committee on Intelligence and Security may:

(a) review the declaration; and

(b) report the Committee’s comments and recommendations to each House of the Parliament.

119.4 Preparations for incursions into foreign countries for purpose of engaging in hostile activities

Preparatory acts

(1) A person commits an offence if:

(a) the person engages in conduct (whether within or outside Australia); and

(b) the conduct is preparatory to the commission of an offence against section 119.1 (whether by that or any other person); and

(i) is an Australian citizen; or

(ii) is a resident of Australia; or

(iii) is a holder under the Migration Act 1958 of a visa; or

(iv) has voluntarily put himself or herself under the protection of Australia; or

(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

Penalty: Imprisonment for life.

Accumulating weapons etc.

(2) A person commits an offence if:

(a) the person (whether within or outside Australia) accumulates, stockpiles or otherwise keeps arms, explosives, munitions, poisons or weapons; and

(b) the person engages in that conduct with the intention that an offence against section 119.1 will be committed (whether by that or any other person); and

(i) is an Australian citizen; or

(ii) is a resident of Australia; or

(iii) is a holder under the Migration Act 1958 of a visa; or

(iv) has voluntarily put himself or herself under the protection of Australia; or

(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

Penalty: Imprisonment for life.

Providing or participating in training

(3) A person commits an offence if:

(a) the person engages in any of the following conduct (whether within or outside Australia):

(i) providing military training to another person;

(ii) participating in providing military training to another person;

(iii) being present at a meeting or assembly of persons, where the person intends at that meeting or assembly to provide, or participate in providing, military training to another person; and

(b) the person engages in the conduct intending to prepare the other person to commit an offence against section 119.1; and

(i) is an Australian citizen; or

(ii) is a resident of Australia; or

(iii) is a holder under the Migration Act 1958 of a visa; or

(iv) has voluntarily put himself or herself under the protection of Australia; or

(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

Penalty: Imprisonment for life.

(4) A person commits an offence if:

(a) the person engages in conduct of either of the following kinds (whether within or outside Australia):

(i) allowing military training to be provided to himself or herself;

(ii) allowing himself or herself to be present at a meeting or assembly of persons intending to allow military training to be provided to himself or herself; and

(b) the person engages in the conduct with the intention of committing an offence against section 119.1; and

(i) is an Australian citizen; or

(ii) is a resident of Australia; or

(iii) is a holder under the Migration Act 1958 of a visa; or

(iv) has voluntarily put himself or herself under the protection of Australia; or

(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

Penalty: Imprisonment for life.

Giving or receiving goods and services to promote the commission of an offence

(5) A person commits an offence if:

(a) the person engages in any of the following conduct (whether within or outside Australia):

(i) giving money or goods to, or performing services for, any other person, body or association;

(ii) receiving or soliciting money or goods, or the performance of services; and

(b) the person engages in the conduct with the intention of supporting or promoting the commission of an offence against section 119.1; and

(i) is an Australian citizen; or

(ii) is a resident of Australia; or

(iii) is a holder under the Migration Act 1958 of a visa; or

(iv) has voluntarily put himself or herself under the protection of Australia; or

(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

Penalty: Imprisonment for life.

Absolute liability element

(6) Absolute liability applies to paragraphs (1)(c), (2)(c), (3)(c), (4)(c) and (5)(c).

Note: For absolute liability, see section 6.2.

Exception

(7) This section does not apply if the person engages in conduct solely by way of, or for the purposes of, the provision of aid of a humanitarian nature.

Note 1: A defendant bears an evidential burden in relation to the matter in subsection (7): see subsection 13.3(3).

Note 2: For conduct for the defence or international relations of Australia, see section 119.9.

Disregarding paragraphs 119.1(1)(b) and (2)(b)

(8) A reference in this section to the commission of an offence against section 119.1 includes a reference to doing an act that would constitute an offence against section 119.1 if paragraphs 119.1(1)(b) and (2)(b) were disregarded.

119.5 Allowing use of buildings, vessels and aircraft to commit offences

Use of buildings

(1) A person commits an offence if:

(a) the person is an owner, lessee, occupier, agent or superintendent of any building, room, premises or other place; and

(b) the person permits a meeting or assembly of persons to be held in that place (whether the person or the place is within or outside Australia); and

(c) by permitting the meeting or assembly to be so held, the person intends to commit, or support or promote the commission of, an offence against section 119.4; and

(d) when the person permits the meeting to be so held, the person:

(i) is an Australian citizen; or

(ii) is a resident of Australia; or

(iii) is a holder under the Migration Act 1958 of a visa; or

(iv) has voluntarily put himself or herself under the protection of Australia; or

(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

Penalty: Imprisonment for life.

Use of vessels or aircraft

(2) A person commits an offence if:

(a) the person is:

(i) an owner, charterer, lessee, operator, agent or master of a vessel; or

(ii) an owner, charterer, lessee, operator or pilot in charge of an aircraft; and

(b) the person permits the vessel or aircraft to be used (whether the person, vessel or aircraft is within or outside Australia); and

(c) by permitting the use, the person intends to commit, or support or promote the commission of, an offence against section 119.4; and

(d) when the person permits the use, the person:

(i) is an Australian citizen; or

(ii) is a resident of Australia; or

(iii) is a holder under the Migration Act 1958 of a visa; or

(iv) has voluntarily put himself or herself under the protection of Australia; or

(v) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

Penalty: Imprisonment for life.

Absolute liability element

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

Note: For absolute liability, see section 6.2.

Exception

(4) This section does not apply if the person engages in conduct solely by way of, or for the purposes of, the provision of aid of a humanitarian nature.

Note 1: A defendant bears an evidential burden in relation to the matter in subsection (4): see subsection 13.3(3).

Note 2: For conduct for the defence or international relations of Australia, see section 119.9.

119.6 Recruiting persons to join organisations engaged in hostile activities against foreign governments

A person commits an offence if:

(a) the person recruits, in Australia, another person to become a member of, or to serve in any capacity with, a body or association of persons; and

(b) the objectives of the body or association include any one or more of the objectives referred to in the definition of engage in a hostile activity in subsection 117.1(1).

Note: For conduct for the defence or international relations of Australia, see section 119.9.

Penalty: Imprisonment for 25 years.

119.7 Recruiting persons to serve in or with an armed force in a foreign country

Recruiting others to serve with foreign armed forces

(1) A person commits an offence if the person recruits, in Australia, another person to serve in any capacity in or with an armed force in a foreign country.

Penalty: Imprisonment for 10 years.

Publishing recruitment advertisements

(2) A person commits an offence if:

(a) the person publishes in Australia:

(i) an advertisement; or

(ii) an item of news that was procured by the provision or promise of money or any other consideration; and

(b) the person is reckless as to the fact that the publication of the advertisement or item of news is for the purpose of recruiting persons to serve in any capacity in or with an armed force in a foreign country.

Penalty: Imprisonment for 10 years.

(3) A person commits an offence if:

(a) the person publishes in Australia:

(i) an advertisement; or

(ii) an item of news that was procured by the provision or promise of money or any other consideration; and

(b) the advertisement or item of news contains information:

(i) relating to the place at which, or the manner in which, persons may make applications to serve, or obtain information relating to service, in any capacity in or with an armed force in a foreign country; or

(ii) relating to the manner in which persons may travel to a foreign country for the purpose of serving in any capacity in or with an armed force in a foreign country.

Penalty: Imprisonment for 10 years.

Facilitating recruitment

(4) A person commits an offence if:

(a) the person engages in conduct in Australia; and

(b) the person engages in the conduct intending to facilitate or promote the recruitment of persons to serve in any capacity in or with an armed force in a foreign country.

Penalty: Imprisonment for 10 years.

Exception

(5) This section does not apply in relation to service of a person in or with an armed force in circumstances if a declaration under subsection 119.8(2) covers the person and the circumstances of the person’s service in or with the armed force.

Note 1: A defendant bears an evidential burden in relation to the matter in subsection (5): see subsection 13.3(3).

Note 2: For conduct for the defence or international relations of Australia, see section 119.9.

Armed forces that are not part of the government of a foreign country

(6) A reference in this section to an armed force in a foreign country includes any armed force in a foreign country, whether or not the armed force forms part of the armed forces of the government of that foreign country.

(7) Without limiting this section, a person recruits another person to serve in or with an armed force in a foreign country if the other person enters a commitment or engagement to serve in any capacity in or with an armed force, whether or not the commitment or engagement is legally enforceable or constitutes legal or formal enlistment in that force.

119.8 Declaration in relation to specified armed forces

Service

(1) The AFP Minister may, by legislative instrument, declare that section 119.1 or 119.2 does not apply to a specified person or class of persons in any circumstances or specified circumstances if the AFP Minister is satisfied that it is in the interests of the defence or international relations of Australia to permit the service of that person or class of persons in those circumstances in or with:

(a) a specified armed force in a foreign country; or

(b) a specified armed force in a foreign country in a specified capacity.

Recruitment

(2) The AFP Minister may, by legislative instrument, declare that section 119.7 does not apply to a specified person or class of persons in any circumstances or specified circumstances if the AFP Minister is satisfied that it is in the interests of the defence or international relations of Australia to permit the recruitment in Australia of that person or class of persons to serve in those circumstances in or with:

(a) a specified armed force in a foreign country; or

(b) a specified armed force in a foreign country in a specified capacity.

119.9 Exception—conduct for defence or international relations of Australia

This Division does not apply in relation to conduct engaged in by a person acting in the course of the person’s duty to the Commonwealth in relation to the defence or international relations of Australia.

Note 1: A defendant bears an evidential burden in relation to the matter in this section: see subsection 13.3(3).

Note 2: See also section 119.12 (declarations for the purposes of proceedings).

119.10 Mode of trial

(1) A prosecution for any of the following offences is (subject to subsection (2)) to be on indictment:

(a) an offence against this Division;

(b) an offence against section 6 of the Crimes Act 1914, or an ancillary offence, that relates to an offence against this Division.

(2) If the law of a State or Territory provides for a person who pleads guilty to a charge in proceedings for the person’s commitment for trial on indictment to be committed to a higher court and dealt with otherwise than on indictment, a person charged in that State or Territory with an offence referred to in subsection (1) may be dealt with in accordance with that law.

119.11 Consent of Attorney‑General required for prosecutions

(1) Proceedings for the commitment of a person for the following must not be instituted without the written consent of the Attorney‑General:

(a) the trial on indictment for an offence against the following provisions:

(i) this Division;

(ii) section 6 of the Crimes Act 1914 to the extent that it relates to an offence against this Division;

(b) the summary trial of a person for an offence referred to in paragraph (a).

(2) However, the following steps may be taken (but no further steps in proceedings may be taken) without consent having been given:

(a) a person may be charged with an offence referred to in paragraph (1)(a);

(b) a person may be arrested for an offence referred to in paragraph (1)(a), and a warrant for such an arrest may be issued and executed;

(3) Nothing in subsection (2) prevents the discharge of the accused if proceedings are not continued within a reasonable time.

119.12 Declarations for the purposes of proceedings

(1) The Foreign Affairs Minister may, in writing, declare that:

(a) a specified authority is in effective governmental control in a specified foreign country or part of a foreign country; or

(b) a specified organisation is not an armed force, or part of an armed force, of the government of a foreign country.

(2) The Defence Minister may, in writing, declare that if a specified person had done a specified act (being an act alleged to constitute an offence) the person would not have been acting in the course of the person’s duty to the Commonwealth in relation to the defence or international relations of Australia.

(3) Without limiting subsection (1) or (2), a declaration under that subsection may be made in relation to a specified day or period.

(4) In proceedings for an offence referred to in paragraph 119.11(1)(a), a certificate under this section is prima facie evidence of the matters stated in the certificate.

Part 5.6—Secrecy of information

Division 121—Preliminary

121.1 Definitions

(1) In this Part:

cause harm to Australia’s interests means to:

(a) interfere with or prejudice the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of the Commonwealth; or

(b) interfere with or prejudice the performance of functions of the Australian Federal Police under:

(i) paragraph 8(1)(be) of the Australian Federal Police Act 1979 (protective and custodial functions); or

(ii) the Proceeds of Crime Act 2002; or

(c) harm or prejudice Australia’s international relations in relation to information that was communicated in confidence:

(i) by, or on behalf of, the government of a foreign country, an authority of the government of a foreign country or an international organisation; and

(ii) to the Government of the Commonwealth, to an authority of the Commonwealth, or to a person receiving the communication on behalf of the Commonwealth or an authority of the Commonwealth; or

(f) harm or prejudice the health or safety of the Australian public or a section of the Australian public; or

(g) harm or prejudice the security or defence of Australia.

Commonwealth officer means any of the following:

(a) an APS employee;

(b) an individual appointed or employed by the Commonwealth otherwise than under the Public Service Act 1999;

(d) a member or special member of the Australian Federal Police;

(e) an officer or employee of a Commonwealth authority;

(f) an individual who is a contracted service provider for a Commonwealth contract;

(g) an individual who is an officer or employee of a contracted service provider for a Commonwealth contract and who provides services for the purposes (whether direct or indirect) of the Commonwealth contract;

but does not include an officer or employee of, or a person engaged by, the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation.

deal has the same meaning as in Part 5.2.

