Criminal Code Act 1995

Schedule—The Criminal Code

Chapter 10—National infrastructure

Part 10.2—Money laundering

Division 400—Money laundering

400.1 Definitions

(1) In this Division:

ADI (authorised deposit‑taking institution) means:

(a) a body corporate that is an ADI for the purposes of the Banking Act 1959; or

(b) the Reserve Bank of Australia; or

Australian Capital Territory indictable offence means an offence against a law of the Australian Capital Territory that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence).

banking transaction includes:

(a) any transaction made at an ADI; and

(b) any transaction involving a money order.

Commonwealth indictable offence means an offence against a law of the Commonwealth, or a law of a Territory (other than the Australian Capital Territory and the Northern Territory), that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence).

deals with money or other property has the meaning given by section 400.2.

director, in relation to a company, means:

(a) any person occupying or acting in the position of director of the company, by whatever name called and whether or not validly appointed to occupy or duly authorised to act in the position; and

(b) any person in accordance with whose directions or instructions the directors of the company are accustomed to act, other than when those directors only do so:

(i) in the proper performance of the functions attaching to the person’s professional capacity; or

(ii) in their business relationship with the person.

effective control has a meaning affected by section 400.2AA.

export money or other property, from Australia, includes transfer money or other property from Australia by an electronic communication.

foreign indictable offence means an offence against a law of a foreign country constituted by conduct that, if it had occurred in Australia, would have constituted an offence against:

(a) a law of the Commonwealth; or

(b) a law of a State or Territory connected with the offence;

that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence).

Note: See subsection (3) for when a law of a State or Territory is connected with the offence.

foreign offence means an offence against a law of a foreign country constituted by conduct that, if it had occurred in Australia, would have constituted an offence against:

(a) a law of the Commonwealth; or

(b) a law of a State; or

import money or other property, into Australia, includes transfer money or other property to Australia by an electronic communication.

instrument of crime: money or other property is an instrument of crime if it is used in the commission of, or used to facilitate the commission of, an offence against a law of the Commonwealth, a State, a Territory or a foreign country that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence).

Northern Territory indictable offence means an offence against a law of the Northern Territory that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence).

proceeds of general crime means any money or other property that is wholly or partly derived or realised, directly or indirectly, by any person from the commission of:

(a) an offence against a law of the Commonwealth, a State or a Territory; or

(b) a foreign offence.

proceeds of general crime offence provision means an offence against any of the following provisions:

(a) subsection 400.2B(2);

(b) subsection 400.2B(3);

(d) subsection 400.2B(6);

(e) subsection 400.2B(8);

(f) subsection 400.2B(9);

(g) subsection 400.3(1A);

(h) subsection 400.3(1B);

(i) subsection 400.3(2A);

(j) subsection 400.3(2B);

(k) subsection 400.3(3A);

(l) subsection 400.3(3B);

(m) subsection 400.4(1A);

(n) subsection 400.4(1B);

(o) subsection 400.4(2A);

(p) subsection 400.4(2B);

(q) subsection 400.4(3A);

(r) subsection 400.4(3B).

proceeds of indictable crime means:

(a) any money or other property that is wholly or partly derived or realised, directly or indirectly, by any person from the commission of a particular offence against a law of the Commonwealth, a State, a Territory or a foreign country that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence); or

(b) any money or other property that is wholly or partly derived or realised, directly or indirectly, by any person from the commission of an offence of a particular kind against a law of the Commonwealth, a State, a Territory or a foreign country that may be dealt with as an indictable offence (even if an offence of that kind may, in some circumstances, be dealt with as a summary offence).

property means real or personal property of every description, whether situated in Australia or elsewhere and whether tangible or intangible, and includes an interest in any such real or personal property.

State indictable offence means an offence against a law of a State that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence).

(2) To avoid doubt, a reference in this Division to money or other property includes a reference to financial instruments, cards and other objects that represent money or can be exchanged for money, whether or not they have intrinsic value.

(3) For the purposes of the definition of foreign indictable offence in subsection (1), a State or Territory is connected with the offence if:

(a) a dealing in money or property takes place in the State or Territory; and

(b) the money or property would be proceeds of indictable crime, or could become an instrument of crime, in relation to the offence if the offence were a foreign indictable offence.

400.2 Definition of deals with money or other property

(1) For the purposes of this Division, a person deals with money or other property if the person does any of the following:

(a) receives, possesses, conceals or disposes of money or other property;

(b) imports money or other property into Australia;

(d) engages in a banking transaction relating to money or other property.

(2) For the purposes of this Division, if:

(a) a person (the first person) engages in conduct; and

(b) the first person’s conduct causes another person to deal with money or other property (within the meaning of subsection (1)); and

(c) the first person is reckless as to whether the first person’s conduct causes the other person to deal with the money or property;

the first person is taken to have dealt with the money or property.

(3) For the purposes of subsection (2), it is immaterial whether the identity of the other person can be established.

(4) For the purposes of subsection (2), the conduct of a person causes another person to deal with money or other property (within the meaning of subsection (1)) if the conduct substantially contributes to the other person dealing with the money or property (within the meaning of subsection (1)).

(5) For the purposes of subsection (4), it is immaterial whether the identity of the other person can be established.

400.2AA Effective control of money or property

(1) For the purposes of this Division, a person may have effective control of money or other property whether or not the person has:

(a) a legal or equitable estate or interest in the money or property; or

(b) a right, power or privilege in connection with the money or property.

(2) For the purposes of this Division, if money or other property is held on trust for the ultimate benefit of a person, the person is taken to have effective control of the money or property.

(3) For the purposes of this Division, in determining whether or not a person has effective control of money or other property, regard may be had to:

(a) shareholdings in, debentures over or directorships of a company that has an interest (whether direct or indirect) in the money or property; and

(b) a trust that has a relationship to the money or property; and

(i) persons having an interest in the money or property, or in companies of the kind referred to in paragraph (a) or trusts of the kind referred to in paragraph (b); and

(ii) other persons.

(4) For the purposes of this section, family relationships are taken to include the following (without limitation):

(a) relationships between de facto partners;

(b) relationships of child and parent that arise if someone is the child of a person because of the definition of child in the Dictionary;

(5) To avoid doubt, for the purposes of this Division, more than one person may have effective control of money or other property.

400.2A Application of offences relating to possible instruments of crime

(1) This section affects the application of sections 400.2B, 400.3, 400.4, 400.5, 400.6, 400.7 and 400.8 so far as they relate to a person dealing with money or other property that:

(a) is intended by the person to become an instrument of crime; or

(b) is at risk of becoming an instrument of crime.

(2) Those sections apply if either or both of the following apply:

(a) a circumstance described in subsection (3) exists;

(b) a circumstance described in subsection (4) exists.

(3) One circumstance is that money or other property is intended to become, or at risk of becoming, an instrument of crime in relation to an offence that is:

(a) a Commonwealth indictable offence; or

(b) a foreign indictable offence; or

(d) an Australian Capital Territory indictable offence; or

(e) a Northern Territory indictable offence.

Note: The prosecution need not prove the existence of any fault element for the nature of the offence: see section 400.11.

(4) Another circumstance is that the dealing with the money or other property occurs:

(a) in the course of or for the purposes of importation of goods into, or exportation of goods from, Australia; or

(b) by means of a communication using a postal, telegraphic, telephonic or other like service within the meaning of paragraph 51(v) of the Constitution; or

(c) in the course of banking (other than State banking that does not extend beyond the limits of the State concerned); or

(d) outside Australia.

(5) Absolute liability applies to subsections (3) and (4).

Note: For absolute liability, see section 6.2.

400.2B Proceeds of crime etc.—money or property worth $10,000,000 or more

Tier 1 offences

(1) A person commits an offence if:

(a) the person deals with money or other property; and

(b) either:

(i) the money or property is, and the person believes it to be, proceeds of indictable crime; or

(ii) the person intends that the money or property will become an instrument of crime; and

Penalty: Imprisonment for life.

(2) A person commits an offence if:

(a) the person engages in conduct in relation to money or other property; and

(b) the money or property is, and the person believes it to be, proceeds of general crime; and

(i) the nature of the money or property;

(ii) the value of the money or property;

(iii) the source of the money or property;

(iv) the location of the money or property;

(v) any disposition of the money or property;

(vi) any movement of the money or property;

(vii) any rights in respect of the money or property;

(viii) the identity of any person who has rights in respect of the money or property;

(ix) the identity of any person who has effective control of the money or property; and

(d) when the conduct occurs, the value of the money and other property is $10,000,000 or more.

Penalty: Imprisonment for life.

(3) A person commits an offence if:

(a) on 2 or more occasions, the person engages in conduct in relation to money or other property; and

(b) for each occasion, the money or property is, and the person believes it to be, proceeds of general crime; and

(i) the nature of the money or property;

(ii) the value of the money or property;

(iii) the source of the money or property;

(iv) the location of the money or property;

(v) any disposition of the money or property;

(vi) any movement of the money or property;

(vii) any rights in respect of the money or property;

(viii) the identity of any person who has rights in respect of the money or property;

(ix) the identity of any person who has effective control of the money or property; and

(d) the sum of the values of the money and other property (where each value is worked out as at the time when the relevant conduct occurred) is $10,000,000 or more.

Penalty: Imprisonment for life.

Tier 2 offences

(4) A person commits an offence if:

(a) the person deals with money or other property; and

(b) either:

(i) the money or property is proceeds of indictable crime; or

(ii) there is a risk that the money or property will become an instrument of crime; and

(c) the person is reckless as to the fact that the money or property is proceeds of indictable crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and

(d) at the time of the dealing, the value of the money and other property is $10,000,000 or more.

Penalty: Imprisonment for 15 years, or 900 penalty units, or both.

(5) A person commits an offence if:

(a) the person engages in conduct in relation to money or other property; and

(b) the money or property is proceeds of general crime; and

(d) the conduct concealed or disguised any or all of the following:

(i) the nature of the money or property;

(ii) the value of the money or property;

(iii) the source of the money or property;

(iv) the location of the money or property;

(v) any disposition of the money or property;

(vi) any movement of the money or property;

(vii) any rights in respect of the money or property;

(viii) the identity of any person who has rights in respect of the money or property;

(ix) the identity of any person who has effective control of the money or property; and

(e) when the conduct occurs, the value of the money and other property is $10,000,000 or more.

Penalty: Imprisonment for 15 years, or 900 penalty units, or both.

(6) A person commits an offence if:

(a) on 2 or more occasions, the person engages in conduct in relation to money or other property; and

(b) for each occasion, the money or property is proceeds of general crime; and

(c) for each occasion, the person is reckless as to the fact that the money or property is proceeds of general crime; and

(d) for each occasion, the conduct concealed or disguised any or all of the following:

(i) the nature of the money or property;

(ii) the value of the money or property;

(iii) the source of the money or property;

(iv) the location of the money or property;

(v) any disposition of the money or property;

(vi) any movement of the money or property;

(vii) any rights in respect of the money or property;

(viii) the identity of any person who has rights in respect of the money or property;

(ix) the identity of any person who has effective control of the money or property; and

(e) the sum of the values of the money and other property (where each value is worked out as at the time when the relevant conduct occurred) is $10,000,000 or more.

Penalty: Imprisonment for 15 years, or 900 penalty units, or both.

