Schedule—The Criminal Code
Section 3
Chapter 1—Codification
Division 1
1.1 Codification
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
(c) a circumstance in which conduct, or a result of conduct, occurs.
(2) In this Code:
conduct means an act, an omission to perform an act or a state of affairs.
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;
(c) an act performed during impaired consciousness depriving the person of the will to act.
(4) An omission to perform an act is only voluntary if the act omitted is one which the person is capable of performing.
(5) If the conduct constituting an offence consists only of a state of affairs, the state of affairs is only voluntary if it is one over which the person is capable of exercising control.
(6) Evidence of self‑induced intoxication cannot be considered in determining whether conduct is voluntary.
(7) Intoxication is self‑induced unless it came about:
(a) involuntarily; or
(b) as a result of fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force.
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
(c) the person was unable to control the conduct.
(2) The question whether the person was suffering from a mental impairment is one of fact.
(3) A person is presumed not to have been suffering from such a mental impairment. The presumption is only displaced if it is proved on the balance of probabilities (by the prosecution or the defence) that the person was suffering from such a mental impairment.
(4) The prosecution can only rely on this section if the court gives leave.
(5) The tribunal of fact must return a special verdict that a person is not guilty of an offence because of mental impairment if and only if it is satisfied that the person is not criminally responsible for the offence only because of a mental impairment.
(6) A person cannot rely on a mental impairment to deny voluntariness or the existence of a fault element but may rely on this section to deny criminal responsibility.
(7) If the tribunal of fact is satisfied that a person carried out conduct as a result of a delusion caused by a mental impairment, the delusion cannot otherwise be relied on as a defence.
(8) In this Code:
mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.
(9) The reference in subsection (8) to mental illness is a reference to an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary external stimuli. However, such a condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.
Division 8—Intoxication
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
(c) at the time of the conduct, the subordinate legislation:
(i) has not been made available to the public (by means of the Register under the Legislation Act 2003 or otherwise); and
(ii) has not otherwise been made available to persons likely to be affected by it in such a way that the person would have become aware of its contents by exercising due diligence.
(3) In this section:
available includes available by sale.
subordinate legislation means an instrument of a legislative character made directly or indirectly under an Act, or in force directly or indirectly under an Act.
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
(c) the conduct is a reasonable response to the threat.
(3) This section does not apply if the threat is made by or on behalf of a person with whom the person under duress is voluntarily associating for the purpose of carrying out conduct of the kind actually carried out.
10.3 Sudden or extraordinary emergency
(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency.
(2) This section applies if and only if the person carrying out the conduct reasonably believes that:
(a) circumstances of sudden or extraordinary emergency exist; and
(b) committing the offence is the only reasonable way to deal with the emergency; and
(c) the conduct is a reasonable response to the emergency.
10.4 Self‑defence
(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in self‑defence.
(2) A person carries out conduct in self‑defence if and only if he or she believes the conduct is necessary:
(a) to defend himself or herself or another person; or
(b) to prevent or terminate the unlawful imprisonment of himself or herself or another person; or
(c) to protect property from unlawful appropriation, destruction, damage or interference; or
(d) to prevent criminal trespass to any land or premises; or
(e) to remove from any land or premises a person who is committing criminal trespass;
and the conduct is a reasonable response in the circumstances as he or she perceives them.
(3) This section does not apply if the person uses force that involves the intentional infliction of death or really serious injury:
(a) to protect property; or
(b) to prevent criminal trespass; or
(c) to remove a person who is committing criminal trespass.
(4) This section does not apply if:
(a) the person is responding to lawful conduct; and
(b) he or she knew that the conduct was lawful.
However, conduct is not lawful merely because the person carrying it out is not criminally responsible for it.
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
(c) the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.
(2A) Subsection (2) has effect subject to subsection (7A).
(3) A person may be found guilty of conspiracy to commit an offence even if:
(a) committing the offence is impossible; or
(b) the only other party to the agreement is a body corporate; or
(c) each other party to the agreement is at least one of the following:
(i) a person who is not criminally responsible;
(ii) a person for whose benefit or protection the offence exists; or
(d) subject to paragraph (4)(a), all other parties to the agreement have been acquitted of the conspiracy.
(4) A person cannot be found guilty of conspiracy to commit an offence if:
(a) all other parties to the agreement have been acquitted of the conspiracy and a finding of guilt would be inconsistent with their acquittal; or
(b) he or she is a person for whose benefit or protection the offence exists.
(5) A person cannot be found guilty of conspiracy to commit an offence if, before the commission of an overt act pursuant to the agreement, the person:
(a) withdrew from the agreement; and
(b) took all reasonable steps to prevent the commission of the offence.
(6) A court may dismiss a charge of conspiracy if it thinks that the interests of justice require it to do so.
(7) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of conspiracy to commit that offence.
(7A) Any special liability provisions that apply to an offence apply also to the offence of conspiracy to commit that offence.
(8) Proceedings for an offence of conspiracy must not be commenced without the consent of the Director of Public Prosecutions. However, a person may be arrested for, charged with, or remanded in custody or on bail in connection with, an offence of conspiracy before the necessary consent has been given.
11.6 References in Acts to offences
(1) A reference in a law of the Commonwealth to an offence against a law of the Commonwealth (including this Code) includes a reference to an offence against section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) of this Code that relates to such an offence.
(2) A reference in a law of the Commonwealth (including this Code) to a particular offence includes a reference to an offence against section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) of this Code that relates to that particular offence.
(3) Subsection (1) or (2) does not apply if a law of the Commonwealth is expressly or impliedly to the contrary effect.
(4) In particular, an express reference in a law of the Commonwealth to:
(a) an offence against, under or created by the Crimes Act 1914; or
(b) an offence against, under or created by a particular provision of the Crimes Act 1914; or
(c) an offence arising out of the first‑mentioned law or another law of the Commonwealth; or
(d) an offence arising out of a particular provision; or
(e) an offence against, under or created by the Taxation Administration Act 1953;
does not mean that the first‑mentioned law is impliedly to the contrary effect.
Note: Sections 11.2 (complicity and common purpose), 11.2A (joint commission), and 11.3 (commission by proxy) of this Code operate as extensions of principal offences and are therefore not referred to in this section.
Part 2.5—Corporate criminal responsibility
Division 12
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
(c) creates a presumption that the matter exists unless the contrary is proved.
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
(c) all of the following conditions are satisfied:
(i) the alleged offence is an ancillary offence;
(ii) the conduct constituting the alleged offence occurs wholly outside Australia;
(iii) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship.
Defence—primary offence
(3) If this section applies to a particular offence, a person does not commit the offence if:
(aa) the alleged offence is a primary offence; and
(a) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(b) there is not in force in:
(i) the foreign country where the conduct constituting the alleged offence occurs; or
(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
(c) the conduct constituting the alleged offence occurs wholly outside Australia and:
(i) at the time of the alleged offence, the person is an Australian citizen; or
(ii) at the time of the alleged offence, the person is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or
(d) all of the following conditions are satisfied:
(i) the alleged offence is an ancillary offence;
(ii) the conduct constituting the alleged offence occurs wholly outside Australia;
(iii) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship.
Note: The expression offence is given an extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(1).
Defence—primary offence
(2) If a law of the Commonwealth provides that this section applies to a particular offence, a person does not commit the offence if:
(aa) the alleged offence is a primary offence; and
(a) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(b) the person is neither:
(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and
(c) there is not in force in:
(i) the foreign country where the conduct constituting the alleged offence occurs; or
(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
(c) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(d) the person is neither:
(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and
(e) there is not in force in:
(i) the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur; or
(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 (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
(c) the conduct constituting the alleged offence occurs wholly outside Australia and:
(i) at the time of the alleged offence, the person is an Australian citizen; or
(ii) at the time of the alleged offence, the person is a resident of Australia; or
(iii) at the time of the alleged offence, the person is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or
(d) all of the following conditions are satisfied:
(i) the alleged offence is an ancillary offence;
(ii) the conduct constituting the alleged offence occurs wholly outside Australia;
(iii) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship.
Note: The expression offence is given an extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(1).
Defence—primary offence
(2) If a law of the Commonwealth provides that this section applies to a particular offence, a person does not commit the offence if:
(aa) the alleged offence is a primary offence; and
(a) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(b) the person is neither:
(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and
(c) there is not in force in:
(i) the foreign country where the conduct constituting the alleged offence occurs; or
(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
(c) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(d) the person is neither:
(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and
(e) there is not in force in:
(i) the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur; or
(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 (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
(c) 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 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
(c) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(d) the person is neither:
(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and
(e) there is not in force in:
(i) the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur; or
(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 (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
(c) at the time of the alleged offence, the person alleged to have committed the offence is neither:
(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.