Note: For the meaning of deal in that Part, see subsections 90.1(1) and (2).

domestic intelligence agency means:

(a) the Australian Secret Intelligence Service; or

(b) the Australian Security Intelligence Organisation; or

(d) the Defence Intelligence Organisation; or

(e) the Australian Signals Directorate; or

(f) the Office of National Intelligence.

foreign military organisation means:

(a) the armed forces of the government of a foreign country; or

(b) the civilian component of:

(i) the Department of State of a foreign country; or

(ii) a government agency in a foreign country;

that is responsible for the defence of the country.

information has the meaning given by section 90.1.

inherently harmful information means information that is any of the following:

(a) security classified information;

(c) information that was obtained by, or made by or on behalf of, a domestic intelligence agency or a foreign intelligence agency in connection with the agency’s functions;

(e) information relating to the operations, capabilities or technologies of, or methods or sources used by, a domestic or foreign law enforcement agency.

international relations has the meaning given by section 10 of the National Security Information (Criminal and Civil Proceedings) Act 2004.

proper place of custody has the meaning given by section 121.2.

Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.

security classification has the meaning given by section 90.5.

security classified information means information that has a security classification.

security or defence of Australia includes the operations, capabilities or technologies of, or methods or sources used by, domestic intelligence agencies or foreign intelligence agencies.

(2) To avoid doubt, communicate includes publish and make available.

(3) For the purposes of a reference, in an element of an offence in this Part, to security classified information or security classification, strict liability applies to the element that:

(b) a classification or marking is prescribed by the regulations as mentioned in paragraph 90.5(1)(b).

Note: See the definitions of security classified information in subsection (1) and security classification in section 90.5.

121.2 Definition of proper place of custody

(1) Proper place of custody has the meaning prescribed by the regulations.

(2) Despite subsection 14(2) of the Legislation Act 2003, regulations made for the purposes of subsection (1) of this section may prescribe a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time, if the instrument or other writing is publicly available.

Division 122—Secrecy of information

122.1 Communication and other dealings with inherently harmful information by current and former Commonwealth officers etc.

Communication of inherently harmful information

(1) A person commits an offence if:

(a) the person communicates information; and

(b) the information is inherently harmful information; and

(c) the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.

Note 1: For exceptions to the offences in this section, see section 122.5.

Note 2: The fault elements for this offence are intention for paragraph (1)(a) and recklessness for paragraphs (1)(b) and (c) (see section 5.6).

Penalty: Imprisonment for 7 years.

Other dealings with inherently harmful information

(2) A person commits an offence if:

(a) the person deals with information (other than by communicating it); and

(b) the information is inherently harmful information; and

(c) the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.

Note: The fault elements for this offence are intention for paragraph (2)(a) and recklessness for paragraphs (2)(b) and (c) (see section 5.6).

Penalty: Imprisonment for 3 years.

Information removed from, or held outside, proper place of custody

(3) A person commits an offence if:

(a) the person:

(i) removes information from a proper place of custody for the information; or

(ii) holds information outside a proper place of custody for the information; and

(b) the information is inherently harmful information; and

(c) the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.

Note: The fault elements for this offence are intention for paragraph (3)(a) and recklessness for paragraphs (3)(b) and (c) (see section 5.6).

Penalty: Imprisonment for 3 years.

Failure to comply with direction regarding information

(4) A person commits an offence if:

(a) the person is given a direction; and

(b) the direction is a lawful direction regarding the retention, use or disposal of information; and

(ca) the failure to comply with the direction results in a risk to the security of the information; and

(d) the information is inherently harmful information; and

(e) the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.

Note: The fault elements for this offence are intention for paragraph (4)(c) and recklessness for paragraphs (4)(a), (b), (ca), (d) and (e) (see section 5.6).

Penalty: Imprisonment for 3 years.

122.2 Conduct by current and former Commonwealth officers etc. causing harm to Australia’s interests

Communication causing harm to Australia’s interests

(1) A person commits an offence if:

(a) the person communicates information; and

(b) either:

(i) the communication causes harm to Australia’s interests; or

(ii) the communication will or is likely to cause harm to Australia’s interests; and

(c) the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.

Note 1: For the definition of cause harm to Australia’s interests, see section 121.1.

Note 2: For exceptions to the offences in this section, see section 122.5.

Penalty: Imprisonment for 7 years.

Other conduct causing harm to Australia’s interests

(2) A person commits an offence if:

(a) the person deals with information (other than by communicating it); and

(b) either:

(i) the dealing causes harm to Australia’s interests; or

(ii) the dealing will or is likely to cause harm to Australia’s interests; and

(c) the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.

Penalty: Imprisonment for 3 years.

Information removed from, or held outside, proper place of custody

(3) A person commits an offence if:

(a) the person:

(i) removes information from a proper place of custody for the information; or

(ii) holds information outside a proper place of custody for the information; and

(b) either:

(i) the removal or holding causes harm to Australia’s interests; or

(ii) the removal or holding will or is likely to cause harm to Australia’s interests; and

(c) the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.

Penalty: Imprisonment for 3 years.

Failure to comply with direction regarding information

(4) A person commits an offence if:

(a) the person is given a direction; and

(b) the direction is a lawful direction regarding the retention, use or disposal of information; and

(d) either:

(i) the failure to comply causes harm to Australia’s interests; or

(ii) the failure to comply will or is likely to cause harm to Australia’s interests; and

(e) the information was made or obtained by that person by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity.

Penalty: Imprisonment for 3 years.

122.3 Aggravated offence

(1) A person commits an offence against this section if:

(a) the person commits an offence against section 122.1 or 122.2 (the underlying offence); and

(b) any of the following circumstances exist in relation to the commission of the underlying offence:

(ii) if the commission of the underlying offence involves a record—the record is marked with a code word, “for Australian eyes only” or as prescribed by the regulations for the purposes of this subparagraph;

(iii) the commission of the underlying offence involves 5 or more records each of which has a security classification;

(iv) the commission of the underlying offence involves the person altering a record to remove or conceal its security classification;

(v) at the time the person committed the underlying offence, the person held an Australian Government security clearance allowing the person to access information that has a security classification of at least secret.

Penalty:

(a) if the penalty for the underlying offence is imprisonment for 7 years—imprisonment for 10 years; or

(b) if the penalty for the underlying offence is imprisonment for 3 years—imprisonment for 5 years.

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

(4) To avoid doubt:

(a) a person does not commit an underlying offence for the purposes of paragraph (1)(a) if the person has a defence to the underlying offence; and

(b) a person may be convicted of an offence against this section even if the person has not been convicted of the underlying offence.

122.4 Unauthorised disclosure of information by current and former Commonwealth officers etc.

(1) A person commits an offence if:

(a) the person communicates information; and

(b) the person made or obtained the information by reason of his or her being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity; and

(d) the duty arises under a law of the Commonwealth.

Penalty: Imprisonment for 2 years.

(2) Absolute liability applies in relation to paragraph (1)(d).

Sunset provision

(3) This section does not apply in relation to any communication of information that occurs after the end of 5 years after this section commences.

122.4A Communicating and dealing with information by non‑Commonwealth officers etc.

Communication of information

(1) A person commits an offence if:

(a) the person communicates information; and

(b) the information was not made or obtained by the person by reason of the person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity; and

(c) the information was made or obtained by another person by reason of that other person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity; and

(d) any one or more of the following applies:

(i) the information has a security classification of secret or top secret;

(ii) the communication of the information damages the security or defence of Australia;

(iii) the communication of the information interferes with or prejudices the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of the Commonwealth;

(iv) the communication of the information harms or prejudices the health or safety of the Australian public or a section of the Australian public.

Note 1: For exceptions to the offences in this section, see section 122.5.

Note 2: The fault elements for this offence are intention for paragraph (1)(a) and recklessness for paragraphs (1)(b) to (d) (see section 5.6).

Penalty: Imprisonment for 5 years.

Other dealings with information

(2) A person commits an offence if:

(a) the person deals with information (other than by communicating it); and

(b) the information was not made or obtained by the person by reason of the person being, or having been, a Commonwealth officer or otherwise engaged to perform work for a Commonwealth entity; and

(d) any one or more of the following applies:

(i) the information has a security classification of secret or top secret;

(ii) the dealing with the information damages the security or defence of Australia;

(iii) the dealing with the information interferes with or prejudices the prevention, detection, investigation, prosecution or punishment of a criminal offence against of a law of the Commonwealth;

(iv) the dealing with the information harms or prejudices the health or safety of the Australian public or a section of the Australian public.

Note: The fault elements for this offence are intention for paragraph (2)(a) and recklessness for paragraphs (2)(b) to (d) (see section 5.6).

Penalty: Imprisonment for 2 years.

Proof of identity not required

(3) In proceedings for an offence against this section, the prosecution is not required to prove the identity of the other person referred to in paragraph (1)(c) or (2)(c).

122.5 Defences

Powers, functions and duties in a person’s capacity as a public official etc. or under arrangement

(1) It is a defence to a prosecution for an offence by a person against this Division that:

(a) the person was exercising a power, or performing a function or duty, in the person’s capacity as a public official or a person who is otherwise engaged to perform work for a Commonwealth entity; or

(b) the person communicated, removed, held or otherwise dealt with the information in accordance with an arrangement or agreement to which the Commonwealth or a Commonwealth entity is party and which allows for the exchange of information.

Note: A defendant may bear an evidential burden in relation to the matters in this subsection (see subsection (12) of this section and subsection 13.3(3)).

Information that is already public

(2) It is a defence to a prosecution for an offence by a person against this Division that the relevant information has already been communicated or made available to the public with the authority of the Commonwealth.

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

Information communicated etc. to integrity agency

(3) It is a defence to a prosecution for an offence by a person against this Division that the person communicated the relevant information, or removed, held or otherwise dealt with the relevant information for the purpose of communicating it:

(a) to any of the following:

(i) the Inspector‑General of Intelligence and Security, or a person engaged or employed to assist the Inspector‑General as described in subsection 32(1) of the Inspector‑General of Intelligence and Security Act 1986;

(ii) the Commonwealth Ombudsman, or another officer within the meaning of subsection 35(1) of the Ombudsman Act 1976;

(iia) the Australian Information Commissioner, a member of the staff of the Office of the Australian Information Commissioner, or a consultant engaged under the Australian Information Commissioner Act 2010;

(iii) the Law Enforcement Integrity Commissioner, a staff member of ACLEI, or a consultant to, or a person made available to, the Integrity Commissioner under the Law Enforcement Integrity Commissioner Act 2006; and

(b) for the purpose of the Inspector‑General, the Ombudsman, the Australian Information Commissioner or the Law Enforcement Integrity Commissioner (as the case requires) exercising a power, or performing a function or duty.

Note: A person mentioned in paragraph (3)(a) does not bear an evidential burden in relation to the matters in this subsection (see subsection (12)).

Information communicated etc. in accordance with the Public Interest Disclosure Act 2013 or the Freedom of Information Act 1982

(4) It is a defence to a prosecution for an offence by a person against this Division that the person communicated the relevant information, or removed, held or otherwise dealt with the relevant information for the purpose of communicating it, in accordance with:

(a) the Public Interest Disclosure Act 2013; or

(b) the Freedom of Information Act 1982.

Note: A defendant may bear an evidential burden in relation to the matters in this subsection (see subsection (12) of this section and subsection 13.3(3)).

Information communicated etc. for the purpose of reporting offences and maladministration

(4A) It is a defence to a prosecution for an offence by a person against this Division that the person communicated, removed, held or otherwise dealt with the relevant information for the primary purpose of reporting, to an appropriate agency of the Commonwealth, a State or a Territory:

(a) a criminal offence, or alleged criminal offence, against a law of the Commonwealth; or

(b) maladministration relating to the prevention, detection, investigation, prosecution or punishment of a criminal offence against a law of the Commonwealth; or

(i) the Australian Federal Police Act 1979; or

(ii) the Proceeds of Crime Act 2002.

Note: A defendant may bear an evidential burden in relation to the matters in this subsection (see subsection (12) of this section and subsection 13.3(3)).

Information communicated etc. to a court or tribunal

(5) It is a defence to a prosecution for an offence by a person against this Division that the person communicated the relevant information, or removed, held or otherwise dealt with the relevant information for the purpose of communicating it, to a court or tribunal (whether or not as a result of a requirement).

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

Information communicated etc. for the purposes of obtaining or providing legal advice

(5A) It is a defence to a prosecution for an offence by a person against this Division that the person communicated, removed, held or otherwise dealt with the relevant information for the primary purpose of obtaining or providing, in good faith, legal advice in relation to:

(a) an offence against this Part; or

(b) the application of any right, privilege, immunity or defence (whether or not in this Part) in relation to such an offence;

whether that advice was obtained or provided before or after the person engaged in the conduct constituting the offence.

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

Information communicated etc. by persons engaged in business of reporting news etc.

(6) It is a defence to a prosecution for an offence by a person against this Division that the person communicated, removed, held or otherwise dealt with the relevant information in the person’s capacity as a person engaged in the business of reporting news, presenting current affairs or expressing editorial or other content in news media, and:

(a) at that time, the person reasonably believed that engaging in that conduct was in the public interest (see subsection (7)); or

(b) the person:

(i) was, at that time, a member of the administrative staff of an entity that was engaged in the business of reporting news, presenting current affairs or expressing editorial or other content in news media; and

(ii) acted under the direction of a journalist, editor or lawyer who was also a member of the staff of the entity, and who reasonably believed that engaging in that conduct was in the public interest (see subsection (7)).