Tier 3 offences

(7) A person commits an offence if:

(a) the person deals with money or other property; and

(b) either:

(i) the money or property is proceeds of indictable crime; or

(ii) there is a risk that the money or property will become an instrument of crime; and

(c) the person is negligent as to the fact that the money or property is proceeds of indictable crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and

(d) at the time of the dealing, the value of the money and other property is $10,000,000 or more.

Penalty: Imprisonment for 6 years, or 360 penalty units, or both.

(8) A person commits an offence if:

(a) the person engages in conduct in relation to money or other property; and

(b) the money or property is proceeds of general crime; and

(d) the conduct concealed or disguised any or all of the following:

(i) the nature of the money or property;

(ii) the value of the money or property;

(iii) the source of the money or property;

(iv) the location of the money or property;

(v) any disposition of the money or property;

(vi) any movement of the money or property;

(vii) any rights in respect of the money or property;

(viii) the identity of any person who has rights in respect of the money or property;

(ix) the identity of any person who has effective control of the money or property; and

(e) when the conduct occurs, the value of the money and other property is $10,000,000 or more.

Penalty: Imprisonment for 6 years, or 360 penalty units, or both.

(9) A person commits an offence if:

(a) on 2 or more occasions, the person engages in conduct in relation to money or other property; and

(b) for each occasion, the money or property is proceeds of general crime; and

(c) for each occasion, the person is negligent as to the fact that the money or property is proceeds of general crime; and

(d) for each occasion, the conduct concealed or disguised any or all of the following:

(i) the nature of the money or property;

(ii) the value of the money or property;

(iii) the source of the money or property;

(iv) the location of the money or property;

(v) any disposition of the money or property;

(vi) any movement of the money or property;

(vii) any rights in respect of the money or property;

(viii) the identity of any person who has rights in respect of the money or property;

(ix) the identity of any person who has effective control of the money or property; and

(e) the sum of the values of the money and other property (where each value is worked out as at the time when the relevant conduct occurred) is $10,000,000 or more.

Penalty: Imprisonment for 6 years, or 360 penalty units, or both.

Absolute liability

(10) Absolute liability applies to paragraphs (1)(c), (2)(d), (3)(d), (4)(d), (5)(e), (6)(e), (7)(d), (8)(e) and (9)(e).

Note 1: Section 400.10 provides for a defence of mistake of fact in relation to these paragraphs.

Note 2: Section 400.2A affects the application of this section so far as it relates to a person dealing with money or other property that:

(a) is intended by the person to become an instrument of crime; or

(b) is at risk of becoming an instrument of crime.

400.3 Proceeds of crime etc.—money or property worth $1,000,000 or more

Tier 1 offences

(1) A person commits an offence if:

(a) the person deals with money or other property; and

(b) either:

(i) the money or property is, and the person believes it to be, proceeds of indictable crime; or

(ii) the person intends that the money or property will become an instrument of crime; and

Penalty: Imprisonment for 25 years, or 1500 penalty units, or both.

(1A) A person commits an offence if:

(a) the person engages in conduct in relation to money or other property; and

(b) the money or property is, and the person believes it to be, proceeds of general crime; and

(i) the nature of the money or property;

(ii) the value of the money or property;

(iii) the source of the money or property;

(iv) the location of the money or property;

(v) any disposition of the money or property;

(vi) any movement of the money or property;

(vii) any rights in respect of the money or property;

(viii) the identity of any person who has rights in respect of the money or property;

(ix) the identity of any person who has effective control of the money or property; and

(d) when the conduct occurs, the value of the money and other property is $1,000,000 or more.

Penalty: Imprisonment for 25 years, or 1500 penalty units, or both.

(1B) A person commits an offence if:

(a) on 2 or more occasions, the person engages in conduct in relation to money or other property; and

(b) for each occasion, the money or property is, and the person believes it to be, proceeds of general crime; and

(i) the nature of the money or property;

(ii) the value of the money or property;

(iii) the source of the money or property;

(iv) the location of the money or property;

(v) any disposition of the money or property;

(vi) any movement of the money or property;

(vii) any rights in respect of the money or property;

(viii) the identity of any person who has rights in respect of the money or property;

(ix) the identity of any person who has effective control of the money or property; and

(d) the sum of the values of the money and other property (where each value is worked out as at the time when the relevant conduct occurred) is $1,000,000 or more.

Penalty: Imprisonment for 25 years, or 1500 penalty units, or both.

Tier 2 offences

(2) A person commits an offence if:

(a) the person deals with money or other property; and

(b) either:

(i) the money or property is proceeds of indictable crime; or

(ii) there is a risk that the money or property will become an instrument of crime; and

(d) at the time of the dealing, the value of the money and other property is $1,000,000 or more.

Penalty: Imprisonment for 12 years, or 720 penalty units, or both.

(2A) A person commits an offence if:

(a) the person engages in conduct in relation to money or other property; and

(b) the money or property is proceeds of general crime; and

(d) the conduct concealed or disguised any or all of the following:

(i) the nature of the money or property;

(ii) the value of the money or property;

(iii) the source of the money or property;

(iv) the location of the money or property;

(v) any disposition of the money or property;

(vi) any movement of the money or property;

(vii) any rights in respect of the money or property;

(viii) the identity of any person who has rights in respect of the money or property;

(ix) the identity of any person who has effective control of the money or property; and

(e) when the conduct occurs, the value of the money and other property is $1,000,000 or more.

Penalty: Imprisonment for 12 years, or 720 penalty units, or both.

(2B) A person commits an offence if:

(a) on 2 or more occasions, the person engages in conduct in relation to money or other property; and

(b) for each occasion, the money or property is proceeds of general crime; and

(c) for each occasion, the person is reckless as to the fact that the money or property is proceeds of general crime; and

(d) for each occasion, the conduct concealed or disguised any or all of the following:

(i) the nature of the money or property;

(ii) the value of the money or property;

(iii) the source of the money or property;

(iv) the location of the money or property;

(v) any disposition of the money or property;

(vi) any movement of the money or property;

(vii) any rights in respect of the money or property;

(viii) the identity of any person who has rights in respect of the money or property;

(ix) the identity of any person who has effective control of the money or property; and

(e) the sum of the values of the money and other property (where each value is worked out as at the time when the relevant conduct occurred) is $1,000,000 or more.

Penalty: Imprisonment for 12 years, or 720 penalty units, or both.

Tier 3 offences

(3) A person commits an offence if:

(a) the person deals with money or other property; and

(b) either:

(i) the money or property is proceeds of indictable crime; or

(ii) there is a risk that the money or property will become an instrument of crime; and

(d) at the time of the dealing, the value of the money and other property is $1,000,000 or more.

Penalty: Imprisonment for 5 years, or 300 penalty units, or both.

(3A) A person commits an offence if:

(a) the person engages in conduct in relation to money or other property; and

(b) the money or property is proceeds of general crime; and

(d) the conduct concealed or disguised any or all of the following:

(i) the nature of the money or property;

(ii) the value of the money or property;

(iii) the source of the money or property;

(iv) the location of the money or property;

(v) any disposition of the money or property;

(vi) any movement of the money or property;

(vii) any rights in respect of the money or property;

(viii) the identity of any person who has rights in respect of the money or property;

(ix) the identity of any person who has effective control of the money or property; and

(e) when the conduct occurs, the value of the money and other property is $1,000,000 or more.

Penalty: Imprisonment for 5 years, or 300 penalty units, or both.

(3B) A person commits an offence if:

(a) on 2 or more occasions, the person engages in conduct in relation to money or other property; and

(b) for each occasion, the money or property is proceeds of general crime; and

(c) for each occasion, the person is negligent as to the fact that the money or property is proceeds of general crime; and

(d) for each occasion, the conduct concealed or disguised any or all of the following:

(i) the nature of the money or property;

(ii) the value of the money or property;

(iii) the source of the money or property;

(iv) the location of the money or property;

(v) any disposition of the money or property;

(vi) any movement of the money or property;

(vii) any rights in respect of the money or property;

(viii) the identity of any person who has rights in respect of the money or property;

(ix) the identity of any person who has effective control of the money or property; and

(e) the sum of the values of the money and other property (where each value is worked out as at the time when the relevant conduct occurred) is $1,000,000 or more.

Penalty: Imprisonment for 5 years, or 300 penalty units, or both.

Absolute liability

(4) Absolute liability applies to paragraphs (1)(c), (1A)(d), (1B)(d), (2)(d), (2A)(e), (2B)(e), (3)(d), (3A)(e) and (3B)(e).

Note 1: Section 400.10 provides for a defence of mistake of fact in relation to these paragraphs.

Note 2: Section 400.2A affects the application of this section so far as it relates to a person dealing with money or other property that:

(a) is intended by the person to become an instrument of crime; or

(b) is at risk of becoming an instrument of crime.

400.4 Proceeds of crime etc.—money or property worth $100,000 or more

Tier 1 offences

(1) A person commits an offence if:

(a) the person deals with money or other property; and

(b) either:

(i) the money or property is, and the person believes it to be, proceeds of indictable crime; or

(ii) the person intends that the money or property will become an instrument of crime; and

Penalty: Imprisonment for 20 years, or 1200 penalty units, or both.

(1A) A person commits an offence if:

(a) the person engages in conduct in relation to money or other property; and

(b) the money or property is, and the person believes it to be, proceeds of general crime; and

(i) the nature of the money or property;

(ii) the value of the money or property;

(iii) the source of the money or property;

(iv) the location of the money or property;

(v) any disposition of the money or property;

(vi) any movement of the money or property;

(vii) any rights in respect of the money or property;

(viii) the identity of any person who has rights in respect of the money or property;

(ix) the identity of any person who has effective control of the money or property; and

(d) when the conduct occurs, the value of the money and other property is $100,000 or more.

Penalty: Imprisonment for 20 years, or 1200 penalty units, or both.

(1B) A person commits an offence if:

(a) on 2 or more occasions, the person engages in conduct in relation to money or other property; and

(b) for each occasion, the money or property is, and the person believes it to be, proceeds of general crime; and

(i) the nature of the money or property;

(ii) the value of the money or property;

(iii) the source of the money or property;

(iv) the location of the money or property;

(v) any disposition of the money or property;

(vi) any movement of the money or property;

(vii) any rights in respect of the money or property;

(viii) the identity of any person who has rights in respect of the money or property;

(ix) the identity of any person who has effective control of the money or property; and

(d) the sum of the values of the money and other property (where each value is worked out as at the time when the relevant conduct occurred) is $100,000 or more.

Penalty: Imprisonment for 20 years, or 1200 penalty units, or both.

Tier 2 offences

(2) A person commits an offence if:

(a) the person deals with money or other property; and

(b) either:

(i) the money or property is proceeds of indictable crime; or

(ii) there is a risk that the money or property will become an instrument of crime; and

(d) at the time of the dealing, the value of the money and other property is $100,000 or more.

Penalty: Imprisonment for 10 years, or 600 penalty units, or both.

(2A) A person commits an offence if:

(a) the person engages in conduct in relation to money or other property; and

(b) the money or property is proceeds of general crime; and

(d) the conduct concealed or disguised any or all of the following:

(i) the nature of the money or property;

(ii) the value of the money or property;

(iii) the source of the money or property;

(iv) the location of the money or property;

(v) any disposition of the money or property;

(vi) any movement of the money or property;

(vii) any rights in respect of the money or property;

(viii) the identity of any person who has rights in respect of the money or property;

(ix) the identity of any person who has effective control of the money or property; and

(e) when the conduct occurs, the value of the money and other property is $100,000 or more.