(2) However, a person may be arrested for, charged with, or remanded in custody or released on bail in connection with an offence before the necessary consent has been given.
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
(c) an authority of the government of part of a foreign country; or
(d) a foreign local government body or foreign regional government body; or
(e) a foreign public enterprise.
foreign public enterprise means a company or any other body or association where:
(a) in the case of a company—one of the following applies:
(i) the government of a foreign country or of part of a foreign country holds more than 50% of the issued share capital of the company;
(ii) the government of a foreign country or of part of a foreign country holds more than 50% of the voting power in the company;
(iii) the government of a foreign country or of part of a foreign country is in a position to appoint more than 50% of the company’s board of directors;
(iv) the directors (however described) of the company are accustomed or under an obligation (whether formal or informal) to act in accordance with the directions, instructions or wishes of the government of a foreign country or of part of a foreign country;
(v) the government of a foreign country or of part of a foreign country is in a position to exercise control over the company; and
(b) in the case of any other body or association—either of the following applies:
(i) the members of the executive committee (however described) of the body or association are accustomed or under an obligation (whether formal or informal) to act in accordance with the directions, instructions or wishes of the government of a foreign country or of part of a foreign country;
(ii) the government of a foreign country or of part of a foreign country is in a position to exercise control over the body or association; and
(c) the company, body or association:
(i) enjoys special legal rights or a special legal status under a law of a foreign country or of part of a foreign country; or
(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
(c) an organisation that is:
(i) an organ of, or office within, an organisation described in paragraph (a) or (b); or
(ii) a commission, council or other body established by an organisation so described or such an organ; or
(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;
(c) any official tolerance 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;
(c) any official tolerance 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
(c) does not involve a decision about:
(i) whether to award new business; or
(ii) whether to continue existing business with a particular person; or
(iii) the terms of new business or existing business; and
(d) does not involve encouraging a decision about:
(i) whether to award new business; or
(ii) whether to continue existing business with a particular person; or
(iii) the terms of new business or existing business.
Content of records
(3) A record of particular conduct engaged in by a person complies with this subsection if the record sets out:
(a) the value of the benefit concerned; and
(b) the date on which the conduct occurred; and
(c) the identity of the foreign public official in relation to whom the conduct occurred; and
(d) if that foreign public official is not the other person mentioned in paragraph 70.2(1)(a)—the identity of that other person; and
(e) particulars of the routine government action that was sought to be expedited or secured by the conduct; and
(f) the person’s signature or some other means of verifying the person’s identity.
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
(c) the UN or associated person is engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person intends to cause, or is reckless as to causing, the death of the UN or associated person or any other person by the conduct.
Penalty: Imprisonment for life.
Note: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
(2) Strict liability applies to paragraphs (1)(b) and (c).
71.3 Manslaughter of a UN or associated person
(1) A person commits an offence if:
(a) the person’s conduct causes the death of another person; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person intends to cause, or is reckless as to causing, serious harm to the UN or associated person or any other person by the conduct.
Penalty: Imprisonment for 25 years.
Note: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
(2) Strict liability applies to paragraphs (1)(b) and (c).
71.4 Intentionally causing serious harm to a UN or associated person
(1) A person commits an offence if:
(a) the person’s conduct causes serious harm to another person; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person intends to cause serious harm to the UN or associated person or any other person by the conduct.
Penalty: Imprisonment for 20 years.
Penalty (aggravated offence): Imprisonment for 25 years.
Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
71.5 Recklessly causing serious harm to a UN or associated person
(1) A person commits an offence if:
(a) the person’s conduct causes serious harm to another person; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person is reckless as to causing serious harm to the UN or associated person or any other person by the conduct.
Penalty: Imprisonment for 15 years.
Penalty (aggravated offence): Imprisonment for 19 years.
Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
71.6 Intentionally causing harm to a UN or associated person
(1) A person commits an offence if:
(a) the person’s conduct causes harm to another person without the consent of that person; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person intends to cause harm to the UN or associated person or any other person by the conduct.
Penalty: Imprisonment for 10 years.
Penalty (aggravated offence): Imprisonment for 13 years.
Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
71.7 Recklessly causing harm to a UN or associated person
(1) A person commits an offence if:
(a) the person’s conduct causes harm to another person without the consent of that person; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person is reckless as to causing harm to the UN or associated person or any other person by the conduct.
Penalty: Imprisonment for 7 years.
Penalty (aggravated offence): Imprisonment for 9 years.
Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
71.8 Unlawful sexual penetration
(1) A person commits an offence if:
(a) the person sexually penetrates another person without the consent of that person; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person knows about, or is reckless as to, the lack of consent.
Penalty: Imprisonment for 15 years.
Penalty (aggravated offence): Imprisonment for 20 years.
Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
(3) In this section:
sexually penetrate means:
(a) penetrate (to any extent) the genitalia or anus of a person by any part of the body of another person or by any object manipulated by that other person; or
(b) penetrate (to any extent) the mouth of a person by the penis of another person; or
(c) continue to sexually penetrate as defined in paragraph (a) or (b).
(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
(c) the UN or associated person is engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person takes or detains the UN or associated person with the intention of:
(i) holding him or her to ransom or as a hostage; or
(ii) taking or sending him or her out of the country; or
(iii) committing a serious offence against him or her or another person.
Penalty: Imprisonment for 15 years.
Penalty (aggravated offence): Imprisonment for 19 years.
Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
(3) In this section, serious offence means an offence under a law of the Commonwealth, a State or Territory or a foreign law the maximum penalty for which is death, or imprisonment for not less than 12 months.
71.10 Unlawful detention of UN or associated person
(1) A person commits an offence if:
(a) the person takes or detains another person without that other person’s consent; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a UN enforcement action.
Penalty: Imprisonment for 5 years.
Penalty (aggravated offence): Imprisonment for 6 years.
Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
71.11 Intentionally causing damage to UN or associated person’s property etc.
(1) A person commits an offence if:
(a) the person’s conduct causes damage to official premises, private accommodation or a means of transportation (the property); and
(b) the property is occupied or used by a UN or associated person; and
(c) the conduct gives rise to a danger of serious harm to a person; and
(d) that person is the UN or associated person referred to in paragraph (b); and
(e) the UN or associated person is engaged in a UN operation that is not a UN enforcement action; and
(f) the first‑mentioned person intends to cause the damage to the property; and
(g) the first‑mentioned person is reckless as to the danger to the person referred to in paragraph (c).
Penalty: Imprisonment for 10 years.
Note: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
(2) Strict liability applies to paragraphs (1)(b), (d) and (e).
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
(c) the offence was committed against a person in an abuse of authority.
(2) If the prosecution intends to prove an aggravated offence, the charge must allege the relevant aggravated offence.
(3) In order to prove an aggravated offence, the prosecution must prove that the defendant intended to commit, or was reckless as to committing, the matters referred to in paragraph (1)(a), (b) or (c).
(4) In this section:
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
(c) the alleged offence is committed against an Australian citizen; or
(d) by engaging in the conduct constituting the alleged offence, the person intends to compel a legislative, executive or judicial institution of the Commonwealth, a State or a Territory to do or omit to do an act.
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
(c) to which the law of international armed conflict applies.
UN operation means an operation established by the competent organ of the United Nations in accordance with the Charter of the United Nations and conducted under United Nations authority and control if:
(a) the operation is for the purpose of maintaining or restoring international peace and security; or
(b) the Security Council or the General Assembly has declared, for the purposes of the Convention, that there exists an exceptional risk to the safety of the personnel engaged in the operation.
UN or associated person means a person who is a member of any UN personnel or associated personnel.
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
(c) the device is delivered, placed, discharged, or detonated, to, in, into or against:
(i) a place of public use; or
(ii) a government facility; or
(iii) a public transportation system; or
(iv) an infrastructure facility; and
(d) the person intends to cause death or serious harm.
Penalty: Imprisonment for life.
(2) A person commits an offence if:
(a) the person intentionally delivers, places, discharges or detonates a device; and
(b) the device is an explosive or other lethal device and the person is reckless as to that fact; and
(c) the device is delivered, placed, discharged, or detonated, to, in, into or against:
(i) a place of public use; or
(ii) a government facility; or
(iii) a public transportation system; or
(iv) an infrastructure facility; and
(d) the person intends to cause extensive destruction to the place, facility or system; and
(e) the person is reckless as to whether that intended destruction results or is likely to result in major economic loss.