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

(7) Without limiting paragraph (6)(a) or (b), a person may not reasonably believe that communicating, removing, holding or otherwise dealing with information is in the public interest if:

(a) engaging in that conduct would be an offence under section 92 of the Australian Security Intelligence Organisation Act 1979 (publication of identity of ASIO employee or ASIO affiliate); or

(b) engaging in that conduct would be an offence under section 41 of the Intelligence Services Act 2001 (publication of identity of staff); or

(c) engaging in that conduct would be an offence under section 22, 22A or 22B of the Witness Protection Act 1994 (offences relating to Commonwealth, Territory, State participants or information about the national witness protection program); or

(d) that conduct was engaged in for the purpose of directly or indirectly assisting a foreign intelligence agency or a foreign military organisation.

Information that has been previously communicated

(8) It is a defence to a prosecution for an offence by a person against this Division if:

(a) the person did not make or obtain the relevant information by reason of any of the following:

(i) his or her being, or having been, a Commonwealth officer;

(ii) his or her being otherwise engaged to perform work for a Commonwealth entity;

(iii) an arrangement or agreement to which the Commonwealth or a Commonwealth entity is party and which allows for the exchange of information; and

(b) the information has already been communicated, or made available, to the public (the prior publication); and

(d) at the time of the communication, removal, holding or dealing, the person believes that engaging in that conduct will not cause harm to Australia’s interests or the security or defence of Australia; and

(e) having regard to the nature, extent and place of the prior publication, the person has reasonable grounds for that belief.

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

Information relating to a person etc.

(9) It is a defence to a prosecution for an offence by a person against this Division if:

(a) the person did not make or obtain the relevant information by reason of any of the following:

(i) his or her being, or having been, a Commonwealth officer;

(ii) his or her being otherwise engaged to perform work for a Commonwealth entity;

(iii) an arrangement or agreement to which the Commonwealth or a Commonwealth entity is party and which allows for the exchange of information; and

(b) at the time of the communication, removal, holding or dealing, the person believes that the making or obtaining of the information by the person was required or authorised by law; and

(c) having regard to the circumstances of the making or obtaining of the information, the person has reasonable grounds for that belief; and

(d) any of the following apply:

(i) the person communicates the information to the person to whom the information relates;

(ii) the person is the person to whom the information relates;

(iii) the communication, removal, holding or dealing is in accordance with the express or implied consent of the person to whom the information relates.

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

(10) To avoid doubt, a defence to an offence may constitute an authorisation for the purposes of paragraph (9)(b).

Removing, holding or otherwise dealing with information for the purposes of communicating information

(11) For the purposes of subsection (3), (4), (5) or (5A), it is not necessary to prove that information, that was removed, held or otherwise dealt with for the purposes of communicating it, was actually communicated.

Burden of proof for integrity agency officials

(12) Despite subsection 13.3(3), in a prosecution for an offence against this Division, a person mentioned in subparagraph (3)(a)(i), (ii), (iia) or (iii) does not bear an evidential burden in relation to the matter in:

(a) subsection (1), (4) or (4A); or

(b) either of the following:

(i) subparagraph (3)(a)(i), (ii), (iia) or (iii);

(ii) paragraph (3)(b), to the extent that that paragraph relates to the Inspector‑General of Intelligence and Security, the Ombudsman, the Australian Information Commissioner or the Law Enforcement Integrity Commissioner.

Defences do not limit each other

(13) No defence in this section limits the operation of any other defence in this section.

Division 123—Miscellaneous

123.1 Injunctions

Enforceable provisions

(1) The provisions of Division 122 are enforceable under Part 7 of the Regulatory Powers Act.

Note: Part 7 of the Regulatory Powers Act creates a framework for using injunctions to enforce provisions.

Authorised person and relevant court

(2) For the purposes of Part 7 of the Regulatory Powers Act, as that Part applies to the provisions of Division 122 of this Act:

(a) the Minister is an authorised person; and

(b) each of the following is a relevant court:

(i) the Federal Court of Australia;

(ii) the Federal Circuit and Family Court of Australia (Division 2);

(iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.

Extension to external Territories

(3) Part 7 of the Regulatory Powers Act, as that Part applies to the provisions of Division 122 of this Act, extends to every external Territory.

123.2 Forfeiture of articles etc.

(1) A sketch, article, record or document which is made, obtained, recorded, retained, possessed or otherwise dealt with in contravention of this Part is forfeited to the Commonwealth.

(2) In subsection (1), sketch, article and record have the same respective meanings as in Part 5.2.

123.3 Extended geographical jurisdiction—category D

Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this Part.

123.4 Effect of this Part on other rights, privileges, immunities or defences

Nothing in this Part limits or affects any other right, privilege, immunity or defence existing apart from this Part.

123.5 Requirements before proceedings can be initiated

(1) Proceedings for the commitment of a person for trial for an offence against this Part must not be instituted without:

(a) the written consent of the Attorney‑General; and

(b) for proceedings that relate to security classified information—a certification by the Attorney‑General that, at the time of the conduct that is alleged to constitute the offence, it was appropriate that the information had a security classification.

(2) However, the following steps may be taken (but no further steps in proceedings may be taken) without consent or certification having been obtained:

(a) a person may be arrested for the offence and a warrant for such an arrest may be issued and executed;

(b) a person may be charged with the offence;

(3) Nothing in subsection (2) prevents the discharge of the accused if proceedings are not continued within a reasonable time.

(4) In deciding whether to consent, the Attorney‑General must consider whether the conduct might be authorised in a way mentioned in section 122.5.

Chapter 7—The proper administration of Government

Part 7.1—Preliminary

Division 130—Preliminary

130.1 Definitions

In this Chapter:

duty:

(a) in relation to a person who is a Commonwealth public official—means any authority, duty, function or power that:

(i) is conferred on the person as a Commonwealth public official; or

(ii) the person holds himself or herself out as having as a Commonwealth public official; and

(b) in relation to a person who is a public official—means any authority, duty, function or power that:

(i) is conferred on the person as a public official; or

(ii) the person holds himself or herself out as having as a public official.

gain means:

(a) a gain in property, whether temporary or permanent; or

(b) a gain by way of the supply of services;

and includes keeping what one has.

loss means a loss in property, whether temporary or permanent, and includes not getting what one might get.

obtaining includes:

(a) obtaining for another person; and

(b) inducing a third person to do something that results in another person obtaining.

property includes:

(a) real property; and

(b) personal property; and

(d) a thing in action or other intangible property; and

(e) electricity; and

(f) a wild creature that is:

(i) tamed; or

(ii) ordinarily kept in captivity; or

(iii) reduced (or in the course of being reduced) into the possession of a person.

services includes any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities, but does not include rights or benefits being the supply of goods.

supply includes:

(a) in relation to goods—supply (including re‑supply) by way of sale, exchange, lease, hire or hire‑purchase; and

(b) in relation to services—provide, grant or confer.

Note: The expression person includes a Commonwealth entity. This is the combined effect of subsection 2C(1) of the Acts Interpretation Act 1901 (which provides that person includes a body politic or corporate), and the definition of person in the Dictionary.

130.2 When property belongs to a person

(1) For the purposes of this Chapter, property belongs to a person if, and only if:

(a) the person has possession or control of the property; or

(b) the person has a proprietary right or interest in the property, other than an equitable interest arising only from:

(i) an agreement to transfer an interest; or

(ii) an agreement to grant an interest; or

(iii) a constructive trust.

(2) Subsection (1) has effect subject to subsections 134.1(9) and (10) (which deal with money transfers).

130.3 Dishonesty

For the purposes of this Chapter, dishonest means:

(a) dishonest according to the standards of ordinary people; and

(b) known by the defendant to be dishonest according to the standards of ordinary people.

Note: The following provisions affect the meaning of dishonesty:

(a) section 131.2 (theft);

(b) section 134.1 (obtaining property by deception).

130.4 Determination of dishonesty to be a matter for the trier of fact

In a prosecution for an offence against this Chapter, the determination of dishonesty is a matter for the trier of fact.

Part 7.2—Theft and other property offences

Division 131—Theft

131.1 Theft

(1) A person commits an offence if:

(a) the person dishonestly appropriates property belonging to another with the intention of permanently depriving the other of the property; and

(b) the property belongs to a Commonwealth entity.

Penalty: Imprisonment for 10 years.

(2) For the purposes of this Code, an offence against subsection (1) is to be known as the offence of theft.

(3) Absolute liability applies to the paragraph (1)(b) element of the offence of theft.

(4) Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against subsection (1).

Note: For alternative verdicts, see sections 132.1 and 134.1.

131.2 Special rules about the meaning of dishonesty

(1) For the purposes of this Division, a person’s appropriation of property belonging to another is taken not to be dishonest if the person appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.

(2) However, the rule in subsection (1) does not apply if the person appropriating the property held it as trustee or personal representative.

(3) For the purposes of this Division, a person’s appropriation of property belonging to another may be dishonest even if the person or another person is willing to pay for the property.

131.3 Appropriation of property

(1) For the purposes of this Division, any assumption of the rights of an owner to ownership, possession or control of property, without the consent of the person to whom it belongs, amounts to an appropriation of the property. This includes, in a case where a person has come by property (innocently or not) without committing theft, any later such assumption of rights without consent by keeping or dealing with it as owner.

(2) For the purposes of this Division, if property, or a right or interest in property, is, or purports to be, transferred or given to a person acting in good faith, a later assumption by the person of rights which the person had believed himself or herself to be acquiring does not, because of any defect in the transferor’s title, amount to an appropriation of the property.

131.4 Theft of land or things forming part of land

(1) For the purposes of this Division, a person cannot commit theft of land, except in the following cases:

(a) the case where the person appropriates anything forming part of the land by severing it or causing it to be severed;

(b) the case where:

(i) the person is a trustee or personal representative, or is authorised (by power of attorney, as liquidator of a company or otherwise) to sell or dispose of land belonging to another; and

(ii) the person appropriates the land, or anything forming part of it, by dealing with it in breach of the confidence reposed in the person.

(2) For the purposes of this section, land does not include incorporeal hereditaments.

131.5 Trust property

(1) For the purposes of this Division, if property is subject to a trust, the persons to whom the property belongs include any person who has a right to enforce the trust.

(2) Accordingly, for the purposes of this Division, an intention to defeat the trust is an intention to deprive any such person of the property.

131.6 Obligation to deal with property in a particular way

For the purposes of this Division, if:

(a) a person receives property from or on account of another; and

(b) the person is under a legal obligation to the other to retain and deal with that property or its proceeds in a particular way;

the property or proceeds belong (as against the person) to the other.

131.7 Property obtained because of fundamental mistake

(1) For the purposes of this Division, if:

(a) a person gets property by another’s fundamental mistake; and

(b) the person is under a legal obligation to make restoration (in whole or in part) of the property, its proceeds or value;

then, to the extent of that obligation, the property or proceeds belongs (as against the person) to the person entitled to restoration.

(2) For the purposes of this Division, an intention not to make restoration is:

(a) an intention to permanently deprive the person so entitled of the property or proceeds; and

(b) an appropriation of the property or proceeds without the consent of the person entitled to restoration.

(3) For the purposes of this section, a fundamental mistake is:

(a) a mistake about the identity of the person getting the property; or

(b) a mistake as to the essential nature of the property; or

(c) a mistake about the amount of any money if the person getting the money is aware of the mistake at the time of getting the money.

(4) In this section:

money includes anything that is equivalent to money. For this purpose, cheques, negotiable instruments and electronic funds transfers are taken to be equivalent to money.

131.8 Property of a corporation sole

For the purposes of this Division, property of a corporation sole belongs to the corporation despite a vacancy in the corporation.

131.9 Property belonging to 2 or more persons

If property belongs to 2 or more persons, a reference in this Division (other than paragraph 131.1(1)(b)) to the person to whom the property belongs is a reference to all of those persons.

131.10 Intention of permanently depriving a person of property

(1) For the purposes of this Division, if:

(a) a person appropriates property belonging to another without meaning the other permanently to lose the thing itself; and

(b) the person’s intention is to treat the thing as the person’s own to dispose of regardless of the other’s rights;

the person has the intention of permanently depriving the other of it.

(2) For the purposes of this section, a borrowing or lending of a thing amounts to treating the thing as the borrower’s or lender’s own to dispose of regardless of another’s rights if, and only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.

(3) For the purposes of this section, if:

(a) a person has possession or control (lawfully or not) of property belonging to another; and

(b) the person parts with the property under a condition as to its return that the person may not be able to perform; and

the parting is taken to amount to treating the property as the person’s own to dispose of regardless of the other’s rights.

Note: See also paragraph 131.7(2)(a).

131.11 General deficiency

(1) For the purposes of this Division, a person may be convicted of theft of all or any part of a general deficiency in money even though the deficiency is made up of any number of particular sums of money that were appropriated over a period of time.

(2) For the purposes of this Division, a person may be convicted of theft of all or any part of a general deficiency in property other than money even though the deficiency is made up of any number of particular items of property that were appropriated over a period of time.

Division 132—Other property offences

132.1 Receiving

(1) A person commits an offence if the person dishonestly receives stolen property, knowing or believing the property to be stolen.

Penalty: Imprisonment for 10 years.

(2) For the purposes of this Code, an offence against subsection (1) is to be known as the offence of receiving.

(2A) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew or believed that the property belonged to a Commonwealth entity.

Stolen property

(3) For the purposes of this section, property is stolen property if, and only if:

(a) it is original stolen property (as defined by subsection (5)); or

(aa) it is previously received property (as defined by subsection (5A)); or

(b) it is tainted property (as defined by subsection (7)).