Penalty: Imprisonment for 10 years, or 600 penalty units, or both.

(2B) A person commits an offence if:

(a) on 2 or more occasions, the person engages in conduct in relation to money or other property; and

(b) for each occasion, the money or property is proceeds of general crime; and

(c) for each occasion, the person is reckless as to the fact that the money or property is proceeds of general crime; and

(d) for each occasion, the conduct concealed or disguised any or all of the following:

(i) the nature of the money or property;

(ii) the value of the money or property;

(iii) the source of the money or property;

(iv) the location of the money or property;

(v) any disposition of the money or property;

(vi) any movement of the money or property;

(vii) any rights in respect of the money or property;

(viii) the identity of any person who has rights in respect of the money or property;

(ix) the identity of any person who has effective control of the money or property; and

(e) the sum of the values of the money and other property (where each value is worked out as at the time when the relevant conduct occurred) is $100,000 or more.

Penalty: Imprisonment for 10 years, or 600 penalty units, or both.

Tier 3 offences

(3) A person commits an offence if:

(a) the person deals with money or other property; and

(b) either:

(i) the money or property is proceeds of indictable crime; or

(ii) there is a risk that the money or property will become an instrument of crime; and

(d) at the time of the dealing, the value of the money and other property is $100,000 or more.

Penalty: Imprisonment for 4 years, or 240 penalty units, or both.

(3A) A person commits an offence if:

(a) the person engages in conduct in relation to money or other property; and

(b) the money or property is proceeds of general crime; and

(d) the conduct concealed or disguised any or all of the following:

(i) the nature of the money or property;

(ii) the value of the money or property;

(iii) the source of the money or property;

(iv) the location of the money or property;

(v) any disposition of the money or property;

(vi) any movement of the money or property;

(vii) any rights in respect of the money or property;

(viii) the identity of any person who has rights in respect of the money or property;

(ix) the identity of any person who has effective control of the money or property; and

(e) when the conduct occurs, the value of the money and other property is $100,000 or more.

Penalty: Imprisonment for 4 years, or 240 penalty units, or both.

(3B) A person commits an offence if:

(a) on 2 or more occasions, the person engages in conduct in relation to money or other property; and

(b) for each occasion, the money or property is proceeds of general crime; and

(c) for each occasion, the person is negligent as to the fact that the money or property is proceeds of general crime; and

(d) for each occasion, the conduct concealed or disguised any or all of the following:

(i) the nature of the money or property;

(ii) the value of the money or property;

(iii) the source of the money or property;

(iv) the location of the money or property;

(v) any disposition of the money or property;

(vi) any movement of the money or property;

(vii) any rights in respect of the money or property;

(viii) the identity of any person who has rights in respect of the money or property;

(ix) the identity of any person who has effective control of the money or property; and

(e) the sum of the values of the money and other property (where each value is worked out as at the time when the relevant conduct occurred) is $100,000 or more.

Penalty: Imprisonment for 4 years, or 240 penalty units, or both.

Absolute liability

(4) Absolute liability applies to paragraphs (1)(c), (1A)(d), (1B)(d), (2)(d), (2A)(e), (2B)(e), (3)(d), (3A)(e) and (3B)(e).

Note 1: Section 400.10 provides for a defence of mistake of fact in relation to these paragraphs.

Note 2: Section 400.2A affects the application of this section so far as it relates to a person dealing with money or other property that:

(a) is intended by the person to become an instrument of crime; or

(b) is at risk of becoming an instrument of crime.

400.5 Proceeds of crime etc.—money or property worth $50,000 or more

(1) A person commits an offence if:

(a) the person deals with money or other property; and

(b) either:

(i) the money or property is, and the person believes it to be, proceeds of indictable crime; or

(ii) the person intends that the money or property will become an instrument of crime; and

Penalty: Imprisonment for 15 years, or 900 penalty units, or both.

(2) A person commits an offence if:

(a) the person deals with money or other property; and

(b) either:

(i) the money or property is proceeds of indictable crime; or

(ii) there is a risk that the money or property will become an instrument of crime; and

(d) at the time of the dealing, the value of the money and other property is $50,000 or more.

Penalty: Imprisonment for 7 years, or 420 penalty units, or both.

(3) A person commits an offence if:

(a) the person deals with money or other property; and

(b) either:

(i) the money or property is proceeds of indictable crime; or

(ii) there is a risk that the money or property will become an instrument of crime; and

(d) at the time of the dealing, the value of the money and other property is $50,000 or more.

Penalty: Imprisonment for 3 years, or 180 penalty units, or both.

(4) Absolute liability applies to paragraphs (1)(c), (2)(d) and (3)(d).

Note 1: Section 400.10 provides for a defence of mistake of fact in relation to these paragraphs.

Note 2: Section 400.2A affects the application of this section so far as it relates to a person dealing with money or other property that:

(a) is intended by the person to become an instrument of crime; or

(b) is at risk of becoming an instrument of crime.

400.6 Proceeds of crime etc.—money or property worth $10,000 or more

(1) A person commits an offence if:

(a) the person deals with money or other property; and

(b) either:

(i) the money or property is, and the person believes it to be, proceeds of indictable crime; or

(ii) the person intends that the money or property will become an instrument of crime; and

Penalty: Imprisonment for 10 years, or 600 penalty units, or both.

(2) A person commits an offence if:

(a) the person deals with money or other property; and

(b) either:

(i) the money or property is proceeds of indictable crime; or

(ii) there is a risk that the money or property will become an instrument of crime; and

(d) at the time of the dealing, the value of the money and other property is $10,000 or more.

Penalty: Imprisonment for 5 years, or 300 penalty units, or both.

(3) A person commits an offence if:

(a) the person deals with money or other property; and

(b) either:

(i) the money or property is proceeds of indictable crime; or

(ii) there is a risk that the money or property will become an instrument of crime; and

(d) at the time of the dealing, the value of the money and other property is $10,000 or more.

Penalty: Imprisonment for 2 years, or 120 penalty units, or both.

(4) Absolute liability applies to paragraphs (1)(c), (2)(d) and (3)(d).

Note 1: Section 400.10 provides for a defence of mistake of fact in relation to these paragraphs.

Note 2: Section 400.2A affects the application of this section so far as it relates to a person dealing with money or other property that:

(a) is intended by the person to become an instrument of crime; or

(b) is at risk of becoming an instrument of crime.

400.7 Proceeds of crime etc.—money or property worth $1,000 or more

(1) A person commits an offence if:

(a) the person deals with money or other property; and

(b) either:

(i) the money or property is, and the person believes it to be, proceeds of indictable crime; or

(ii) the person intends that the money or property will become an instrument of crime; and

Penalty: Imprisonment for 5 years, or 300 penalty units, or both.

(2) A person commits an offence if:

(a) the person deals with money or other property; and

(b) either:

(i) the money or property is proceeds of indictable crime; or

(ii) there is a risk that the money or property will become an instrument of crime; and

(d) at the time of the dealing, the value of the money and other property is $1,000 or more.

Penalty: Imprisonment for 2 years, or 120 penalty units, or both.

(3) A person commits an offence if:

(a) the person deals with money or other property; and

(b) either:

(i) the money or property is proceeds of indictable crime; or

(ii) there is a risk that the money or property will become an instrument of crime; and

(d) at the time of the dealing, the value of the money and other property is $1,000 or more.

Penalty: Imprisonment for 12 months, or 60 penalty units, or both.

(4) Absolute liability applies to paragraphs (1)(c), (2)(d) and (3)(d).

Note 1: Section 400.10 provides for a defence of mistake of fact in relation to these paragraphs.

Note 2: Section 400.2A affects the application of this section so far as it relates to a person dealing with money or other property that:

(a) is intended by the person to become an instrument of crime; or

(b) is at risk of becoming an instrument of crime.

400.8 Proceeds of crime etc.—money or property of any value

(1) A person commits an offence if:

(a) the person deals with money or other property; and

(b) either:

(i) the money or property is, and the person believes it to be, proceeds of indictable crime; or

(ii) the person intends that the money or property will become an instrument of crime.

Penalty: Imprisonment for 12 months, or 60 penalty units, or both.

(2) A person commits an offence if:

(a) the person deals with money or other property; and

(b) either:

(i) the money or property is proceeds of indictable crime; or

(ii) there is a risk that the money or property will become an instrument of crime; and

Penalty: Imprisonment for 6 months, or 30 penalty units, or both.

(3) A person commits an offence if:

(a) the person deals with money or other property; and

(b) either:

(i) the money or property is proceeds of indictable crime; or

(ii) there is a risk that the money or property will become an instrument of crime; and

Penalty: 10 penalty units.

Note: Section 400.2A affects the application of this section so far as it relates to a person dealing with money or other property that:

(a) is intended by the person to become an instrument of crime; or

(b) is at risk of becoming an instrument of crime.

400.9 Dealing with property reasonably suspected of being proceeds of crime etc.

(1AA) A person commits an offence if:

(a) the person deals with money or other property; and

(b) it is reasonable to suspect that the money or property is proceeds of indictable crime; and

Penalty: Imprisonment for 5 years, or 300 penalty units, or both.

(1AB) A person commits an offence if:

(a) the person deals with money or other property; and

(b) it is reasonable to suspect that the money or property is proceeds of indictable crime; and

Penalty: Imprisonment for 4 years, or 240 penalty units, or both.

(1) A person commits an offence if:

(a) the person deals with money or other property; and

(b) it is reasonable to suspect that the money or property is proceeds of indictable crime; and

Penalty: Imprisonment for 3 years, or 180 penalty units, or both.

(1A) A person commits an offence if:

(a) the person deals with money or other property; and

(b) it is reasonable to suspect that the money or property is proceeds of indictable crime; and

Penalty: Imprisonment for 2 years, or 120 penalty units, or both.

(2) For the purposes of this section, it is taken to be reasonable to suspect that money or other property is proceeds of indictable crime if:

(a) the conduct constituting the offence involves a number of transactions that are structured or arranged to avoid the reporting requirements of the repealed Financial Transaction Reports Act 1988 that would otherwise apply to the transactions; or

(aa) the conduct involves a number of transactions that are structured or arranged to avoid the reporting requirements of the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 that would otherwise apply to the transactions; or

(b) the conduct involves using one or more accounts held with ADIs in false names; or

(ba) the conduct amounts to an offence against section 139, 140 or 141 of the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006; or

(c) the value of the money and property involved in the conduct is, in the opinion of the trier of fact, grossly out of proportion to the defendant’s income and expenditure over a reasonable period within which the conduct occurs; or

(d) the conduct involves a significant cash transaction within the meaning of the repealed Financial Transaction Reports Act 1988, and the defendant:

(i) has contravened his or her obligations under that Act relating to reporting the transaction; or

(ii) has given false or misleading information in purported compliance with those obligations; or

(da) the conduct involves a threshold transaction (within the meaning of the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006) and the defendant:

(i) has contravened the defendant’s obligations under that Act relating to reporting the transaction; or

(ii) has given false or misleading information in purported compliance with those obligations; or

(e) the defendant:

(i) has stated that the conduct was engaged in on behalf of or at the request of another person; and

(ii) has not provided information enabling the other person to be identified and located.

(4) Absolute liability applies to paragraphs (1AA)(b) and (c), (1AB)(b) and (c), (1)(b) and (c) and (1A)(b) and (c).

(5) This section does not apply if the defendant proves that he or she had no reasonable grounds for suspecting that the money or property was derived or realised, directly or indirectly, from some form of unlawful activity.