Penalty: Imprisonment for life.
(3) Strict liability applies to paragraphs (1)(c) and (2)(c).
Note: A court that is sentencing a person who has been convicted of an offence against this section must warn the person about continuing detention orders and extended supervision orders (see section 105A.23).
72.4 Jurisdictional requirement
(1) A person commits an offence under this Subdivision only if one or more of the following paragraphs applies and the circumstances relating to the alleged offence are not exclusively internal (see subsection (2)):
(a) the conduct constituting the alleged offence occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian ship or an Australian aircraft;
(b) at the time of the alleged offence, the person is an Australian citizen;
(c) at the time of the alleged offence, the person is a stateless person whose habitual residence is in Australia;
(d) the conduct is subject to the jurisdiction of another State Party to the Convention established in accordance with paragraph 1 or 2 of Article 6 of the Convention and the person is in Australia;
(e) the alleged offence is committed against a government facility of the Commonwealth, or of a State or Territory, that is located outside Australia;
(f) the alleged offence is committed against:
(i) an Australian citizen; or
(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory;
(g) by engaging in the conduct constituting the alleged offence, the person intends to compel a legislative, executive or judicial institution of the Commonwealth, a State or a Territory to do or omit to do an act.
(2) The circumstances relating to the alleged offence are exclusively internal if:
(a) the conduct constituting the alleged offence occurs wholly within Australia; and
(b) the alleged offender is an Australian citizen; and
(c) all of the persons against whom the offence is committed are Australian citizens or bodies corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and
(d) the alleged offender is in Australia; and
(e) no other State Party to the Convention has a basis under paragraph 1 or 2 of Article 6 of the Convention for exercising jurisdiction in relation to the conduct.
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
(c) the plastic explosive breaches a marking requirement; and
(d) the trafficking is not authorised under section 72.18, 72.19, 72.22 or 72.23.
Penalty: Imprisonment for 10 years.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Strict liability applies to paragraphs (1)(c) and (d).
Note 1: For the marking requirements, see section 72.33.
Note 2: For defences, see section 72.16.
72.13 Importing or exporting unmarked plastic explosives etc.
(1) A person commits an offence if:
(a) the person imports or exports a substance; and
(b) the substance is a plastic explosive; and
(c) the plastic explosive breaches a marking requirement; and
(d) the import or export is not authorised under section 72.18, 72.19, 72.22 or 72.23.
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
(c) the plastic explosive breaches the first marking requirement; and
(d) the manufacture is not authorised under section 72.18.
Penalty: Imprisonment for 10 years.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Strict liability applies to paragraphs (1)(c) and (d).
Note 1: For the marking requirements, see section 72.33.
Note 2: For defences, see section 72.16.
72.15 Possessing unmarked plastic explosives etc.
(1) A person commits an offence if:
(a) the person possesses a substance; and
(b) the substance is a plastic explosive; and
(c) the plastic explosive breaches a marking requirement; and
(d) the possession is not authorised under section 72.18, 72.19, 72.22 or 72.23.
Penalty: Imprisonment for 2 years.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Strict liability applies to paragraphs (1)(c) and (d).
Note 1: For the marking requirements, see section 72.33.
Note 2: For defences, see section 72.16.
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:
(c) the plastic explosive contained a detection agent; and
(d) the concentration of the detection agent in the plastic explosive was not less than the minimum manufacture concentration for the detection agent; and
(e) the detection agent was homogenously distributed throughout the plastic explosive.
Note 1: A defendant bears a legal burden in relation to the matter in subsection (2) (see section 13.4).
Note 2: For the marking requirements, see section 72.33.
Note 3: For minimum manufacture concentration, see section 72.34.
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:
(c) the Convention on the Marking of Plastic Explosives; and
(d) whether the trafficking, import, export, manufacture or possession is reasonable; and
(e) such other matters (if any) as the responsible Minister considers relevant.
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
(c) the operation of:
(i) the Australian Federal Police; or
(ii) the police force or police service of a State or Territory.
Conditions and restrictions
(3) An authorisation under subsection (1) is subject to such conditions and restrictions as are specified in the authorisation.
Criteria
(4) In exercising a power conferred by this section in relation to:
(a) the trafficking in; or
(b) the import, export or possession of;
an unmarked plastic explosive, a responsible Minister must have regard to:
(c) the Convention on the Marking of Plastic Explosives; and
(d) whether the trafficking, import, export or possession is reasonable; and
(e) such other matters (if any) as the responsible Minister considers relevant.
Sunset
(5) This section ceases to have effect at the end of 15 years after its commencement.
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
(c) an officer of the Australian Army who holds the rank of Lieutenant‑General or a higher rank; or
(d) an officer of the Australian Air Force who holds the rank of Air Marshal or a higher rank; or
(e) an officer of the Australian Defence Force who is on deployment as the Commander of an Australian Task Force, contingent or force element that is operating outside Australia;
all or any of the powers of the Minister for Defence under sections 72.18, 72.19, 72.24 and 72.25.
(2) A delegate must not exercise a power delegated under subsection (1) unless the exercise of the power relates to:
(a) the operation of the Australian Defence Force; or
(b) the operation in Australia of a visiting force (within the meaning 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;
(c) the detection agent was homogenously distributed throughout the plastic explosive.
Note: For minimum manufacture concentration, see section 72.34.
Freshness
(3) The second marking requirement is that less than 10 years have elapsed since the manufacture of the plastic explosive.
Interpretation
(4) In determining whether a plastic explosive manufactured before the commencement of this section breached the first marking requirement, assume that this section and sections 72.34 and 72.36 had been in force at the time of manufacture.
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;
(c) a mine;
(d) a missile;
(e) a perforator;
(f) a projectile;
(g) a rocket;
(h) a shaped charge;
(i) a shell.
export includes take from Australia.
first marking requirement has the meaning given by subsection 72.33(2).
high explosive means an explosive with a velocity of detonation that is greater than the velocity of sound in the explosive (typically greater than 340 metres per second), and includes the following:
(a) cyclotetramethylenetetranitramine (HMX);
(b) pentaerythritol tetranitrate (PETN);
(c) cyclotrimethylenetrinitramine (RDX).
import includes bring into Australia.
manufacture a substance means any process by which a substance is produced, and includes the following:
(a) the process of transforming a substance into a different substance;
(b) the reprocessing of a substance.
marking requirement has the meaning given by section 72.33.
minimum manufacture concentration has the meaning given by section 72.34.
Minister for Defence means the Minister administering the Defence Act 1903.
plastic explosive means an explosive product (including an explosive 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);
(c) have joint possession of the substance.
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
(c) invite the making of offers to buy the substance; or
(d) prepare the substance for transfer with the intention of transferring any of it or believing that another person intends to transfer any of it; or
(e) transport or deliver the substance with the intention of transferring any of it or believing that another person intends to transfer any of it; or
(f) guard or conceal the substance with the intention of transferring any of it or the intention of assisting another person to transfer any of it; or
(g) possess the substance with the intention of transferring any of it.
For the purposes of paragraph (d), preparing a substance for transfer includes packaging the substance or separating the substance into discrete units.
transfer means transfer ownership or possession.
unmarked plastic explosive means a plastic explosive that breaches a marking requirement.
wrapper, in relation to a plastic explosive, means a wrapper the inner surface of which is in contact with the plastic explosive.
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;
(c) stockpiles or retains it;
(d) transfers it to anyone.
Penalty: Imprisonment for 10 years.
Promoting acts with a cluster munition
(2) A person (the first person) commits an offence if:
(a) the first person assists, encourages or induces another person to do any of the following acts with a cluster munition:
(i) use it;
(ii) develop, produce or otherwise acquire it;
(iii) stockpile or retain it;
(iv) transfer it to anyone; and
(b) the other person does the act; and
(c) the first person intends that the act be done.
Penalty: Imprisonment for 10 years.
Geographical jurisdiction
(3) Section 15.2 (extended geographical jurisdiction—category B) applies to an offence against this section.
Relationship with other provisions
(4) Division 11 does not apply in relation to an offence against subsection (2).
Note 1: Later sections of this Subdivision set out defences.
Note 2: This section relates to Articles 1 and 9 of the Convention on Cluster Munitions.
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;
(c) the destruction of the munitions.
Note 1: For specification by class see the Acts Interpretation Act 1901.
Note 2: This section relates to paragraphs 6 and 7 of Article 3 of the Convention on Cluster Munitions.
(3) The regulations may prescribe requirements relating to authorisations under subsection (2).