This subsection has effect subject to subsections (4) and (6).

(4) For the purposes of this section, stolen property does not include land obtained in the course of an offence against section 134.1.

Original stolen property

(5) For the purposes of this section, original stolen property is:

(a) property, or a part of property, that:

(i) was appropriated in the course of theft (whether or not the property, or the part of the property, is in the state it was in when it was so appropriated); and

(ii) is in the possession or custody of the person who so appropriated the property; or

(b) property, or a part of property, that:

(i) was obtained in the course of an offence against section 134.1 (whether or not the property, or the part of the property, is in the state it was in when it was so obtained); and

(ii) is in the possession or custody of the person who so obtained the property or the person for whom the property was so obtained.

Previously received property

(5A) For the purposes of this section, previously received property is property that:

(a) was received in the course of an offence against subsection (1); and

(b) is in the possession or custody of the person who received the property in the course of that offence.

(6) For the purposes of this section, property ceases to be original stolen property or previously received property:

(a) after the property is restored:

(i) to the person from whom it was appropriated or obtained; or

(ii) to other lawful possession or custody; or

(b) after:

(i) the person from whom the property was appropriated or obtained ceases to have any right to restitution in respect of the property; or

(ii) a person claiming through the person from whom the property was appropriated or obtained ceases to have any right to restitution in respect of the property.

Tainted property

(7) For the purposes of this section, tainted property is property that:

(a) is (in whole or in part) the proceeds of sale of, or property exchanged for:

(i) original stolen property; or

(ii) previously received property; and

(b) if subparagraph (a)(i) applies—is in the possession or custody of:

(i) if the original stolen property was appropriated in the course of theft—the person who so appropriated the original stolen property; or

(ii) if the original stolen property was obtained in the course of an offence against section 134.1—the person who so obtained the property or the person for whom the property was so obtained; and

(c) if subparagraph (a)(ii) applies—is in the possession or custody of the person who received the previously received property in the course of an offence against subsection (1).

Money transfers

(8) For the purposes of this section, if, as a result of the application of subsection 134.1(9) or (10), an amount credited to an account held by a person is property obtained in the course of an offence against section 134.1:

(a) while the whole or any part of the amount remains credited to the account, the property is taken to be in the possession of the person; and

(b) if the person fails to take such steps as are reasonable in the circumstances to secure that the credit is cancelled—the person is taken to have received the property; and

Note: Subsections 134.1(9) and (10) deal with money transfers.

Alternative verdicts

(9) If, in a prosecution for an offence of theft or an offence against section 134.1, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence of receiving, the trier of fact may find the defendant not guilty of the offence of theft or the section 134.1 offence but guilty of the offence of receiving, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

(10) If, in a prosecution for an offence of receiving, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence of theft or an offence against section 134.1, the trier of fact may find the defendant not guilty of the offence of receiving but guilty of the offence of theft or the section 134.1 offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

Receiving property stolen before commencement

(11) For the purposes of this section:

(a) it is to be assumed that sections 131.1 and 134.1 had been in force at all times before the commencement of this section; and

(b) property that was appropriated or obtained at a time before the commencement of this section does not become original stolen property unless the property was appropriated or obtained in circumstances that (apart from paragraph (a)) amounted to an offence against a law of the Commonwealth in force at that time.

Obtaining

(12) The definition of obtaining in section 130.1 does not apply to this section.

Note: See subsection 134.1(3).

Definition

(13) In this section:

account has the same meaning as in section 133.1.

132.2 Robbery

(1) A person commits an offence if the person commits theft and:

(a) immediately before committing theft, the person:

(i) uses force on another person; or

(ii) threatens to use force then and there on another person;

with intent to commit theft or to escape from the scene; or

(b) at the time of committing theft, or immediately after committing theft, the person:

(i) uses force on another person; or

(ii) threatens to use force then and there on another person;

with intent to commit theft or to escape from the scene.

Penalty: Imprisonment for 15 years.

(2) For the purposes of this Code, an offence against subsection (1) is to be known as the offence of robbery.

Note: Theft means an offence against section 131.1. Under section 131.1, an element of the offence of theft is that the property belongs to a Commonwealth entity.

(3) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the property belonged to a Commonwealth entity.

132.3 Aggravated robbery

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

(a) commits a robbery in company with one or more other persons; or

(b) commits a robbery and, at the time of the robbery, has an offensive weapon with him or her.

Penalty: Imprisonment for 20 years.

(2) For the purposes of this Code, an offence against subsection (1) is to be known as the offence of aggravated robbery.

Note: Robbery means an offence against section 132.2. Under section 132.2, an element of the offence of robbery is that the defendant commits theft. Theft means an offence against section 131.1. Under section 131.1, an element of the offence of theft is that the property belongs to a Commonwealth entity.

(2A) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the property belonged to a Commonwealth entity.

(3) In this section:

offensive weapon includes:

(a) an article made or adapted for use for causing injury to, or incapacitating, a person; or

(b) an article where the person who has the article intends, or threatens to use, the article to cause injury to, or to incapacitate, another person.

132.4 Burglary

(1) A person commits an offence if:

(a) the person enters, or remains in, a building, as a trespasser, with intent to commit theft of a particular item of property in the building; and

(b) the property belongs to a Commonwealth entity.

Penalty: Imprisonment for 13 years.

(2) For the purposes of this Code, an offence against subsection (1) is to be known as the offence of burglary.

(2A) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the property belonged to a Commonwealth entity.

(3) A person commits an offence if:

(a) the person enters, or remains in, a building, as a trespasser, with intent to commit an offence in the building that involves causing harm to another person or damage to property; and

(aa) the offence referred to in paragraph (a) is an offence against a law of the Commonwealth; and

(b) the offence referred to in paragraph (a) is punishable by imprisonment for life or for a term of 5 years or more.

Penalty: Imprisonment for 13 years.

(3A) In a prosecution for an offence against subsection (3), it is not necessary to prove that the defendant knew that the offence referred to in paragraph (3)(a) is an offence against a law of the Commonwealth.

(4) In a prosecution for an offence against subsection (3), it is not necessary to prove that the defendant knew that the offence referred to in paragraph (3)(a) is punishable by imprisonment for life or for a term of 5 years or more.

(5) For the purposes of this Code, an offence against subsection (3) is also to be known as the offence of burglary.

(6) A person commits an offence if:

(a) the person enters, or remains in, a building, as a trespasser, with intent to commit an offence in the building that involves causing harm to another person or damage to property; and

(aa) the offence referred to in paragraph (a) is an offence against a law of the Commonwealth, a State or a Territory; and

(b) the offence referred to in paragraph (a) is punishable by imprisonment for life or for a term of 5 years or more; and

Penalty: Imprisonment for 13 years.

(6A) In a prosecution for an offence against subsection (6), it is not necessary to prove that the defendant knew that the offence referred to in paragraph (6)(a) is an offence against a law of the Commonwealth, a State or a Territory.

(7) In a prosecution for an offence against subsection (6), it is not necessary to prove that the defendant knew that the offence referred to in paragraph (6)(a) is punishable by imprisonment for life or for a term of 5 years or more.

(8) Absolute liability applies to the paragraph (6)(c) element of the offence.

(9) For the purposes of this Code, an offence against subsection (6) is also to be known as the offence of burglary.

(10) For the purposes of this section, a person is taken not to be a trespasser:

(a) merely because the person is permitted to enter, or remain in, a building for a purpose that is not the person’s intended purpose; or

(b) if the person is permitted to enter, or remain in, a building as a result of fraud, misrepresentation or another person’s mistake.

(12) In this section:

building includes:

(a) a part of a building; or

(b) a mobile home or a caravan; or

(c) a structure (whether or not movable), a vehicle, or a vessel, that is used, designed or adapted for residential purposes.

132.5 Aggravated burglary

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

(a) commits a burglary in company with one or more other persons; or

(b) commits a burglary, and at the time of the burglary, has an offensive weapon with him or her.

Penalty: Imprisonment for 17 years.

(2) For the purposes of this Code, an offence against subsection (1) is to be known as the offence of aggravated burglary.

(3) In a prosecution for an offence against subsection (1) in relation to the offence of burglary created by subsection 132.4(1), it is not necessary to prove that the defendant knew that the property concerned belonged to a Commonwealth entity.

(4) In a prosecution for an offence against subsection (1) in relation to the offence of burglary created by subsection 132.4(3), it is not necessary to prove that:

(a) the defendant knew that the offence referred to in paragraph 132.4(3)(a) is an offence against a law of the Commonwealth; or

(b) the defendant knew that the offence referred to in paragraph 132.4(3)(a) is punishable by imprisonment for life or for a term of 5 years or more.

(5) In a prosecution for an offence against subsection (1) in relation to the offence of burglary created by subsection 132.4(6), it is not necessary to prove that:

(a) the defendant knew that the offence referred to in paragraph 132.4(6)(a) is an offence against a law of the Commonwealth, a State or a Territory; or

(b) the defendant knew that the offence referred to in paragraph 132.4(6)(a) is punishable by imprisonment for life or for a term of 5 years or more; or

(6) In this section:

offensive weapon includes:

(a) an article made or adapted for use for causing injury to, or incapacitating, a person; or

(b) an article where the person who has the article intends, or threatens to use, the article to cause injury to, or to incapacitate, another person.

132.6 Making off without payment

(1) A person commits an offence if:

(a) the person, knowing that immediate payment for any goods or services supplied by another person is required or expected from him or her, dishonestly makes off:

(i) without having paid; and

(ii) with intent to avoid payment of the amount due; and

(b) the other person is a Commonwealth entity.

Penalty: Imprisonment for 2 years.

(2) Absolute liability applies to the paragraph (1)(b) element of the offence.

(3) For the purposes of this section, immediate payment includes payment at the time of collecting goods in respect of which a service has been provided.

132.7 Going equipped for theft or a property offence

(1) A person commits an offence if the person, when not at home, has with him or her any article with intent to use it in the course of, or in connection with, theft or a property offence.

Penalty: Imprisonment for 3 years.

(2) In a prosecution for an offence against subsection (1) in relation to:

(a) theft; or

(b) robbery; or

(d) the offence of burglary created by subsection 132.4(1); or

(e) the offence of aggravated burglary that relates to the offence of burglary created by subsection 132.4(1); or

(f) an offence against section 134.1;

it is not necessary to prove that the defendant knew that the property concerned belonged to a Commonwealth entity.

(3) In a prosecution for an offence against subsection (1) in relation to:

(a) the offence of burglary created by subsection 132.4(3); or

(b) the offence of aggravated burglary that relates to the offence of burglary created by subsection 132.4(3);

it is not necessary to prove that:

(c) the defendant knew that the offence referred to in paragraph 132.4(3)(a) is an offence against a law of the Commonwealth; or

(d) the defendant knew that the offence referred to in paragraph 132.4(3)(a) is punishable by imprisonment for life or for a term of 5 years or more.

(4) In a prosecution for an offence against subsection (1) in relation to:

(a) the offence of burglary created by subsection 132.4(6); or

(b) the offence of aggravated burglary that relates to the offence of burglary created by subsection 132.4(6);

it is not necessary to prove that:

(c) the defendant knew that the offence referred to in paragraph 132.4(6)(a) is an offence against a law of the Commonwealth, a State or a Territory; or

(d) the defendant knew that the offence referred to in paragraph 132.4(6)(a) is punishable by imprisonment for life or for a term of 5 years or more; or

(e) the defendant knew that the building was owned or occupied by a Commonwealth entity.

(5) In this section:

property offence means:

(a) robbery; or

(b) aggravated robbery; or

(d) aggravated burglary; or

(e) an offence against subsection 132.8(1) or 132.8A(1); or

(f) an offence against section 134.1.

Note: It is an element of the offence of theft, and of each property offence, that the property belongs to a Commonwealth entity.

132.8 Dishonest taking or retention of property

Taking

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

(a) on a particular occasion, dishonestly takes one or more items of property belonging to a Commonwealth entity, where:

(i) the value or total value of the property is $500 or more; or

(ii) the absence of the property from the possession, custody or control of the person who would otherwise have had possession, custody or control would be likely to cause substantial disruption to activities carried on by or on behalf of a Commonwealth entity; and

(b) does not have consent to do so from the person who has authority to give consent.

Penalty: Imprisonment for 2 years.

Retention

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

(a) on a particular occasion, takes one or more items of property belonging to a Commonwealth entity; and

(b) dishonestly retains any or all of those items; and

(d) either:

(i) at the time of the taking of the property, the value or total value of the property was $500 or more; or

(ii) the absence of the property from the possession, custody or control of the person who would otherwise have had possession, custody or control is likely to cause substantial disruption to activities carried on by or on behalf of a Commonwealth entity.

Penalty: Imprisonment for 2 years.

132.8A Damaging Commonwealth property

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct results in damage to, or the destruction of, property; and

Penalty: Imprisonment for 10 years.

(2) Absolute liability applies to paragraph (1)(c).

132.9 Geographical jurisdiction

Section 15.4 (extended geographical jurisdiction—category D) applies to each offence against this Division.

Part 7.3—Fraudulent conduct

Division 133—Preliminary

133.1 Definitions

In this Part:

account means an account (including a loan account, a credit card account or a similar account) with a bank or other financial institution.

deception means an intentional or reckless deception, whether by words or other conduct, and whether as to fact or as to law, and includes:

(a) a deception as to the intentions of the person using the deception or any other person; and

(b) conduct by a person that causes a computer, a machine or an electronic device to make a response that the person is not authorised to cause it to do.