Note: A defendant bears a legal burden in relation to the matter in subsection (5) (see section 13.4).

400.10 Mistake of fact as to the value of money or property

(1) A person is not criminally responsible for an offence against section 400.2B, 400.3, 400.4, 400.5, 400.6, 400.7 or 400.9 (other than an offence against a proceeds of general crime offence provision) in relation to money or property if:

(a) at or before the time of dealing with the money or property, the person considered what was the value of the money or property, and was under a mistaken but reasonable belief about that value; and

(aa) in a case where the dealing continued during a period—the person had that belief throughout that period; and

(b) had the value been what the person believed it to be, the person’s conduct would have constituted another offence against this Division for which the maximum penalty, in penalty units, is less than the maximum penalty, in penalty units, for the offence charged.

Example: Assume that a person deals with money or property that is the proceeds of indictable crime. While the person believes it to be proceeds of indictable crime, he or she is under a mistaken but reasonable belief that it is worth $90,000 when it is in fact worth $120,000.

That belief is a defence to an offence against subsection 400.4(1) (which deals with money or property of a value of $100,000 or more). However, the person would commit an offence against subsection 400.5(1) (which deals with money or property of a value of $10,000 or more). Section 400.14 allows for an alternative verdict of guilty of an offence against subsection 400.5(1).

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

(1A) A person is not criminally responsible for an offence against a proceeds of general crime offence provision that relates to engaging in conduct in relation to money or property if:

(a) at or before the time of engaging in the conduct, the person considered what was the value of the money or property, and was under a mistaken but reasonable belief about that value; and

(b) in a case where the conduct continued during a period—the person had that belief throughout that period; and

(c) had the value been what the person believed it to be, the person’s conduct would have constituted another offence against this Division for which the maximum penalty, in penalty units, is less than the maximum penalty, in penalty units, for the offence charged.

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

(2) A person may be regarded as having considered what the value of the money or property was if:

(a) he or she had considered, on a previous occasion, what the value of the money or property was in the circumstances surrounding that occasion; and

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

400.10A Effect of money or property being provided as part of a controlled operation—proceeds of indictable crime

(1) In a prosecution for an offence by a person against section 400.2B, 400.3, 400.4, 400.5, 400.6, 400.7 or 400.8 (other than an offence against a proceeds of general crime offence provision) in relation to the person dealing with money or other property, it is not necessary to prove that the money or property is proceeds of indictable crime if it is proved that, as part of a controlled operation in relation to suspected offences against this Division, either of the following provided the money or property:

(a) a law enforcement participant in the controlled operation;

(b) a civilian participant in the controlled operation, acting in accordance with the instructions of a law enforcement officer.

(2) In this section:

civilian participant in a controlled operation has the meaning given by Part IAB of the Crimes Act 1914.

controlled operation has the meaning given by Part IAB of the Crimes Act 1914.

law enforcement officer has the meaning given by subsection 3(1) of the Crimes Act 1914.

law enforcement participant in a controlled operation has the meaning given by Part IAB of the Crimes Act 1914.

400.10B Effect of money or property being provided as part of a controlled operation—proceeds of general crime

(1) In a prosecution for an offence against a proceeds of general crime offence provision by a person in relation to the person engaging in conduct in relation to money or other property, it is not necessary to prove that the money or property is proceeds of general crime if it is proved that, as part of a controlled operation in relation to suspected offences against this Division, either of the following provided the money or property:

(a) a law enforcement participant in the controlled operation;

(b) a civilian participant in the controlled operation, acting in accordance with the instructions of a law enforcement officer.

(2) In this section:

civilian participant in a controlled operation has the meaning given by Part IAB of the Crimes Act 1914.

controlled operation has the meaning given by Part IAB of the Crimes Act 1914.

400.11 Proof of certain matters relating to kinds of offences not required

In a prosecution for an offence against a provision of this Division, it is not necessary to prove the existence of any fault element in relation to any of the following:

(a) whether an offence may be dealt with as an indictable offence;

(b) whether an offence is an indictable offence;

(d) whether an offence is a foreign indictable offence;

(e) whether an offence is a State indictable offence;

(f) whether an offence is an Australian Capital Territory indictable offence;

(g) whether an offence is a Northern Territory indictable offence;

(h) whether an offence is a foreign offence.

400.12 Combining several contraventions in a single charge

(1) A single charge of an offence against a provision of this Division (other than a proceeds of general crime offence provision) may be about 2 or more instances of the defendant engaging in conduct (at the same time or different times) that constitutes an offence against a provision of this Division (other than a proceeds of general crime offence provision).

(2) If:

(a) a single charge is about 2 or more such instances; and

(b) the value of the money and other property dealt with is an element of the offence in question;

that value is taken to be the sum of the values of the money and other property dealt with in respect of each of those instances.

400.13 Proof of other offences is not required

(1) To avoid doubt, it is not necessary, in order to prove for the purposes of this Division that money or property is proceeds of general crime, to establish that:

(a) a particular offence, or an offence of a particular kind, was committed in relation to the money or property; or

(b) a particular person committed an offence, or an offence of a particular kind, in relation to the money or property.

(1A) To avoid doubt, it is not necessary, in order to prove for the purposes of this Division that money or property is proceeds of indictable crime covered by paragraph (a) of the definition of proceeds of indictable crime in subsection 400.1(1), to establish that a particular person committed an offence in relation to the money or property.

(1B) To avoid doubt, it is not necessary, in order to prove for the purposes of this Division that money or property is proceeds of indictable crime covered by paragraph (b) of the definition of proceeds of indictable crime in subsection 400.1(1), to establish that:

(a) a particular offence was committed in relation to the money or property; or

(b) a particular person committed an offence in relation to the money or property.

(2) To avoid doubt, it is not necessary, in order to prove for the purposes of this Division an intention or risk that money or property will be an instrument of crime, to establish that:

(a) an intention or risk that a particular offence will be committed in relation to the money or property; or

(b) an intention or risk that a particular person will commit an offence in relation to the money or property.

400.14 Alternative verdicts

If, on a trial for an offence against a provision of this Division (the offence charged), the trier of fact:

(a) is not satisfied that the defendant is guilty of the offence charged; but

(b) is otherwise satisfied that the defendant is guilty of another offence against this Division for which the maximum penalty, in penalty units, is less than the maximum penalty, in penalty units, for the offence charged;

the trier of fact may find the defendant not guilty of the offence charged but guilty of the other offence, so long as the person has been accorded procedural fairness in relation to that finding of guilt.

400.14A Recklessness as to nature of money or property sufficient for offence of attempt to commit an offence against certain provisions of this Part

(1) Despite subsection 11.1(3), for the offence of attempting to commit an offence against any of the following provisions:

(a) subsection 400.2B(4);

(b) subsection 400.2B(5);

(d) subsection 400.2B(7);

(e) subsection 400.2B(8);

(f) subsection 400.2B(9);

(g) subsection 400.3(2);

(h) subsection 400.3(2A);

(i) subsection 400.3(2B);

(j) subsection 400.3(3);

(k) subsection 400.3(3A);

(l) subsection 400.3(3B);

(m) subsection 400.4(2);

(n) subsection 400.4(2A);

(o) subsection 400.4(2B);

(p) subsection 400.4(3);

(q) subsection 400.4(3A);

(r) subsection 400.4(3B);

(s) subsection 400.5(2);

(t) subsection 400.5(3);

(u) subsection 400.6(2);

(v) subsection 400.6(3);

(w) subsection 400.7(2);

(x) subsection 400.7(3);

(y) subsection 400.8(2);

(z) subsection 400.8(3);

recklessness is the fault element in relation to whichever of the following is a physical element of the offence attempted:

(za) that money or property is proceeds of indictable crime;

(zb) that money or property is proceeds of general crime.

Note: Proof of intention, knowledge or recklessness will satisfy a fault element of recklessness: see subsection 5.4(4)

400.15 Geographical jurisdiction

(1) A person does not commit an offence against this Division unless:

(a) the conduct constituting the alleged offence occurs:

(i) wholly or partly in Australia; or

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

(b) except in the case of an alleged offence against a proceeds of general crime offence provision—the conduct constituting the alleged offence occurs wholly outside Australia (but not on board an Australian aircraft or an Australian ship) and the money or other property:

(i) is proceeds of indictable crime; or

(ii) is intended to become an instrument of crime; or

(iii) is at risk of becoming an instrument of crime;

in relation to a Commonwealth indictable offence, a State indictable offence, an Australian Capital Territory indictable offence or a Northern Territory indictable offence; or

(ba) in the case of an alleged offence against a proceeds of general crime offence provision:

(i) the conduct constituting the alleged offence occurs wholly outside Australia (but not on board an Australian aircraft or an Australian ship); and

(ii) the money or other property is proceeds of general crime in relation to an offence against a law of the Commonwealth, an offence against a law of a State, an offence against a law of the Australian Capital Territory or an offence against a law of the Northern Territory; or

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

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

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

(d) all of the following conditions are satisfied:

(i) the alleged offence is an ancillary offence;

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

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

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

Defence—primary offence

(2) A person does not commit an offence against this Division if:

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

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

(d) the person is neither:

(i) an Australian citizen; nor

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

(e) there is not in force in:

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

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

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

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

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

Defence—ancillary offence

(4) A person does not commit an offence against this Division if:

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

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

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

(d) paragraph (1)(b) of this section does not apply (and would not apply if the conduct described in paragraph (c) of this subsection occurred as intended); and

(e) the person is neither:

(i) an Australian citizen; nor

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

(f) there is not in force in:

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

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

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

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

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

Extended application of sections 16.1, 16.2 and 16.3

(6) Section 16.1, except paragraph 16.1(1)(a), applies in relation to an offence against this Division (in addition to the application of that section apart from this subsection).

Note: Section 16.1 requires the Attorney‑General’s consent for prosecution of an offence if the alleged conduct occurred wholly in a foreign country in certain circumstances.

(7) Sections 16.2 and 16.3 apply for the purposes of this Division in the same way as they apply for the purposes of Part 2.7.

Note: Section 16.2 treats the sending of things and electronic communications into and out of Australia as conduct occurring partly in Australia. Section 16.3 affects the meaning of Australia.

400.16 Saving of other laws

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

Part 10.5—Postal services

Division 470—Preliminary

470.1 Definitions

In this Part:

AFP Minister means the Minister administering the Australian Federal Police Act 1979.

article has the same meaning as in the Australian Postal Corporation Act 1989.

article in the course of post means an article that is being carried by post, and includes an article that has been collected or received by or on behalf of Australia Post for carriage by post, but has not been delivered by or on behalf of Australia Post.