(4) An authorisation made under subsection (2) is not a legislative instrument.
(5) The Minister described in subsection (2) may delegate his or her power under that subsection to:
(a) the Secretary of the Department administered by that Minister; or
(b) an SES employee in that Department.
Note: For the definition of SES employee see the Acts Interpretation Act 1901.
72.40 Defence—transfer for destruction etc.
Transfer to foreign party to Convention on Cluster Munitions
(1) Section 72.38 does not apply to the transfer of a cluster munition to a party to the Convention on Cluster Munitions for one or more of the following purposes:
(a) the development of, and training in, cluster munition and explosive submunition detection, clearance or destruction techniques;
(b) the development of cluster munition counter‑measures;
(c) the destruction of the munition.
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
(c) a member (however described) of a police force of a State or Territory.
transfer has the meaning given by paragraph 8 of Article 2 of the Convention on Cluster Munitions.
Note: Imports and exports are some examples of transfers.
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
(c) the other person is not a citizen or permanent resident of the foreign country.
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;
(c) in committing the underlying offence:
(i) the first person’s conduct gives rise to a danger of death or serious harm to the victim; and
(ii) the first person is reckless as to the danger of death or serious harm to the victim that arises from the conduct.
Penalty: Imprisonment for 20 years or 2,000 penalty units, or both.
(2) There is no fault element for the physical element of conduct described in subsection (1), that the first person commits the underlying offence, other than the fault elements (however described), if any, for the underlying offence.
(2A) To avoid doubt, the first person may be convicted of an offence against this section even if the first person has not been convicted of the underlying offence.
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
(c) the document, or any part of the document:
(i) purports to have been altered in any respect by a person who did not alter it in that respect; or
(ii) purports to have been altered in any respect on the authority of a person who did not authorise its alteration in that respect; or
(d) the document, or any part of the document:
(i) purports to have been made or altered by a person who did not exist; or
(ii) purports to have been made or altered on the authority of a person who did not exist; or
(e) the document, or any part of the document, purports to have been made or altered on a date on which, at a time at which, at a place at which, or otherwise in circumstances in which, it was not made or altered.
(2) For the purposes of this Subdivision, a person is taken to make a false travel or identity document if the person alters a document so as to make it a false travel or identity document (whether or not it was already a false travel or identity document before the alteration).
(3) This section has effect as if a document that purports to be a true copy of another document were the original document.
73.8 Making, providing or possessing a false travel or identity document
A person (the first person) commits an offence if:
(a) the first person makes, provides or possesses a false travel or identity document; and
(b) the first person intends that the document will be used to facilitate the entry of another person (the other person) into a foreign country, where the entry of the other person into the foreign country would not comply with the requirements under that country’s law for entry into the country; and
(c) the first person made, provided or possessed the document:
(i) having obtained (whether directly or indirectly) a benefit to do so; or
(ii) with the intention of obtaining (whether directly or indirectly) a benefit.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
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
(b) the first person intends that the document will be used to facilitate the entry of another person (the other person) into a foreign country, where the entry of the other person into the foreign country would not comply with the requirements under that country’s law for entry into the country; and
(c) the first person knows that the other person is not the person to whom the document applies; and
(d) the first person provided or possessed the document:
(i) having obtained (whether directly or indirectly) a benefit to do so; or
(ii) with the intention of obtaining (whether directly or indirectly) a benefit.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
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
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.
(1) A person commits an offence if:
(a) a party (the enemy) is engaged in armed conflict involving the Commonwealth or the Australian Defence Force; and
(b) the enemy is declared in a Proclamation made under section 80.1AB; and
(c) the person engages in conduct; and
(d) the person intends that the conduct will materially assist the enemy to engage in armed conflict involving the Commonwealth or the Australian Defence Force; and
(e) the conduct materially assists the enemy to engage in armed conflict involving the Commonwealth or the Australian Defence Force; and
(f) at the time the person engages in the conduct:
(i) the person knows that the person is an Australian citizen or a resident of Australia; or
(ii) the person knows that the person has voluntarily put himself or herself under the protection of the Commonwealth; or
(iii) the person is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.
Note 1: There is a defence in section 80.3 for acts done in good faith.
Note 2: If a body corporate is convicted of an offence against subsection (1), subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 10,000 penalty units.
Penalty: Imprisonment for life.
(2) Strict liability applies to paragraph (1)(b) and subparagraph (1)(f)(iii).
(3) Absolute liability applies to paragraph (1)(e).
(4) Subsection (1) does not apply to engagement in conduct solely by way of, or for the purposes of, the provision of aid or assistance of a humanitarian nature.
Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
The Governor‑General may, by Proclamation, declare a party to be an enemy engaged in armed conflict involving the Commonwealth or the Australian Defence Force.
Note: See subsection 80.1AA(1) for the effect of the Proclamation.
A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct involves the use of force or violence; and
(c) the person engages in the conduct with the intention of overthrowing:
(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
(c) the lawful authority of the Government of the Commonwealth;
that the first person urges the other person to overthrow.
Urging interference in Parliamentary elections or constitutional referenda by force or violence
(3) A person (the first person) commits an offence if:
(a) the first person intentionally urges another person to interfere, by force or violence, with lawful processes for:
(i) an election of a member or members of a House of the Parliament; or
(ii) a referendum; and
(b) the first person does so intending that force or violence will occur.
Penalty: Imprisonment for 7 years.
Note: For intention, see section 5.2.
(4) Recklessness applies to the element of the offence under subsection (3) that it is lawful processes for an election of a member or members of a House of the Parliament, or for a referendum, that the first person urges the other person to interfere with.
Note: There is a defence in section 80.3 for acts done in good faith.
80.2A Urging violence against groups
Offences
(1) A person (the first person) commits an offence if:
(a) the first person intentionally urges another person, or a group, to use force or violence against a group (the targeted group); and
(b) the first person does so intending that force or violence will occur; and
(c) the targeted group is distinguished by race, religion, nationality, national or ethnic origin or political opinion; and
(d) the use of the force or violence would threaten the peace, order and good government of the Commonwealth.
Penalty: Imprisonment for 7 years.
Note: For intention, see section 5.2.
(2) A person (the first person) commits an offence if:
(a) the first person intentionally urges another person, or a group, to use force or violence against a group (the targeted group); and
(b) the first person does so intending that force or violence will occur; and
(c) the targeted group is distinguished by race, religion, nationality, national or ethnic origin or political opinion.
Penalty: Imprisonment for 5 years.
Note: For intention, see section 5.2.
(3) The fault element for paragraphs (1)(c) and (2)(c) is recklessness.
Note: For recklessness, see section 5.4.
Alternative verdict
(4) Subsection (5) applies if, in a prosecution for an offence (the prosecuted offence) against subsection (1), the trier of fact:
(a) is not satisfied that the defendant is guilty of the offence; but
(b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence (the alternative offence) against subsection (2).
(5) The trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
Note: There is a defence in section 80.3 for acts done in good faith.
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
(c) advocating the doing of more than one terrorist act or the commission of more than one terrorism offence.
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
(c) advocating the commission of more than one offence, each of which is genocide.
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
(c) in the dissemination of news or current affairs.
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
advantage: conduct will not advantage the national security of a foreign country if the conduct will advantage Australia’s national security to an equivalent extent.
damage to public infrastructure: conduct results in damage to public infrastructure if any of the following paragraphs apply in relation to public infrastructure:
(a) the conduct destroys it or results in its destruction;
(b) the conduct involves interfering with it, or abandoning it, resulting in it being lost or rendered unserviceable;
(c) the conduct results in it suffering a loss of function or becoming unsafe or unfit for its purpose;
(d) the conduct limits or prevents access to it or any part of it by persons who are ordinarily entitled to access it or that part of it;
(e) the conduct results in it or any part of it becoming defective or being contaminated;
(f) the conduct significantly degrades its quality;
(g) if it is an electronic system—the conduct seriously disrupts it.
foreign principal has the meaning given by section 90.2.
national security has the meaning given by section 90.4.
prejudice: embarrassment alone is not sufficient to prejudice Australia’s national security.
public infrastructure: see section 82.2.
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;
(c) service property, and service land, within the meaning of the Defence Force Discipline Act 1982;
(d) any part of the infrastructure of a telecommunications network within the meaning of the Telecommunications Act 1997;
(e) any infrastructure, facility, premises, network or electronic system (including an information, telecommunications or financial system) that:
(i) provides or relates to providing the public with utilities or services (including transport of people or goods) of any kind, or relates to food (within the meaning of the Food Standards Australia New Zealand Act 1991) intended for the public; and
(ii) is located in Australia; and
(iii) belongs to or is operated by a constitutional corporation or is used to facilitate constitutional trade and commerce;
(f) food (within the meaning of the Food Standards Australia New Zealand Act 1991) that:
(i) is intended for the public; and
(ii) is produced, distributed or sold by a constitutional corporation or for the purposes of, or in the course of, constitutional trade and commerce.