Division 134—Obtaining property or a financial advantage by deception

134.1 Obtaining property by deception

(1) A person commits an offence if:

(a) the person, by a deception, dishonestly obtains property belonging to another with the intention of permanently depriving the other of the property; and

(b) the property belongs to a Commonwealth entity.

Penalty: Imprisonment for 10 years.

(2) Absolute liability applies to the paragraph (1)(b) element of the offence.

Obtaining property

(3) For the purposes of this section (and for the purposes of the application of section 132.1 to this section), a person (the first person) is taken to have obtained property if, and only if:

(a) the first person obtains ownership, possession or control of it for himself or herself or for another person; or

(b) the first person enables ownership, possession or control of it to be retained by himself or herself; or

(d) the first person induces a third person to enable another person to retain ownership, possession or control of it; or

(e) subsection (9) or (10) applies.

(4) The definition of obtaining in section 130.1 does not apply for the purposes of this section (or for the purposes of the application of section 132.1 to this section).

(5) For the purposes of this section, a person’s obtaining of property belonging to another may be dishonest even if the person or another person is willing to pay for the property.

Intention of permanently depriving a person of property

(6) For the purposes of this section, if:

(a) a person obtains property belonging to another without meaning the other permanently to lose the thing itself; and

(b) the person’s intention is to treat the thing as the person’s own to dispose of regardless of the other’s rights;

the person has the intention of permanently depriving the other of it.

(7) For the purposes of subsection (6), a borrowing or lending of a thing amounts to treating the thing as the borrower’s or lender’s own to dispose of regardless of another’s rights if, and only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.

(8) For the purposes of subsection (6), if:

(a) a person has possession or control (lawfully or not) of property belonging to another; and

(b) the person parts with the property under a condition as to its return that the person may not be able to perform; and

the parting is taken to amount to treating the property as the person’s own to dispose of regardless of the other’s rights.

Money transfers

(9) For the purposes of this section (and for the purposes of the application of section 132.1 to this section), if a person (the first person) causes an amount to be transferred from an account held by another person (the second person) to an account held by the first person:

(a) the amount is taken to have been property that belonged to the second person; and

(b) the first person is taken to have obtained the property for himself or herself with the intention of permanently depriving the second person of the property.

(10) For the purposes of this section (and for the purposes of the application of section 132.1 to this section), if a person (the first person) causes an amount to be transferred from an account held by another person (the second person) to an account held by a third person:

(a) the amount is taken to have been property that belonged to the second person; and

(b) the first person is taken to have obtained the property for the third person with the intention of permanently depriving the second person of the property.

(11) For the purposes of this section (and for the purposes of the application of section 132.1 to this section), if:

(a) a credit is made to an account (the credited account); and

(b) a debit is made to another account (the debited account); and

(i) the credit results from the debit; or

(ii) the debit results from the credit;

the amount of the credit is taken to be transferred from the debited account to the credited account.

(12) For the purposes of this section (and for the purposes of the application of section 132.1 to this section), a person is taken to cause an amount to be transferred from an account if the person induces another person to transfer the amount from the account (whether or not the other person is the holder of the account).

General deficiency

(13) A person may be convicted of an offence against this section involving all or any part of a general deficiency in money even though the deficiency is made up of any number of particular sums of money that were obtained over a period of time.

(14) A person may be convicted of an offence against this section involving all or any part of a general deficiency in property other than money even though the deficiency is made up of any number of particular items of property that were obtained over a period of time.

Alternative verdicts

(15) If, in a prosecution for an offence of theft, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence against this section, the trier of fact may find the defendant not guilty of the offence of theft but guilty of the offence against this section, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

(16) If, in a prosecution for an offence against this section, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence of theft, the trier of fact may find the defendant not guilty of the offence against this section but guilty of the offence of theft, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

134.2 Obtaining a financial advantage by deception

(1) A person commits an offence if:

(a) the person, by a deception, dishonestly obtains a financial advantage from another person; and

(b) the other person is a Commonwealth entity.

Penalty: Imprisonment for 10 years.

(2) Absolute liability applies to the paragraph (1)(b) element of the offence.

134.3 Geographical jurisdiction

Section 15.4 (extended geographical jurisdiction—category D) applies to each offence against this Division.

Division 135—Other offences involving fraudulent conduct

135.1 General dishonesty

Obtaining a gain

(1) A person commits an offence if:

(a) the person does anything with the intention of dishonestly obtaining a gain from another person; and

(b) the other person is a Commonwealth entity.

Penalty: Imprisonment for 10 years.

(2) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the other person was a Commonwealth entity.

Causing a loss

(3) A person commits an offence if:

(a) the person does anything with the intention of dishonestly causing a loss to another person; and

(b) the other person is a Commonwealth entity.

Penalty: Imprisonment for 10 years.

(4) In a prosecution for an offence against subsection (3), it is not necessary to prove that the defendant knew that the other person was a Commonwealth entity.

(5) A person commits an offence if:

(a) the person dishonestly causes a loss, or dishonestly causes a risk of loss, to another person; and

(b) the first‑mentioned person knows or believes that the loss will occur or that there is a substantial risk of the loss occurring; and

Penalty: Imprisonment for 10 years.

(6) Absolute liability applies to the paragraph (5)(c) element of the offence.

Influencing a Commonwealth public official

(7) A person commits an offence if:

(a) the person does anything with the intention of dishonestly influencing a public official in the exercise of the official’s duties as a public official; and

(b) the public official is a Commonwealth public official; and

Penalty: Imprisonment for 10 years.

(8) In a prosecution for an offence against subsection (7), it is not necessary to prove that the defendant knew:

(a) that the official was a Commonwealth public official; or

(b) that the duties were duties as a Commonwealth public official.

135.2 Obtaining financial advantage

(1) A person commits an offence if:

(a) the person engages in conduct; and

(aa) as a result of that conduct, the person obtains a financial advantage for himself or herself from another person; and

(ab) the person knows or believes that he or she is not eligible to receive that financial advantage; and

(b) the other person is a Commonwealth entity.

Penalty: Imprisonment for 12 months.

(1A) Absolute liability applies to the paragraph (1)(b) element of the offence.

(2) A person commits an offence if:

(a) the person engages in conduct; and

(aa) as a result of that conduct, the person obtains a financial advantage for another person from a third person; and

(ab) the person knows or believes that the other person is not eligible to receive that financial advantage; and

(b) the third person is a Commonwealth entity.

Penalty: Imprisonment for 12 months.

(2A) Absolute liability applies to the paragraph (2)(b) element of the offence.

(3) For the purposes of subsection (2), a person is taken to have obtained a financial advantage for another person from a Commonwealth entity if the first‑mentioned person induces the Commonwealth entity to do something that results in the other person obtaining the financial advantage.

(4) The definition of obtaining in section 130.1 does not apply to this section.

135.4 Conspiracy to defraud

Obtaining a gain

(1) A person commits an offence if:

(a) the person conspires with another person with the intention of dishonestly obtaining a gain from a third person; and

(b) the third person is a Commonwealth entity.

Penalty: Imprisonment for 10 years.

(2) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the third person was a Commonwealth entity.

Causing a loss

(3) A person commits an offence if:

(a) the person conspires with another person with the intention of dishonestly causing a loss to a third person; and

(b) the third person is a Commonwealth entity.

Penalty: Imprisonment for 10 years.

(4) In a prosecution for an offence against subsection (3), it is not necessary to prove that the defendant knew that the third person was a Commonwealth entity.

(5) A person commits an offence if:

(a) the person conspires with another person to dishonestly cause a loss, or to dishonestly cause a risk of loss, to a third person; and

(b) the first‑mentioned person knows or believes that the loss will occur or that there is a substantial risk of the loss occurring; and

Penalty: Imprisonment for 10 years.

(6) In a prosecution for an offence against subsection (5), it is not necessary to prove that the defendant knew that the third person was a Commonwealth entity.

Influencing a Commonwealth public official

(7) A person commits an offence if:

(a) the person conspires with another person with the intention of dishonestly influencing a public official in the exercise of the official’s duties as a public official; and

(b) the public official is a Commonwealth public official; and

Penalty: Imprisonment for 10 years.

(8) In a prosecution for an offence against subsection (7), it is not necessary to prove that the defendant knew:

(a) that the official was a Commonwealth public official; or

(b) that the duties were duties as a Commonwealth public official.

General provisions

(9) For a person to be guilty of an offence against this section:

(a) the person must have entered into an agreement with one or more other persons; and

(b) the person and at least one other party to the agreement must have intended to do the thing pursuant to the agreement; and

(10) A person may be found guilty of an offence against this section even if:

(a) obtaining the gain, causing the loss, causing the risk of loss, or influencing the Commonwealth public official, as the case may be, is impossible; or

(b) the only other party to the agreement is a body corporate; or

(d) subject to subsection (11), all other parties to the agreement have been acquitted of the offence.

(11) A person cannot be found guilty of an offence against this section if:

(a) all other parties to the agreement have been acquitted of such an offence; and

(b) a finding of guilt would be inconsistent with their acquittal.

(12) A person cannot be found guilty of an offence against this section if, before the commission of an overt act pursuant to the agreement, the person:

(a) withdrew from the agreement; and

(b) took all reasonable steps to prevent the doing of the thing.

(13) A court may dismiss a charge of an offence against this section if the court thinks that the interests of justice require the court to do so.

(14) Proceedings for an offence against this section must not be commenced without the consent of the Director of Public Prosecutions. However, before the necessary consent has been given, a person may be:

(a) arrested for an offence against this section; or

(b) charged with an offence against this section; or

135.5 Geographical jurisdiction

Section 15.4 (extended geographical jurisdiction—category D) applies to each offence against this Division.

Part 7.4—False or misleading statements

Division 136—False or misleading statements in applications

136.1 False or misleading statements in applications

Knowledge

(1) A person commits an offence if:

(a) the person makes a statement (whether orally, in a document or in any other way); and

(b) the person does so knowing that the statement:

(i) is false or misleading; or

(ii) omits any matter or thing without which the statement is misleading; and

(i) an application for a licence, permit or authority; or

(ii) an application for registration; or

(iii) an application or claim for a benefit; and

(d) any of the following subparagraphs applies:

(i) the statement is made to a Commonwealth entity;

(ii) the statement is made to a person who is exercising powers or performing functions under, or in connection with, a law of the Commonwealth;

(iii) the statement is made in compliance or purported compliance with a law of the Commonwealth.

Penalty: Imprisonment for 12 months.

(1A) Absolute liability applies to each of the subparagraph (1)(d)(i), (ii) and (iii) elements of the offence.

(2) Subsection (1) does not apply as a result of subparagraph (1)(b)(i) if the statement is not false or misleading in a material particular.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2). See subsection 13.3(3).

(3) Subsection (1) does not apply as a result of subparagraph (1)(b)(ii) if the statement did not omit any matter or thing without which the statement is misleading in a material particular.

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

Recklessness

(4) A person commits an offence if:

(a) the person makes a statement (whether orally, in a document or in any other way); and

(b) the person does so reckless as to whether the statement:

(i) is false or misleading; or

(ii) omits any matter or thing without which the statement is misleading; and

(i) an application for a licence, permit or authority; or

(ii) an application for registration; or

(iii) an application or claim for a benefit; and

(d) any of the following subparagraphs applies:

(i) the statement is made to a Commonwealth entity;

(ii) the statement is made to a person who is exercising powers or performing functions under, or in connection with, a law of the Commonwealth;

(iii) the statement is made in compliance or purported compliance with a law of the Commonwealth.

Penalty: Imprisonment for 6 months.

(4A) Absolute liability applies to each of the subparagraph (4)(d)(i), (ii) and (iii) elements of the offence.

(5) Subsection (4) does not apply as a result of subparagraph (4)(b)(i) if the statement is not false or misleading in a material particular.

Note: A defendant bears an evidential burden in relation to the matter in subsection (5). See subsection 13.3(3).

(6) Subsection (4) does not apply as a result of subparagraph (4)(b)(ii) if the statement did not omit any matter or thing without which the statement is misleading in a material particular.

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

Alternative verdicts

(7) If, in a prosecution for an offence against subsection (1), the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence against subsection (4), the trier of fact may find the defendant not guilty of the offence against subsection (1) but guilty of the offence against subsection (4), so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

Geographical jurisdiction

(8) Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against subsection (1) or (4).

Definitions

(9) In this section:

benefit includes any advantage and is not limited to property.

Division 137—False or misleading information or documents

137.1 False or misleading information

(1) A person commits an offence if:

(a) the person gives information to another person; and

(b) the person does so knowing that the information:

(i) is false or misleading; or

(ii) omits any matter or thing without which the information is misleading; and

(i) the information is given to a Commonwealth entity;

(ii) the information is given to a person who is exercising powers or performing functions under, or in connection with, a law of the Commonwealth;

(iii) the information is given in compliance or purported compliance with a law of the Commonwealth.

Penalty: Imprisonment for 12 months.

(1A) Absolute liability applies to each of the subparagraph (1)(c)(i), (ii) and (iii) elements of the offence.

(2) Subsection (1) does not apply as a result of subparagraph (1)(b)(i) if the information is not false or misleading in a material particular.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2). See subsection 13.3(3).