Australia Post means the Australian Postal Corporation.

carried by post means carried by or through Australia Post.

carry, in relation to an article, has the same meaning as in the Australian Postal Corporation Act 1989.

constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.

mail‑receptacle means a mail‑bag, package, parcel, container, wrapper, receptacle or similar thing that:

(a) belongs to, or is in the possession of, Australia Post; and

(b) is used, or intended for use, in the carriage of articles by post (whether or not it actually contains such articles).

postage stamp has the same meaning as in the Australian Postal Corporation Act 1989.

postal message means:

(a) a material record of an unwritten communication:

(i) carried by post; or

(ii) collected or received by Australia Post for carriage by post; or

(b) a material record issued by Australia Post as a record of an unwritten communication:

(i) carried by post; or

(ii) collected or received by Australia Post for carriage by post.

postal or similar service means:

(a) a postal service (within the meaning of paragraph 51(v) of the Constitution); or

(b) a courier service, to the extent to which the service is a postal or other like service (within the meaning of paragraph 51(v) of the Constitution); or

(c) a packet or parcel carrying service, to the extent to which the service is a postal or other like service (within the meaning of paragraph 51(v) of the Constitution); or

(d) any other service that is a postal or other like service (within the meaning of paragraph 51(v) of the Constitution); or

(e) a courier service that is provided by a constitutional corporation; or

(f) a packet or parcel carrying service that is provided by a constitutional corporation; or

(g) a courier service that is provided in the course of, or in relation to, trade or commerce:

(i) between Australia and a place outside Australia; or

(ii) among the States; or

(iii) between a State and a Territory or between 2 Territories; or

(h) a packet or parcel carrying service that is provided in the course of, or in relation to, trade or commerce:

(i) between Australia and a place outside Australia; or

(ii) among the States; or

(iii) between a State and a Territory or between 2 Territories.

property has the same meaning as in Chapter 7.

unwritten communication has the same meaning as in the Australian Postal Corporation Act 1989.

470.2 Dishonesty

For the purposes of this Part, dishonest means:

(a) dishonest according to the standards of ordinary people; and

(b) known by the defendant to be dishonest according to the standards of ordinary people.

470.3 Determination of dishonesty to be a matter for the trier of fact

In a prosecution for an offence against this Part, the determination of dishonesty is a matter for the trier of fact.

470.4 Meaning of expressions used in Subdivisions B and C of Division 471

(1) Subject to subsections (2) and (3), an expression used in Subdivision B or C of Division 471 that is defined in Part 10.6 has the same meaning in that Subdivision as it has in that Part.

Note: One of those expressions is child abuse material.

(2) A reference in Subdivision B or C of Division 471 to a person having possession or control of material includes a reference to the person:

(a) having possession of a computer or data storage device that holds or contains the material; or

(b) having possession of a document in which the material is recorded; or

(c) having control of material held in a computer that is in the possession of another person (whether inside or outside Australia).

(3) A reference in Subdivision B or C of Division 471 to a person producing, supplying or obtaining material includes a reference to the person:

(a) producing, supplying or obtaining material held or contained in a computer or data storage device; or

(b) producing, supplying or obtaining a document in which the material is recorded.

(4) Section 473.4 applies in relation to Subdivisions B and C of Division 471 as if the reference in that section to Part 10.6 were a reference to those Subdivisions.

Note: Section 473.4 sets out matters that may be taken into account in deciding whether particular material is offensive.

Division 471—Postal offences

Subdivision A—General postal offences

471.1 Theft of mail‑receptacles, articles or postal messages

(1) A person commits an offence if:

(a) the person dishonestly appropriates:

(i) a mail‑receptacle; or

(ii) an article in the course of post (including an article that appears to have been lost or wrongly delivered by or on behalf of Australia Post or lost in the course of delivery to Australia Post); or

(iii) a postal message; and

(b) the person does so with the intention of permanently depriving another person of the mail‑receptacle, article or postal message.

Penalty: Imprisonment for 10 years.

Dishonesty

(2) For the purposes of this section, a person’s appropriation of a mail‑receptacle, article or postal message may be dishonest even if the person or another person is willing to pay for the mail‑receptacle, article or postal message.

Intention of permanently depriving a person of a mail‑receptacle, article or postal message

(3) For the purposes of this section, if:

(a) a person appropriates a mail‑receptacle, article or postal message without meaning another permanently to lose the thing itself; and

(b) the person’s intention is to treat the thing as the person’s own to dispose of regardless of the other’s rights;

the person has the intention of permanently depriving the other of it.

(4) For the purposes of subsection (3), a borrowing or lending of a thing amounts to treating the thing as the borrower’s or lender’s own to dispose of regardless of another’s rights if, and only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.

471.2 Receiving stolen mail‑receptacles, articles or postal messages

(1) A person commits an offence if the person dishonestly receives stolen property, knowing or believing the property to be stolen.

Penalty: Imprisonment for 10 years.

Stolen property

(2) For the purposes of this section, property is stolen property if, and only if:

(a) it is original stolen property (as defined by subsection (3)); or

(b) it is tainted property (as defined by subsection (5)).

This subsection has effect subject to subsection (4).

Original stolen property

(3) For the purposes of this section, original stolen property is property, or a part of property, that:

(a) was appropriated in the course of an offence against section 471.1 (whether or not the property, or the part of the property, is in the state it was in when it was so appropriated); and

(b) is in the possession or custody of the person who so appropriated the property.

(4) For the purposes of this section, property ceases to be original stolen property:

(a) after the property is restored:

(i) to the person from whom it was appropriated; or

(ii) to other lawful possession or custody; or

(b) after:

(i) the person from whom the property was appropriated ceases to have any right to restitution in respect of the property; or

(ii) a person claiming through the person from whom the property was appropriated ceases to have any right to restitution in respect of the property.

Tainted property

(5) For the purposes of this section, tainted property is property that:

(a) is (in whole or in part) the proceeds of sale of, or property exchanged for, original stolen property; and

(b) is in the possession or custody of the person who so appropriated the original stolen property.

Alternative verdicts

(6) If, in a prosecution for an offence against section 471.1, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence against this section, the trier of fact may find the defendant not guilty of the offence against section 471.1 but guilty of the offence against this section, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

(7) If, in a prosecution for an offence against this section, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence against section 471.1, the trier of fact may find the defendant not guilty of the offence against this section but guilty of the offence against section 471.1, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

Receiving stolen property before commencement

(8) For the purposes of this section:

(a) it is to be assumed that section 471.1 had been in force at all times before the commencement of this section; and

(b) property that was appropriated at a time before the commencement of this section does not become stolen property unless the property was appropriated in circumstances that (apart from paragraph (a)) amounted to an offence against a law of the Commonwealth in force at that time.

471.3 Taking or concealing of mail‑receptacles, articles or postal messages

A person commits an offence if the person dishonestly takes or conceals:

(a) a mail‑receptacle; or

(b) an article in the course of post (including an article that appears to have been lost or wrongly delivered by or on behalf of Australia Post or lost in the course of delivery to Australia Post); or

Penalty: Imprisonment for 5 years.

471.4 Dishonest removal of postage stamps or postmarks

A person commits an offence if the person dishonestly:

(a) removes any postage stamp affixed to, or printed on, an article; or

(b) removes any postmark from a postage stamp that has previously been used for postal services.

Penalty: Imprisonment for 12 months.

471.5 Dishonest use of previously used, defaced or obliterated stamps

(1) A person commits an offence if the person dishonestly uses for postal services a postage stamp:

(a) that has previously been used for postal services; or

(b) that has been obliterated; or

Penalty: Imprisonment for 12 months.

(2) If, in proceedings for an offence against subsection (1), it is proved that the defendant caused an article to or on which was affixed or printed a postage stamp:

(a) that had previously been used for postal services; or

(b) that had been obliterated; or

to be carried by post, it is presumed, in the absence of evidence to the contrary, that the defendant used the stamp for postal services.

(3) The burden of proof in respect of evidence to the contrary is an evidential burden of proof.

471.6 Damaging or destroying mail‑receptacles, articles or postal messages

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the person’s conduct causes damage to, or the destruction of:

(i) a mail‑receptacle; or

(iii) a postal message; and

(i) intends that his or her conduct cause that damage; or

(ii) is reckless as to whether his or her conduct causes that damage.

Penalty: Imprisonment for 10 years.

(2) For the purposes of this section, a person’s conduct is taken to cause the destruction of a thing if the person’s conduct causes the physical loss of the thing by interfering with the thing (including by removing any restraint over the thing or abandoning the thing).

(3) For the purposes of this section, a person’s conduct is taken to cause damage to a thing if:

(a) the person’s conduct causes any loss of a use of the function of the thing by interfering with the thing; or

(b) the person’s conduct causes the thing to be defaced.

471.7 Tampering with mail‑receptacles

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

(a) opens a mail‑receptacle; or

(b) tampers with a mail‑receptacle.

Penalty: Imprisonment for 5 years.

(2) A person commits an offence if:

(a) the person intentionally opens a mail‑receptacle; and

(b) the person is not authorised by Australia Post to open the mail‑receptacle; and

Penalty: Imprisonment for 2 years.

471.8 Dishonestly obtaining delivery of articles

A person commits an offence if the person dishonestly obtains delivery of, or receipt of, an article in the course of post that is not directed to the person.

Penalty: Imprisonment for 5 years.

471.9 Geographical jurisdiction

Section 15.3 (extended geographical jurisdiction—category C) applies to an offence against section 471.1, 471.2, 471.3, 471.4, 471.5, 471.6, 471.7 or 471.8.

471.10 Hoaxes—explosives and dangerous substances

(1) A person commits an offence if:

(a) the person causes an article to be carried by a postal or similar service; and

(b) the person does so with the intention of inducing a false belief that:

(i) the article consists of, encloses or contains an explosive or a dangerous or harmful substance or thing; or

(ii) an explosive, or a dangerous or harmful substance or thing, has been or will be left in any place.

Penalty: Imprisonment for 10 years.

(2) To avoid doubt, the definition of carried by post in section 470.1 does not apply to this section.

471.11 Using a postal or similar service to make a threat

Threat to kill

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

(a) the first person uses a postal or similar service to make to another person (the second person) a threat to kill the second person or a third person; and

(b) the first person intends the second person to fear that the threat will be carried out.

Penalty: Imprisonment for 10 years.

Threat to cause serious harm

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

(a) the first person uses a postal or similar service to make to another person (the second person) a threat to cause serious harm to the second person or a third person; and

(b) the first person intends the second person to fear that the threat will be carried out.

Penalty: Imprisonment for 7 years.

Actual fear not necessary

(3) In a prosecution for an offence against this section, it is not necessary to prove that the person receiving the threat actually feared that the threat would be carried out.

Definitions

(4) In this section:

fear includes apprehension.

threat to cause serious harm to a person includes a threat to substantially contribute to serious harm to the person.

471.12 Using a postal or similar service to menace, harass or cause offence

A person commits an offence if:

(a) the person uses a postal or similar service; and

(b) the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.

Penalty: Imprisonment for 2 years.

471.13 Causing a dangerous article to be carried by a postal or similar service

Offence

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

(a) the first person causes an article to be carried by a postal or similar service; and

(b) the person does so in a way that gives rise to a danger of death or serious harm to another person; and

Penalty: Imprisonment for 10 years.

Danger of death or serious harm

(2) For the purposes of this section, if a person’s conduct exposes another person to the risk of catching a disease that may give rise to a danger of death or serious harm to the other person, the conduct is taken to give rise to a danger of death or serious harm to the other person.

(3) For the purposes of this section, a person’s conduct gives rise to a danger of death or serious harm if the conduct is ordinarily capable of creating a real, and not merely a theoretical, danger of death or serious harm.

(4) For the purposes of this section, a person’s conduct may give rise to a danger of death or serious harm whatever the statistical or arithmetical calculation of the degree of risk of death or serious harm involved.

(5) In a prosecution for an offence against subsection (1), it is not necessary to prove that a specific person was actually placed in danger of death or serious harm by the conduct concerned.

Definition

(6) To avoid doubt, the definition of carried by post in section 470.1 does not apply to this section.

471.14 Geographical jurisdiction

Section 15.1 (extended geographical jurisdiction—category A) applies to an offence against section 471.10, 471.11, 471.12 or 471.13.