(2) For the purposes of the application of paragraph (1)(a) or (e) in relation to property within the meaning of Chapter 7, whether the property belongs to the Commonwealth or a constitutional corporation is to be determined in the same way as it would be under Chapter 7 (see section 130.2).
Fault element for offences in relation to public infrastructure
(3) For the purposes of a reference, in an element of an offence, to public infrastructure within the meaning of this Division, absolute liability applies:
(a) in relation to public infrastructure within the meaning of paragraph (1)(a)—to the element that the infrastructure, facility, premises, network or electronic system belongs to the Commonwealth; and
(b) in relation to public infrastructure within the meaning of paragraph (1)(e)—to the element that the infrastructure, facility, premises, network or electronic system belongs to or is operated by a constitutional corporation or is used to facilitate constitutional trade or commerce; and
(c) in relation to public infrastructure within the meaning of paragraph (1)(f)—to the element that the food is produced, distributed or sold by a constitutional corporation or for the purposes of, or in the course of, constitutional trade and commerce.
82.2A 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—Offences
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in damage to public infrastructure; and
(c) the person intends that the conduct will:
(i) prejudice Australia’s national security; or
(ii) advantage the national security of a foreign country; and
(d) any of the following circumstances exists:
(i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal;
(ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal.
Penalty: Imprisonment for 25 years.
(2) For the purposes of subparagraph (1)(c)(ii), the person:
(a) does not need to have in mind a particular foreign country; and
(b) may have in mind more than one foreign country.
(3) For the purposes of paragraph (1)(d), the person:
(a) does not need to have in mind a particular foreign principal; and
(b) may have in mind more than one foreign principal.
Note: An alternative verdict may be available for an offence against this section (see section 82.12).
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in damage to public infrastructure; and
(c) the person is reckless as to whether the conduct will:
(i) prejudice Australia’s national security; or
(ii) advantage the national security of a foreign country; and
(d) any of the following circumstances exists:
(i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal;
(ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal.
Penalty: Imprisonment for 20 years.
(2) For the purposes of subparagraph (1)(c)(ii), the person:
(a) does not need to have in mind a particular foreign country; and
(b) may have in mind more than one foreign country.
(3) For the purposes of paragraph (1)(d), the person:
(a) does not need to have in mind a particular foreign principal; and
(b) may have in mind more than one foreign principal.
Note: An alternative verdict may be available for an offence against this section (see section 82.12).
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in damage to public infrastructure; and
(c) the person intends that the conduct will:
(i) prejudice Australia’s national security; or
(ii) advantage the national security of a foreign country.
Penalty: Imprisonment for 20 years.
(2) For the purposes of subparagraph (1)(c)(ii), the person:
(a) does not need to have in mind a particular foreign country; and
(b) may have in mind more than one foreign country.
Note: An alternative verdict may be available for an offence against this section (see section 82.12).
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in damage to public infrastructure; and
(c) the person is reckless as to whether the conduct will:
(i) prejudice Australia’s national security; or
(ii) advantage the national security of a foreign country.
Penalty: Imprisonment for 15 years.
(2) For the purposes of paragraph (1)(c), the person:
(a) does not need to have in mind a particular foreign country; and
(b) may have in mind more than one foreign country.
A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct has the result that an article or thing, or software, becomes vulnerable:
(i) to misuse or impairment; or
(ii) to being accessed or modified by a person not entitled to access or modify it; and
(c) the article or thing, or software, is or is part of public infrastructure; and
(d) the person engages in the conduct with the intention that prejudice to Australia’s national security will occur (whether at the time or at a future time).
Note: An alternative verdict may be available for an offence against this section (see section 82.12).
Penalty: Imprisonment for 15 years.
A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct has the result that an article or thing, or software, becomes vulnerable:
(i) to misuse or impairment; or
(ii) to being accessed or modified by a person not entitled to access or modify it; and
(c) the article or thing, or software, is or is part of public infrastructure; and
(d) the person engages in the conduct reckless as to whether prejudice to Australia’s national security will occur (whether at the time or at a future time).
Penalty: Imprisonment for 10 years.
(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.
(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
(c) the conduct is reasonable in the circumstances for the purpose of performing those duties.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).
(2) It is a defence to a prosecution for an offence by a person against this Division if:
(a) the person is, at the time of the offence:
(i) an owner or operator of the public infrastructure; or
(ii) acting on behalf of, or with the consent of, an owner or operator of the public infrastructure; and
(b) the person engaged in the conduct in good faith; and
(c) the conduct is within the lawful authority of the owner or operator; and
(d) the conduct is reasonable in the circumstances for the purpose of exercising that lawful authority.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).
Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this Division.
(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.
(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;
(c) a person so charged may be remanded in custody or on bail.
(3) Nothing in subsection (2) prevents the discharge of the accused if proceedings are not continued within a reasonable time.
(4) In deciding whether to consent, the Attorney‑General must consider whether the conduct might be authorised by section 82.10.
Division 83—Other threats to security
83.1A 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.
(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.
(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
(c) the custody is controlled wholly or partly by the Commonwealth or the Australian Defence Force; and
(d) the conduct takes place in the context of an international armed conflict.
Penalty: Imprisonment for 15 years.
(2) Absolute liability applies to paragraph (1)(d).
(3) Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this section.
Offence in relation to military‑style training
(1) A person commits an offence if:
(a) the person provides, receives, or participates in, training; and
(b) the training involves using arms or practising military exercises, movements or evolutions; and
(c) any of the following circumstances exists:
(i) the training is provided on behalf of a foreign government principal within the meaning of Part 5.2 (see section 90.3) or a foreign political organisation within the meaning of that Part (see section 90.1);
(ii) the training is directed, funded or supervised by a foreign government principal or foreign political organisation, or a person acting on behalf of a foreign government principal or foreign political organisation.
Penalty: Imprisonment for 20 years.
Defence—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.
(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).
(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;
(c) a person so charged may be remanded in custody or on bail.
(3) Nothing in subsection (2) prevents the discharge of the accused if proceedings are not continued within a reasonable time.
(4) In deciding whether to consent, the Attorney‑General must consider whether the conduct might be authorised in a way mentioned in:
(a) for an offence against section 83.3—subsection 83.3(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;
(d) makes a record of it;
Note: See also the definition of make available in this subsection and subsection (2).
foreign government principal has the meaning given by section 90.3.
foreign political organisation includes:
(a) a foreign political party; and
(b) a foreign organisation that exists primarily to pursue political objectives; and
(c) a foreign organisation that exists to pursue militant, extremist or revolutionary objectives.
foreign principal has the meaning given by section 90.2.
information means information of any kind, whether true or false and whether in a material form or not, and includes:
(a) an opinion; and
(b) a report of a conversation.
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.
Each of the following is a foreign principal:
(a) a foreign government principal;
(aa) a foreign political organisation;
(b) a public international organisation within the meaning of Division 70 (see section 70.1);
(c) a terrorist organisation within the meaning of Division 102 (see section 102.1);
(d) an entity or organisation owned, directed or controlled by a foreign principal within the meaning of paragraph (aa), (b) or (c);
(e) an entity or organisation owned, directed or controlled by 2 or more foreign principals within the meaning of paragraph (a), (aa), (b) or (c).
Each of the following is a foreign government principal:
(a) the government of a foreign country or of part of a foreign country;
(b) an authority of the government of a foreign country;
(c) an authority of the government of part of a foreign country;
(d) a foreign local government body or foreign regional government body;
(e) a company to which any of the subparagraphs of paragraph (a) of the definition of foreign public enterprise in section 70.1 applies;
(f) a body or association to which either of the subparagraphs of paragraph (b) of the definition of foreign public enterprise in section 70.1 applies;
(h) an entity or organisation owned, directed or controlled:
(i) by a foreign government principal within the meaning of any other paragraph of this definition; or
(ii) by 2 or more such foreign government principals that are foreign government principals in relation to the same foreign country.
(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);
(c) the protection of the integrity of the country’s territory and borders from serious threats;
(d) the carrying out of the country’s responsibilities to any other country in relation to the matter mentioned in paragraph (c) or an activity covered by subsection (2);
(e) the country’s political, military or economic relations with another country or other countries.