(3) Subsection (1) does not apply as a result of subparagraph (1)(b)(ii) if the information did not omit any matter or thing without which the information is misleading in a material particular.

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

(4) Subsection (1) does not apply as a result of subparagraph (1)(c)(i) if, before the information was given by a person to the Commonwealth entity, the Commonwealth entity did not take reasonable steps to inform the person of the existence of the offence against subsection (1).

Note: A defendant bears an evidential burden in relation to the matter in subsection (4). See subsection 13.3(3).

(5) Subsection (1) does not apply as a result of subparagraph (1)(c)(ii) if, before the information was given by a person (the first person) to the person mentioned in that subparagraph (the second person), the second person did not take reasonable steps to inform the first person of the existence of the offence against subsection (1).

Note: A defendant bears an evidential burden in relation to the matter in subsection (5). See subsection 13.3(3).

(6) For the purposes of subsections (4) and (5), it is sufficient if the following form of words is used:

“Giving false or misleading information is a serious offence”.

137.1A Aggravated offence for giving false or misleading information

(1) A person commits an offence if:

(a) the person commits an offence against subsection 137.1(1) (the underlying offence); and

(b) the information given in committing the underlying offence was given in relation to an application for, or the maintenance of, an Australian Government security clearance.

Penalty: Imprisonment for 5 years.

(2) There is no fault element for the physical element in paragraph (1)(a) other than the fault elements (however described) for the underlying offence.

(3) To avoid doubt:

(a) a person does not commit an underlying offence for the purposes of paragraph (1)(a) if the person has a defence to the underlying offence; and

(b) a person may be convicted of an offence against subsection (1) even if the person has not been convicted of the underlying offence.

Alternative verdicts

(4) If, on a trial of a person for an offence against subsection (1), the trier of fact:

(a) is not satisfied that the person is guilty of that offence; and

(b) is satisfied beyond reasonable doubt that the person is guilty of the underlying offence;

it may find the person not guilty of the offence against subsection (1) but guilty of the underlying offence.

(5) Subsection (4) only applies if the person has been accorded procedural fairness in relation to the finding of guilt for the underlying offence.

References to section 137.1

(6) A reference in any law to section 137.1 is taken to include a reference to this section.

137.2 False or misleading documents

(1) A person commits an offence if:

(a) the person produces a document to another person; and

(b) the person does so knowing that the document is false or misleading; and

Penalty: Imprisonment for 12 months.

(2) Subsection (1) does not apply if the document is not false or misleading in a material particular.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2). See subsection 13.3(3).

(3) Subsection (1) does not apply to a person who produces a document if the document is accompanied by a written statement signed by the person or, in the case of a body corporate, by a competent officer of the body corporate:

(a) stating that the document is, to the knowledge of the first‑mentioned person, false or misleading in a material particular; and

(b) setting out, or referring to, the material particular in which the document is, to the knowledge of the first‑mentioned person, false or misleading.

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

137.3 Geographical jurisdiction

Section 15.4 (extended geographical jurisdiction—category D) applies to each offence against this Division.

Part 7.5—Unwarranted demands

Division 138—Preliminary

138.1 Unwarranted demand with menaces

(1) For the purposes of this Part, a person (the first person) makes an unwarranted demand with menaces of another person if, and only if:

(a) the first person makes a demand with menaces of the other person; and

(b) the first person does not believe that he or she has reasonable grounds for making the demand; and

(c) the first person does not reasonably believe that the use of the menaces is a proper means of reinforcing the demand.

(2) This Part applies to a demand whether or not it is for property.

(3) This Part applies to a demand with menaces, whether or not the menaces relate to conduct to be engaged in by the person making the demand.

138.2 Menaces

(1) For the purposes of this Part, menaces includes:

(a) a threat (whether express or implied) of conduct that is detrimental or unpleasant to another person; or

(b) a general threat of detrimental or unpleasant conduct that is implied because of the status, office or position of the maker of the threat.

Threat against an individual

(2) For the purposes of this Part, a threat against an individual is taken not to be menaces unless:

(a) both:

(i) the threat would be likely to cause the individual to act unwillingly; and

(ii) the maker of the threat is aware of the vulnerability of the individual to the threat; or

(b) the threat would be likely to cause a person of normal stability and courage to act unwillingly.

Threat against a person who is not an individual

(3) For the purposes of this Part, a threat against a person who is not an individual is taken not to be menaces unless:

(a) the threat would ordinarily cause an unwilling response; or

(b) the threat would be likely to cause an unwilling response because of a particular vulnerability of which the maker of the threat is aware.

Division 139—Unwarranted demands

139.1 Unwarranted demands of a Commonwealth public official

A person commits an offence if:

(a) the person makes an unwarranted demand with menaces of another person; and

(b) the demand or the menaces are directly or indirectly related to:

(i) the other person’s capacity as a Commonwealth public official; or

(ii) any influence the other person has in the other person’s capacity as a Commonwealth public official; and

(i) obtaining a gain; or

(ii) causing a loss; or

(iii) influencing the official in the exercise of the official’s duties as a Commonwealth public official.

Penalty: Imprisonment for 12 years.

139.2 Unwarranted demands made by a Commonwealth public official

A Commonwealth public official commits an offence if:

(a) the official makes an unwarranted demand with menaces of another person; and

(b) the demand or the menaces are directly or indirectly related to:

(i) the official’s capacity as a Commonwealth public official; or

(ii) any influence the official has in the official’s capacity as a Commonwealth public official; and

(i) obtaining a gain; or

(ii) causing a loss; or

(iii) influencing another Commonwealth public official in the exercise of the other official’s duties as a Commonwealth public official.

Penalty: Imprisonment for 12 years.

139.3 Geographical jurisdiction

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

Part 7.6—Bribery and related offences

Division 140—Preliminary

140.1 Definition

In this Part:

benefit includes any advantage and is not limited to property.

140.2 Obtaining

(1) For the purposes of this Part, a person is taken to have obtained a benefit for another person if the first‑mentioned person induces a third person to do something that results in the other person obtaining the benefit.

(2) The definition of obtaining in section 130.1 does not apply to this Part.

Division 141—Bribery

141.1 Bribery of a Commonwealth public official

Giving a bribe

(1) A person commits an offence if:

(a) the person dishonestly:

(i) provides a benefit to another person; or

(ii) causes a benefit to be provided to another person; or

(iii) offers to provide, or promises to provide, a benefit to another person; or

(iv) causes an offer of the provision of a benefit, or a promise of the provision of a benefit, to be made to another person; and

(b) the person does so with the intention of influencing a public official (who may be the other person) in the exercise of the official’s duties as a public official; and

(d) the duties are duties as a Commonwealth public official.

(2) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew:

(a) that the official was a Commonwealth public official; or

(b) that the duties were duties as a Commonwealth public official.

Receiving a bribe

(3) A Commonwealth public official commits an offence if:

(a) the official dishonestly:

(i) asks for a benefit for himself, herself or another person; or

(ii) receives or obtains a benefit for himself, herself or another person; or

(iii) agrees to receive or obtain a benefit for himself, herself or another person; and

(b) the official does so with the intention:

(i) that the exercise of the official’s duties as a Commonwealth public official will be influenced; or

(ii) of inducing, fostering or sustaining a belief that the exercise of the official’s duties as a Commonwealth public official will be influenced.

Geographical jurisdiction

(4) Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against subsection (1) or (3).

Penalty for individual

(5) An offence against subsection (1) or (3) committed by an individual is punishable on conviction by imprisonment for not more than 10 years, a fine not more than 10,000 penalty units, or both.

Penalty for body corporate

(6) An offence against subsection (1) or (3) committed by a body corporate is punishable on conviction by a fine not more than the greatest of the following:

(a) 100,000 penalty units;

(7) For the purposes of this section, the annual turnover of a body corporate, during the turnover period, is the sum of the values of all the supplies that the body corporate, and any body corporate related to the body corporate, have made, or are likely to make, during that period, other than the following supplies:

(a) supplies made from any of those bodies corporate to any other of those bodies corporate;

(b) supplies that are input taxed;

(c) supplies that are not for consideration (and are not taxable supplies under section 72‑5 of the A New Tax System (Goods and Services Tax) Act 1999);

(d) supplies that are not made in connection with an enterprise that the body corporate carries on.

(8) Expressions used in subsection (7) that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning in that subsection as they have in that Act.

(9) The question whether 2 bodies corporate are related to each other is to be determined for the purposes of this section in the same way as for the purposes of the Corporations Act 2001.

Division 142—Offences relating to bribery

142.1 Corrupting benefits given to, or received by, a Commonwealth public official

Giving a corrupting benefit

(1) A person commits an offence if:

(a) the person dishonestly:

(i) provides a benefit to another person; or

(ii) causes a benefit to be provided to another person; or

(iii) offers to provide, or promises to provide, a benefit to another person; or

(iv) causes an offer of the provision of a benefit, or a promise of the provision of a benefit, to be made to another person; and

(b) the receipt, or expectation of the receipt, of the benefit would tend to influence a public official (who may be the other person) in the exercise of the official’s duties as a public official; and

(d) the duties are duties as a Commonwealth public official.

Penalty: Imprisonment for 5 years.

(2) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew:

(a) that the official was a Commonwealth public official; or

(b) that the duties were duties as a Commonwealth public official.

Receiving a corrupting benefit

(3) A Commonwealth public official commits an offence if:

(a) the official dishonestly:

(i) asks for a benefit for himself, herself or another person; or

(ii) receives or obtains a benefit for himself, herself or another person; or

(iii) agrees to receive or obtain a benefit for himself, herself or another person; and

(b) the receipt, or expectation of the receipt, of the benefit would tend to influence a Commonwealth public official (who may be the first‑mentioned official) in the exercise of the official’s duties as a Commonwealth public official.

Penalty: Imprisonment for 5 years.

Benefit in the nature of a reward

(4) For the purposes of subsections (1) and (3), it is immaterial whether the benefit is in the nature of a reward.

142.2 Abuse of public office

(1) A Commonwealth public official commits an offence if:

(a) the official:

(i) exercises any influence that the official has in the official’s capacity as a Commonwealth public official; or

(ii) engages in any conduct in the exercise of the official’s duties as a Commonwealth public official; or

(iii) uses any information that the official has obtained in the official’s capacity as a Commonwealth public official; and

(b) the official does so with the intention of:

(i) dishonestly obtaining a benefit for himself or herself or for another person; or

(ii) dishonestly causing a detriment to another person.

Penalty: Imprisonment for 5 years.

(2) A person commits an offence if:

(a) the person has ceased to be a Commonwealth public official in a particular capacity; and

(b) the person uses any information that the person obtained in that capacity as a Commonwealth public official; and

(i) dishonestly obtaining a benefit for himself or herself or for another person; or

(ii) dishonestly causing a detriment to another person.

Penalty: Imprisonment for 5 years.

(3) Paragraph (2)(a) applies to a cessation by a person:

(a) whether or not the person continues to be a Commonwealth public official in some other capacity; and

(b) whether the cessation occurred before, at or after the commencement of this section.

142.3 Geographical jurisdiction

Section 15.4 (extended geographical jurisdiction—category D) applies to each offence against this Division.

Part 7.7—Forgery and related offences

Division 143—Preliminary

143.1 Definitions

(1) In this Part:

document includes:

(a) any paper or other material on which there is writing; or

(b) any paper or other material on which there are marks, figures, symbols or perforations that are:

(i) capable of being given a meaning by persons qualified to interpret them; or

(ii) capable of being responded to by a computer, a machine or an electronic device; or

(c) any article or material (for example, a disk or a tape) from which information is capable of being reproduced with or without the aid of any other article or device.

false Commonwealth document has the meaning given by section 143.3.

false document has the meaning given by section 143.2.

information means information, whether in the form of data, text, sounds, images or in any other form.

(2) The following are examples of things covered by the definition of document in subsection (1):

(a) a credit card;

(b) a debit card;

143.2 False documents

(1) For the purposes of this Part, a document is a false document if, and only if:

(a) the document, or any part of the document:

(i) purports to have been made in the form in which it is made by a person who did not make it in that form; or

(ii) purports to have been made in the form in which it is made on the authority of a person who did not authorise its making in that form; or

(b) the document, or any part of the document:

(i) purports to have been made in the terms in which it is made by a person who did not make it in those terms; or

(ii) purports to have been made in the terms in which it is made on the authority of a person who did not authorise its making in those terms; or

(i) purports to have been altered in any respect by a person who did not alter it in that respect; or

(ii) purports to have been altered in any respect on the authority of a person who did not authorise its alteration in that respect; or

(d) the document, or any part of the document:

(i) purports to have been made or altered by a person who did not exist; or

(ii) purports to have been made or altered on the authority of a person who did not exist; or

(2) For the purposes of this Part, a person is taken to make a false document if the person alters a document so as to make it a false document (whether or not it was already a false document before the alteration).

(3) This section has effect as if a document that purports to be a true copy of another document were the original document.