471.15 Causing an explosive, or a dangerous or harmful substance, to be carried by post

Offence

(1) A person commits an offence if:

(a) the person causes an article to be carried by post; and

(b) the article consists of, encloses or contains:

(i) an explosive; or

(ii) a dangerous or harmful substance or thing that the regulations say must not, without exception, be carried by post.

Penalty: Imprisonment for 10 years.

Geographical jurisdiction

(2) Section 15.3 (extended geographical jurisdiction—category C) applies to an offence against subsection (1).

Subdivision B—Offences relating to use of postal or similar service for child abuse material

471.19 Using a postal or similar service for child abuse material

(1) A person commits an offence if:

(a) the person causes an article to be carried by a postal or similar service; and

(b) the article is, or contains, child abuse material.

Penalty: Imprisonment for 15 years.

(2) A person commits an offence if:

(a) the person requests another person to cause an article to be carried by a postal or similar service; and

(b) the article is, or contains, child abuse material.

Penalty: Imprisonment for 15 years.

471.20 Possessing, controlling, producing, supplying or obtaining child abuse material for use through a postal or similar service

(1) A person commits an offence if:

(a) the person:

(i) has possession or control of material; or

(ii) produces, supplies or obtains material; and

(b) the material is child abuse material; and

(c) the person has that possession or control, or engages in that production, supply or obtaining, with the intention that the material be used:

(i) by that person; or

(ii) by another person;

in committing an offence against section 471.19 (using a postal or similar service for child abuse material).

Penalty: Imprisonment for 15 years.

(2) A person may be found guilty of an offence against subsection (1) even if committing the offence against section 471.19 (using a postal or similar service for child abuse material) is impossible.

(3) It is not an offence to attempt to commit an offence against subsection (1).

471.21 Defences in respect of child abuse material

(1) A person is not criminally responsible for an offence against section 471.19 (using a postal or similar service for child abuse material) or 471.20 (possessing etc. child abuse material for use through a postal or similar service) because of engaging in particular conduct if the conduct:

(a) is of public benefit; and

(b) does not extend beyond what is of public benefit.

In determining whether the person is, under this subsection, not criminally responsible for the offence, the question whether the conduct is of public benefit is a question of fact and the person’s motives in engaging in the conduct are irrelevant.

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

(2) For the purposes of subsection (1), conduct is of public benefit if, and only if, the conduct is necessary for or of assistance in:

(a) enforcing a law of the Commonwealth, a State or a Territory; or

(b) monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or a Territory; or

(d) conducting scientific, medical or educational research that has been approved by the AFP Minister in writing for the purposes of this section.

(3) A person is not criminally responsible for an offence against section 471.19 (using a postal or similar service for child abuse material) or 471.20 (possessing etc. child abuse material for use through a postal or similar service) if:

(a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in the course of his or her duties; and

(b) the conduct of the person is reasonable in the circumstances for the purpose of performing that duty.

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

471.22 Aggravated offence—offence involving conduct on 3 or more occasions and 2 or more people

(1) A person commits an offence against this section if:

(a) the person commits an offence against either of the following provisions on 3 or more separate occasions:

(iii) section 471.19 (using a postal or similar service for child abuse material);

(iv) section 471.20 (possessing etc. child abuse material for use through a postal or similar service); and

(b) the commission of each such offence involves 2 or more people.

Penalty: Imprisonment for 30 years.

(2) There is no fault element for any of the physical elements described in paragraph (1)(a) other than the fault elements (however described), if any, for the offence against section 471.19 or 471.20.

(3) To avoid doubt, a person does not commit an offence against section 471.19 or 471.20 for the purposes of paragraph (1)(a) if the person has a defence to that offence.

Offence or conduct need not be the same

(4) For the purposes of subsection (1), it is immaterial whether the offence, or the conduct constituting the offence, is the same on each occasion.

Double jeopardy etc.

(5) A person who has been convicted or acquitted of an offence (the aggravated offence) against this section may not be convicted of an offence against section 471.19 or 471.20 in relation to the conduct that constituted the aggravated offence.

(6) Subsection (5) does not prevent an alternative verdict under section 471.23.

(7) A person who has been convicted or acquitted of an offence (the underlying offence) against section 471.19 or 471.20 may not be convicted of an offence against this section in relation to the conduct that constituted the underlying offence.

471.23 Alternative verdict if aggravated offence not proven

If, on a trial for an offence (the aggravated offence) against subsection 471.22(1), the trier of fact:

(a) is not satisfied that the defendant is guilty of the aggravated offence; but

(b) is satisfied beyond reasonable doubt that he or she is guilty of an offence (the underlying offence) against section 471.19 or 471.20;

it may find the defendant not guilty of the aggravated offence but guilty of the underlying offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

Subdivision C—Offences relating to use of postal or similar service involving sexual activity with person under 16

471.24 Using a postal or similar service to procure persons under 16

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

(a) the sender causes an article to be carried by a postal or similar service to another person (the recipient); and

(b) the sender does this with the intention of procuring the recipient to engage in sexual activity with the sender; and

(d) the sender is at least 18.

Penalty: Imprisonment for 15 years.

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

(a) the sender causes an article to be carried by a postal or similar service to another person (the recipient); and

(b) the sender does this with the intention of procuring the recipient to engage in sexual activity with another person (the participant); and

(d) the participant is someone who is, or who the sender believes to be, at least 18.

Penalty: Imprisonment for 15 years.

(3) A person (the sender) commits an offence if:

(a) the sender causes an article to be carried by a postal or similar service to another person (the recipient); and

(b) the sender does this with the intention of procuring the recipient to engage in sexual activity with another person; and

(d) the other person referred to in paragraph (b) is someone who is, or who the sender believes to be, under 18; and

(e) the sender intends that the sexual activity referred to in paragraph (b) will take place in the presence of:

(i) the sender; or

(ii) another person (the participant) who is, or who the sender believes to be, at least 18.

Penalty: Imprisonment for 15 years.

471.25 Using a postal or similar service to “groom” persons under 16

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

(a) the sender causes an article to be carried by a postal or similar service to another person (the recipient); and

(b) the sender does this with the intention of making it easier to procure the recipient to engage in sexual activity with the sender; and

(d) the sender is at least 18.

Penalty: Imprisonment for 15 years.

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

(a) the sender causes an article to be carried by a postal or similar service to another person (the recipient); and

(b) the sender does this with the intention of making it easier to procure the recipient to engage in sexual activity with another person (the participant); and

(d) the participant is someone who is, or who the sender believes to be, at least 18.

Penalty: Imprisonment for 15 years.

(3) A person (the sender) commits an offence if:

(a) the sender causes an article to be carried by a postal or similar service to another person (the recipient); and

(b) the sender does this with the intention of making it easier to procure the recipient to engage in sexual activity with another person; and

(d) the other person referred to in paragraph (b) is someone who is, or who the sender believes to be, under 18; and

(e) the sender intends that the sexual activity referred to in paragraph (b) will take place in the presence of:

(i) the sender; or

(ii) another person (the participant) who is, or who the sender believes to be, at least 18.

Penalty: Imprisonment for 15 years.

471.25A Using a postal or similar service to “groom” another person to make it easier to procure persons under 16

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

(a) the sender causes an article to be carried by a postal or similar service to another person (the recipient); and

(b) the sender does this with the intention of making it easier to procure a person (the child) to engage in sexual activity with the sender; and

(d) the sender is at least 18.

Penalty: Imprisonment for 15 years.

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

(a) the sender causes an article to be carried by a postal or similar service to another person (the recipient); and

(b) the sender does this with the intention of making it easier to procure a person (the child) to engage in sexual activity with another person (the participant); and

(d) the participant is someone who is, or who the sender believes to be, at least 18.

Penalty: Imprisonment for 15 years.

(3) A person (the sender) commits an offence if:

(a) the sender causes an article to be carried by a postal or similar service to another person (the recipient); and

(b) the sender does this with the intention of making it easier to procure a person (the child) to engage in sexual activity with another person; and

(d) the other person referred to in paragraph (b) is someone who is, or who the sender believes to be, under 18; and

(e) the sender intends that the sexual activity referred to in paragraph (b) will take place in the presence of:

(i) the sender; or

(ii) another person (the participant) who is, or who the sender believes to be, at least 18.

Penalty: Imprisonment for 15 years.

471.26 Using a postal or similar service to send indecent material to person under 16

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

(a) the sender causes an article to be carried by a postal or similar service to another person (the recipient); and

(b) the article is, or contains, material that is indecent; and

(d) the sender is at least 18.

Penalty: Imprisonment for 10 years.

(2) In a prosecution for an offence against subsection (1), whether material is indecent is a matter for the trier of fact.

(3) In this section:

indecent means indecent according to the standards of ordinary people.

Application of absolute liability

(1) For the purposes of an offence against this Subdivision (other than section 471.25A), absolute liability applies to the physical element of circumstance of the offence that the recipient is someone who is under 16.

Note 1: For absolute liability, see section 6.2.

Note 2: For a defence based on belief about age, see section 471.29.

(1A) For the purposes of an offence against section 471.25A, absolute liability applies to the physical element of circumstance of the offence that the child is someone who is under 16.

Note 1: For absolute liability, see section 6.2.

Note 2: For a defence based on belief about age, see section 471.29.

(2) For the purposes of an offence against subsection 471.24(2) or (3), 471.25(2) or (3) or 471.25A(2) or (3), absolute liability applies to the physical element of circumstance of the offence that the participant is at least 18.

Note 1: For absolute liability, see section 6.2.

Note 2: For a defence based on belief about age, see section 471.29.

Proof of belief about age—evidence of representation

(3) For the purposes of this Subdivision, evidence that a person was represented to the defendant as being under, of, at least or over a particular age is, in the absence of evidence to the contrary, proof that the defendant believed the person to be under, of, at least or over that age (as the case requires).

Determining age—admissible evidence

(5) In determining for the purposes of this Subdivision how old a person is or was at a particular time, a jury or court may treat any of the following as admissible evidence:

(a) the person’s appearance;

(b) medical or other scientific opinion;

(d) a document that is or appears to be a copy of such a record.

(6) Subsection (5) does not make any other kind of evidence inadmissible, and does not affect a prosecutor’s duty to do all he or she can to adduce the best possible evidence for determining the question.

(7) If, on a trial for an offence against this Subdivision, evidence may be treated as admissible because of subsection (5), the court must warn the jury that it must be satisfied beyond reasonable doubt in determining the question.

471.28 Other provisions relating to offences against this Subdivision

Impossibility of sexual activity taking place

(1) A person may be found guilty of an offence against section 471.24, 471.25 or 471.25A even if it is impossible for the sexual activity referred to in that section to take place.

Fictitious persons

(2) For the purposes of an offence against this Subdivision, it does not matter that the recipient to whom the sender believes the sender is causing an article to be carried is a fictitious person represented to the sender as a real person.

(2A) For the purposes of an offence against section 471.25A, it does not matter that the child is a fictitious person represented to the sender as a real person.

Attempt not offence

(3) It is not an offence to attempt to commit an offence against section 471.24, 471.25 or 471.25A.

471.29 Defences to offences against this Subdivision

Belief that certain persons at least 16

(1) It is a defence to a prosecution for an offence against this Subdivision (other than section 471.25A) if the defendant proves that, at the time he or she caused the article to be carried, the defendant believed that the recipient was at least 16.

Note: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.