(2) For the purposes of subsection (1), this subsection covers the following activities relating to a country, whether or not directed from, or committed within, the country:
(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.
(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
Intention as to national security
(1) A person commits an offence if:
(a) the person deals with information or an article; and
(b) the information or article:
(i) has a security classification; or
(ii) concerns Australia’s national security; and
(c) the person intends that the person’s conduct will:
(i) prejudice Australia’s national security; or
(ii) advantage the national security of a foreign country; and
(d) the conduct results or will result in the information or article being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal.
Note: An alternative verdict may be available for an offence against this subsection (see section 93.5).
Penalty: Imprisonment for life.
Reckless as to national security
(2) A person commits an offence if:
(a) the person deals with information or an article; and
(b) the information or article:
(i) has a security classification; or
(ii) concerns Australia’s national security; and
(c) the person is reckless as to whether the person’s conduct will:
(i) prejudice Australia’s national security; or
(ii) advantage the national security of a foreign country; and
(d) the conduct results or will result in the information or article being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal.
Penalty: Imprisonment for 25 years.
Other matters
(4) For the purposes of subparagraphs (1)(c)(ii) and (2)(c)(ii), the person:
(a) does not need to have in mind a particular foreign country; and
(b) may have in mind more than one foreign country.
(5) For the purposes of paragraphs (1)(d) and (2)(d), the person:
(a) does not need to have in mind a particular foreign principal; and
(b) may have in mind more than one foreign principal.
Intention as to national security
(1) A person commits an offence if:
(a) the person deals with information or an article; and
(b) the person intends that the person’s conduct will prejudice Australia’s national security; and
(c) the conduct results or will result in the information or article being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal.
Note: An alternative verdict may be available for an offence against this subsection (see section 93.5).
Penalty: Imprisonment for 25 years.
Reckless as to national security
(2) A person commits an offence if:
(a) the person deals with information or an article; and
(b) the person is reckless as to whether the person’s conduct will prejudice Australia’s national security; and
(c) the conduct results or will result in the information or article being communicated or made available to a foreign principal or a person acting on behalf of a foreign principal.
Penalty: Imprisonment for 20 years.
Other matters
(3) For the purposes of paragraphs (1)(c) and (2)(c):
(a) the person does not need to have in mind a particular foreign principal; and
(b) the person may have in mind more than one foreign principal.
(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
(c) the information or article has a security classification.
Penalty: Imprisonment for 20 years.
(2) For the purposes of paragraphs (1)(aa) and (b):
(a) the person does not need to have in mind a particular foreign principal; and
(b) the person may have in mind more than one foreign principal.
(3) Strict liability applies to paragraph (1)(aa).
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
(c) in the person’s capacity as a public official.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).
(2) It is a defence to a prosecution for an offence by a person against this Subdivision that the information or article the person deals with is information or an article that has already been communicated or made available to the public with the authority of the Commonwealth.
Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
(3) It is a defence to a prosecution for an offence by a person against section 91.1, in which the prosecution relies on subparagraph 91.1(1)(c)(ii) or (2)(c)(ii), or against section 91.3, if:
(a) the person did not make or obtain the information or article by reason of any of the following:
(i) the person being, or having been, a Commonwealth officer (within the meaning of Part 5.6);
(ii) the person being otherwise engaged to perform work for a Commonwealth entity;
(iii) an arrangement or agreement to which the Commonwealth or a Commonwealth entity is party and which allows for the exchange of information; and
(b) the information or article has already been communicated, or made available, to the public (the prior publication); and
(c) the person was not involved in the prior publication (whether directly or indirectly); and
(d) at the time the person deals with the information or article, the person believes that doing so will not prejudice Australia’s national security; and
(e) having regard to the nature, extent and place of the prior publication, the person has reasonable grounds for that belief.
Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
(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).
(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.
(a) if the penalty for the underlying offence is imprisonment for 25 years—imprisonment for life; or
(b) if the penalty for the underlying offence is imprisonment for 20 years—imprisonment for 25 years.
(2) There is no fault element for the physical element in paragraph (1)(a) other than the fault elements (however described), if any, for the underlying offence.
(4) To avoid doubt, a person does not commit an underlying offence for the purposes of paragraph (1)(a) if the person has a defence to the underlying offence.
(5) To avoid doubt, the person may be convicted of an offence against this section even if the person has not been convicted of the underlying offence.
Note: An alternative verdict may be available for an offence against this section (see section 93.5).
Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this Subdivision.
Subdivision B—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
(c) any of the following circumstances exists:
(i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal;
(ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal.
Penalty: Imprisonment for 15 years.
Other matters
(4) For the purposes of subparagraphs (1)(b)(ii) and (2)(b)(ii), the person:
(a) does not need to have in mind a particular foreign country; and
(b) may have in mind more than one foreign country.
(5) For the purposes of paragraphs (1)(d), (2)(d) and (3)(c), the person:
(a) does not need to have in mind a particular foreign principal; and
(b) may have in mind more than one foreign principal.
(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
(c) in the person’s capacity as a public official.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).
(2) It is a defence to a prosecution for an offence by a person against this Subdivision that the information or article the person deals with is information or an article that has already been communicated or made available to the public with the authority of the Commonwealth.
Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3)).
91.10 Geographical jurisdiction
Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this Subdivision.
Subdivision C—Espionage‑related offences
(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
(c) any of the following circumstances exists:
(i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal;
(ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal.
Penalty: Imprisonment for 15 years.
(2) For the purposes of paragraph (1)(c):
(a) the person does not need to have in mind a particular foreign principal; and
(b) the person may have in mind more than one foreign principal.
(3) A person may commit an offence against subsection (1):
(a) even if an offence against Subdivision A or B is not committed; and
(b) even if it is impossible for the target to deal with information or an article in a way that would constitute an offence against Subdivision A or B; and
(c) even if the person does not have in mind particular information or a particular article, or a particular dealing or kind of dealing with information or an article, at the time the person engages in conduct in relation to the target; and
(d) whether it is a single dealing, or multiple dealings, that the person intends to solicit or procure or make it easier to solicit or procure.
(4) Section 11.1 (attempt) does not apply to an offence against subsection (1).
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person does so with the intention of preparing for, or planning, an offence against Subdivision A (espionage) or B (espionage on behalf of foreign principal).
Penalty: Imprisonment for 15 years.
(2) Section 11.1 (attempt) does not apply to an offence against subsection (1).
(3) Subsection (1) applies:
(a) whether or not an offence against Subdivision A or B is committed; and
(b) whether or not the person engages in the conduct in preparation for, or planning, a specific offence against a provision of Subdivision A or B; and
(c) whether or not the person engages in the conduct in preparation for, or planning, more than one offence against Subdivision A or B.
It is a defence to a prosecution for an offence by a person against this Subdivision that the person dealt with the information or article:
(a) in accordance with a law of the Commonwealth; or
(b) in accordance with an arrangement or agreement to which the Commonwealth is party and which allows for the exchange of information or articles; or
(c) in the person’s capacity as a public official.
Note: A defendant bears an evidential burden in relation to the matters in this section (see subsection 13.3(3)).
Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this Subdivision.
Division 92—Foreign interference
Subdivision A—Preliminary
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
Interference generally
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) any of the following circumstances exists:
(i) the person engages in the conduct on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal;
(ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal; and
(c) the person intends that the conduct will:
(i) influence a political or governmental process of the Commonwealth or a State or Territory; or
(ii) influence the exercise (whether or not in Australia) of an Australian democratic or political right or duty; or
(iii) support intelligence activities of a foreign principal; or
(iv) prejudice Australia’s national security; and
(d) any part of the conduct:
(i) is covert or involves deception; or
(ii) involves the person making a threat to cause serious harm, whether to the person to whom the threat is made or any other person; or
(iii) involves the person making a demand with menaces.
Note: An alternative verdict may be available for an offence against this subsection (see section 93.5).
Penalty: Imprisonment for 20 years.
Interference involving targeted person
(2) A person commits an offence if:
(a) the person engages in conduct; and
(b) any of the following circumstances exists:
(i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal;
(ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal; and
(c) the person intends that the conduct will influence another person (the target):
(i) in relation to a political or governmental process of the Commonwealth or a State or Territory; or
(ii) in the target’s exercise (whether or not in Australia) of any Australian democratic or political right or duty; and
(d) the person conceals from, or fails to disclose to, the target the circumstance mentioned in paragraph (b).
Note: An alternative verdict may be available for an offence against this subsection (see section 93.5).
Penalty: Imprisonment for 20 years.
Other matters
(3) For the purposes of paragraphs (1)(b) and (2)(b):
(a) the person does not need to have in mind a particular foreign principal; and
(b) the person may have in mind more than one foreign principal.
Interference generally
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) any of the following circumstances exists:
(i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal;
(ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal; and
(c) the person is reckless as to whether the conduct will:
(i) influence a political or governmental process of the Commonwealth or a State or Territory; or
(ii) influence the exercise (whether or not in Australia) of an Australian democratic or political right or duty; or
(iii) support intelligence activities of a foreign principal; or
(iv) prejudice Australia’s national security; and
(d) any part of the conduct:
(i) is covert or involves deception; or
(ii) involves the person making a threat to cause serious harm, whether to the person to whom the threat is made or any other person; or
(iii) involves the person making a demand with menaces.
Penalty: Imprisonment for 15 years.
Interference involving targeted person
(2) A person commits an offence if:
(a) the person engages in conduct; and
(b) any of the following circumstances exists:
(i) the conduct is engaged in on behalf of, or in collaboration with, a foreign principal or a person acting on behalf of a foreign principal;
(ii) the conduct is directed, funded or supervised by a foreign principal or a person acting on behalf of a foreign principal; and
(c) the person is reckless as to whether the conduct will influence another person (the target):
(i) in relation to a political or governmental process of the Commonwealth or a State or Territory; or
(ii) in the target’s exercise (whether or not in Australia) of any Australian democratic or political right or duty; and
(d) the person conceals from, or fails to disclose to, the target the circumstance mentioned in paragraph (b).
Penalty: Imprisonment for 15 years.
Other matters
(3) For the purposes of paragraphs (1)(b) and (2)(b):
(a) the person does not need to have in mind a particular foreign principal; and
(b) the person may have in mind more than one foreign principal.
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.
It is a defence to a prosecution for an offence by a person against this Subdivision that the person engaged in the conduct:
(a) in accordance with a law of the Commonwealth; or
(b) in accordance with an arrangement or agreement to which the Commonwealth is party; or
(c) in the person’s capacity as a public official.
Note: A defendant bears an evidential burden in relation to the matters in this section (see subsection 13.3(3)).
Section 15.2 (extended geographical jurisdiction—category B) applies to an offence against this Subdivision.
Subdivision C—Foreign interference involving foreign intelligence agencies
A person commits an offence if:
(a) the person provides resources, or material support, to an organisation or a person acting on behalf of an organisation; and
(b) the person knows that the organisation is a foreign intelligence agency.
Note: An alternative verdict may be available for an offence against this section (see section 93.5).
Penalty: Imprisonment for 15 years.
A person commits an offence if:
(a) the person provides resources, or material support, to an organisation or a person acting on behalf of an organisation; and
(b) the organisation is a foreign intelligence agency.
Penalty: Imprisonment for 10 years.
A person commits an offence if:
(i) directly or indirectly receives or obtains funds from, or directly or indirectly makes funds available to, an organisation or a person acting on behalf of an organisation; or
(ii) directly or indirectly collects funds for or on behalf of an organisation or a person acting on behalf of an organisation; and
(b) the person knows that the organisation is a foreign intelligence agency.
Note: An alternative verdict may be available for an offence against this section (see section 93.5).
Penalty: Imprisonment for 15 years.
A person commits an offence if:
(i) directly or indirectly receives or obtains funds from, or directly or indirectly makes funds available to, an organisation or a person acting on behalf of an organisation; or
(ii) directly or indirectly collects funds for or on behalf of an organisation or a person acting on behalf of an organisation; and
(b) the organisation is a foreign intelligence agency.
Penalty: Imprisonment for 10 years.
It is a defence to a prosecution for an offence by a person against this Subdivision that the person engaged in the conduct:
(a) in accordance with a law of the Commonwealth; or
(b) in accordance with an arrangement or agreement to which the Commonwealth is party; or
(c) in the person’s capacity as a public official.
Note: A defendant bears an evidential burden in relation to the matters in this section (see subsection 13.3(3)).
Division 92A—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
(c) any of the following circumstances exists:
(i) the conduct is engaged in on behalf of, or in collaboration with, a foreign government principal or a person acting on behalf of a foreign government principal;
(ii) the conduct is directed, funded or supervised by a foreign government principal or a person acting on behalf of a foreign government principal.
Penalty: Imprisonment for 15 years.
(2) For the purposes of paragraph (1)(a), dishonest means:
(a) dishonest according to the standards of ordinary people; and
(b) known by the defendant to be dishonest according to the standards of ordinary people.
(3) In a prosecution for an offence against this section, the determination of dishonesty is a matter for the trier of fact.
(4) For the purposes of paragraph (1)(c):
(a) the person does not need to have in mind a particular foreign government principal; and
(b) the person may have in mind more than one foreign government principal.
(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
(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;
(c) a person so charged may be remanded in custody or on bail.
(3) Nothing in subsection (2) prevents the discharge of the accused if proceedings are not continued within a reasonable time.
(4) In deciding whether to consent, the Attorney‑General must consider whether the conduct might be authorised:
(a) for an offence against Subdivision A of Division 91 (espionage)—in a way mentioned in section 91.4; and
(b) for an offence against Subdivision B of Division 91 (espionage on behalf of foreign principal)—in a way mentioned in section 91.9; and
(c) for an offence against Subdivision B of Division 92 (foreign interference)—in a way mentioned in section 92.5; and
(d) for an offence against Subdivision C of Division 92 (foreign interference involving foreign intelligence agencies)—in a way mentioned in section 92.11.
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.
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.
(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.
detained in custody has the meaning given by subsection (3A).
detained in custody in a prison has the meaning given by subsection (3B).
detained in non‑prison custody has the meaning given by subsection (3C).
engage in a hostile activity has the meaning given by subsection 117.1(1).
exemption condition:
(a) in relation to a control order—has the meaning given by subsection 104.5B(2); or
(b) in relation to an extended supervision order or an interim supervision order—has the meaning given by subsection 105A.7C(2).
express amendment of the provisions of this Part or Chapter 2 means the direct amendment of the provisions (whether by the insertion, omission, repeal, substitution or relocation of words or matter).
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.
immigration detention has the same meaning as in the Migration Act 1958.
initial preventative detention order means an order made under section 105.8.
interim control order means an order made under section 104.4, 104.7 or 104.9.
interim post‑sentence order has the meaning given by section 105A.2.
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 the Federal Court of Australia.
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.
monitoring device means any electronic device capable of being used to determine or monitor the location of a person or an object or the status of an object.
Note: See also the definition of related monitoring equipment in this subsection.
ordinary search means a search of a person or of articles in the possession of a person that may include:
(a) requiring the person to remove his or her overcoat, coat or jacket and any gloves, shoes or hat; and
(b) an examination of those items.
organisation means a body corporate or an unincorporated body, whether or not the body:
(a) is based outside Australia; or
(b) consists of persons who are not Australian citizens; or
(c) is part of a larger organisation.
personal information has the same meaning as in the Privacy Act 1988.
police officer means:
(a) an AFP member; or
(b) a member (however described) of a police force of a State or Territory.
post‑sentence order has the meaning given by section 105A.2.
prescribed authority has the same meaning as in Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979.
preventative detention order means an order under section 105.8 or 105.12.
prohibited contact order means an order made under section 105.15 or 105.16.
referring State has the meaning given by section 100.2.
related monitoring equipment, in relation to a monitoring device, means any electronic equipment necessary for operating the monitoring device.
reside includes reside temporarily.
residence includes temporary residence.
seizable item means anything that:
(a) would present a danger to a person; or
(b) could be used to assist a person to escape from lawful custody; or
(c) could be used to contact another person or to operate a device remotely.
senior AFP member means:
(a) the Commissioner of the Australian Federal Police; or
(b) a Deputy Commissioner of the Australian Federal Police; or
(c) an AFP member of, or above, the rank of Superintendent.
specified authority: a person, or person in a class of persons, is a specified authority for a requirement or condition in a control order, an extended supervision order or interim supervision order in relation to another person (the subject) if:
(a) the person or class is any of the following:
(i) a police officer, or class of police officer;
(ii) if the requirement or condition relates to electronic monitoring—a person, or class of person, who is involved in electronically monitoring the subject;
(iii) for any requirement or condition in the order—any other person, or class of person; and
(b) the Court making the order is satisfied that the person or class is appropriate in relation to the requirement or condition; and
(c) the person or class is specified in the order.
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
(c) the action is done or the threat is made with the intention of:
(i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or
(ii) intimidating the public or a section of the public.
Elements of the definition of terrorist act
(2) Action falls within this subsection if it:
(a) causes serious harm that is physical harm to a person; or
(b) causes serious damage to property; or
(c) causes a person’s death; or
(d) endangers a person’s life, other than the life of the person taking the action; or
(e) creates a serious risk to the health or safety of the public or a section of the public; or
(f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:
(i) an information system; or
(ii) a telecommunications system; or
(iii) a financial system; or
(iv) a system used for the delivery of essential government services; or
(v) a system used for, or by, an essential public utility; or
(vi) a system used for, or by, a transport system.
(3) Action falls within this subsection if it:
(a) is advocacy, protest, dissent or industrial action; and
(b) is not intended:
(i) to cause serious harm that is physical harm to a person; or
(ii) to cause a person’s death; or
(iii) to endanger the life of a person, other than the person taking the action; or
(iv) to create a serious risk to the health or safety of the public or a section of the public.
Definition of detained in custody etc.
(3A) A person is detained in custody if the person is detained in custody under a law of the Commonwealth, a State or a Territory.
(3B) A person is detained in custody in a prison if the person is detained in custody in a gaol, lock‑up or remand centre, including under a continuing detention order or interim detention order. However, a person is not detained in custody in a prison if the person is in immigration detention in a gaol, lock‑up or remand centre.
(3C) A person is detained in non‑prison custody if the person is detained in custody, but is not detained in custody in a prison.
Note: An example of a person who is detained in non‑prison custody is a person who is in immigration detention (whether in a gaol, lock‑up, remand centre or otherwise).
References to person, property or public
(4) In this Division:
(a) a reference to any person or property is a reference to any person or property wherever situated, within or outside Australia; and
(b) a reference to the public includes a reference to the public of a country other than Australia.
Note: A court that is sentencing a person who has been convicted of an offence against this Part, the maximum penalty for which is 7 or more years of imprisonment, or convicted of an offence relating to control orders or extended supervision orders, may be required to warn the person about continuing detention orders and extended supervision orders (see section 105A.23).
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);
(c) subsection 101.4(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
(c) the action is carried out by, or the threat is made by, a constitutional corporation; or
(d) the action takes place, or if carried out would take place, in a Commonwealth place; or
(e) the threat is made in a Commonwealth place; or
(f) the action involves, or if carried out would involve, the use of a postal service or other like service; or
(g) the threat is made using a postal or other like service; or
(h) the action involves, or if carried out would involve, the use of an electronic communication; or
(i) the threat is made using an electronic communication; or
(j) the action disrupts, or if carried out would disrupt, trade or commerce:
(i) between Australia and places outside Australia; or
(ii) among the States; or
(iii) within a Territory, between a State and a Territory or between 2 Territories; or
(k) the action disrupts, or if carried out would disrupt:
(i) banking (other than State banking not extending beyond the limits of the State concerned); or
(ii) insurance (other than State insurance not extending beyond the limits of the State concerned); or
(l) the action is, or if carried out would be, an action in relation to which the Commonwealth is obliged to create an offence under international law; or
(m) the threat is one in relation to which the Commonwealth is obliged to create an offence under international law.
(6) To avoid doubt, subsections (2) and (3) apply to a State that is not a referring State at a particular time even if no State is a referring State at that time.
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
(c) circumstances specified in the regulations; or
(d) a person or body specified in the regulations in the circumstances specified in the regulations.
(3) In this section:
matter includes act, omission, body, person or thing.
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
(c) the person mentioned in paragraph (a) knows of the connection described in paragraph (b).
Penalty: Imprisonment for 25 years.
(2) A person commits an offence if:
(a) the person provides or receives training; and
(b) the training is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and
(c) the person mentioned in paragraph (a) is reckless as to the existence of the connection described in paragraph (b).
Penalty: Imprisonment for 15 years.
(3) A person commits an offence under this section even if:
(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
(c) the person mentioned in paragraph (a) knows of the connection described in paragraph (b).
Penalty: Imprisonment for 15 years.
(2) A person commits an offence if:
(a) the person possesses a thing; and
(b) the thing is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and
(c) the person mentioned in paragraph (a) is reckless as to the existence of the connection described in paragraph (b).
Penalty: Imprisonment for 10 years.
(3) A person commits an offence under subsection (1) or (2) even if:
(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
(c) the person mentioned in paragraph (a) knows of the connection described in paragraph (b).
Penalty: Imprisonment for 15 years.
(2) A person commits an offence if:
(a) the person collects or makes a document; and
(b) the document is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and
(c) the person mentioned in paragraph (a) is reckless as to the existence of the connection described in paragraph (b).
Penalty: Imprisonment for 10 years.
(3) A person commits an offence under subsection (1) or (2) even if:
(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)).
(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.
101.6 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
(c) the person’s act is done in preparation for, or planning, more than one terrorist act.
(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 (the first person) means:
(a) the first person’s spouse or de facto partner; or
(b) a parent, step‑parent or grandparent of the first person; or
(c) any other person who would be a parent, step‑parent or grandparent of the first person if the first person were a child (within the meaning of Part VII of the Family Law Act 1975) of the other person or a third person; or
(d) a child, step‑child or grandchild of the first person; or
(e) any other person who would be a step‑child or grandchild of the first person if the other person were a child (within the meaning of Part VII of the Family Law Act 1975) of a third person; or
(f) a brother, sister, step‑brother or step‑sister of the first person; or
(g) any other person who would be a brother, sister, step‑brother or step‑sister of the first person if the other person were a child (within the meaning of Part VII of the Family Law Act 1975) of a third person; or
(h) a guardian or carer of the first person.
member of an organisation includes:
(a) a person who is an informal member of the organisation; and
(b) a person who has taken steps to become a member of the organisation; and
(c) in the case of an organisation that is a body corporate—a director or an officer of the body corporate.
recruit includes induce, incite and encourage.
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).
(20) In this section, a reference to the doing of a terrorist act includes:
(a) a reference to the doing of a terrorist act, even if a terrorist act does not occur; and
(b) a reference to the doing of a specific terrorist act; and
(c) a reference to the doing of more than one terrorist act.
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
(c) the person knows the organisation is a terrorist organisation.
Penalty: Imprisonment for 25 years.
(2) A person commits an offence if:
(a) the person intentionally directs the activities of an organisation; and
(b) the organisation is a terrorist organisation; and
(c) the person is reckless as to whether the organisation is a terrorist organisation.
Penalty: Imprisonment for 15 years.
102.3 Membership of a terrorist organisation
(1) A person commits an offence if:
(a) the person intentionally is a member of an organisation; and
(b) the organisation is a terrorist organisation; and
(c) the person knows the organisation is a terrorist organisation.
Penalty: Imprisonment for 10 years.
(2) Subsection (1) does not apply if the person proves that he or she took all reasonable steps to cease to be a member of the organisation as soon as practicable after the person knew that the organisation was a terrorist organisation.
Note: A defendant bears a legal burden in relation to the matter in subsection (2) (see section 13.4).
102.4 Recruiting for a terrorist organisation
(1) A person commits an offence if:
(a) the person intentionally recruits a person to join, or participate in the activities of, an organisation; and
(b) the organisation is a terrorist organisation; and
(c) the first‑mentioned person knows the organisation is a terrorist organisation.
Penalty: Imprisonment for 25 years.
(2) A person commits an offence if:
(a) the person intentionally recruits a person to join, or participate in the activities of, an organisation; and
(b) the organisation is a terrorist organisation; and
(c) the first‑mentioned person is reckless as to whether the organisation is a terrorist organisation.
Penalty: Imprisonment for 15 years.
102.5 Training involving a terrorist organisation
(1) A person commits an offence if:
(a) the person does any of the following:
(i) intentionally provides training to an organisation;
(ii) intentionally receives training from an organisation;
(iii) intentionally participates in training with an organisation; and
(b) the organisation is a terrorist organisation; and
(c) the person is reckless as to whether the organisation is a terrorist organisation.
Penalty: Imprisonment for 25 years.
(2) A person commits an offence if:
(a) the person does any of the following:
(i) intentionally provides training to an organisation;
(ii) intentionally receives training from an organisation;
(iii) intentionally participates in training with an organisation; and
(b) the organisation is a terrorist organisation that is covered by paragraph (b) of the definition of terrorist organisation in subsection 102.1(1).
Penalty: Imprisonment for 25 years.
(3) Subject to subsection (4), strict liability applies to paragraph (2)(b).
(4) Subsection (2) does not apply unless the person is reckless as to the circumstance mentioned in paragraph (2)(b).
Note: A defendant bears an evidential burden in relation to the 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)