143.3 False Commonwealth documents

(1) For the purposes of this Part, a document is a false Commonwealth document if, and only if:

(a) the document, or any part of the document:

(i) purports to have been made in the form in which it is made by a Commonwealth entity, or a Commonwealth public official, who did not make it in that form; or

(ii) purports to have been made in the form in which it is made on the authority of a Commonwealth entity, or a Commonwealth public official, who did not authorise its making in that form; or

(b) the document, or any part of the document:

(i) purports to have been made in the terms in which it is made by a Commonwealth entity, or a Commonwealth public official, who did not make it in those terms; or

(ii) purports to have been made in the terms in which it is made on the authority of a Commonwealth entity, or a Commonwealth public official, who did not authorise its making in those terms; or

(i) purports to have been altered in any respect by a Commonwealth entity, or a Commonwealth public official, who did not alter it in that respect; or

(ii) purports to have been altered in any respect on the authority of a Commonwealth entity, or a Commonwealth public official, who did not authorise its alteration in that respect; or

(d) the document, or any part of the document:

(i) purports to have been made or altered by a Commonwealth entity, or a Commonwealth public official, who did not exist; or

(ii) purports to have been made or altered on the authority of a Commonwealth entity, or a Commonwealth public official, who did not exist; or

(e) the document, or any part of the document, purports to have been made or altered by a Commonwealth entity, or a Commonwealth public official, on a date on which, at a time at which, at a place at which, or otherwise in circumstances in which, it was not made or altered.

(2) For the purposes of this Part, a person is taken to make a false Commonwealth document if the person alters a document so as to make it a false Commonwealth document (whether or not it was already a false Commonwealth document before the alteration).

(3) This section has effect as if a document that purports to be a true copy of another document were the original document.

(4) A reference in this section to a Commonwealth public official is a reference to a person in the person’s capacity as a Commonwealth public official.

143.4 Inducing acceptance of false documents

If it is necessary for the purposes of this Part to prove an intent to induce a person in the person’s capacity as a public official to accept a false document as genuine, it is not necessary to prove that the defendant intended so to induce a particular person in the person’s capacity as a public official.

Division 144—Forgery

144.1 Forgery

(1) A person commits an offence if:

(a) the person makes a false document with the intention that the person or another will use it:

(i) to dishonestly induce a third person in the third person’s capacity as a public official to accept it as genuine; and

(ii) if it is so accepted, to dishonestly obtain a gain, dishonestly cause a loss, or dishonestly influence the exercise of a public duty or function; and

(b) the capacity is a capacity as a Commonwealth public official.

Penalty: Imprisonment for 10 years.

(2) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the capacity was a capacity as a Commonwealth public official.

(3) A person commits an offence if:

(a) the person makes a false document with the intention that the person or another will use it:

(i) to dishonestly cause a computer, a machine or an electronic device to respond to the document as if the document were genuine; and

(ii) if it is so responded to, to dishonestly obtain a gain, dishonestly cause a loss, or dishonestly influence the exercise of a public duty or function; and

(b) the response is in connection with the operations of a Commonwealth entity.

Penalty: Imprisonment for 10 years.

(4) In a prosecution for an offence against subsection (3), it is not necessary to prove that the defendant knew that the response was in connection with the operations of a Commonwealth entity.

(5) A person commits an offence if:

(a) the person makes a false document with the intention that the person or another will use it:

(i) to dishonestly induce a third person to accept it as genuine; and

(ii) if it is so accepted, to dishonestly obtain a gain, dishonestly cause a loss, or dishonestly influence the exercise of a public duty or function; and

(b) the false document is a false Commonwealth document.

Penalty: Imprisonment for 10 years.

(6) In a prosecution for an offence against subsection (5), it is not necessary to prove that the defendant knew that the false document was a false Commonwealth document.

(7) A person commits an offence if:

(a) the person makes a false document with the intention that the person or another will use it:

(i) to dishonestly cause a computer, a machine or an electronic device to respond to the document as if the document were genuine; and

(ii) if it is so responded to, to dishonestly obtain a gain, dishonestly cause a loss, or dishonestly influence the exercise of a public duty or function; and

(b) the false document is a false Commonwealth document.

Penalty: Imprisonment for 10 years.

(8) In a prosecution for an offence against subsection (7), it is not necessary to prove that the defendant knew that the false document was a false Commonwealth document.

(9) Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against subsection (1), (3), (5) or (7).

Division 145—Offences relating to forgery

145.1 Using forged document

(1) A person commits an offence if:

(a) the person knows that a document is a false document and uses it with the intention of:

(i) dishonestly inducing another person in the other person’s capacity as a public official to accept it as genuine; and

(ii) if it is so accepted, dishonestly obtaining a gain, dishonestly causing a loss, or dishonestly influencing the exercise of a public duty or function; and

(b) the capacity is a capacity as a Commonwealth public official.

Penalty: Imprisonment for 10 years.

(2) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the capacity was a capacity as a Commonwealth public official.

(3) A person commits an offence if:

(a) the person knows that a document is a false document and uses it with the intention of:

(i) dishonestly causing a computer, a machine or an electronic device to respond to the document as if the document were genuine; and

(ii) if it is so responded to, dishonestly obtaining a gain, dishonestly causing a loss, or dishonestly influencing the exercise of a public duty or function; and

(b) the response is in connection with the operations of a Commonwealth entity.

Penalty: Imprisonment for 10 years.

(4) In a prosecution for an offence against subsection (3), it is not necessary to prove that the defendant knew that the response was in connection with the operations of a Commonwealth entity.

(5) A person commits an offence if:

(a) the person knows that a document is a false document and uses it with the intention of:

(i) dishonestly inducing another person to accept it as genuine; and

(ii) if it is so accepted, dishonestly obtaining a gain, dishonestly causing a loss, or dishonestly influencing the exercise of a public duty or function; and

(b) the false document is a false Commonwealth document.

Penalty: Imprisonment for 10 years.

(6) In a prosecution for an offence against subsection (5), it is not necessary to prove that the defendant knew that the false document was a false Commonwealth document.

(7) A person commits an offence if:

(a) the person knows that a document is a false document and uses it with the intention of:

(i) dishonestly causing a computer, a machine or an electronic device to respond to the document as if the document were genuine; and

(ii) if it is so responded to, dishonestly obtaining a gain, dishonestly causing a loss, or dishonestly influencing the exercise of a public duty or function; and

(b) the false document is a false Commonwealth document.

Penalty: Imprisonment for 10 years.

(8) In a prosecution for an offence against subsection (7), it is not necessary to prove that the defendant knew that the false document was a false Commonwealth document.

145.2 Possession of forged document

(1) A person commits an offence if:

(a) the person knows that a document is a false document and has it in his or her possession with the intention that the person or another will use it:

(i) to dishonestly induce a third person in the third person’s capacity as a public official to accept it as genuine; and

(ii) if it is so accepted, to dishonestly obtain a gain, dishonestly cause a loss, or dishonestly influence the exercise of a public duty or function; and

(b) the capacity is a capacity as a Commonwealth public official.

Penalty: Imprisonment for 10 years.

(2) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the capacity was a capacity as a Commonwealth public official.

(3) A person commits an offence if:

(a) the person knows that a document is a false document and has it in his or her possession with the intention that the person or another will use it:

(i) to dishonestly cause a computer, a machine or an electronic device to respond to the document as if the document were genuine; and

(ii) if it is so responded to, to dishonestly obtain a gain, dishonestly cause a loss, or dishonestly influence the exercise of a public duty or function; and

(b) the response is in connection with the operations of a Commonwealth entity.

Penalty: Imprisonment for 10 years.

(4) In a prosecution for an offence against subsection (3), it is not necessary to prove that the defendant knew that the response was in connection with the operations of a Commonwealth entity.

(5) A person commits an offence if:

(a) the person knows that a document is a false document and has it in his or her possession with the intention that the person or another will use it:

(i) to dishonestly induce a third person to accept it as genuine; and

(ii) if it is so accepted, to dishonestly obtain a gain, dishonestly cause a loss, or dishonestly influence the exercise of a public duty or function; and

(b) the false document is a false Commonwealth document.

Penalty: Imprisonment for 10 years.

(6) In a prosecution for an offence against subsection (5), it is not necessary to prove that the defendant knew that the false document was a false Commonwealth document.

(7) A person commits an offence if:

(a) the person knows that a document is a false document and has it in his or her possession with the intention that the person or another will use it:

(i) to dishonestly cause a computer, a machine or an electronic device to respond to the document as if the document were genuine; and

(ii) if it is so responded to, to dishonestly obtain a gain, dishonestly cause a loss, or dishonestly influence the exercise of a public duty or function; and

(b) the false document is a false Commonwealth document.

Penalty: Imprisonment for 10 years.

(8) In a prosecution for an offence against subsection (7), it is not necessary to prove that the defendant knew that the false document was a false Commonwealth document.

145.3 Possession, making or adaptation of devices etc. for making forgeries

(1) A person commits an offence if:

(a) the person knows that a device, material or other thing is designed or adapted for the making of a false document (whether or not the device, material or thing is designed or adapted for another purpose); and

(b) the person has the device, material or thing in his or her possession with the intention that the person or another person will use it to commit an offence against section 144.1.

Penalty: Imprisonment for 10 years.

(2) A person commits an offence if:

(a) the person makes or adapts a device, material or other thing; and

(b) the person knows that the device, material or other thing is designed or adapted for the making of a false document (whether or not the device, material or thing is designed or adapted for another purpose); and

(c) the person makes or adapts the device, material or thing with the intention that the person or another person will use it to commit an offence against section 144.1.

Penalty: Imprisonment for 10 years.

(3) A person commits an offence if:

(a) the person knows that a device, material or other thing is designed or adapted for the making of a false Commonwealth document (whether or not the device, material or thing is designed or adapted for another purpose); and

(b) the person has the device, material or thing in his or her possession; and

Penalty: Imprisonment for 2 years.

Note: A defendant bears an evidential burden in relation to the matter in paragraph (3)(c). See subsection 13.3(3).

(4) A person commits an offence if:

(a) the person makes or adapts a device, material or other thing; and

(b) the person knows that the device, material or other thing is designed or adapted for the making of a false Commonwealth document (whether or not the device, material or thing is designed or adapted for another purpose).

Penalty: Imprisonment for 2 years.

Note: See also section 10.5 (lawful authority).

145.4 Falsification of documents etc.

(1) A person commits an offence if:

(a) the person dishonestly damages, destroys, alters, conceals or falsifies a document; and

(b) the document is:

(i) kept, retained or issued for the purposes of a law of the Commonwealth; or

(ii) made by a Commonwealth entity or a person in the capacity of a Commonwealth public official; or

(iii) held by a Commonwealth entity or a person in the capacity of a Commonwealth public official; and

(i) obtaining a gain; or

(ii) causing a loss.

Penalty: Imprisonment for 7 years.

(1A) Absolute liability applies to the paragraph (1)(b) element of the offence.

(2) A person commits an offence if:

(a) the person dishonestly damages, destroys, alters, conceals or falsifies a document; and

(b) the person does so with the intention of:

(i) obtaining a gain from another person; or

(ii) causing a loss to another person; and

Penalty: Imprisonment for 7 years.

(3) In a prosecution for an offence against subsection (2), it is not necessary to prove that the defendant knew that the other person was a Commonwealth entity.

145.5 Giving information derived from false or misleading documents

(1) A person commits an offence if:

(a) the person dishonestly gives information to another person; and

(b) the information was derived, directly or indirectly, from a document that, to the knowledge of the first‑mentioned person, is false or misleading in a material particular; and

(i) kept, retained or issued for the purposes of a law of the Commonwealth; or

(ii) made by a Commonwealth entity or a person in the capacity of a Commonwealth public official; or

(iii) held by a Commonwealth entity or a person in the capacity of a Commonwealth public official; and

(d) the first‑mentioned person does so with the intention of:

(i) obtaining a gain; or

(ii) causing a loss.

Penalty: Imprisonment for 7 years.

(1A) Absolute liability applies to the paragraph (1)(c) element of the offence.

(2) A person commits an offence if:

(a) the person dishonestly gives information to another person; and

(b) the information was derived, directly or indirectly, from a document that, to the knowledge of the first‑mentioned person, is false or misleading in a material particular; and

(i) obtaining a gain from another person; or

(ii) causing a loss to another person; and

(d) the other person is a Commonwealth entity.

Penalty: Imprisonment for 7 years.

(3) In a prosecution for an offence against subsection (2), it is not necessary to prove that the defendant knew that the other person was a Commonwealth entity.

145.6 Geographical jurisdiction

Section 15.4 (extended geographical jurisdiction—category D) applies to each offence against this Division.

Part 7.8—Causing harm to or obstructing Commonwealth public officials and impersonating Commonwealth public officials or bodies

Division 146—Preliminary

146.1 Definitions

In this Part:

Commonwealth law enforcement officer means a person who is:

(a) a member or special member of the Australian Federal Police; or

(aa) the Integrity Commissioner (within the meaning of the Law Enforcement Integrity Commissioner Act 2006); or

(ab) a staff member of ACLEI (within the meaning of the Law Enforcement Integrity Commissioner Act 2006); or

(b) a member of the Board of the Australian Crime Commission established under section 7B of the Australian Crime Commission Act 2002; or

(ba) an examiner (within the meaning of that Act); or

(d) the Australian Border Force Commissioner (within the meaning of the Australian Border Force Act 2015); or

(e) a person who is an APS employee in the Department administered by the Minister administering the Australian Border Force Act 2015 and who is in the Australian Border Force (within the meaning of that Act).

fear includes apprehension.

harm means:

(a) physical harm (whether temporary or permanent); or

(b) harm to a person’s mental health (whether temporary or permanent);

but does not include being subjected to a force or impact that is within the limits of what is reasonably acceptable as incidental to:

(d) life in the community.

harm to a person’s mental health includes significant psychological harm to the person, but does not include a reference to ordinary emotional reactions (for example, distress, grief, fear or anger).

physical harm includes:

(a) unconsciousness; and

(b) pain; and

(d) infection with a disease; and

(e) any physical contact with a person that the person might reasonably object to in the circumstances (whether or not the person was aware of it at the time).

serious harm means any harm (including the cumulative effect of more than one harm) that:

(a) endangers, or is likely to endanger, a person’s life; or

(b) is, or is likely to be, significant and longstanding.

146.2 Causing harm

For the purposes of this Part, a person’s conduct is taken to cause harm if it substantially contributes to harm.

Division 147—Causing harm to Commonwealth public officials

147.1 Causing harm to a Commonwealth public official etc.

Causing harm to a Commonwealth public official

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

(a) the first person engages in conduct; and

(b) the first person’s conduct causes harm to a public official; and

(d) the harm is caused without the consent of the official; and

(e) the first person engages in his or her conduct because of:

(i) the official’s status as a public official; or

(ii) any conduct engaged in by the official in the official’s capacity as a public official; and

(ea) the public official is a Commonwealth public official; and

(eb) if subparagraph (e)(i) applies—the status mentioned in that subparagraph was status as a Commonwealth public official; and

(ec) if subparagraph (e)(ii) applies—the conduct mentioned in that subparagraph was engaged in by the official in the official’s capacity as a Commonwealth public official.

Penalty:

(f) if the official is a Commonwealth judicial officer or a Commonwealth law enforcement officer—imprisonment for 13 years; or

(g) in any other case—imprisonment for 10 years.

(1A) Absolute liability applies to the paragraphs (1)(ea), (eb) and (ec) elements of the offence.

(1B) If:

(a) a person is charged with an offence against subsection (1); and

(b) the public official concerned is a Commonwealth judicial officer or a Commonwealth law enforcement officer;

a court of summary jurisdiction may, with the consent of the defendant and the prosecutor and if the court is satisfied that it is proper to do so, determine the charge summarily.

(1C) If a court of summary jurisdiction convicts a person of an offence against subsection (1) in accordance with subsection (1B), the penalty that the court may impose is a sentence of imprisonment not exceeding 2 years or a fine not exceeding 120 penalty units, or both.

Causing harm to a former Governor‑General, former Minister or former Parliamentary Secretary

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

(a) the first person engages in conduct; and

(b) the first person’s conduct causes harm to another person; and

(d) the first person intends that his or her conduct cause harm to the other person; and

(e) the harm is caused without the consent of the other person; and

(f) the first person engages in his or her conduct because of:

(i) the other person’s status as a former Governor‑General, former Minister or former Parliamentary Secretary; or

(ii) any conduct engaged in by the other person in the other person’s former capacity as a Governor‑General, Minister or Parliamentary Secretary.

Penalty: Imprisonment for 10 years.

147.2 Threatening to cause harm to a Commonwealth public official etc.

Threatening to cause serious harm

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

(a) the first person makes to another person (the second person) a threat to cause serious harm to the second person or to a third person; and

(b) the second person or the third person is a public official; and

(i) intends the second person to fear that the threat will be carried out; or

(ii) is reckless as to causing the second person to fear that the threat will be carried out; and

(d) the first person makes the threat because of:

(i) the official’s status as a public official; or

(ii) any conduct engaged in by the official in the official’s capacity as a public official; and

(da) the official is a Commonwealth public official; and

(db) if subparagraph (d)(i) applies—the status mentioned in that subparagraph was status as a Commonwealth public official; and

(dc) if subparagraph (d)(ii) applies—the conduct mentioned in that subparagraph was engaged in by the official in the official’s capacity as a Commonwealth public official.

Penalty:

(e) if the official is a Commonwealth judicial officer or a Commonwealth law enforcement officer—imprisonment for 9 years; or

(f) in any other case—imprisonment for 7 years.

(1A) Absolute liability applies to the paragraphs (1)(da), (db) and (dc) elements of the offence.

Threatening to cause harm

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

(a) the first person makes to another person (the second person) a threat to cause harm to the second person or to a third person; and

(b) the second person or the third person is a public official; and

(i) intends the second person to fear that the threat will be carried out; or

(ii) is reckless as to causing the second person to fear that the threat will be carried out; and

(d) the first person makes the threat because of:

(i) the official’s status as a public official; or

(ii) any conduct engaged in by the official in the official’s capacity as a public official; and

(e) the official is a Commonwealth public official; and

(f) if subparagraph (d)(i) applies—the status mentioned in that subparagraph was status as a Commonwealth public official; and

(g) if subparagraph (d)(ii) applies—the conduct mentioned in that subparagraph was engaged in by the official in the official’s capacity as a Commonwealth public official.

Penalty: Imprisonment for 2 years

(2A) Absolute liability applies to the paragraphs (2)(e), (f) and (g) elements of the offence.

Threatening to cause serious harm to a former Governor‑General, former Minister or former Parliamentary Secretary

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

(a) the first person makes to another person (the second person) a threat to cause serious harm to the second person or to a third person; and

(b) the second person or the third person is a former Governor‑General, a former Minister or a former Parliamentary Secretary; and

(i) intends the second person to fear that the threat will be carried out; or

(ii) is reckless as to causing the second person to fear that the threat will be carried out; and

(d) the first person makes the threat because of:

(i) the second or third person’s status as a former Governor‑General, a former Minister or a former Parliamentary Secretary; or

(ii) any conduct engaged in by the second or third person in the second or third person’s former capacity as a Governor‑General, a Minister or a Parliamentary Secretary.

Penalty: Imprisonment for 7 years.

Threats

(4) For the purposes of this section, a threat may be:

(a) express or implied; or

(b) conditional or unconditional.

Unnecessary to prove that a threatened person actually feared harm

(5) In a prosecution for an offence against this section, it is not necessary to prove that the person threatened actually feared that the threat would be carried out.

147.3 Geographical jurisdiction

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

Division 148—Impersonation of Commonwealth public officials

148.1 Impersonation of an official by a non‑official

(1) A person other than a Commonwealth public official commits an offence if:

(a) on a particular occasion, the person impersonates another person in that other person’s capacity as a Commonwealth public official; and

(b) the first‑mentioned person does so knowing it to be in circumstances when the official is likely to be on duty; and

Penalty: Imprisonment for 2 years.

(2) A person other than a Commonwealth public official commits an offence if:

(a) the person falsely represents himself or herself to be a Commonwealth public official in a particular capacity; and

(b) the person does so in the course of doing an act, or attending a place, in the assumed capacity of such an official.

Penalty: Imprisonment for 2 years.

(2A) For the purposes of subsection (2), it is immaterial whether that capacity as a Commonwealth public official exists or is fictitious.

(3) A person other than a Commonwealth public official commits an offence if:

(a) the person:

(i) impersonates another person in that other person’s capacity as a Commonwealth public official; or

(ii) falsely represents himself or herself to be a Commonwealth public official in a particular capacity; and

(b) the first‑mentioned person does so with the intention of:

(i) obtaining a gain; or

(ii) causing a loss; or

(iii) influencing the exercise of a public duty or function; and

Penalty: Imprisonment for 5 years.

(3A) For the purposes of subparagraph (3)(a)(ii), it is immaterial whether that capacity as a Commonwealth public official exists or is fictitious.

(4) The definition of duty in section 130.1 does not apply to this section.

(5) To avoid doubt, for the purposes of this section:

(a) impersonation does not include conduct engaged in solely for satirical purposes; and

(b) false representation does not include conduct engaged in solely for satirical purposes.

148.2 Impersonation of an official by another official

(1) A Commonwealth public official commits an offence if:

(a) on a particular occasion, the official impersonates another person in that other person’s capacity as a Commonwealth public official; and

(b) the first‑mentioned official does so knowing it to be in circumstances when the other official is likely to be on duty; and

Penalty: Imprisonment for 2 years.

(2) A Commonwealth public official commits an offence if:

(a) the official falsely represents himself or herself to be a Commonwealth public official in a particular capacity; and

(b) the official does so in the course of doing an act, or attending a place, in the assumed capacity of such an official.

Penalty: Imprisonment for 2 years.

(2A) For the purposes of subsection (2), it is immaterial whether that capacity as a Commonwealth public official exists or is fictitious.

(3) A Commonwealth public official commits an offence if:

(a) the official:

(i) impersonates another person in the other person’s capacity as a Commonwealth public official; or

(ii) falsely represents himself or herself to be a Commonwealth public official in a particular capacity; and

(b) the first‑mentioned official does so with the intention of:

(i) obtaining a gain; or

(ii) causing a loss; or

(iii) influencing the exercise of a public duty or function; and

Penalty: Imprisonment for 5 years.

(3A) For the purposes of subparagraph (3)(a)(ii), it is immaterial whether that capacity as a Commonwealth public official exists or is fictitious.

(4) The definition of duty in section 130.1 does not apply to this section.

(5) To avoid doubt, for the purposes of this section:

(a) impersonation does not include conduct engaged in solely for satirical purposes; and

(b) false representation does not include conduct engaged in solely for satirical purposes.

148.3 Geographical jurisdiction

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

Division 149—Obstruction of Commonwealth public officials

149.1 Obstruction of Commonwealth public officials

(1) A person commits an offence if:

(a) the person knows that another person is a public official; and

(b) the first‑mentioned person obstructs, hinders, intimidates or resists the official in the performance of the official’s functions; and

(d) the functions are functions as a Commonwealth public official.

Penalty: Imprisonment for 2 years.

(2) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew:

(a) that the official was a Commonwealth public official; or

(b) that the functions were functions as a Commonwealth public official.

(3) For the purposes of this section, it is immaterial whether the defendant was aware that the public official was performing the official’s functions.

(4) Section 15.3 (extended geographical jurisdiction—category C) applies to an offence against subsection (1).

(5) The definition of duty in section 130.1 does not apply to this section.

(6) In this section:

function:

(a) in relation to a person who is a public official—means any authority, duty, function or power that is conferred on the person as a public official; or

(b) in relation to a person who is a Commonwealth public official—means any authority, duty, function or power that is conferred on the person as a Commonwealth public official.

Division 150—False representations in relation to a Commonwealth body

Subdivision A—Offences

150.1 False representations in relation to a Commonwealth body

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct results in, or is reasonably capable of resulting in, a representation that the person:

(i) is a Commonwealth body; or

(ii) is acting on behalf of, or with the authority of, a Commonwealth body; and

(i) the Commonwealth body; or

(ii) acting on behalf of, or with the authority of, the Commonwealth body.

Penalty: Imprisonment for 2 years.

(2) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct results in, or is reasonably capable of resulting in, a representation that the person:

(i) is a Commonwealth body; or

(ii) is acting on behalf of, or with the authority of, a Commonwealth body; and

(i) obtaining a gain; or

(ii) causing a loss; or

(iii) influencing the exercise of a public duty or function; and

(d) the person is not:

(i) the Commonwealth body; or

(ii) acting on behalf of, or with the authority of, the Commonwealth body.

Penalty: Imprisonment for 5 years.

(3) For the purposes of this section, it is immaterial whether the Commonwealth body exists or is fictitious.

(4) If the Commonwealth body is fictitious, subsection (1) or (2) does not apply unless a person would reasonably believe that the Commonwealth body exists.

(5) Without limiting section 15A of the Acts Interpretation Act 1901, this section does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication.

(6) Section 15.3 (extended geographical jurisdiction—category C) applies to each offence against this section.

(7) In this section:

Commonwealth body means:

(a) a Commonwealth entity; or

(b) a Commonwealth company (within the meaning of the Public Governance, Performance and Accountability Act 2013); or

(c) a service, benefit, program or facility for some or all members of the public that is provided by or on behalf of the Commonwealth, whether under a law of the Commonwealth or otherwise.

conduct does not include conduct engaged in solely for genuine satirical, academic or artistic purposes.

Subdivision B—Injunctions

150.5 Injunctions

Enforceable provisions

(1) Section 150.1 is enforceable under Part 7 of the Regulatory Powers Act.

Note: Part 7 of the Regulatory Powers Act creates a framework for using injunctions to enforce provisions.

Authorised person

(2) For the purposes of Part 7 of the Regulatory Powers Act, any person whose interests have been, or would be, affected by conduct mentioned in subsection 150.1(1) or (2) is an authorised person in relation to section 150.1.

Relevant court

(3) For the purposes of Part 7 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to section 150.1:

(a) the Federal Court of Australia;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(d) the District Court (or equivalent) of a State or Territory.

Extension to external Territories etc.

(4) Part 7 of the Regulatory Powers Act, as that Part applies in relation to section 150.1, extends to:

(a) every external Territory; and

(b) conduct outside Australia; and

(d) conduct that is intended to result in a gain, a loss or influence outside Australia.

Part 7.20—Miscellaneous

Division 261—Miscellaneous

261.1 Saving of other laws

This Chapter is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory.

261.2 Contempt of court

This Chapter does not limit the power of a court to punish a contempt of the court.

261.3 Ancillary offences

To avoid doubt, subsection 11.6(2) does not apply to the following provisions:

(a) subsection 131.1(2) (theft);

(b) subsection 132.1(2) (receiving);

(d) subsection 132.3(2) (aggravated robbery);

(e) subsections 132.4(2), (5) and (9) (burglary);

(f) subsection 132.5(2) (aggravated burglary);

(g) the definitions of aggravated burglary, aggravated robbery, burglary, receiving, robbery and theft in the Dictionary.