(1A) It is a defence to a prosecution for an offence against section 471.25A if the defendant proves that, at the time he or she caused the article to be carried, the defendant believed that the child was at least 16.

Note: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.

Procuring and “grooming” offences involving child engaging in sexual activity with other participant—belief that participant under 18

(2) It is a defence to a prosecution for an offence against subsection 471.24(2) or (3), 471.25(2) or (3) or 471.25A(2) or (3) if the defendant proves that, at the time he or she caused the article to be carried, the defendant believed that the participant was under 18.

Note: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.

Trier of fact may take into account whether belief reasonable

(3) In determining whether the defendant had the belief mentioned in subsection (1), (1A) or (2), the trier of fact may take into account whether the alleged belief was reasonable in the circumstances.

471.29A Sentencing

(1) In determining the sentence to be passed, or the order to be made, in respect of a person for an offence against this Subdivision, the court must take into account the following matters:

(a) the age and maturity of the person in relation to whom the offence was committed;

(b) if that person was under 10 when the offence was committed—that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates;

(2) However, the court need only take into account a matter mentioned in subsection (1) so far as the matter is known to the court and, for a matter mentioned in paragraph (1)(a) or (c), relevant.

(3) The matters mentioned in subsection (1) are in addition to any other matters the court must take into account (for example, the matters mentioned in section 16A of the Crimes Act 1914).

Subdivision D—Miscellaneous

471.30 Geographical jurisdiction

Section 15.1 (extended geographical jurisdiction—category A) applies to an offence against Subdivision B or C of this Division.

471.31 Definition of carried by post does not apply

To avoid doubt, the definition of carried by post in section 470.1 does not apply in relation to Subdivision B or C of this Division.

Division 472—Miscellaneous

472.1 Saving of other laws

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

472.2 Interpretation of other laws

In determining the meaning of a provision of:

(a) Part VIIA of the Crimes Act 1914; or

(b) the Australian Postal Corporation Act 1989;

this Part is to be disregarded.

Part 10.6—Telecommunications Services

Division 473—Preliminary

473.1 Definitions

In this Part:

abattoir means a place where animals are slaughtered (whether or not for human consumption), but does not include a restaurant.

access in relation to material includes:

(a) the display of the material by a computer or any other output of the material from a computer; or

(b) the copying or moving of the material to any place in a computer or to a data storage device; or

account identifier means:

(a) something that:

(i) contains subscription‑specific secure data; and

(ii) is installed, or capable of being installed, in a mobile telecommunications device; or

(b) anything else that:

(i) allows a particular mobile telecommunications account to be identified; and

(ii) is prescribed by the regulations as an account identifier for the purposes of this Part.

Note: Paragraph (a)—This would include a SIM card.

AFP Minister means the Minister administering the Australian Federal Police Act 1979.

agricultural land means land in Australia that is used for a primary production business. For the purposes of this definition, it is immaterial:

(a) whether a part of the land is used for residential purposes; or

(b) whether a part of the land is used for a business that is not a primary production business.

ASIO officer means:

(a) the Director‑General of Security; or

(b) an ASIO employee (within the meaning of the Australian Security Intelligence Organisation Act 1979); or

Australian hosting service provider has the same meaning as in the Online Safety Act 2021.

carriage service provider has the same meaning as in the Telecommunications Act 1997.

Note: See also section 474.3 respecting persons who are taken to be carriage service providers in relation to certain matters.

carrier has the same meaning as in the Telecommunications Act 1997.

Note: See also section 474.3 respecting persons who are taken to be carriers in relation to certain matters.

carry includes transmit, switch and receive.

child abuse material means:

(a) material that depicts a person, or a representation of a person, who:

(i) is, or appears to be, under 18 years of age; and

(ii) is, or appears to be, a victim of torture, cruelty or physical abuse;

and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

(b) material that describes a person who:

(i) is, or is implied to be, under 18 years of age; and

(ii) is, or is implied to be, a victim of torture, cruelty or physical abuse;

and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

(c) material that depicts a person, or a representation of a person, who is, or appears to be, under 18 years of age and who:

(i) is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or

(ii) is in the presence of a person who is engaged in, or appears to be engaged in, a sexual pose or sexual activity;

and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

(d) material the dominant characteristic of which is the depiction, for a sexual purpose, of:

(i) a sexual organ or the anal region of a person who is, or appears to be, under 18 years of age; or

(ii) a representation of such a sexual organ or anal region; or

(iii) the breasts, or a representation of the breasts, of a female person who is, or appears to be, under 18 years of age;

in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

(e) material that describes a person who is, or is implied to be, under 18 years of age and who:

(i) is engaged in, or is implied to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or

(ii) is in the presence of a person who is engaged in, or is implied to be engaged in, a sexual pose or sexual activity;

and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

(f) material that describes:

(i) a sexual organ or the anal region of a person who is, or is implied to be, under 18 years of age; or

(ii) the breasts of a female person who is, or is implied to be, under 18 years of age;

and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

(g) material that is a doll or other object that resembles:

(i) a person who is, or appears to be, under 18 years of age; or

(ii) a part of the body of such a person;

if a reasonable person would consider it likely that the material is intended to be used by a person to simulate sexual intercourse.

communication in the course of telecommunications carriage means a communication that is being carried by a carrier or carriage service provider, and includes a communication that has been collected or received by a carrier or carriage service provider for carriage, but has not yet been delivered by the carrier or carriage service provider.

connected, in relation to a telecommunications network, includes connection otherwise than by means of physical contact (for example, a connection by means of radiocommunication).

control of data, or material that is in the form of data, has the meaning given by section 473.2.

Crown land means land that is the property of:

(a) the Commonwealth, a State or a Territory; or

(b) a statutory authority;

but does not include land that is subject to a lease to a person other than:

(d) a statutory authority.

Defence Department means the Department of State that deals with defence and that is administered by the Minister administering section 1 of the Defence Act 1903.

depict includes contain data from which a visual image (whether still or moving) can be generated.

describe includes contain data from which text or sounds can be generated.

emergency call person has the same meaning as in the Telecommunications Act 1997.

emergency service number has the same meaning as in the Telecommunications Act 1997.

emergency service organisation has the same meaning as in section 147 of the Telecommunications (Consumer Protection and Service Standards) Act 1999.

facility has the same meaning as in the Telecommunications Act 1997.

forestry means:

(a) planting or tending trees in a plantation or forest that are intended to be felled; or

(b) felling trees in a plantation or forest.

intelligence or security officer means an officer or employee of:

(a) the Australian Security Intelligence Organisation; or

(b) the Australian Secret Intelligence Service; or

(ba) the Australian Signals Directorate; or

(e) that part of the Defence Department known as the Defence Intelligence Organisation;

and includes a staff member (within the meaning of the Intelligence Services Act 2001) of the Australian Security Intelligence Organisation, the Australian Secret Intelligence Service or the Australian Signals Directorate.

interception device means an apparatus or device that:

(a) is of a kind that is capable of being used to enable a person to intercept a communication passing over a telecommunications system; and

(b) could reasonably be regarded as having been designed:

(i) for the purpose of; or

(ii) for purposes including the purpose of;

using it in connection with the interception of communications passing over a telecommunications system; and

Terms used in this definition that are defined in the Telecommunications (Interception and Access) Act 1979 have the same meaning in this definition as they have in that Act.

internet service provider has the same meaning as in the Online Safety Act 2021.

law enforcement officer means any of the following:

(a) the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee or a special member of the Australian Federal Police (all within the meaning of the Australian Federal Police Act 1979);

(b) a member, or employee, of the police force of a State or Territory;

(c) a member of the staff of the Australian Crime Commission (within the meaning of the Australian Crime Commission Act 2002);

(d) a member of a police force, or other law enforcement agency, of a foreign country;

(e) the Director of Public Prosecutions or a person performing a similar function under a law of a State or Territory;

(f) a member of the staff of the Office of the Director of Public Prosecutions (within the meaning of the Director of Public Prosecutions Act 1983) or of a similar body established under a law of a State or Territory;

(g) a member of the New South Wales Crime Commission or a member of the staff of that Commission;

(h) an officer of the Independent Commission Against Corruption of New South Wales, being a person who is an officer as defined by the Independent Commission Against Corruption Act 1988 of New South Wales;

(i) any of the following:

(i) the Chief Commissioner of the Law Enforcement Conduct Commission of New South Wales;

(ii) the Commissioner for Integrity of the Commission;

(iii) an Assistant Commissioner of the Commission;

(iv) a member of staff of the Commission (within the meaning of the Law Enforcement Conduct Commission Act 2016 (NSW));

(ia) an IBAC Officer within the meaning of the Independent Broad‑based Anti‑corruption Commission Act 2011 (Vic.);

(j) an officer of the Corruption and Crime Commission of Western Australia within the meaning of the Corruption and Crime Commission Act 2003 of Western Australia;

(k) an authorised commission officer of the Crime and Corruption Commission of Queensland within the meaning of the Crime and Corruption Act 2001 (Qld);

(l) any of the following:

(i) the Commissioner of the Independent Commission Against Corruption of South Australia;

(ii) the Deputy Commissioner of the Commission;

(iii) a person engaged as an employee of the Commission under subsection 12(1) of the Independent Commission Against Corruption Act 2012 (SA);

(iv) an examiner or investigator (within the meaning of that Act) of the Commission;

(m) a staff member of the NACC (within the meaning of the National Anti‑Corruption Commission Act 2022).

loss means a loss in property, whether temporary or permanent, and includes not getting what one might get.

material includes material in any form, or combination of forms, capable of constituting a communication.

meat by‑product includes skin, hide, tallow, meat meal and inedible offal.

mobile telecommunications account means an account with a carriage service provider for the supply of a public mobile telecommunications service to an end‑user.

mobile telecommunications device means an item of customer equipment (within the meaning of the Telecommunications Act 1997) that is used, or is capable of being used, in connection with a public mobile telecommunications service.

National Relay Service has the same meaning as in the Telecommunications (Consumer Protection and Service Standards) Act 1999.

nominated carrier has the same meaning as in the Telecommunications Act 1997.

NRS provider means:

(a) a person who:

(i) is a contractor (within the meaning of the Telecommunications (Consumer Protection and Service Standards) Act 1999); and

(ii) provides the whole or a part of the National Relay Service; or

(b) a person who:

(i) is a grant recipient (within the meaning of the Telecommunications (Consumer Protection and Service Standards) Act 1999); and

(ii) provides the whole or a part of the National Relay Service.

obtaining includes:

(a) obtaining for another person; and

(b) inducing a third person to do something that results in another person obtaining.

obtaining data, or material that is in the form of data, has the meaning given by section 473.3.

possession of data, or material that is in the form of data, has the meaning given by section 473.2.

primary production business means any of the following:

(a) a business of grazing;

(b) a business of operating animal feedlots;

(d) a business of farming animals for the purpose of producing meat or meat by‑products;

(e) a business of poultry farming;

(f) a business of aquaculture;

(g) a business of bee‑keeping;

(h) a business of operating an abattoir;

(i) a business of operating livestock sale yards;

(j) a business of operating a registered establishment (within the meaning of the Export Control Act 2020);

(k) a business of operating a fish processing facility;

(l) a business of growing fruit;

(m) a business of growing vegetables;

(n) a business of growing nuts;

(o) a business of growing crops;

(p) a business of viticulture;

(pa) a business of operating:

(i) a wood processing facility; or

(ii) a wood fibre processing facility;

(q) a business of forestry that is carried on on private land.

private land means land other than Crown land.

producing data, or material that is in the form of data, has the meaning given by section 473.3.

property has the same meaning as in Chapter 7.

public mobile telecommunications service has the same meaning as in the Telecommunications Act 1997.

radiocommunication has the same meaning as in the Radiocommunications Act 1992.

serious offence against a foreign law means an offence against a law of a foreign country constituted by conduct that, if it had occurred in Australia, would have constituted a serious offence against a law of the Commonwealth, a State or a Territory.

serious offence against a law of the Commonwealth, a State or a Territory means an offence against a law of the Commonwealth, a State or a Territory that is punishable by imprisonment:

(a) for life; or

(b) for a period of 5 or more years.

statutory authority means a body established for a public purpose by or under a law of the Commonwealth, a State or a Territory.

subscription‑specific secure data means data that is used, or is capable of being used, to:

(a) allow a carrier to identify a particular mobile telecommunications account (whether an existing account or an account that may be set up in the future); and

(b) allow a mobile telecommunications device in which an account identifier that contains the data is installed to access the public mobile telecommunication service to which that account relates.

supplying data, or material that is in the form of data, has the meaning given by section 473.3.

telecommunications device identifier means:

(a) an electronic identifier of a mobile telecommunications device that is:

(i) installed in the device by the manufacturer; and

(ii) is capable of being used to distinguish that particular device from other mobile telecommunications devices; or

(b) any other form of identifier that is prescribed by the regulations as a telecommunications device identifier for the purposes of this Part.

Note: Paragraph (a)—For example, GSM mobile phones use an industry‑recognised International Mobile Equipment Identity (IMEI) number. This number identifies the particular phone, as compared to the SIM card number which identifies a particular telecommunications account. Carriers are able to block service to lost and stolen mobile phones based on their IMEI numbers.

telecommunications network has the same meaning as in the Telecommunications Act 1997.

use, a carriage service, has a meaning affected by section 473.5.

473.2 Possession or control of data or material in the form of data

A reference in this Part to a person having possession or control of data, or material that is in the form of data, includes a reference to the person:

(a) having possession of a computer or data storage device that holds or contains the data; or

(b) having possession of a document in which the data is recorded; or

(c) having control of data held in a computer that is in the possession of another person (whether inside or outside Australia).

473.3 Producing, supplying or obtaining data or material in the form of data

A reference in this Part to a person producing, supplying or obtaining data, or material that is in the form of data, includes a reference to the person:

(a) producing, supplying or obtaining data held or contained in a computer or data storage device; or

(b) producing, supplying or obtaining a document in which the data is recorded.

473.4 Determining whether material is offensive

The matters to be taken into account in deciding for the purposes of this Part whether reasonable persons would regard particular material, or a particular use of a carriage service, as being, in all the circumstances, offensive, include:

(a) the standards of morality, decency and propriety generally accepted by reasonable adults; and

(b) the literary, artistic or educational merit (if any) of the material; and

473.5 Use of a carriage service

For the purposes of this Part, a person is taken not to use a carriage service by engaging in particular conduct if:

(a) the person is a carrier and, in engaging in that conduct, is acting solely in the person’s capacity as a carrier; or

(b) the person is a carriage service provider and, in engaging in that conduct, is acting solely in the person’s capacity as a carriage service provider; or

(c) the person is an internet service provider and, in engaging in that conduct, is acting solely in the person’s capacity as an internet service provider; or

(d) the person is an Australian hosting service provider and, in engaging in that conduct, is acting solely in the person’s capacity as an Australian hosting service provider.

Division 474—Telecommunications offences

Subdivision A—Dishonesty with respect to carriage services

474.1 Dishonesty

(1) For the purposes of this Subdivision, dishonest means:

(a) dishonest according to the standards of ordinary people; and

(b) known by the defendant to be dishonest according to the standards of ordinary people.

(2) In a prosecution for an offence against this Subdivision, the determination of dishonesty is a matter for the trier of fact.

474.2 General dishonesty with respect to a carriage service provider

Obtaining a gain

(1) A person commits an offence if the person does anything with the intention of dishonestly obtaining a gain from a carriage service provider by way of the supply of a carriage service.

Penalty: Imprisonment for 5 years.

Causing a loss

(2) A person commits an offence if the person does anything with the intention of dishonestly causing a loss to a carriage service provider in connection with the supply of a carriage service.

Penalty: Imprisonment for 5 years.

(3) A person commits an offence if:

(a) the person dishonestly causes a loss, or dishonestly causes a risk of loss, to a carriage service provider in connection with the supply of a carriage service; and

(b) the person knows or believes that the loss will occur or that there is a substantial risk of the loss occurring.

Penalty: Imprisonment for 5 years.

Subdivision B—Interference with telecommunications

474.3 Person acting for a carrier or carriage service provider

(1) For the purposes of this Subdivision, a person who does any thing for or on behalf of a carrier, or on behalf of persons at least one of whom is a carrier, is, in respect of:

(a) the doing by that person of that thing; or

(b) any rental, fee or charge payable for or in relation to the doing by that person of that thing; or

(d) a facility belonging to that person; or

(e) the operation by that person of a satellite;

taken to be a carrier.

(2) For the purposes of this Subdivision, a person who does any thing for or on behalf of a carriage service provider, or on behalf of persons at least one of whom is a carriage service provider, is, in respect of:

(a) the doing by that person of that thing; or

(b) any rental, fee or charge payable for or in relation to the doing by that person of that thing; or

(d) a facility belonging to that person; or

(e) the operation by that person of a satellite;

taken to be a carriage service provider.

474.4 Interception devices

(1) A person commits an offence if:

(a) the person:

(i) manufactures; or

(ii) advertises, displays or offers for sale; or

(iii) sells; or

(iv) possesses;

an apparatus or device (whether in an assembled or unassembled form); and

(b) the apparatus or device is an interception device.

Penalty: Imprisonment for 5 years.

(2) A person is not criminally responsible for an offence against subsection (1) if the person possesses the interception device in the course of the person’s duties relating to the interception of communications that does not constitute a contravention of subsection 7(1) of the Telecommunications (Interception and Access) Act 1979.

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

(3) A person is not criminally responsible for an offence against subsection (1) if the applicable conduct mentioned in subparagraphs (1)(a)(i) to (iv) is in circumstances specified in regulations made for the purposes of this subsection.

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

474.5 Wrongful delivery of communications

(1) A person commits an offence if:

(a) a communication is in the course of telecommunications carriage; and

(b) the person causes the communication to be received by a person or carriage service other than the person or service to whom it is directed.

Penalty: Imprisonment for 1 year.

(2) A person is not criminally responsible for an offence against subsection (1) if the person engages in the conduct referred to in paragraph (1)(b) with the consent or authorisation of the person to whom, or the person operating the carriage service to which, the communication is directed.

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

474.6 Interference with facilities

(1) A person commits an offence if the person tampers with, or interferes with, a facility owned or operated by:

(a) a carrier; or

(b) a carriage service provider; or

Penalty: Imprisonment for 1 year.

(2) For the purposes of an offence against subsection (1), absolute liability applies to the physical element of circumstance of the offence, that the facility is owned or operated by a carrier, a carriage service provider or a nominated carrier.

(3) A person commits an offence if:

(a) the person tampers with, or interferes with, a facility owned or operated by:

(i) a carrier; or

(ii) a carriage service provider; or

(iii) a nominated carrier; and

(b) this conduct results in hindering the normal operation of a carriage service supplied by a carriage service provider.

Penalty: Imprisonment for 2 years.

(4) For the purposes of an offence against subsection (3), absolute liability applies to the following physical elements of circumstance of the offence:

(a) that the facility is owned or operated by a carrier, a carriage service provider or a nominated carrier;

(b) that the carriage service is supplied by a carriage service provider.

(4A) A person is not criminally responsible for an offence against subsection (1) or (3) if:

(a) the person is, at the time of the offence, an ASIO officer acting in good faith in the course of the person’s duties; and

(b) the conduct of the person is reasonable in the circumstances for the purpose of performing that duty.

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

Note 2: See also subsection 475.1(2) for the interaction between this defence and the Radiocommunications Act 1992.

(5) A person commits an offence if:

(a) the person uses or operates any apparatus or device (whether or not it is comprised in, connected to or used in connection with a telecommunications network); and

(b) this conduct results in hindering the normal operation of a carriage service supplied by a carriage service provider.

Penalty: Imprisonment for 2 years.

(6) For the purposes of an offence against subsection (5), absolute liability applies to the physical element of circumstance of the offence, that the carriage service is supplied by a carriage service provider.

(7) A person is not criminally responsible for an offence against subsection (5) if:

(a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in good faith in the course of his or her duties; and

(b) the conduct of the person is reasonable in the circumstances for the purpose of performing that duty.

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

Note 2: See also subsection 475.1(2) for the interaction between this defence and the Radiocommunications Act 1992.

(7A) A person is not criminally responsible for an offence against subsection (5) if the conduct of the person:

(a) is in accordance with a technical assistance request; or

(b) is in compliance with a technical assistance notice; or

(8) For the purposes of this section, a facility is taken to be owned or operated by a nominated carrier if the Telecommunications Act 1997 applies, under section 81A of that Act, as if that facility were owned or operated by the nominated carrier.

474.7 Modification etc. of a telecommunications device identifier

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

(a) modifies a telecommunications device identifier; or

(b) interferes with the operation of a telecommunications device identifier.

Penalty: Imprisonment for 2 years.

(2) A person is not criminally responsible for an offence against subsection (1) if the person is:

(a) the manufacturer of the mobile telecommunications device in which the telecommunications device identifier is installed; or

(b) an employee or agent of the manufacturer who is acting on behalf of the manufacturer; or

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

(3) A person is not criminally responsible for an offence against subsection (1) if:

(a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in the course of his or her duties; and

(b) the conduct of the person is reasonable in the circumstances for the purpose of performing that duty.

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

Note 2: This subsection merely creates a defence to an offence against subsection (1) and does not operate to authorise any conduct that requires a warrant under some other law.

474.8 Possession or control of data or a device with intent to modify a telecommunications device identifier

(1) A person commits an offence if:

(a) the person has possession or control of any thing or data; and

(b) the person has that possession or control with the intention that the thing or data be used:

(i) by the person; or

(ii) by another person;

in committing an offence against subsection 474.7(1) (modification of a telecommunications device identifier).

Penalty: Imprisonment for 2 years.

(2) A person may be found guilty of an offence against subsection (1) even if committing the offence against subsection 474.7(1) (modification of a telecommunications device identifier) is impossible.

(3) It is not an offence to attempt to commit an offence against subsection (1).

(4) A person is not criminally responsible for an offence against subsection (1) if the person is:

(a) the manufacturer of the mobile telecommunications device in which the telecommunications device identifier is installed; or

(b) an employee or agent of the manufacturer who is acting on behalf of the manufacturer; or

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

(5) A person is not criminally responsible for an offence against subsection (1) if:

(a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in the course of his or her duties; and

(b) the conduct of the person is reasonable in the circumstances for the purpose of performing that duty.

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

Note 2: This subsection merely creates a defence to an offence against subsection (1) and does not operate to authorise any conduct that requires a warrant under some other law.

474.9 Producing, supplying or obtaining data or a device with intent to modify a telecommunications device identifier

(1) A person commits an offence if:

(a) the person produces, supplies or obtains any thing or data; and

(b) the person does so with the intention that the thing or data be used: