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Criminal Code Act 1995

  • - C2005C00524
  • In force - Superseded Version
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Act No. 12 of 1995 as amended, taking into account amendments up to Act No. 100 of 2005
An Act relating to the criminal law
Administered by: Attorney-General's
Registered 03 Aug 2005
Start Date 03 Aug 2005
End Date 03 Nov 2005
Table of contents.

Criminal Code Act 1995

Act No. 12 of 1995 as amended

This compilation was prepared on 3 August 2005
taking into account amendments up to Act No. 100 of 2005

Section 3AA ceased to have effect and is taken to have been repealed on the day specified in subsection 2.2(2) of the Criminal Code

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

Prepared by the Office of Legislative Drafting and Publishing,
Attorney-General’s Department,
Canberra

  

  

  


Contents

1............ Short title [see Note 1]....................................................................... 1

2............ Commencement [see Note 1].............................................................. 1

3............ The Criminal Code.............................................................................. 1

3A......... External Territories............................................................................. 1

3B......... Offshore installations......................................................................... 1

4............ Definitions.......................................................................................... 1

5............ Regulations......................................................................................... 2

Schedule—The Criminal Code                                                                                        3

Chapter 1—Codification                                                                                                      3

Division 1                                                                                                                           3

1.1......... Codification........................................................................................ 3

Chapter 2—General principles of criminal responsibility                                4

Part 2.1—Purpose and application                                                                                4

Division 2                                                                                                                            4

2.1......... Purpose............................................................................................... 4

2.2......... Application......................................................................................... 4

2.3......... Application of provisions relating to intoxication.............................. 4

Part 2.2—The elements of an offence                                                                         5

Division 3—General                                                                                                      5

3.1......... Elements............................................................................................. 5

3.2......... Establishing guilt in respect of offences............................................. 5

Division 4—Physical elements                                                                                6

4.1......... Physical elements............................................................................... 6

4.2......... Voluntariness...................................................................................... 6

4.3......... Omissions........................................................................................... 7

Division 5—Fault elements                                                                                       8

5.1......... Fault elements..................................................................................... 8

5.2......... Intention............................................................................................. 8

5.3......... Knowledge.......................................................................................... 8

5.4......... Recklessness....................................................................................... 8

5.5......... Negligence........................................................................................... 9

5.6......... Offences that do not specify fault elements....................................... 9

Division 6—Cases where fault elements are not required                     10

6.1......... Strict liability.................................................................................... 10

6.2......... Absolute liability.............................................................................. 10

Part 2.3—Circumstances in which there is no criminal responsibility     11

Division 7—Circumstances involving lack of capacity                             11

7.1......... Children under 10............................................................................. 11

7.2......... Children over 10 but under 14.......................................................... 11

7.3......... Mental impairment........................................................................... 11

Division 8—Intoxication                                                                                           13

8.1......... Definition—self-induced intoxication............................................... 13

8.2......... Intoxication (offences involving basic intent)................................... 13

8.3......... Intoxication (negligence as fault element)......................................... 14

8.4......... Intoxication (relevance to defences).................................................. 14

8.5......... Involuntary intoxication................................................................... 15

Division 9—Circumstances involving mistake or ignorance                16

9.1......... Mistake or ignorance of fact (fault elements other than negligence). 16

9.2......... Mistake of fact (strict liability)........................................................ 16

9.3......... Mistake or ignorance of statute law................................................. 17

9.4......... Mistake or ignorance of subordinate legislation............................... 17

9.5......... Claim of right.................................................................................... 18

Division 10—Circumstances involving external factors                          19

10.1....... Intervening conduct or event............................................................ 19

10.2....... Duress............................................................................................... 19

10.3....... Sudden or extraordinary emergency.................................................. 19

10.4....... Self-defence....................................................................................... 20

10.5....... Lawful authority............................................................................... 21

Part 2.4—Extensions of criminal responsibility                                                   22

Division 11                                                                                                                        22

11.1....... Attempt............................................................................................ 22

11.2....... Complicity and common purpose.................................................... 23

11.3....... Innocent agency................................................................................ 24

11.4....... Incitement......................................................................................... 24

11.5....... Conspiracy....................................................................................... 25

11.6....... References in Acts to offences......................................................... 27

Part 2.5—Corporate criminal responsibility                                                          28

Division 12                                                                                                                       28

12.1....... General principles............................................................................. 28

12.2....... Physical elements............................................................................. 28

12.3....... Fault elements other than negligence................................................ 28

12.4....... Negligence......................................................................................... 30

12.5....... Mistake of fact (strict liability)........................................................ 30

12.6....... Intervening conduct or event............................................................ 31

Part 2.6—Proof of criminal responsibility                                                               32

Division 13                                                                                                                        32

13.1....... Legal burden of proof—prosecution................................................ 32

13.2....... Standard of proof—prosecution....................................................... 32

13.3....... Evidential burden of proof—defence................................................ 32

13.4....... Legal burden of proof—defence....................................................... 33

13.5....... Standard of proof—defence.............................................................. 33

13.6....... Use of averments.............................................................................. 33

Part 2.7—Geographical jurisdiction                                                                            34

Division 14—Standard geographical jurisdiction                                         34

14.1....... Standard geographical jurisdiction.................................................... 34

Division 15—Extended geographical jurisdiction                                       37

15.1....... Extended geographical jurisdiction—category A.............................. 37

15.2....... Extended geographical jurisdiction—category B.............................. 39

15.3....... Extended geographical jurisdiction—category C.............................. 42

15.4....... Extended geographical jurisdiction—category D.............................. 43

Division 16—Miscellaneous                                                                                   45

16.1....... Attorney-General’s consent required for prosecution if alleged conduct occurs wholly in a foreign country in certain circumstances.................................................................................... 45

16.2....... When conduct taken to occur partly in Australia............................. 45

16.3....... Meaning of Australia........................................................................ 46

16.4....... Result of conduct.............................................................................. 46

Chapter 4The integrity and security of the international community and foreign governments               47

Division 70—Bribery of foreign public officials                                            47

70.1....... Definitions........................................................................................ 47

70.2....... Bribing a foreign public official......................................................... 50

70.3....... Defence—conduct lawful in foreign public official’s country.......... 51

70.4....... Defence—facilitation payments....................................................... 54

70.5....... Territorial and nationality requirements........................................... 56

70.6....... Saving of other laws.......................................................................... 57

Division 71—Offences against United Nations and associated personnel           58

71.1....... Purpose............................................................................................. 58

71.2....... Murder of a UN or associated person.............................................. 58

71.3....... Manslaughter of a UN or associated person.................................... 58

71.4....... Intentionally causing serious harm to a UN or associated person.... 59

71.5....... Recklessly causing serious harm to a UN or associated person....... 59

71.6....... Intentionally causing harm to a UN or associated person................ 60

71.7....... Recklessly causing harm to a UN or associated person................... 60

71.8....... Unlawful sexual penetration............................................................. 61

71.9....... Kidnapping a UN or associated person............................................ 62

71.10..... Unlawful detention of UN or associated person.............................. 62

71.11..... Intentionally causing damage to UN or associated person’s property etc.             63

71.12..... Threatening to commit other offences.............................................. 64

71.13..... Aggravated offences.......................................................................... 64

71.14..... Defence—activities involving serious harm...................................... 65

71.15..... Defence—medical or hygienic procedures........................................ 65

71.16..... Jurisdictional requirement................................................................. 65

71.17..... Exclusion of this Division if State/Territory laws provide for corresponding offences          67

71.18..... Double jeopardy............................................................................... 67

71.19..... Saving of other laws.......................................................................... 67

71.20..... Bringing proceedings under this Division......................................... 67

71.21..... Ministerial certificates relating to proceedings................................. 68

71.22..... Jurisdiction of State courts preserved.............................................. 68

71.23..... Definitions........................................................................................ 68

Division 72—International terrorist activities using explosive or lethal devices            71

72.1....... Purpose............................................................................................. 71

72.2....... ADF members not liable for prosecution......................................... 71

72.3....... Offences............................................................................................ 71

72.4....... Jurisdictional requirement................................................................. 72

72.5....... Saving of other laws.......................................................................... 73

72.6....... Double jeopardy and foreign offences.............................................. 73

72.7....... Bringing proceedings under this Division......................................... 74

72.8....... Ministerial certificates relating to proceedings................................. 74

72.9....... Jurisdiction of State courts preserved.............................................. 75

72.10..... Definitions........................................................................................ 75

Division 73—People smuggling and related offences                               76

Subdivision A—People smuggling offences                                                         76

73.1....... Offence of people smuggling............................................................ 76

73.2....... Aggravated offence of people smuggling (exploitation etc.)............. 76

73.3....... Aggravated offence of people smuggling (at least 5 people)............ 77

73.4....... Jurisdictional requirement................................................................. 78

73.5....... Attorney-General’s consent required............................................... 79

Subdivision B—Document offences related to people smuggling and unlawful entry into foreign countries               79

73.6....... Meaning of travel or identity document............................................ 79

73.7....... Meaning of false travel or identity document.................................... 79

73.8....... Making, providing or possessing a false travel or identity document 80

73.9....... Providing or possessing a travel or identity document issued or altered dishonestly or as a result of threats        81

73.10..... Providing or possessing a travel or identity document to be used by a person who is not the rightful user          82

73.11..... Taking possession of or destroying another person’s travel or identity document                82

73.12..... Jurisdictional requirement................................................................. 83

Chapter 5—The security of the Commonwealth                                                 84

Part 5.1—Treason                                                                                                                 84

Division 80—Treason                                                                                                 84

80.1....... Treason............................................................................................. 84

Part 5.2—Offences relating to espionage and similar activities                87

Division 90—Preliminary                                                                                          87

90.1....... Definitions........................................................................................ 87

Division 91—Offences relating to espionage and similar activities  89

91.1....... Espionage and similar activities........................................................ 89

91.2....... Defence—information lawfully available......................................... 91

Division 93—Prosecutions and hearings                                                         92

93.1....... Institution of prosecution................................................................. 92

93.2....... Hearing in camera etc........................................................................ 92

Division 94—Forfeiture                                                                                             94

94.1....... Forfeiture of articles etc.................................................................... 94

Part 5.3—Terrorism                                                                                                             95

Division 100—Preliminary                                                                                       95

100.1..... Definitions........................................................................................ 95

100.2..... Referring States................................................................................. 97

100.3..... Constitutional basis for the operation of this Part........................... 98

100.4..... Application of provisions................................................................ 99

100.5..... Application of Acts Interpretation Act 1901................................... 101

100.6..... Concurrent operation intended....................................................... 101

100.7..... Regulations may modify operation of this Part to deal with interaction between this Part and State and Territory laws........................................................................................................ 102

100.8..... Approval for changes to or affecting this Part............................... 103

Division 101—Terrorism                                                                                        104

101.1..... Terrorist acts.................................................................................. 104

101.2..... Providing or receiving training connected with terrorist acts.......... 104

101.4..... Possessing things connected with terrorist acts............................. 105

101.5..... Collecting or making documents likely to facilitate terrorist acts... 106

101.6..... Other acts done in preparation for, or planning, terrorist acts....... 107

Division 102—Terrorist organisations                                                            108

Subdivision A—Definitions                                                                                   108

102.1..... Definitions...................................................................................... 108

102.1A.. Reviews by Parliamentary Joint Committee on ASIO, ASIS and DSD  115

Subdivision B—Offences                                                                                       117

102.2..... Directing the activities of a terrorist organisation........................... 117

102.3..... Membership of a terrorist organisation.......................................... 117

102.4..... Recruiting for a terrorist organisation............................................. 118

102.5..... Training a terrorist organisation or receiving training from a terrorist organisation 118

102.6..... Getting funds to or from a terrorist organisation............................ 119

102.7..... Providing support to a terrorist organisation................................. 120

102.8..... Associating with terrorist organisations......................................... 120

Subdivision C—General provisions relating to offences                                 123

102.9..... Extended geographical jurisdiction for offences.............................. 123

102.10... Alternative verdicts........................................................................ 123

Division 103—Financing terrorism                                                                   124

103.1..... Financing terrorism......................................................................... 124

Division 106—Transitional provisions                                                            125

106.1..... Saving—regulations made for the purposes of the definition of terrorist organisation          125

Part 5.4—Harming Australians                                                                                   126

Division 104—Harming Australians                                                                 126

104.1..... Murder of an Australian citizen or a resident of Australia............. 126

104.2..... Manslaughter of an Australian citizen or a resident of Australia... 126

104.3..... Intentionally causing serious harm to an Australian citizen or a resident of Australia            127

104.4..... Recklessly causing serious harm to an Australian citizen or a resident of Australia               127

104.5..... Saving of other laws........................................................................ 127

104.6..... Bringing proceedings under this Division....................................... 127

104.7..... Ministerial certificates relating to proceedings............................... 128

104.8..... Geographical jurisdiction................................................................ 128

104.9..... Meaning of causes death or harm................................................... 128

Chapter 7—The proper administration of Government                                129

Part 7.1—Preliminary                                                                                                       129

Division 130—Preliminary                                                                                     129

130.1..... Definitions...................................................................................... 129

130.2..... When property belongs to a person............................................... 130

130.3..... Dishonesty..................................................................................... 131

130.4..... Determination of dishonesty to be a matter for the trier of fact.... 131

Part 7.2—Theft and other property offences                                                      132

Division 131—Theft                                                                                                  132

131.1..... Theft............................................................................................... 132

131.2..... Special rules about the meaning of dishonesty............................... 132

131.3..... Appropriation of property............................................................ 133

131.4..... Theft of land or things forming part of land................................... 133

131.5..... Trust property............................................................................... 133

131.6..... Obligation to deal with property in a particular way..................... 134

131.7..... Property obtained because of fundamental mistake....................... 134

131.8..... Property of a corporation sole....................................................... 135

131.9..... Property belonging to 2 or more persons....................................... 135

131.10... Intention of permanently depriving a person of property............. 135

131.11... General deficiency.......................................................................... 136

Division 132—Other property offences                                                          137

132.1..... Receiving......................................................................................... 137

132.2..... Robbery.......................................................................................... 140

132.3..... Aggravated robbery........................................................................ 141

132.4..... Burglary.......................................................................................... 142

132.5..... Aggravated burglary........................................................................ 144

132.6..... Making off without payment......................................................... 145

132.7..... Going equipped for theft or a property offence............................. 145

132.8..... Dishonest taking or retention of property..................................... 147

132.9..... Geographical jurisdiction................................................................ 148

Part 7.3—Fraudulent conduct                                                                                       149

Division 133—Preliminary                                                                                     149

133.1..... Definitions...................................................................................... 149

Division 134—Obtaining property or a financial advantage by deception            150

134.1..... Obtaining property by deception................................................... 150

134.2..... Obtaining a financial advantage by deception................................. 153

134.3..... Geographical jurisdiction................................................................ 153

Division 135—Other offences involving fraudulent conduct               154

135.1..... General dishonesty......................................................................... 154

135.2..... Obtaining financial advantage......................................................... 155

135.4..... Conspiracy to defraud.................................................................... 156

135.5..... Geographical jurisdiction................................................................ 158

Part 7.4—False or misleading statements                                                            159

Division 136—False or misleading statements in applications          159

136.1..... False or misleading statements in applications............................... 159

Division 137—False or misleading information or documents           162

137.1..... False or misleading information...................................................... 162

137.2..... False or misleading documents....................................................... 163

137.3..... Geographical jurisdiction................................................................ 164

Part 7.5—Unwarranted demands                                                                               165

Division 138—Preliminary                                                                                     165

138.1..... Unwarranted demand with menaces............................................... 165

138.2..... Menaces.......................................................................................... 165

Division 139—Unwarranted demands                                                             167

139.1..... Unwarranted demands of a Commonwealth public official............ 167

139.2..... Unwarranted demands made by a Commonwealth public official. 167

139.3..... Geographical jurisdiction................................................................ 168

Part 7.6—Bribery and related offences                                                                  169

Division 140—Preliminary                                                                                     169

140.1..... Definition........................................................................................ 169

140.2..... Obtaining........................................................................................ 169

Division 141—Bribery                                                                                             170

141.1..... Bribery of a Commonwealth public official................................... 170

Division 142—Offences relating to bribery                                                  172

142.1..... Corrupting benefits given to, or received by, a Commonwealth public official       172

142.2..... Abuse of public office.................................................................... 173

142.3..... Geographical jurisdiction................................................................ 174

Part 7.7—Forgery and related offences                                                                 175

Division 143—Preliminary                                                                                     175

143.1..... Definitions...................................................................................... 175

143.2..... False documents............................................................................. 175

143.3..... False Commonwealth documents................................................... 176

143.4..... Inducing acceptance of false documents......................................... 178

Division 144—Forgery                                                                                             179

144.1..... Forgery........................................................................................... 179

Division 145—Offences relating to forgery                                                  181

145.1..... Using forged document................................................................... 181

145.2..... Possession of forged document...................................................... 182

145.3..... Possession, making or adaptation of devices etc. for making forgeries 184

145.4..... Falsification of documents etc........................................................ 185

145.5..... Giving information derived from false or misleading documents.... 186

145.6..... Geographical jurisdiction................................................................ 187

Part 7.8—Causing harm to, and impersonation and obstruction of, Commonwealth public officials           188

Division 146—Preliminary                                                                                     188

146.1..... Definitions...................................................................................... 188

146.2..... Causing harm.................................................................................. 189

Division 147—Causing harm to Commonwealth public officials       190

147.1..... Causing harm to a Commonwealth public official etc.................... 190

147.2..... Threatening to cause harm to a Commonwealth public official etc. 191

147.3..... Geographical jurisdiction................................................................ 194

Division 148—Impersonation of Commonwealth public officials      195

148.1..... Impersonation of an official by a non-official................................ 195

148.2..... Impersonation of an official by another official............................. 196

148.3..... Geographical jurisdiction................................................................ 197

Division 149—Obstruction of Commonwealth public officials            198

149.1..... Obstruction of Commonwealth public officials............................. 198

Part 7.20—Miscellaneous                                                                                              200

Division 261—Miscellaneous                                                                              200

261.1..... Saving of other laws........................................................................ 200

261.2..... Contempt of court.......................................................................... 200

261.3..... Ancillary offences........................................................................... 200

Chapter 8Offences against humanity and related offences                   201

Division 268—Genocide, crimes against humanity, war crimes and crimes against the administration of the justice of the International Criminal Court                201

Subdivision A—Introductory                                                                                 201

268.1..... Purpose of Division........................................................................ 201

268.2..... Outline of offences......................................................................... 201

Subdivision B—Genocide                                                                                       202

268.3..... Genocide by killing......................................................................... 202

268.4..... Genocide by causing serious bodily or mental harm...................... 202

268.5..... Genocide by deliberately inflicting conditions of life calculated to bring about physical destruction     202

268.6..... Genocide by imposing measures intended to prevent births.......... 203

268.7..... Genocide by forcibly transferring children..................................... 203

Subdivision C—Crimes against humanity                                                         204

268.8..... Crime against humanity—murder................................................... 204

268.9..... Crime against humanity—extermination........................................ 204

268.10... Crime against humanity—enslavement.......................................... 205

268.11... Crime against humanity—deportation or forcible transfer of population               205

268.12... Crime against humanity—imprisonment or other severe deprivation of physical liberty      206

268.13... Crime against humanity—torture................................................... 206

268.14... Crime against humanity—rape....................................................... 207

268.15... Crime against humanity—sexual slavery........................................ 208

268.16... Crime against humanity—enforced prostitution............................ 209

268.17... Crime against humanity—forced pregnancy.................................. 210

268.18... Crime against humanity—enforced sterilisation............................. 211

268.19... Crime against humanity—sexual violence...................................... 211

268.20... Crime against humanity—persecution........................................... 213

268.21... Crime against humanity—enforced disappearance of persons....... 213

268.22... Crime against humanity—apartheid............................................... 215

268.23... Crime against humanity—other inhumane act................................ 215

Subdivision D—War crimes that are grave breaches of the Geneva Conventions and of Protocol I to the Geneva Conventions                                                                                 216

268.24... War crime—wilful killing................................................................ 216

268.25... War crime—torture......................................................................... 216

268.26... War crime—inhumane treatment.................................................... 217

268.27... War crime—biological experiments................................................ 217

268.28... War crime—wilfully causing great suffering................................... 218

268.29... War crime—destruction and appropriation of property................ 218

268.30... War crime—compelling service in hostile forces............................ 219

268.31... War crime—denying a fair trial....................................................... 219

268.32... War crime—unlawful deportation or transfer................................ 220

268.33... War crime—unlawful confinement................................................. 220

268.34... War crime—taking hostages........................................................... 221

Subdivision E—Other serious war crimes that are committed in the course of an international armed conflict         221

268.35... War crime—attacking civilians....................................................... 221

268.36... War crime—attacking civilian objects............................................. 222

268.37... War crime—attacking personnel or objects involved in a humanitarian assistance or peacekeeping mission         222

268.38... War crime—excessive incidental death, injury or damage.............. 223

268.39... War crime—attacking undefended places....................................... 224

268.40... War crime—killing or injuring a person who is hors de combat..... 224

268.41... War crime—improper use of a flag of truce................................... 225

268.42... War crime—improper use of a flag, insignia or uniform of the adverse party         225

268.43... War crime—improper use of a flag, insignia or uniform of the United Nations      225

268.44... War crime—improper use of the distinctive emblems of the Geneva Conventions                226

268.45... War crime—transfer of population................................................ 227

268.46... War crime—attacking protected objects......................................... 227

268.47... War crime—mutilation................................................................... 227

268.48... War crime—medical or scientific experiments................................ 228

268.49... War crime—treacherously killing or injuring.................................. 229

268.50... War crime—denying quarter........................................................... 230

268.51... War crime—destroying or seizing the enemy’s property.............. 230

268.52... War crime—depriving nationals of the adverse power of rights or actions             231

268.53... War crime—compelling participation in military operations......... 231

268.54... War crime—pillaging...................................................................... 232

268.55... War crime—employing poison or poisoned weapons................... 232

268.56... War crime—employing prohibited gases, liquids, materials or devices 232

268.57... War crime—employing prohibited bullets..................................... 233

268.58... War crime—outrages upon personal dignity.................................. 233

268.59... War crime—rape............................................................................. 234

268.60... War crime—sexual slavery............................................................. 235

268.61... War crime—enforced prostitution.................................................. 236

268.62... War crime—forced pregnancy........................................................ 237

268.63... War crime—enforced sterilisation.................................................. 238

268.64... War crime—sexual violence............................................................ 238

268.65... War crime—using protected persons as shields............................. 239

268.66... War crime—attacking persons or objects using the distinctive emblems of the Geneva Conventions    240

268.67... War crime—starvation as a method of warfare.............................. 241

268.68... War crime—using, conscripting or enlisting children..................... 241

Subdivision F—War crimes that are serious violations of article 3 common to the Geneva Conventions and are committed in the course of an armed conflict that is not an international armed conflict       242

268.69... Definition of religious personnel.................................................... 242

268.70... War crime—murder........................................................................ 242

268.71... War crime—mutilation................................................................... 243

268.72... War crime—cruel treatment............................................................ 244

268.73... War crime—torture......................................................................... 245

268.74... War crime—outrages upon personal dignity.................................. 245

268.75... War crime—taking hostages........................................................... 246

268.76... War crime—sentencing or execution without due process............. 247

Subdivision G—War crimes that are other serious violations of the laws and customs applicable in an armed conflict that is not an international armed conflict                                    249

268.77... War crime—attacking civilians....................................................... 249

268.78... War crime—attacking persons or objects using the distinctive emblems of the Geneva Conventions    249

268.79... War crime—attacking personnel or objects involved in a humanitarian assistance or peacekeeping mission         250

268.80... War crime—attacking protected objects......................................... 251

268.81... War crime—pillaging...................................................................... 251

268.82... War crime—rape............................................................................. 252

268.83... War crime—sexual slavery............................................................. 253

268.84... War crime—enforced prostitution.................................................. 254

268.85... War crime—forced pregnancy........................................................ 255

268.86... War crime—enforced sterilisation.................................................. 256

268.87... War crime—sexual violence............................................................ 256

268.88... War crime—using, conscripting or enlisting children..................... 258

268.89... War crime—displacing civilians...................................................... 259

268.90... War crime—treacherously killing or injuring.................................. 259

268.91... War crime—denying quarter........................................................... 260

268.92... War crime—mutilation................................................................... 260

268.93... War crime—medical or scientific experiments................................ 261

268.94... War crime—destroying or seizing an adversary’s property.......... 262

Subdivision H—War crimes that are grave breaches of Protocol I to the Geneva Conventions       263

268.95... War crime—medical procedure....................................................... 263

268.96... War crime—removal of blood, tissue or organs for transplantation 263

268.97... War crime—attack against works or installations containing dangerous forces resulting in excessive loss of life or injury to civilians....................................................................................... 264

268.98... War crime—attacking undefended places or demilitarized zones... 265

268.99... War crime—unjustifiable delay in the repatriation of prisoners of war or civilians                265

268.100. War crime—apartheid..................................................................... 266

268.101. War crime—attacking protected objects......................................... 266

Subdivision J—Crimes against the administration of the justice of the International Criminal Court         267

268.102. Perjury............................................................................................ 267

268.103. Falsifying evidence......................................................................... 267

268.104. Destroying or concealing evidence.................................................. 268

268.105. Deceiving witnesses........................................................................ 268

268.106. Corrupting witnesses or interpreters.............................................. 268

268.107. Threatening witnesses or interpreters............................................ 269

268.108. Preventing witnesses or interpreters.............................................. 270

268.109. Preventing production of things in evidence................................... 270

268.110. Reprisals against witnesses............................................................ 270

268.111. Reprisals against officials of the International Criminal Court....... 271

268.112. Perverting the course of justice....................................................... 271

268.113. Receipt of a corrupting benefit by an official of the International Criminal Court  272

268.114. Subdivision not to apply to certain conduct.................................. 272

Subdivision K—Miscellaneous                                                                             273

268.115. Responsibility of commanders and other superiors....................... 273

268.116. Defence of superior orders............................................................. 274

268.117. Geographical jurisdiction................................................................ 274

268.118. Double jeopardy............................................................................. 274

268.119. Offences related to exercise of jurisdiction of International Criminal Court            275

268.120. Saving of other laws........................................................................ 275

268.121. Bringing proceedings under this Division....................................... 275

268.122. Attorney-General’s decisions in relation to consents to be final... 275

268.123. Legal representation........................................................................ 276

268.124. Proof of application of Geneva Conventions or Protocol I to the Geneva Conventions        276

Division 270—Slavery, sexual servitude and deceptive recruiting 278

270.1..... Definition of slavery....................................................................... 278

270.2..... Slavery is unlawful......................................................................... 278

270.3..... Slavery offences.............................................................................. 278

270.4..... Definition of sexual servitude......................................................... 279

270.5..... Jurisdictional requirement............................................................... 279

270.6..... Sexual servitude offences................................................................ 280

270.7..... Deceptive recruiting for sexual services.......................................... 280

270.8..... Aggravated offences........................................................................ 282

270.9..... Alternative verdict if aggravated offence not proven...................... 282

270.12... Other laws not excluded................................................................. 282

270.13... Double jeopardy............................................................................. 283

270.14... External Territories......................................................................... 283

Division 271—Trafficking in persons and debt bondage                       284

Subdivision A—Definitions                                                                                   284

271.1..... Definitions...................................................................................... 284

Subdivision B—Offences relating to trafficking in persons                          284

271.2..... Offence of trafficking in persons.................................................... 284

271.3..... Aggravated offence of trafficking in persons.................................. 287

271.4..... Offence of trafficking in children.................................................... 288

271.5..... Offence of domestic trafficking in persons..................................... 289

271.6..... Aggravated offence of domestic trafficking in persons................... 291

271.7..... Offence of domestic trafficking in children..................................... 291

Subdivision C—Offences relating to debt bondage                                           292

271.8..... Offence of debt bondage................................................................. 292

271.9..... Offence of aggravated debt bondage............................................... 293

Subdivision D—General provisions relating to offences under this Division 293

271.10... Jurisdictional requirement for offences other than offences related to domestic trafficking in persons  293

271.11... Jurisdictional requirement for offences related to domestic trafficking in persons  293

271.12... Other laws not excluded................................................................. 294

271.13... Double jeopardy............................................................................. 294

Chapter 9—Dangers to the community                                                                  295

Part 9.4—Dangerous weapons                                                                                    295

Division 360—Cross-border firearms trafficking                                      295

360.1..... Disposal and acquisition of a firearm............................................. 295

360.2..... Cross-border offence of disposal or acquisition of a firearm.......... 295

360.3..... Taking or sending a firearm across borders..................................... 296

360.4..... Concurrent operation intended....................................................... 297

Part 9.6—Contamination of goods                                                                             298

380.1..... Definitions...................................................................................... 298

380.2..... Contaminating goods...................................................................... 298

380.3..... Threatening to contaminate goods.................................................. 300

380.4..... Making false statements about contamination of goods................. 302

380.5..... Extended geographical jurisdiction—category D............................ 304

Chapter 10—National infrastructure                                                                       305

Part 10.2—Money laundering                                                                                      305

Division 400—Money laundering                                                                      305

400.1..... Definitions...................................................................................... 305

400.2..... Meaning of dealing with money or other property......................... 306

400.3..... Dealing in proceeds of crime etc.—money or property worth $1,000,000 or more               307

400.4..... Dealing in proceeds of crime etc.—money or property worth $100,000 or more  309

400.5..... Dealing in proceeds of crime etc.—money or property worth $50,000 or more    310

400.6..... Dealing in proceeds of crime etc.—money or property worth $10,000 or more    311

400.7..... Dealing in proceeds of crime etc.—money or property worth $1,000 or more      312

400.8..... Dealing in proceeds of crime etc.—money or property of any value 313

400.9..... Possession etc. of property reasonably suspected of being proceeds of crime etc.                314

400.10... Mistake of fact as to the value of money or property................... 316

400.11... Proof of certain matters relating to kinds of offences not required 317

400.12... Combining several contraventions in a single charge...................... 317

400.13... Proof of other offences is not required........................................... 317

400.14... Alternative verdicts........................................................................ 318

400.15... Geographical jurisdiction................................................................ 318

400.16... Saving of other laws........................................................................ 318

Part 10.5—Postal services                                                                                             319

Division 470—Preliminary                                                                                     319

470.1..... Definitions...................................................................................... 319

470.2..... Dishonesty..................................................................................... 321

470.3..... Determination of dishonesty to be a matter for the trier of fact.... 321

Division 471—Postal offences                                                                             322

471.1..... Theft of mail-receptacles, articles or postal messages.................... 322

471.2..... Receiving stolen mail-receptacles, articles or postal messages....... 323

471.3..... Taking or concealing of mail-receptacles, articles or postal messages 325

471.4..... Dishonest removal of postage stamps or postmarks..................... 325

471.5..... Dishonest use of previously used, defaced or obliterated stamps. 325

471.6..... Damaging or destroying mail-receptacles, articles or postal messages 326

471.7..... Tampering with mail-receptacles.................................................... 326

471.8..... Dishonestly obtaining delivery of articles...................................... 327

471.9..... Geographical jurisdiction................................................................ 327

471.10... Hoaxes—explosives and dangerous substances.............................. 327

471.11... Using a postal or similar service to make a threat.......................... 328

471.12... Using a postal or similar service to menace, harass or cause offence 328

471.13... Causing a dangerous article to be carried by a postal or similar service.. 329

471.14... Geographical jurisdiction................................................................ 330

471.15... Causing an explosive, or a dangerous or harmful substance, to be carried by post 330

Division 472—Miscellaneous                                                                              331

472.1..... Saving of other laws........................................................................ 331

472.2..... Interpretation of other laws............................................................ 331

Part 10.6—Telecommunications Services                                                             332

Division 473—Preliminary                                                                                     332

473.1..... Definitions...................................................................................... 332

473.2..... Possession or control of data or material in the form of data......... 339

473.3..... Producing, supplying or obtaining data or material in the form of data.. 339

473.4..... Determining whether material is offensive..................................... 339

Division 474—Telecommunications offences                                              340

Subdivision A—Dishonesty with respect to carriage services                       340

474.1..... Dishonesty..................................................................................... 340

474.2..... General dishonesty with respect to a carriage service provider..... 340

Subdivision B—Interference with telecommunications                                   341

474.3..... Person acting for a carrier or carriage service provider................... 341

474.4..... Interception devices........................................................................ 341

474.5..... Wrongful delivery of communications............................................ 342

474.6..... Interference with facilities.............................................................. 342

474.7..... Modification etc. of a telecommunications device identifier.......... 344

474.8..... Possession or control of data or a device with intent to modify a telecommunications device identifier                345

474.9..... Producing, supplying or obtaining data or a device with intent to modify a telecommunications device identifier........................................................................................................ 346

474.10... Copying subscription-specific secure data..................................... 347

474.11... Possession or control of data or a device with intent to copy an account identifier               349

474.12... Producing, supplying or obtaining data or a device with intent to copy an account identifier                350

Subdivision C—Offences related to use of telecommunications                    351

474.13... Use of a carriage service.................................................................. 351

474.14... Using a telecommunications network with intention to commit a serious offence  352

474.15... Using a carriage service to make a threat........................................ 353

474.16... Using a carriage service for a hoax threat........................................ 353

474.17... Using a carriage service to menace, harass or cause offence........... 354

474.18... Improper use of emergency call service.......................................... 354

474.19... Using a carriage service for child pornography material................. 355

474.20... Possessing, controlling, producing, supplying or obtaining child pornography material for use through a carriage service........................................................................................................ 356

474.21... Defences in respect of child pornography material........................ 356

474.22... Using a carriage service for child abuse material............................. 358

474.23... Possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service........................................................................................................ 358

474.24... Defences in respect of child abuse material.................................... 359

474.25... Obligations of Internet service providers and Internet content hosts 361

474.26... Using a carriage service to procure persons under 16 years of age. 361

474.27... Using a carriage service to “groom” persons under 16 years of age 362

474.28... Provisions relating to offences against sections 474.26 and 474.27 364

474.29... Defences to offences against section 474.26 or 474.27.................. 366

474.30... Defences for NRS employees and emergency call persons............ 366

Division 475—Miscellaneous                                                                              367

475.1..... Saving of other laws........................................................................ 367

475.2..... Geographical jurisdiction................................................................ 367

Part 10.7—Computer offences                                                                                    368

Division 476—Preliminary                                                                                     368

476.1..... Definitions...................................................................................... 368

476.2..... Meaning of unauthorised access, modification or impairment....... 369

476.3..... Geographical jurisdiction................................................................ 370

476.4..... Saving of other laws........................................................................ 370

476.5..... Liability for certain acts.................................................................. 370

Division 477—Serious computer offences                                                    373

477.1..... Unauthorised access, modification or impairment with intent to commit a serious offence   373

477.2..... Unauthorised modification of data to cause impairment................ 374

477.3..... Unauthorised impairment of electronic communication................. 376

Division 478—Other computer offences                                                        377

478.1..... Unauthorised access to, or modification of, restricted data............ 377

478.2..... Unauthorised impairment of data held on a computer disk etc...... 377

478.3..... Possession or control of data with intent to commit a computer offence               378

478.4..... Producing, supplying or obtaining data with intent to commit a computer offence                379

Part 10.8—Financial information offences                                                            380

480.1..... Definitions...................................................................................... 380

480.2..... Dishonesty..................................................................................... 381

480.3..... Constitutional application of this Part........................................... 381

480.4..... Dishonestly obtaining or dealing in personal financial information 381

480.5..... Possession or control of thing with intent to dishonestly obtain or deal in personal financial information            381

480.6..... Importation of thing with intent to dishonestly obtain or deal in personal financial information           382

Dictionary                                                                                                                                383

Notes                                                                                                                                          397


An Act relating to the criminal law

1  Short title [see Note 1]

                   This Act may be cited as the Criminal Code Act 1995.

2  Commencement [see Note 1]

             (1)  Subject to subsection (2), this Act commences on a day to be fixed by Proclamation.

             (2)  If this Act does not commence under subsection (1) within the period of 5 years beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.

3  The Criminal Code

             (1)  The Schedule has effect as a law of the Commonwealth.

             (2)  The Schedule may be cited as the Criminal Code.

3A  External Territories

                   The Criminal Code extends to every external Territory.

3B  Offshore installations

                   Unless the contrary intention appears, an installation (within the meaning of the Customs Act 1901) that is deemed by section 5C of the Customs Act 1901 to be part of Australia is also taken to be part of Australia for the purposes of the Criminal Code.

4  Definitions

             (1)  Expressions used in the Code (or in a particular provision of the Code) that are defined in the Dictionary at the end of the Code have the meanings given to them in the Dictionary.

             (2)  Definitions in the Code of expressions used in the Code apply to its construction except insofar as the context or subject matter otherwise indicates or requires.

5  Regulations

                   The Governor-General may make regulations prescribing matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.


ScheduleThe Criminal Code

Section 3

Chapter 1Codification

  

Division 1 

1.1  Codification

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

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


 

Chapter 2General principles of criminal responsibility

Part 2.1Purpose and application

Division 2 

2.1  Purpose

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

2.2  Application

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

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

             (3)  Section 11.6 applies to all offences.

2.3  Application of provisions relating to intoxication

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


 

Part 2.2The elements of an offence

Division 3General

3.1  Elements

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

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

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

3.2  Establishing guilt in respect of offences

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

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

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

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

Note 2:       See Part 2.7 on geographical jurisdiction.


 

Division 4Physical elements

4.1  Physical elements

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

                     (a)  conduct; or

                     (b)  a result of conduct; or

                     (c)  a circumstance in which conduct, or a result of conduct, occurs.

             (2)  In this Code:

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

engage in conduct means:

                     (a)  do an act; or

                     (b)  omit to perform an act.

4.2  Voluntariness

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

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

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

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

                     (b)  an act performed during sleep or unconsciousness;

                     (c)  an act performed during impaired consciousness depriving the person of the will to act.

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

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

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

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

                     (a)  involuntarily; or

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

4.3  Omissions

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

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

                     (b)  the law creating the offence impliedly provides that the offence is committed by an omission to perform an act that by law there is a duty to perform.


 

Division 5Fault elements

5.1  Fault elements

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

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

5.2  Intention

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

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

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

5.3  Knowledge

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

5.4  Recklessness

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

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

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

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

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

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

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

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

5.5  Negligence

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

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

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

that the conduct merits criminal punishment for the offence.

5.6  Offences that do not specify fault elements

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

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

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


 

Division 6Cases where fault elements are not required

6.1  Strict liability

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

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

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

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

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

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

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

6.2  Absolute liability

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

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

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

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

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

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

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


 

Part 2.3Circumstances in which there is no criminal responsibility

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

Division 7Circumstances involving lack of capacity

7.1  Children under 10

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

7.2  Children over 10 but under 14

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

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

7.3  Mental impairment

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

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

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

                     (c)  the person was unable to control the conduct.

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

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

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

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

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

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

             (8)  In this section:

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

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


 

Division 8Intoxication

8.1  Definition—self-induced intoxication

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

                     (a)  involuntarily; or

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

8.2  Intoxication (offences involving basic intent)

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

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

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

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

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

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

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

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

8.3  Intoxication (negligence as fault element)

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

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

8.4  Intoxication (relevance to defences)

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

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

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

             (4)  If, in relation to an offence:

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

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

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

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

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

8.5  Involuntary intoxication

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


 

Division 9Circumstances involving mistake or ignorance

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

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

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

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

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

9.2  Mistake of fact (strict liability)

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

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

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

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

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

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

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

9.3  Mistake or ignorance of statute law

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

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

9.4  Mistake or ignorance of subordinate legislation

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

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

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

                     (c)  at the time of the conduct, the subordinate legislation:

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

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

             (3)  In this section:

available includes available by sale.

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

9.5  Claim of right

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

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

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

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

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


 

Division 10Circumstances involving external factors

10.1  Intervening conduct or event

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

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

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

10.2  Duress

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

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

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

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

                     (c)  the conduct is a reasonable response to the threat.

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

10.3  Sudden or extraordinary emergency

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

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

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

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

                     (c)  the conduct is a reasonable response to the emergency.

10.4  Self-defence

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

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

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

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

                     (c)  to protect property from unlawful appropriation, destruction, damage or interference; or

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

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

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

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

                     (a)  to protect property; or

                     (b)  to prevent criminal trespass; or

                     (c)  to remove a person who is committing criminal trespass.

             (4)  This section does not apply if:

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

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

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

10.5  Lawful authority

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


 

Part 2.4Extensions of criminal responsibility

Division 11 

11.1  Attempt

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

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

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

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

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

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

                     (a)  committing the offence attempted is impossible; or

                     (b)  the person actually committed the offence attempted.

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

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

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

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

11.2  Complicity and common purpose

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

             (2)  For the person to be guilty:

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

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

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

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

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

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

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

                     (a)  terminated his or her involvement; and

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

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

             (6)  Any special liability provisions that apply to an offence apply also to the offence of aiding, abetting, counselling or procuring the commission of that offence.

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

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

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

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

11.3  Innocent agency

                   A person who:

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

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

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

11.4  Incitement

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

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

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

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

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

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

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

Penalty:

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

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

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

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

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

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

11.5  Conspiracy

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

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

             (2)  For the person to be guilty:

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

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

                     (c)  the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.

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

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

                     (a)  committing the offence is impossible; or

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

                     (c)  each other party to the agreement is at least one of the following:

                              (i)  a person who is not criminally responsible;

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

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

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

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

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

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

                     (a)  withdrew from the agreement; and

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

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

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

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

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

11.6  References in Acts to offences

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

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

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

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

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

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

                     (c)  an offence arising out of the first-mentioned law or another law of the Commonwealth; or

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

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

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

Note:          Sections 11.2 (complicity and common purpose) and 11.3 (innocent agency) of this Code operate as extensions of principal offences and are therefore not referred to in this section.


 

Part 2.5Corporate criminal responsibility

Division 12 

12.1  General principles

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

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

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

12.2  Physical elements

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

12.3  Fault elements other than negligence

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

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

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

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

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

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

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

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

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

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

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

             (6)  In this section:

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

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

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

12.4  Negligence

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

             (2)  If:

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

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

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

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

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

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

12.5  Mistake of fact (strict liability)

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

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

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

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

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

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

12.6  Intervening conduct or event

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


 

Part 2.6Proof of criminal responsibility

Division 13 

13.1  Legal burden of proof—prosecution

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

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

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

             (3)  In this Code:

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

13.2  Standard of proof—prosecution

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

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

13.3  Evidential burden of proof—defence

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

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

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

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

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

             (6)  In this Code:

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

13.4  Legal burden of proof—defence

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

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

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

                     (c)  creates a presumption that the matter exists unless the contrary is proved.

13.5  Standard of proof—defence

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

13.6  Use of averments

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

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

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


 

Part 2.7Geographical jurisdiction

Division 14Standard geographical jurisdiction

14.1  Standard geographical jurisdiction

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

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

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

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

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

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

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

                     (a)  the conduct constituting the alleged offence occurs:

                              (i)  wholly or partly in Australia; or

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

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

                              (i)  wholly or partly in Australia; or

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

                     (c)  all of the following conditions are satisfied:

                              (i)  the alleged offence is an ancillary offence;

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

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

Defence—primary offence

             (3)  If this section applies to a particular offence, a person is not guilty of the offence if:

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

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

                     (b)  there is not in force in:

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

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

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

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

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

Defence—ancillary offence

             (5)  If this section applies to a particular offence, a person is not guilty of the offence if:

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

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

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

                     (d)  there is not in force in:

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

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

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

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

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


 

Division 15Extended geographical jurisdiction

15.1  Extended geographical jurisdiction—category A

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

                     (a)  the conduct constituting the alleged offence occurs:

                              (i)  wholly or partly in Australia; or

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

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

                              (i)  wholly or partly in Australia; or

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

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

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

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

                     (d)  all of the following conditions are satisfied:

                              (i)  the alleged offence is an ancillary offence;

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

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

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

Defence—primary offence

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

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

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

                     (b)  the person is neither:

                              (i)  an Australian citizen; nor

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

                     (c)  there is not in force in:

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

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

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

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

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

Defence—ancillary offence

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

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

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

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

                     (d)  the person is neither:

                              (i)  an Australian citizen; nor

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

                     (e)  there is not in force in:

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

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

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

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

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

15.2  Extended geographical jurisdiction—category B

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

                     (a)  the conduct constituting the alleged offence occurs:

                              (i)  wholly or partly in Australia; or

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

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

                              (i)  wholly or partly in Australia; or

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

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

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

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

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

                     (d)  all of the following conditions are satisfied:

                              (i)  the alleged offence is an ancillary offence;

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

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

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

Defence—primary offence

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

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

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

                     (b)  the person is neither:

                              (i)  an Australian citizen; nor

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

                     (c)  there is not in force in:

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

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

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

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

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

Defence—ancillary offence

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

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

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

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

                     (d)  the person is neither:

                              (i)  an Australian citizen; nor

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

                     (e)  there is not in force in:

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

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

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

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

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

15.3  Extended geographical jurisdiction—category C

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

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

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

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

Defence—primary offence

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

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

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

                     (b)  the person is neither:

                              (i)  an Australian citizen; nor

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

                     (c)  there is not in force in:

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

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

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

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

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

Defence—ancillary offence

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

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

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

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

                     (d)  the person is neither:

                              (i)  an Australian citizen; nor

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

                     (e)  there is not in force in:

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

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

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

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

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

15.4  Extended geographical jurisdiction—category D

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

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

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

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


 

Division 16Miscellaneous

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

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

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

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

                     (c)  at the time of the alleged offence, the person alleged to have committed the offence is neither:

                              (i)  an Australian citizen; nor

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

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

16.2  When conduct taken to occur partly in Australia

Sending things

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

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

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

that conduct is taken to have occurred partly in Australia.

Sending electronic communications

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

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

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

that conduct is taken to have occurred partly in Australia.

Point

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

16.3  Meaning of Australia

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

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

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

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

16.4  Result of conduct

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


 

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

  

Division 70Bribery of foreign public officials

70.1  Definitions

                   In this Division:

benefit includes any advantage and is not limited to property.

business advantage means an advantage in the conduct of business.

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

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

                     (a)  is conferred on the official; or

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

foreign government body means:

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

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

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

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

                     (e)  a foreign public enterprise.

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

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

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

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

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

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

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

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

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

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

                     (c)  the company, body or association:

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

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

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

foreign public official means:

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

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

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

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

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

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

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

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

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

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

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

                      (l)  an individual who:

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

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

public international organisation means:

                     (a)  an organisation:

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

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

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

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

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

                     (c)  an organisation that is:

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

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

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

share includes stock.

70.2  Bribing a foreign public official

             (1)  A person is guilty of an offence if:

                     (a)  the person:

                              (i)  provides a benefit to another person; or

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

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

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

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

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

                              (i)  obtain or retain business; or

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

Penalty:  Imprisonment for 10 years.

Note 1:       For defences, see sections 70.3 and 70.4.

Note 2:       Section 4B of the Crimes Act 1914 allows a court to impose a fine instead of imprisonment or in addition to imprisonment.

Benefit that is not legitimately due

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

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

                     (b)  the value of the benefit;

                     (c)  any official tolerance of the benefit.

Business advantage that is not legitimately due

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

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

                     (b)  the value of the business advantage;

                     (c)  any official tolerance of the business advantage.

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

             (1)  A person is not guilty of an offence against section 70.2 in the cases set out in the following table:

 

Defence of lawful conduct

Item

In a case where the person’s conduct occurred in relation to this kind of foreign public official...

and if it were assumed that the person’s conduct had occurred wholly...

the person would not have been guilty of an offence against...

1

an employee or official of a foreign government body

in the place where the central administration of the body is located

a law in force in that place

2

an individual who performs work for a foreign government body under a contract

in the place where the central administration of the body is located

a law in force in that place

3

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

in the foreign country or in the part of the foreign country, as the case may be

a law in force in the foreign country or in the part of the foreign country, as the case may be

4

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

in the foreign country or in the part of the foreign country, as the case may be

a law in force in the foreign country or in the part of the foreign country, as the case may be

5

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

in the place where the central administration of the body is located

a law in force in that place

6

a member of the executive, judiciary or magistracy of a foreign country or of part of a foreign country

in the foreign country or in the part of the foreign country, as the case may be

a law in force in the foreign country or in the part of the foreign country, as the case may be

7

an employee of a public international organisation

in the place where the headquarters of the organisation is located

a law in force in that place

8

an individual who performs work for a public international organisation under a contract

in the place where the headquarters of the organisation is located

a law in force in that place

9

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

in the place where the headquarters of the organisation is located

a law in force in that place

10

an individual who is otherwise in the service of a public international organisation

in the place where the headquarters of the organisation is located

a law in force in that place

11

a member or officer of the legislature of a foreign country or of part of a foreign country

in the foreign country or in the part of the foreign country, as the case may be

a law in force in the foreign country or in the part of the foreign country, as the case may be

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

             (2)  A person is not guilty of an offence against section 70.2 if:

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

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

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

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

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

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

             (3)  To avoid doubt, if:

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

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

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

70.4  Defence—facilitation payments

             (1)  A person is not guilty of an offence against section 70.2 if:

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

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

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

                     (d)  any of the following subparagraphs applies:

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

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

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

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

Routine government action

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

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

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

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

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

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

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

                             (v)  providing telecommunications services, power or water;

                            (vi)  loading and unloading cargo;

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

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

                     (c)  does not involve a decision about:

                              (i)  whether to award new business; or

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

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

                     (d)  does not involve encouraging a decision about:

                              (i)  whether to award new business; or

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

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

Content of records

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

                     (a)  the value of the benefit concerned; and

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

                     (c)  the identity of the foreign public official in relation to whom the conduct occurred; and

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

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

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

70.5  Territorial and nationality requirements

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

                     (a)  the conduct constituting the alleged offence occurs:

                              (i)  wholly or partly in Australia; or

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

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

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

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

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

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

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

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

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

                              (i)  a resident of Australia; and

                             (ii)  not an Australian citizen.

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

70.6  Saving of other laws

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


 

Division 71Offences against United Nations and associated personnel

71.1  Purpose

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

71.2  Murder of a UN or associated person

             (1)  A person is guilty of an offence if:

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

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

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

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

Maximum penalty:    Imprisonment for life.

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

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

71.3  Manslaughter of a UN or associated person

             (1)  A person is guilty of an offence if:

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

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

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

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

Maximum penalty:    Imprisonment for 25 years.

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

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

71.4  Intentionally causing serious harm to a UN or associated person

             (1)  A person is guilty of an offence if:

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

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

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

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

Maximum penalty:    Imprisonment for 20 years.

Maximum penalty (aggravated offence): Imprisonment for 25 years.

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

Note 2:       Section 71.13 defines aggravated offence.

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

71.5  Recklessly causing serious harm to a UN or associated person

             (1)  A person is guilty of an offence if:

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

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

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

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

Maximum penalty:    Imprisonment for 15 years.

Maximum penalty (aggravated offence): Imprisonment for 19 years.

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

Note 2:       Section 71.13 defines aggravated offence.

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

71.6  Intentionally causing harm to a UN or associated person

             (1)  A person is guilty of an offence if:

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

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

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

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

Maximum penalty:    Imprisonment for 10 years.

Maximum penalty (aggravated offence): Imprisonment for 13 years.

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

Note 2:       Section 71.13 defines aggravated offence.

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

71.7  Recklessly causing harm to a UN or associated person

             (1)  A person is guilty of an offence if:

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

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

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

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

Maximum penalty:    Imprisonment for 7 years.

Maximum penalty (aggravated offence): Imprisonment for 9 years.

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

Note 2:       Section 71.13 defines aggravated offence.

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

71.8  Unlawful sexual penetration

             (1)  A person is guilty of an offence if:

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

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

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

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

Maximum penalty:    Imprisonment for 15 years.

Maximum penalty (aggravated offence): Imprisonment for 20 years.

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

Note 2:       Section 71.13 defines aggravated offence.

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

             (3)  In this section:

sexually penetrate means:

                     (a)  penetrate (to any extent) the genitalia or anus of a person by any part of the body of another person or by any object manipulated by that other person; or

                     (b)  penetrate (to any extent) the mouth of a person by the penis of another person; or

                     (c)  continue to sexually penetrate as defined in paragraph (a) or (b).

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

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

71.9  Kidnapping a UN or associated person

             (1)  A person is guilty of an offence if:

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

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

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

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

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

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

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

Maximum penalty:    Imprisonment for 15 years.

Maximum penalty (aggravated offence): Imprisonment for 19 years.

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

Note 2:       Section 71.13 defines aggravated offence.

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

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

71.10  Unlawful detention of UN or associated person

             (1)  A person is guilty of an offence if:

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

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

                     (c)  the UN or associated person is engaged in a UN operation that is not a UN enforcement action.

Maximum penalty:    Imprisonment for 5 years.

Maximum penalty (aggravated offence): Imprisonment for 6 years.

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

Note 2:       Section 71.13 defines aggravated offence.

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

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

             (1)  A person is guilty of an offence if:

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

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

                     (c)  the conduct gives rise to a danger of serious harm to a person; and

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

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

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

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

Maximum penalty:    Imprisonment for 10 years.

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

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

71.12  Threatening to commit other offences

                   A person is guilty of an offence if the person:

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

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

Maximum penalty:   

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

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

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

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

Note:          Section 71.23 defines UN or associated person.

71.13  Aggravated offences

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

                     (a)  the offence was committed during torture; or

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

                     (c)  the offence was committed against a person in an abuse of authority.

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

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

             (4)  In this section:

offensive weapon includes:

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

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

torture means the deliberate and systematic infliction of severe pain over a period of time.

71.14  Defence—activities involving serious harm

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

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

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

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

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

71.15  Defence—medical or hygienic procedures

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

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

71.16  Jurisdictional requirement

             (1)  A person commits an offence under this Division only if:

                     (a)  the conduct constituting the alleged offence occurs:

                              (i)  wholly or partly in Australia; or

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

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

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

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

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

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

                     (c)  the alleged offence is committed against an Australian citizen; or

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

             (2)  In this section:

Australian aircraft means:

                     (a)  an aircraft registered, or required to be registered, under the Civil Aviation Regulations as an Australian aircraft; or

                     (b)  an aircraft (other than a defence aircraft) that is owned by, or in the possession or control of, a Commonwealth entity; or

                     (c)  a defence aircraft.

Australian ship means:

                     (a)  a ship registered, or required to be registered, under the Shipping Registration Act 1981; or

                     (b)  an unregistered ship that has Australian nationality; or

                     (c)  a defence ship.

defence aircraft means an aircraft of any part of the Australian Defence Force, and includes an aircraft that is being commanded or piloted by a member of that Force in the course of his or her duties as such a member.

defence ship means a ship of any part of the Australian Defence Force, and includes a ship that is being operated or commanded by a member of that Force in the course of his or her duties as such a member.

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

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

             (2)  If:

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

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

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

71.18  Double jeopardy

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

71.19  Saving of other laws

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

71.20  Bringing proceedings under this Division

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

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

71.21  Ministerial certificates relating to proceedings

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

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

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

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

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

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

             (2)  The Minister for Immigration and Multicultural Affairs may issue a certificate stating that:

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

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

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

71.22  Jurisdiction of State courts preserved

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

71.23  Definitions

             (1)  In this Division:

associated personnel means:

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

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

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

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

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

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

UN enforcement action means a UN operation:

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

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

                     (c)  to which the law of international armed conflict applies.

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

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

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

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

UN personnel means:

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

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

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


 

Division 72International terrorist activities using explosive or lethal devices

72.1  Purpose

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

Note:          The text of the Convention is available in the Australian Treaties Library of the Department of Foreign Affairs and Trade, accessible on the Internet through that Department’s world-wide web site.

72.2  ADF members not liable for prosecution

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

72.3  Offences

             (1)  A person commits an offence if:

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

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

                     (c)  the device is delivered, placed, discharged, or detonated, to, in, into or against:

                              (i)  a place of public use; or

                             (ii)  a government facility; or

                            (iii)  a public transportation system; or

                            (iv)  an infrastructure facility; and

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

Penalty:  Imprisonment for life.

             (2)  A person commits an offence if:

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

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

                     (c)  the device is delivered, placed, discharged, or detonated, to, in, into or against:

                              (i)  a place of public use; or

                             (ii)  a government facility; or

                            (iii)  a public transportation system; or

                            (iv)  an infrastructure facility; and

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

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

Penalty:  Imprisonment for life.

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

72.4  Jurisdictional requirement

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

                     (a)  the conduct constituting the alleged offence occurs:

                              (i)  wholly or partly in Australia; or

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

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

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

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

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

                      (f)  the alleged offence is committed against:

                              (i)  an Australian citizen; or

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

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

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

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

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

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

                     (d)  the alleged offender is in Australia; and

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

72.5  Saving of other laws

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

72.6  Double jeopardy and foreign offences

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

72.7  Bringing proceedings under this Division

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

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

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

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

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

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

72.8  Ministerial certificates relating to proceedings

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

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

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

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

             (2)  The Minister administering the Australian Citizenship Act 1948 may issue a certificate stating that:

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

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

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

72.9  Jurisdiction of State courts preserved

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

72.10  Definitions

                   In this Division:

Convention means the Convention referred to in section 72.1.

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

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

infrastructure facility has the same meaning as in the Convention.

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

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


 

Division 73People smuggling and related offences

Subdivision A—People smuggling offences

73.1  Offence of people smuggling

             (1)  A person (the first person) is guilty of an offence if:

                     (a)  the first person organises or facilitates the entry of another person (the other person) into a foreign country (whether or not via Australia); and

                     (b)  the entry of the other person into the foreign country does not comply with the requirements under that country’s law for entry into the country; and

                     (c)  the other person is not a citizen or permanent resident of the foreign country; and

                     (d)  the first person organises or facilitates the entry:

                              (i)  having obtained (whether directly or indirectly) a benefit to do so; or

                             (ii)  with the intention of obtaining (whether directly or indirectly) a benefit.

Penalty:  Imprisonment for 10 years or 1,000 penalty units, or both.

             (2)  Absolute liability applies to the paragraph (1)(c) element of the offence.

             (3)  For the purposes of this Code, an offence against subsection (1) is to be known as the offence of people smuggling.

73.2  Aggravated offence of people smuggling (exploitation etc.)

             (1)  A person (the first person) is guilty of an offence if the first person commits the offence of people smuggling in relation to another person (the victim) and any of the following applies:

                     (a)  the first person commits the offence intending that the victim will be exploited after entry into the foreign country (whether by the first person or another);

                     (b)  in committing the offence, the first person subjects the victim to cruel, inhuman or degrading treatment;

                     (c)  in committing the offence, the first person’s conduct:

                              (i)  gives rise to a danger of death or serious harm to the victim; and

                             (ii)  the first person is reckless as to the danger of death or serious harm to the victim that arises from the conduct.

Penalty:  Imprisonment for 20 years or 2,000 penalty units, or both.

             (3)  In this section:

forced labour means the condition of a person who provides labour or services (other than sexual services) and who, because of the use of force or threats:

                     (a)  is not free to cease providing labour or services; or

                     (b)  is not free to leave the place or area where the person provides labour or services.

sexual servitude has the same meaning as in Division 270.

slavery has the same meaning as in Division 270.

threat means:

                     (a)  a threat of force; or

                     (b)  a threat to cause a person’s deportation; or

                     (c)  a threat of any other detrimental action unless there are reasonable grounds for the threat of that action in connection with the provision of labour or services by a person.

73.3  Aggravated offence of people smuggling (at least 5 people)

             (1)  A person (the first person) is guilty of an offence if:

                     (a)  the first person organises or facilitates the entry of a group of at least 5 persons (the other persons) into a foreign country (whether or not via Australia); and

                     (b)  the entry of at least 5 of the other persons into the foreign country does not comply with the requirements under that country’s law for entry into that country; and

                     (c)  at least 5 of the other persons whose entry into the foreign country is covered by paragraph (b) are not citizens or permanent residents of the foreign country; and

                     (d)  the first person organises or facilitates the entry:

                              (i)  having obtained (whether directly or indirectly) a benefit to do so; or

                             (ii)  with the intention of obtaining (whether directly or indirectly) a benefit.

Penalty:  Imprisonment for 20 years or 2,000 penalty units, or both.

             (2)  Absolute liability applies to the paragraph (1)(c) element of the offence.

             (3)  If, on a trial for an offence against subsection (1), the trier of fact is not satisfied that the defendant is guilty of that offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence against subsection 73.1(1), the trier of fact may find the defendant not guilty of an offence against subsection (1) but guilty of an offence against subsection 73.1(1), so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

73.4  Jurisdictional requirement

                   A person commits an offence against this Subdivision only if:

                     (a)  both:

                              (i)  the person is an Australian citizen or a resident of Australia; and

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

                     (b)  both:

                              (i)  the conduct constituting the alleged offence occurs wholly or partly in Australia; and

                             (ii)  a result of the conduct occurs, or is intended by the person to occur, outside Australia.

73.5  Attorney-General’s consent required

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

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

Subdivision B—Document offences related to people smuggling and unlawful entry into foreign countries

73.6  Meaning of travel or identity document

             (1)  For the purposes of this Subdivision, a document is a travel or identity document if it is:

                     (a)  a travel document; or

                     (b)  an identity document.

73.7  Meaning of false travel or identity document

             (1)  For the purposes of this Subdivision, a travel or identity document is a false travel or identity document if, and only if:

                     (a)  the document, or any part of the document:

                              (i)  purports to have been made in the form in which it is made by a person who did not make it in that form; or

                                       (ii)  purports to have been made in the form in which it is made on the authority of a person who did not authorise its making in that form; or

                     (b)  the document, or any part of the document:

                              (i)  purports to have been made in the terms in which it is made by a person who did not make it in those terms; or

                             (ii)  purports to have been made in the terms in which it is made on the authority of a person who did not authorise its making in those terms; or

                     (c)  the document, or any part of the document:

                                        (i)   purports to have been altered in any respect by a person who did not alter it in that respect; or

                             (ii)  purports to have been altered in any respect on the authority of a person who did not authorise its alteration in that respect; or

                     (d)  the document, or any part of the document:

                                        (i)  purports to have been made or altered by a person who did not exist; or

                             (ii)  purports to have been made or altered on the authority of a person who did not exist; or

                     (e)  the document, or any part of the document, purports to have been made or altered on a date on which, at a time at which, at a place at which, or otherwise in circumstances in which, it was not made or altered.

             (2)  For the purposes of this Subdivision, a person is taken to make a false travel or identity document if the person alters a document so as to make it a false travel or identity document (whether or not it was already a false travel or identity document before the alteration).

             (3)  This section has effect as if a document that purports to be a true copy of another document were the original document.

73.8  Making, providing or possessing a false travel or identity document

                   A person (the first person) is guilty of an offence if:

                     (a)  the first person makes, provides or possesses a false travel or identity document; and

                     (b)  the first person intends that the document will be used to facilitate the entry of another person (the other person) into a foreign country, where the entry of the other person into the foreign country would not comply with the requirements under that country’s law for entry into the country; and

                     (c)  the first person made, provided or possessed the document:

                              (i)  having obtained (whether directly or indirectly) a benefit to do so; or

                             (ii)  with the intention of obtaining (whether directly or indirectly) a benefit.

Penalty:  Imprisonment for 10 years or 1,000 penalty units, or both.

73.9  Providing or possessing a travel or identity document issued or altered dishonestly or as a result of threats

             (1)  A person (the first person) is guilty of an offence if:

                     (a)  the first person provides or possesses a travel or identity document; and

                     (b)  the first person knows that:

                              (i)  the issue of the travel or identity document; or

                             (ii)  an alteration of the travel or identity document;

                            has been obtained dishonestly or by threats; and

                     (c)  the first person intends that the document will be used to facilitate the entry of another person (the other person) into a foreign country, where the entry of the other person into the foreign country would not comply with the requirements under that country’s law for entry into the country; and

                     (d)  the first person provided or possessed the document:

                              (i)  having obtained (whether directly or indirectly) a benefit to do so; or

                             (ii)  with the intention of obtaining (whether directly or indirectly) a benefit.

Penalty:  Imprisonment for 10 years or 1,000 penalty units, or both.

             (2)  For the purposes of subsection (1), a threat may be:

                     (a)  express or implied; or

                     (b)  conditional or unconditional.

             (3)  For the purposes of subsection (1), dishonest means:

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

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

             (4)  In a prosecution for an offence against this section, the determination of dishonesty is a matter for the trier of fact.

73.10  Providing or possessing a travel or identity document to be used by a person who is not the rightful user

                   A person (the first person) is guilty of an offence if:

                     (a)  the first person provides or possesses a travel or identity document; and

                     (b)  the first person intends that the document will be used to facilitate the entry of another person (the other person) into a foreign country, where the entry of the other person into the foreign country would not comply with the requirements under that country’s law for entry into the country; and

                     (c)  the first person knows that the other person is not the person to whom the document applies; and

                     (d)  the first person provided or possessed the document:

                              (i)  having obtained (whether directly or indirectly) a benefit to do so; or

                             (ii)  with the intention of obtaining (whether directly or indirectly) a benefit.

Penalty:  Imprisonment for 10 years or 1,000 penalty units, or both.

73.11  Taking possession of or destroying another person’s travel or identity document

                   A person (the first person) is guilty of an offence if:

                     (a)  the first person takes possession of, or destroys, a travel or identity document that applies to another person (the other person); and

                     (b)  the first person does so intending to conceal the other person’s identity or nationality; and

                     (c)  at the time of doing so, the first person intends to organise or facilitate the entry of the other person into a foreign country:

                              (i)  having obtained, or with the intention of obtaining, whether directly or indirectly, a benefit to organise or facilitate that entry; and

                             (ii)  where the entry of the other person into the foreign country would not comply with the requirements under that country’s law for entry into the country.

Penalty:  Imprisonment for 10 years or 1,000 penalty units, or both.

73.12  Jurisdictional requirement

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


 

Chapter 5The security of the Commonwealth

Part 5.1Treason

Division 80Treason

80.1  Treason

             (1)  A person commits an offence, called treason, if the person:

                     (a)  causes the death of the Sovereign, the heir apparent of the Sovereign, the consort of the Sovereign, the Governor-General or the Prime Minister; or

                     (b)  causes harm to the Sovereign, the Governor-General or the Prime Minister resulting in the death of the Sovereign, the Governor-General or the Prime Minister; or

                     (c)  causes harm to the Sovereign, the Governor-General or the Prime Minister, or imprisons or restrains the Sovereign, the Governor-General or the Prime Minister; or

                     (d)  levies war, or does any act preparatory to levying war, against the Commonwealth; or

                     (e)  engages in conduct that assists by any means whatever, with intent to assist, an enemy:

                              (i)  at war with the Commonwealth, whether or not the existence of a state of war has been declared; and

                             (ii)  specified by Proclamation made for the purpose of this paragraph to be an enemy at war with the Commonwealth; or

                      (f)  engages in conduct that assists by any means whatever, with intent to assist:

                              (i)  another country; or

                             (ii)  an organisation;

                            that is engaged in armed hostilities against the Australian Defence Force; or

                     (g)  instigates a person who is not an Australian citizen to make an armed invasion of the Commonwealth or a Territory of the Commonwealth; or

                     (h)  forms an intention to do any act referred to in a preceding paragraph and manifests that intention by an overt act.

Penalty:  Imprisonment for life.

          (1A)  Paragraphs (1)(e) and (f) do not apply to engagement in conduct by way of, or for the purposes of, the provision of aid of a humanitarian nature.

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

          (1B)  Paragraph (1)(h) does not apply to formation of an intention to engage in conduct that:

                     (a)  is referred to in paragraph (1)(e) or (f); and

                     (b)  is by way of, or for the purposes of, the provision of aid of a humanitarian nature.

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

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

                     (a)  receives or assists another person who, to his or her knowledge, has committed treason with the intention of allowing him or her to escape punishment or apprehension; or

                     (b)  knowing that another person intends to commit treason, does not inform a constable of it within a reasonable time or use other reasonable endeavours to prevent the commission of the offence.

Penalty:  Imprisonment for life.

             (3)  Proceedings for an offence against this section must not be commenced without the Attorney-General’s written consent.

             (4)  Despite subsection (3):

                     (a)  a person may be arrested for an offence against this section; or

                     (b)  a warrant for the arrest of a person for such an offence may be issued and executed;

and the person may be charged, and may be remanded in custody or on bail, but:

                     (c)  no further proceedings may be taken until that consent has been obtained; and

                     (d)  the person must be discharged if proceedings are not continued within a reasonable time.

             (5)  On the trial of a person charged with treason on the ground that he or she formed an intention to do an act referred to in paragraph (1)(a), (b), (c), (d), (e), (f) or (g) and manifested that intention by an overt act, evidence of the overt act is not to be admitted unless the overt act is alleged in the indictment.

             (6)  Section 24F of the Crimes Act 1914 applies to this section in the same way it would if this section were a provision of Part II of that Act.

             (7)  Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this section.

             (8)  In this section:

constable means a member or special member of the Australian Federal Police or a member of the police force or police service of a State or Territory.

organisation means:

                     (a)  a body corporate; or

                     (b)  an unincorporated body;

whether or not the body is based outside Australia, consists of persons who are not Australian citizens, or is part of a larger organisation.


 

Part 5.2Offences relating to espionage and similar activities

Division 90Preliminary

90.1  Definitions

             (1)  In this Part:

article includes any thing, substance or material.

information means information of any kind, whether true or false and whether in a material form or not, and includes:

                     (a)  an opinion; and

                     (b)  a report of a conversation.

intelligence or security agency has the meaning given by section 85ZL of the Crimes Act 1914.

record, in relation to information, means a record of information in any form, including but not limited to, a document, paper, database, software system or other article or system containing information or from which information can be derived.

security or defence of a country includes the operations, capabilities and technologies of, and methods and sources used by, the country’s intelligence or security agencies.

sketch includes a representation of a place or thing.

the Commonwealth includes the Territories.

             (2)  In this Part, unless the contrary intention appears:

                     (a)  expressions referring to obtaining, recording, using, having in possession, communicating or retaining include obtaining, recording, using, having in possession, communicating or retaining in whole or in part, and whether the thing or information itself, or only the substance, effect or description of the thing or information, is obtained, recorded, used, possessed, communicated or retained; and

                     (b)  a reference to a sketch, document or article or to information is to be read as including a reference to a copy of, a part of or a copy of a part of a sketch, document or article or information.

             (3)  For the purposes of this Part, a place that is occupied by, or a thing that is under the control of, the Commonwealth is taken to belong to the Commonwealth.

             (4)  This Part applies to and in relation to a document or article regardless of who made it and what information it contains.


 

Division 91Offences relating to espionage and similar activities

91.1  Espionage and similar activities

             (1)  A person commits an offence if:

                     (a)  the person communicates, or makes available:

                              (i)  information concerning the Commonwealth’s security or defence; or

                             (ii)  information concerning the security or defence of another country, being information that the person acquired (whether directly or indirectly) from the Commonwealth; and

                     (b)  the person does so intending to prejudice the Commonwealth’s security or defence; and

                     (c)  the person’s act results in, or is likely to result in, the information being communicated or made available to another country or a foreign organisation, or to a person acting on behalf of such a country or organisation.

Penalty:  Imprisonment for 25 years.

             (2)  A person commits an offence if:

                     (a)  the person communicates, or makes available:

                              (i)  information concerning the Commonwealth’s security or defence; or

                             (ii)  information concerning the security or defence of another country, being information that the person acquired (whether directly or indirectly) from the Commonwealth; and

                     (b)  the person does so:

                              (i)  without lawful authority; and

                             (ii)  intending to give an advantage to another country’s security or defence; and

                     (c)  the person’s act results in, or is likely to result in, the information being communicated or made available to another country or a foreign organisation, or to a person acting on behalf of such a country or organisation.

Penalty:  Imprisonment for 25 years.

             (3)  A person commits an offence if:

                     (a)  the person makes, obtains or copies a record (in any form) of:

                              (i)  information concerning the Commonwealth’s security or defence; or

                             (ii)  information concerning the security or defence of another country, being information that the person acquired (whether directly or indirectly) from the Commonwealth; and

                     (b)  the person does so:

                              (i)  intending that the record will, or may, be delivered to another country or a foreign organisation, or to a person acting on behalf of such a country or organisation; and

                             (ii)  intending to prejudice the Commonwealth’s security or defence.

Penalty:  Imprisonment for 25 years.

             (4)  A person commits an offence if:

                     (a)  the person makes, obtains or copies a record (in any form) of:

                              (i)  information concerning the Commonwealth’s security or defence; or

                             (ii)  information concerning the security or defence of another country, being information that the person acquired (whether directly or indirectly) from the Commonwealth; and

                     (b)  the person does so:

                              (i)  without lawful authority; and

                             (ii)  intending that the record will, or may, be delivered to another country or a foreign organisation, or to a person acting on behalf of such a country or organisation; and

                            (iii)  intending to give an advantage to another country’s security or defence.

Penalty:  Imprisonment for 25 years.

             (5)  For the purposes of subparagraphs (3)(b)(i) and (4)(b)(ii), the person concerned does not need to have a particular country, foreign organisation or person in mind at the time when the person makes, obtains or copies the record.

             (6)  A person charged with an offence under this section may only be remanded on bail by a judge of the Supreme Court of a State or Territory. This subsection has effect despite anything in section 93.1.

Note:          Section 93.1 deals with how a prosecution is instituted.

             (7)  Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to offences under this section.

91.2  Defence—information lawfully available

             (1)  It is a defence to a prosecution of an offence against subsection 91.1(1) or (2) that the information the person communicates or makes available is information that has already been communicated or made available to the public with the authority of the Commonwealth.

             (2)  It is a defence to a prosecution of an offence against subsection 91.1(3) or (4) that the record of information the person makes, obtains or copies is a record of information that has already been communicated or made available to the public with the authority of the Commonwealth.

Note:          A defendant bears an evidential burden in relation to the matters in subsections (1) and (2). See subsection 13.3(3).


 

Division 93Prosecutions and hearings

93.1  Institution of prosecution

             (1)  A prosecution under this Part may be instituted only by, or with the consent of, the Attorney-General or a person acting under the Attorney-General’s direction.

             (2)  However:

                     (a)  a person charged with an offence against this Part may be arrested, or a warrant for his or her arrest may be issued and executed; and

                     (b)  such a person may be remanded in custody or on bail;

even if the consent of the Attorney-General or a person acting under his or her direction has not been obtained, but no further proceedings are to be taken until that consent has been obtained.

             (3)  Nothing in this section prevents the discharging of the accused if proceedings are not continued within a reasonable time.

93.2  Hearing in camera etc.

             (1)  This section applies to a hearing of an application or other proceedings before a federal court, a court exercising federal jurisdiction or a court of a Territory, whether under this Act or otherwise.

             (2)  At any time before or during the hearing, the judge or magistrate, or other person presiding or competent to preside over the proceedings, may, if satisfied that it is in the interest of the security or defence of the Commonwealth:

                     (a)  order that some or all of the members of the public be excluded during the whole or a part of the hearing; or

                     (b)  order that no report of the whole or a specified part of, or relating to, the application or proceedings be published; or

                     (c)  make such order and give such directions as he or she thinks necessary for ensuring that no person, without the approval of the court, has access (whether before, during or after the hearing) to any affidavit, exhibit, information or other document used in the application or the proceedings that is on the file in the court or in the records of the court.

             (3)  A person commits an offence if the person contravenes an order made or direction given under this section.

Penalty:  Imprisonment for 5 years.


 

Division 94Forfeiture

94.1  Forfeiture of articles etc.

                   A sketch, article, record or document which is made, obtained, recorded, retained, forged, possessed or otherwise dealt with in contravention of this Part is forfeited to the Commonwealth.


 

Part 5.3Terrorism

Division 100Preliminary

100.1  Definitions

             (1)  In this Part:

Commonwealth place has the same meaning as in the Commonwealth Places (Application of Laws) Act 1970.

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

express amendment of the provisions of this Part or Chapter 2 means the direct amendment of the provisions (whether by the insertion, omission, repeal, substitution or relocation of words or matter).

funds means:

                     (a)  property and assets of every kind, whether tangible or intangible, movable or immovable, however acquired; and

                     (b)  legal documents or instruments in any form, including electronic or digital, evidencing title to, or interest in, such property or assets, including, but not limited to, bank credits, travellers cheques, bank cheques, money orders, shares, securities, bonds, debt instruments, drafts and letters of credit.

organisation means a body corporate or an unincorporated body, whether or not the body:

                     (a)  is based outside Australia; or

                     (b)  consists of persons who are not Australian citizens; or

                     (c)  is part of a larger organisation.

referring State has the meaning given by section 100.2.

terrorist act means an action or threat of action where:

                     (a)  the action falls within subsection (2) and does not fall within subsection (3); and

                     (b)  the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and

                     (c)  the action is done or the threat is made with the intention of:

                              (i)  coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or

                             (ii)  intimidating the public or a section of the public.

             (2)  Action falls within this subsection if it:

                     (a)  causes serious harm that is physical harm to a person; or

                     (b)  causes serious damage to property; or

                     (c)  causes a person’s death; or

                     (d)  endangers a person’s life, other than the life of the person taking the action; or

                     (e)  creates a serious risk to the health or safety of the public or a section of the public; or

                      (f)  seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:

                              (i)  an information system; or

                             (ii)  a telecommunications system; or

                            (iii)  a financial system; or

                            (iv)  a system used for the delivery of essential government services; or

                             (v)  a system used for, or by, an essential public utility; or

                            (vi)  a system used for, or by, a transport system.

             (3)  Action falls within this subsection if it:

                     (a)  is advocacy, protest, dissent or industrial action; and

                     (b)  is not intended:

                              (i)  to cause serious harm that is physical harm to a person; or

                             (ii)  to cause a person’s death; or

                            (iii)  to endanger the life of a person, other than the person taking the action; or

                            (iv)  to create a serious risk to the health or safety of the public or a section of the public.

             (4)  In this Division:

                     (a)  a reference to any person or property is a reference to any person or property wherever situated, within or outside Australia; and

                     (b)  a reference to the public includes a reference to the public of a country other than Australia.

100.2  Referring States

             (1)  A State is a referring State if the Parliament of the State has referred the matters covered by subsections (2) and (3) to the Parliament of the Commonwealth for the purposes of paragraph 51(xxxvii) of the Constitution:

                     (a)  if and to the extent that the matters are not otherwise included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference under paragraph 51(xxxvii) of the Constitution); and

                     (b)  if and to the extent that the matters are included in the legislative powers of the Parliament of the State.

This subsection has effect subject to subsection (5).

             (2)  This subsection covers the matters to which the referred provisions relate to the extent of making laws with respect to those matters by including the referred provisions in this Code.

             (3)  This subsection covers the matter of terrorist acts, and of actions relating to terrorist acts, to the extent of making laws with respect to that matter by making express amendment of this Part or Chapter 2.

             (4)  A State is a referring State even if a law of the State provides that the reference to the Commonwealth Parliament of either or both of the matters covered by subsections (2) and (3) is to terminate in particular circumstances.

             (5)  A State ceases to be a referring State if a reference by the State of either or both of the matters covered by subsections (2) and (3) terminate.

             (6)  In this section:

referred provisions means the provisions of Part 5.3 of this Code as inserted by the Criminal Code Amendment (Terrorism) Act 2002, to the extent to which they deal with matters that are included in the legislative powers of the Parliaments of the States.

100.3  Constitutional basis for the operation of this Part

Operation in a referring State

             (1)  The operation of this Part in a referring State is based on:

                     (a)  the legislative powers that the Commonwealth Parliament has under section 51 of the Constitution (other than paragraph 51(xxxvii)); and

                     (b)  the legislative powers that the Commonwealth Parliament has in respect of matters to which this Part relates because those matters are referred to it by the Parliament of the referring State under paragraph 51(xxxvii) of the Constitution.

Note:          The State reference fully supplements the Commonwealth Parliament’s other powers by referring the matters to the Commonwealth Parliament to the extent to which they are not otherwise included in the legislative powers of the Commonwealth Parliament.

Operation in a non-referring State

             (2)  The operation of this Part in a State that is not a referring State is based on the legislative powers that the Commonwealth Parliament has under section 51 of the Constitution (other than paragraph 51(xxxvii)).

Note:          Subsection 100.4(5) identifies particular powers that are being relied on.

Operation in a Territory

             (3)  The operation of this Part in the Northern Territory, the Australian Capital Territory or an external Territory is based on:

                     (a)  the legislative powers that the Commonwealth Parliament has under section 122 of the Constitution to make laws for the government of that Territory; and

                     (b)  the legislative powers that the Commonwealth Parliament has under section 51 of the Constitution (other than paragraph 51(xxxvii)).

Despite subsection 22(3) of the Acts Interpretation Act 1901, this Part as applying in those Territories is a law of the Commonwealth.

Operation outside Australia

             (4)  The operation of this Part outside Australia and the external Territories is based on:

                     (a)  the legislative powers that the Commonwealth Parliament has under paragraph 51(xxix) of the Constitution; and

                     (b)  the other legislative powers that the Commonwealth Parliament has under section 51 of the Constitution (other than paragraph 51(xxxvii)).

100.4  Application of provisions

Part generally applies to all terrorist acts and preliminary acts

             (1)  Subject to subsection (4), this Part applies to the following conduct:

                     (a)  all actions or threats of action that constitute terrorist acts (no matter where the action occurs, the threat is made or the action, if carried out, would occur);

                     (b)  all actions (preliminary acts) that relate to terrorist acts but do not themselves constitute terrorist acts (no matter where the preliminary acts occur and no matter where the terrorist acts to which they relate occur or would occur).

Note:          See the following provisions:

(a)           subsection 101.1(2);

(b)           subsection 101.2(4);

(c)           subsection 101.4(4);

(d)           subsection 101.5(4);

(e)           subsection 101.6(3);

(f)            section 102.9.

Operation in relation to terrorist acts and preliminary acts occurring in a State that is not a referring State

             (2)  Subsections (4) and (5) apply to conduct if the conduct is itself a terrorist act and:

                     (a)  the terrorist act consists of an action and the action occurs in a State that is not a referring State; or

                     (b)  the terrorist act consists of a threat of action and the threat is made in a State that is not a referring State.

             (3)  Subsections (4) and (5) also apply to conduct if the conduct is a preliminary act that occurs in a State that is not a referring State and:

                     (a)  the terrorist act to which the preliminary act relates consists of an action and the action occurs, or would occur, in a State that is not a referring State; or

                     (b)  the terrorist act to which the preliminary act relates consists of a threat of action and the threat is made, or would be made, in a State that is not a referring State.

             (4)  Notwithstanding any other provision in this Part, this Part applies to the conduct only to the extent to which the Parliament has power to legislate in relation to:

                     (a)  if the conduct is itself a terrorist act—the action or threat of action that constitutes the terrorist act; or

                     (b)  if the conduct is a preliminary act—the action or threat of action that constitutes the terrorist act to which the preliminary act relates.

             (5)  Without limiting the generality of subsection (4), this Part applies to the action or threat of action if:

                     (a)  the action affects, or if carried out would affect, the interests of:

                              (i)  the Commonwealth; or

                             (ii)  an authority of the Commonwealth; or

                            (iii)  a constitutional corporation; or

                     (b)  the threat is made to:

                              (i)  the Commonwealth; or

                             (ii)  an authority of the Commonwealth; or

                            (iii)  a constitutional corporation; or

                     (c)  the action is carried out by, or the threat is made by, a constitutional corporation; or

                     (d)  the action takes place, or if carried out would take place, in a Commonwealth place; or

                     (e)  the threat is made in a Commonwealth place; or

                      (f)  the action involves, or if carried out would involve, the use of a postal service or other like service; or

                     (g)  the threat is made using a postal or other like service; or

                     (h)  the action involves, or if carried out would involve, the use of an electronic communication; or

                      (i)  the threat is made using an electronic communication; or

                      (j)  the action disrupts, or if carried out would disrupt, trade or commerce:

                              (i)  between Australia and places outside Australia; or

                             (ii)  among the States; or

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

                     (k)  the action disrupts, or if carried out would disrupt:

                              (i)  banking (other than State banking not extending beyond the limits of the State concerned); or

                             (ii)  insurance (other than State insurance not extending beyond the limits of the State concerned); or

                      (l)  the action is, or if carried out would be, an action in relation to which the Commonwealth is obliged to create an offence under international law; or

                    (m)  the threat is one in relation to which the Commonwealth is obliged to create an offence under international law.

             (6)  To avoid doubt, subsections (2) and (3) apply to a State that is not a referring State at a particular time even if no State is a referring State at that time.

100.5  Application of Acts Interpretation Act 1901

             (1)  The Acts Interpretation Act 1901, as in force on the day on which Schedule 1 to the Criminal Code Amendment (Terrorism) Act 2003 commences, applies to this Part.

             (2)  Amendments of the Acts Interpretation Act 1901 made after that day do not apply to this Part.

100.6  Concurrent operation intended

             (1)  This Part is not intended to exclude or limit the concurrent operation of any law of a State or Territory.

             (2)  Without limiting subsection (1), this Part is not intended to exclude or limit the concurrent operation of a law of a State or Territory that makes:

                     (a)  an act or omission that is an offence against a provision of this Part; or

                     (b)  a similar act or omission;

an offence against the law of the State or Territory.

             (3)  Subsection (2) applies even if the law of the State or Territory does any one or more of the following:

                     (a)  provides for a penalty for the offence that differs from the penalty provided for in this Part;

                     (b)  provides for a fault element in relation to the offence that differs from the fault elements applicable to the offence under this Part;

                     (c)  provides for a defence in relation to the offence that differs from the defences applicable to the offence under this Part.

             (4)  If:

                     (a)  an act or omission of a person is an offence under this Part and is also an offence under the law of a State or Territory; and

                     (b)  the person has been punished for the offence under the law of the State or Territory;

the person is not liable to be punished for the offence under this Part.

100.7  Regulations may modify operation of this Part to deal with interaction between this Part and State and Territory laws

             (1)  The regulations may modify the operation of this Part so that:

                     (a)  provisions of this Part do not apply to a matter that is dealt with by a law of a State or Territory specified in the regulations; or

                     (b)  no inconsistency arises between the operation of a provision of this Part and the operation of a State or Territory law specified in the regulations.

             (2)  Without limiting subsection (1), regulations made for the purposes of that subsection may provide that the provision of this Part does not apply to:

                     (a)  a person specified in the regulations; or

                     (b)  a body specified in the regulations; or

                     (c)  circumstances specified in the regulations; or

                     (d)  a person or body specified in the regulations in the circumstances specified in the regulations.

             (3)  In this section:

matter includes act, omission, body, person or thing.

100.8  Approval for changes to or affecting this Part

             (1)  This section applies to:

                     (a)  an express amendment of this Part (including this section); and

                     (b)  an express amendment of Chapter 2 that applies only to this Part (whether or not it is expressed to apply only to this Part).

             (2)  An express amendment to which this section applies is not to be made unless the amendment is approved by:

                     (a)  a majority of the group consisting of the States, the Australian Capital Territory and the Northern Territory; and

                     (b)  at least 4 States.

Division 101Terrorism

101.1  Terrorist acts

             (1)  A person commits an offence if the person engages in a terrorist act.

Penalty:  Imprisonment for life.

             (2)  Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against subsection (1).

101.2  Providing or receiving training connected with terrorist acts

             (1)  A person commits an offence if:

                     (a)  the person provides or receives training; and

                     (b)  the training is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and

                     (c)  the person mentioned in paragraph (a) knows of the connection described in paragraph (b).

Penalty:  Imprisonment for 25 years.

             (2)  A person commits an offence if:

                     (a)  the person provides or receives training; and

                     (b)  the training is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and

                     (c)  the person mentioned in paragraph (a) is reckless as to the existence of the connection described in paragraph (b).

Penalty:  Imprisonment for 15 years.

             (3)  A person commits an offence under this section even if the terrorist act does not occur.

             (4)  Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this section.

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

101.4  Possessing things connected with terrorist acts

             (1)  A person commits an offence if:

                     (a)  the person possesses a thing; and

                     (b)  the thing is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and

                     (c)  the person mentioned in paragraph (a) knows of the connection described in paragraph (b).

Penalty:  Imprisonment for 15 years.

             (2)  A person commits an offence if:

                     (a)  the person possesses a thing; and

                     (b)  the thing is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and

                     (c)  the person mentioned in paragraph (a) is reckless as to the existence of the connection described in paragraph (b).

Penalty:  Imprisonment for 10 years.

             (3)  A person commits an offence under subsection (1) or (2) even if the terrorist act does not occur.

             (4)  Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this section.

             (5)  Subsections (1) and (2) do not apply if the possession of the thing was not intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act.

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

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

101.5  Collecting or making documents likely to facilitate terrorist acts

             (1)  A person commits an offence if:

                     (a)  the person collects or makes a document; and

                     (b)  the document is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and

                     (c)  the person mentioned in paragraph (a) knows of the connection described in paragraph (b).

Penalty:  Imprisonment for 15 years.

             (2)  A person commits an offence if:

                     (a)  the person collects or makes a document; and

                     (b)  the document is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and

                     (c)  the person mentioned in paragraph (a) is reckless as to the existence of the connection described in paragraph (b).

Penalty:  Imprisonment for 10 years.

             (3)  A person commits an offence under subsection (1) or (2) even if the terrorist act does not occur.

             (4)  Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this section.

             (5)  Subsections (1) and (2) do not apply if the collection or making of the document was not intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act.

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

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

101.6  Other acts done in preparation for, or planning, terrorist acts

             (1)  A person commits an offence if the person does any act in preparation for, or planning, a terrorist act.

Penalty:  Imprisonment for life.

             (2)  A person commits an offence under subsection (1) even if the terrorist act does not occur.

             (3)  Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against subsection (1).

Division 102Terrorist organisations

Subdivision A—Definitions

102.1  Definitions

             (1)  In this Division:

associate: a person associates with another person if the person meets or communicates with the other person.

close family member of a person means:

                     (a)  the person’s spouse, de facto spouse or same-sex partner; or

                     (b)  a parent, step-parent or grandparent of the person; or

                     (c)  a child, step-child or grandchild of the person; or

                     (d)  a brother, sister, step-brother or step-sister of the person; or

                     (e)  a guardian or carer of the person.

Hamas organisation means:

                     (a)  Hamas’ Izz al-Din al-Qassam Brigades (by whatever name that organisation is known from time to time); or

                     (b)  an organisation derived from that organisation.

Hizballah organisation means:

                     (a)  the Hizballah External Security Organisation (by whatever name that organisation is known from time to time); or

                     (b)  an organisation derived from that organisation.

Lashkar-e-Tayyiba organisation means:

                     (a)  the Lashkar-e-Tayyiba organisation (by whatever name that organisation is known from time to time); or

                     (b)  an organisation derived from that organisation.

member of an organisation includes:

                     (a)  a person who is an informal member of the organisation; and

                     (b)  a person who has taken steps to become a member of the organisation; and

                     (c)  in the case of an organisation that is a body corporate—a director or an officer of the body corporate.

recruit includes induce, incite and encourage.

terrorist organisation means:

                     (a)  an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act occurs); or

                     (b)  an organisation that is specified by the regulations for the purposes of this paragraph (see subsections (2), (3) and (4)); or

                     (c)  a Hizballah organisation, if that organisation is specified by the regulations for the purposes of this paragraph (see subsections (7), (8) and (9)); or

                     (d)  a Hamas organisation, if that organisation is specified by the regulations for the purposes of this paragraph (see subsections (7), (8) and (10A)); or

                     (e)  a Lashkar-e-Tayyiba organisation, if that organisation is specified by the regulations for the purposes of this paragraph (see subsections (7), (8) and (10C)).

             (2)  Before the Governor-General makes a regulation specifying an organisation for the purposes of paragraph (b) of the definition of terrorist organisation in this section, the Minister must be satisfied on reasonable grounds that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act has occurred or will occur).

          (2A)  Before the Governor-General makes a regulation specifying an organisation for the purposes of paragraph (b) of the definition of terrorist organisation in this section, the Minister must arrange for the Leader of the Opposition in the House of Representatives to be briefed in relation to the proposed regulation.

             (3)  Regulations for the purposes of paragraph (b) of the definition of terrorist organisation in this section cease to have effect on the second anniversary of the day on which they take effect. To avoid doubt, this subsection does not prevent:

                     (a)  the repeal of those regulations; or

                     (b)  the cessation of effect of those regulations under subsection (4); or

                     (c)  the making of new regulations the same in substance as those regulations (whether the new regulations are made or take effect before or after those regulations cease to have effect because of this subsection).

             (4)  If:

                     (a)  an organisation is specified by regulations made for the purposes of paragraph (b) of the definition of terrorist organisation in this section; and

                     (b)  the Minister ceases to be satisfied that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act has occurred or will occur);

the Minister must, by written notice published in the Gazette, make a declaration to the effect that the Minister has ceased to be so satisfied. The regulations, to the extent to which they specify the organisation, cease to have effect when the declaration is made.

             (5)  To avoid doubt, subsection (4) does not prevent the organisation from being subsequently specified by regulations made for the purposes of paragraph (b) of the definition of terrorist organisation in this section if the Minister becomes satisfied as mentioned in subsection (2).

             (6)  If, under subsection (3) or (4), a regulation ceases to have effect, section 50 of the Acts Interpretation Act 1901 applies as if the regulation had been repealed.

             (7)  Before the Governor-General makes a regulation specifying:

                     (a)  a Hizballah organisation for the purposes of paragraph (c) of the definition of terrorist organisation in this section; or

                     (b)  a Hamas organisation for the purposes of paragraph (d) of the definition of terrorist organisation in this section; or

                     (c)  a Lashkar-e-Tayyiba organisation for the purposes of paragraph (e) of the definition of terrorist organisation in this section;

the Minister must be satisfied on reasonable grounds that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act has occurred or will occur).

             (8)  Regulations for the purposes of paragraph (c), (d) or (e) of the definition of terrorist organisation in this section cease to have effect on the second anniversary of the day on which they take effect. To avoid doubt, this subsection does not prevent:

                     (a)  the repeal of those regulations; or

                     (b)  the cessation of effect of those regulations under subsection (9), (10A) or (10C); or

                     (c)  the making of new regulations the same in substance as those regulations (whether the new regulations are made or take effect before or after those regulations cease to have effect because of this subsection).

             (9)  If:

                     (a)  a Hizballah organisation is specified by regulations made for the purposes of paragraph (c) of the definition of terrorist organisation in this section; and

                     (b)  the Minister ceases to be satisfied that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act has occurred or will occur);

the Minister must, by written notice published in the Gazette, make a declaration to the effect that the Minister has ceased to be so satisfied. The regulations, to the extent to which they specify the organisation, cease to have effect when the declaration is made.

           (10)  To avoid doubt, subsection (9) does not prevent a Hizballah organisation from being subsequently specified by regulations made for the purposes of paragraph (c) of the definition of terrorist organisation in this section if the Minister again becomes satisfied as mentioned in subsection (7).

        (10A)  If:

                     (a)  a Hamas organisation is specified by regulations made for the purposes of paragraph (d) of the definition of terrorist organisation in this section; and

                     (b)  the Minister ceases to be satisfied that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act has occurred or will occur);

the Minister must, by written notice published in the Gazette, make a declaration to the effect that the Minister has ceased to be so satisfied. The regulations, to the extent to which they specify the organisation, cease to have effect when the declaration is made.

         (10B)  To avoid doubt, subsection (10A) does not prevent a Hamas organisation from being subsequently specified by regulations made for the purposes of paragraph (d) of the definition of terrorist organisation in this section if the Minister again becomes satisfied as mentioned in subsection (7).

         (10C)  If:

                     (a)  a Lashkar-e-Tayyiba organisation is specified by regulations made for the purposes of paragraph (e) of the definition of terrorist organisation in this section; and

                     (b)  the Minister ceases to be satisfied that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act has occurred or will occur);

the Minister must, by written notice published in the Gazette, make a declaration to the effect that the Minister has ceased to be so satisfied. The regulations, to the extent to which they specify the organisation, cease to have effect when the declaration is made.

        (10D)  To avoid doubt, subsection (10C) does not prevent a Lashkar-e-Tayyiba organisation from being subsequently specified by regulations made for the purposes of paragraph (e) of the definition of terrorist organisation in this section if the Minister again becomes satisfied as mentioned in subsection (7).

           (11)  If:

                     (a)  at a particular time on a particular day, the Minister is satisfied on reasonable grounds that a particular Hizballah organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act has occurred or will occur); and

                     (b)  at a later time on that day, the Minister, or another Minister, makes a public announcement to the effect that:

                              (i)  a regulation will be made specifying the organisation for the purposes of paragraph (c) of the definition of terrorist organisation in this section; and

                             (ii)  the regulation will take effect at the time of the announcement; and

                     (c)  the regulation is made within 60 days after the day on which the Criminal Code Amendment (Hizballah) Act 2003 receives the Royal Assent;

the regulation takes effect at the time of the announcement.

        (11A)  If:

                     (a)  at a particular time on a particular day, the Minister is satisfied on reasonable grounds that a particular Hamas organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act has occurred or will occur); and

                     (b)  at a later time on that day, the Minister, or another Minister, makes a public announcement to the effect that:

                              (i)  a regulation will be made specifying the organisation for the purposes of paragraph (d) of the definition of terrorist organisation in this section; and

                             (ii)  the regulation will take effect at the time of the announcement; and

                     (c)  the regulation is made within 60 days after the day on which the Criminal Code Amendment (Hamas and Lashkar-e-Tayyiba) Act 2003 receives the Royal Assent;

the regulation takes effect at the time of the announcement.

         (11B)  If:

                     (a)  at a particular time on a particular day, the Minister is satisfied on reasonable grounds that a particular Lashkar-e-Tayyiba organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act has occurred or will occur); and

                     (b)  at a later time on that day, the Minister, or another Minister, makes a public announcement to the effect that:

                              (i)  a regulation will be made specifying the organisation for the purposes of paragraph (e) of the definition of terrorist organisation in this section; and

                             (ii)  the regulation will take effect at the time of the announcement; and

                     (c)  the regulation is made within 60 days after the day on which the Criminal Code Amendment (Hamas and Lashkar-e-Tayyiba) Act 2003 receives the Royal Assent;

the regulation takes effect at the time of the announcement.

           (12)  A copy of the announcement referred to in paragraph (11)(b), (11A)(b) or (11B)(b) must be published:

                     (a)  on the Internet; and

                     (b)  in a newspaper circulating in each State and the Northern Territory.

           (13)  If, under subsection (8), (9), (10A) or (10C), a regulation ceases to have effect, section 50 of the Acts Interpretation Act 1901 applies as if the regulation had been repealed.

           (14)  The power to make regulations for the purposes of paragraph (c) of the definition of terrorist organisation in this section does not limit the power to make regulations specifying a Hizballah organisation for the purposes of paragraph (b) of that definition.

           (15)  The power to make regulations for the purposes of paragraph (d) of the definition of terrorist organisation in this section does not limit the power to make regulations specifying a Hamas organisation for the purposes of paragraph (b) of that definition.

           (16)  The power to make regulations for the purposes of paragraph (e) of the definition of terrorist organisation in this section does not limit the power to make regulations specifying a Lashkar-e-Tayyiba organisation for the purposes of paragraph (b) of that definition.

           (17)  If:

                     (a)  an organisation (the listed organisation) is specified in regulations made for the purposes of paragraph (b), (c), (d) or (e) of the definition of terrorist organisation in this section; and

                     (b)  an individual or an organisation (which may be the listed organisation) makes an application (the de-listing application) to the Minister for a declaration under subsection (4), (9), (10A) or (10C), as the case requires, in relation to the listed organisation; and

                     (c)  the de-listing application is made on the grounds that there is no basis for the Minister to be satisfied that the listed organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act has occurred or will occur);

the Minister must consider the de-listing application.

           (18)  Subsection (17) does not limit the matters that may be considered by the Minister for the purposes of subsections (4), (9), (10A) and (10C).

102.1A  Reviews by Parliamentary Joint Committee on ASIO, ASIS and DSD

Review of listing regulation

             (1)  If a regulation made after the commencement of this section specifies an organisation for the purposes of paragraph (b) of the definition of terrorist organisation in section 102.1, the Parliamentary Joint Committee on ASIO, ASIS and DSD may:

                     (a)  review the regulation as soon as possible after the making of the regulation; and

                     (b)  report the Committee’s comments and recommendations to each House of the Parliament before the end of the applicable disallowance period for that House.

Review of listing provisions

             (2)  The Parliamentary Joint Committee on ASIO, ASIS and DSD has the following functions:

                     (a)  to review, as soon as possible after the third anniversary of the commencement of this section, the operation, effectiveness and implications of subsections 102.1(2), (2A), (4), (5), (6), (17) and (18) as in force after the commencement of this section;

                     (b)  to report the Committee’s comments and recommendations to each House of the Parliament and to the Minister.

Review of listing regulation—extension of applicable disallowance period

             (3)  If the Committee’s report on a review of a regulation is tabled in a House of the Parliament:

                     (a)  during the applicable disallowance period for that House; and

                     (b)  on or after the eighth sitting day of the applicable disallowance period;

then whichever of the following provisions is applicable:

                     (c)  subsections 48(4), (5) and (5A) and section 48B of the Acts Interpretation Act 1901;

                     (d)  Part 5 of the Legislative Instruments Act 2003;

have or has effect, in relation to that regulation and that House, as if each period of 15 sitting days referred to in those provisions were extended in accordance with the table:

 

Extension of applicable disallowance period

Item

If the Committee’s report is tabled in that House...

extend the period of 15 sitting days by...

1

on the fifteenth sitting day of the applicable disallowance period

8 sitting days of that House

2

on the fourteenth sitting day of the applicable disallowance period

7 sitting days of that House

3

on the thirteenth sitting day of the applicable disallowance period

6 sitting days of that House

4

on the twelfth sitting day of the applicable disallowance period

5 sitting days of that House

5

on the eleventh sitting day of the applicable disallowance period

4 sitting days of that House

6

on the tenth sitting day of the applicable disallowance period

3 sitting days of that House

7

on the ninth sitting day of the applicable disallowance period

2 sitting days of that House

8

on the eighth sitting day of the applicable disallowance period

1 sitting day of that House

Applicable disallowance period

             (4)  For the purposes of the application of this section to a regulation, the applicable disallowance period for a House of the Parliament means the period of 15 sitting days of that House after the regulation, or a copy of the regulation, was laid before that House in accordance with whichever of the following provisions was applicable:

                     (a)  paragraph 48(1)(c) of the Acts Interpretation Act 1901;

                     (b)  section 38 of the Legislative Instruments Act 2003.

Subdivision B—Offences

102.2  Directing the activities of a terrorist organisation

             (1)  A person commits an offence if:

                     (a)  the person intentionally directs the activities of an organisation; and

                     (b)  the organisation is a terrorist organisation; and

                     (c)  the person knows the organisation is a terrorist organisation.

Penalty:  Imprisonment for 25 years.

             (2)  A person commits an offence if:

                     (a)  the person intentionally directs the activities of an organisation; and

                     (b)  the organisation is a terrorist organisation; and

                     (c)  the person is reckless as to whether the organisation is a terrorist organisation.

Penalty:  Imprisonment for 15 years.

102.3  Membership of a terrorist organisation

             (1)  A person commits an offence if:

                     (a)  the person intentionally is a member of an organisation; and

                     (b)  the organisation is a terrorist organisation; and

                     (c)  the person knows the organisation is a terrorist organisation.

Penalty:  Imprisonment for 10 years.

             (2)  Subsection (1) does not apply if the person proves that he or she took all reasonable steps to cease to be a member of the organisation as soon as practicable after the person knew that the organisation was a terrorist organisation.

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

102.4  Recruiting for a terrorist organisation

             (1)  A person commits an offence if:

                     (a)  the person intentionally recruits a person to join, or participate in the activities of, an organisation; and

                     (b)  the organisation is a terrorist organisation; and

                     (c)  the first-mentioned person knows the organisation is a terrorist organisation.

Penalty:  Imprisonment for 25 years.

             (2)  A person commits an offence if:

                     (a)  the person intentionally recruits a person to join, or participate in the activities of, an organisation; and

                     (b)  the organisation is a terrorist organisation; and

                     (c)  the first-mentioned person is reckless as to whether the organisation is a terrorist organisation.

Penalty:  Imprisonment for 15 years.

102.5  Training a terrorist organisation or receiving training from a terrorist organisation

             (1)  A person commits an offence if:

                     (a)  the person intentionally provides training to, or intentionally receives training from, an organisation; and

                     (b)  the organisation is a terrorist organisation; and

                     (c)  the person is reckless as to whether the organisation is a terrorist organisation.

Penalty:  Imprisonment for 25 years.

             (2)  A person commits an offence if:

                     (a)  the person intentionally provides training to, or intentionally receives training from, an organisation; and

                     (b)  the organisation is a terrorist organisation that is covered by paragraph (b), (c), (d) or (e) of the definition of terrorist organisation in subsection 102.1(1).

Penalty:  Imprisonment for 25 years.

             (3)  Subject to subsection (4), strict liability applies to paragraph (2)(b).

             (4)  Subsection (2) does not apply unless the person is reckless as to the circumstance mentioned in paragraph (2)(b).

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

102.6  Getting funds to or from a terrorist organisation

             (1)  A person commits an offence if:

                     (a)  the person intentionally receives funds from, or makes funds available to, an organisation (whether directly or indirectly); and

                     (b)  the organisation is a terrorist organisation; and

                     (c)  the person knows the organisation is a terrorist organisation.

Penalty:  Imprisonment for 25 years.

             (2)  A person commits an offence if:

                     (a)  the person intentionally receives funds from, or makes funds available to, an organisation (whether directly or indirectly); and

                     (b)  the organisation is a terrorist organisation; and

                     (c)  the person is reckless as to whether the organisation is a terrorist organisation.

Penalty:  Imprisonment for 15 years.

             (3)  Subsections (1) and (2) do not apply to the person’s receipt of funds from the organisation if the person proves that he or she received the funds solely for the purpose of the provision of:

                     (a)  legal representation for a person in proceedings relating to this Division; or

                     (b)  assistance to the organisation for it to comply with a law of the Commonwealth or a State or Territory.

Note:          A defendant bears a legal burden in relation to the matter in subsection (3) (see section 13.4).

102.7  Providing support to a terrorist organisation

             (1)  A person commits an offence if:

                     (a)  the person intentionally provides to an organisation support or resources that would help the organisation engage in an activity described in paragraph (a) of the definition of terrorist organisation in this Division; and

                     (b)  the organisation is a terrorist organisation; and

                     (c)  the person knows the organisation is a terrorist organisation.

Penalty:  Imprisonment for 25 years.

             (2)  A person commits an offence if:

                     (a)  the person intentionally provides to an organisation support or resources that would help the organisation engage in an activity described in paragraph (a) of the definition of terrorist organisation in this Division; and

                     (b)  the organisation is a terrorist organisation; and

                     (c)  the person is reckless as to whether the organisation is a terrorist organisation.

Penalty:  Imprisonment for 15 years.

102.8  Associating with terrorist organisations

             (1)  A person commits an offence if:

                     (a)  on 2 or more occasions:

                              (i)  the person intentionally associates with another person who is a member of, or a person who promotes or directs the activities of, an organisation; and

                             (ii)  the person knows that the organisation is a terrorist organisation; and

                            (iii)  the association provides support to the organisation; and

                            (iv)  the person intends that the support assist the organisation to expand or to continue to exist; and

                             (v)  the person knows that the other person is a member of, or a person who promotes or directs the activities of, the organisation; and

                     (b)  the organisation is a terrorist organisation because of paragraph (b), (c), (d) or (e) of the definition of terrorist organisation in this Division (whether or not the organisation is a terrorist organisation because of paragraph (a) of that definition also).

Penalty:  Imprisonment for 3 years.

             (2)  A person commits an offence if:

                     (a)  the person has previously been convicted of an offence against subsection (1); and

                     (b)  the person intentionally associates with another person who is a member of, or a person who promotes or directs the activities of, an organisation; and

                     (c)  the person knows that the organisation is a terrorist organisation; and

                     (d)  the association provides support to the organisation; and

                     (e)  the person intends that the support assist the organisation to expand or to continue to exist; and

                      (f)  the person knows that the other person is a member of, or a person who promotes or directs the activities of, the organisation; and

                     (g)  the organisation is a terrorist organisation because of paragraph (b), (c), (d) or (e) of the definition of terrorist organisation in this Division (whether or not the organisation is a terrorist organisation because of paragraph (a) of that definition also).

Penalty:  Imprisonment for 3 years.

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

             (4)  This section does not apply if:

                     (a)  the association is with a close family member and relates only to a matter that could reasonably be regarded (taking into account the person’s cultural background) as a matter of family or domestic concern; or

                     (b)  the association is in a place being used for public religious worship and takes place in the course of practising a religion; or

                     (c)  the association is only for the purpose of providing aid of a humanitarian nature; or

                     (d)  the association is only for the purpose of providing legal advice or legal representation in connection with:

                              (i)  criminal proceedings or proceedings related to criminal proceedings (including possible criminal proceedings in the future); or

                             (ii)  proceedings relating to whether the organisation in question is a terrorist organisation; or

                            (iii)  a decision made or proposed to be made under Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979, or proceedings relating to such a decision or proposed decision; or

                            (iv)  a listing or proposed listing under section 15 of the Charter of the United Nations Act 1945 or an application or proposed application to revoke such a listing, or proceedings relating to such a listing or application or proposed listing or application; or

                             (v)  proceedings conducted by a military commission of the United States of America established under a Military Order of 13 November 2001 made by the President of the United States of America and entitled “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism”; or

                            (vi)  proceedings for a review of a decision relating to a passport or other travel document or to a failure to issue such a passport or other travel document (including a passport or other travel document that was, or would have been, issued by or on behalf of the government of a foreign country).

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

             (5)  This section does not apply unless the person is reckless as to the circumstance mentioned in paragraph (1)(b) and (2)(g) (as the case requires).

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

             (6)  This section does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (6). See subsection 13.3(3).

             (7)  A person who is convicted of an offence under subsection (1) in relation to the person’s conduct on 2 or more occasions is not liable to be punished for an offence under subsection (1) for other conduct of the person that takes place:

                     (a)  at the same time as that conduct; or

                     (b)  within 7 days before or after any of those occasions.

Subdivision C—General provisions relating to offences

102.9  Extended geographical jurisdiction for offences

                   Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this Division.

102.10  Alternative verdicts

             (1)  This section applies if, in a prosecution for an offence (the prosecuted offence) against a subsection of a section of this Division, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence (the alternative offence) against another subsection of that section.

             (2)  The trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

Division 103Financing terrorism

103.1  Financing terrorism

             (1)  A person commits an offence if:

                     (a)  the person provides or collects funds; and

                     (b)  the person is reckless as to whether the funds will be used to facilitate or engage in a terrorist act.

Penalty:  Imprisonment for life.

Note:          Intention is the fault element for the conduct described in paragraph (1)(a). See subsection 5.6(1).

             (2)  A person commits an offence under subsection (1) even if the terrorist act does not occur.

             (3)  Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against subsection (1).

Division 106Transitional provisions

106.1  Saving—regulations made for the purposes of the definition of terrorist organisation

             (1)  If:

                     (a)  regulations were made before commencement for the purposes of paragraph (c) of the definition of terrorist organisation in subsection 102.1(1), as in force before commencement; and

                     (b)  the regulations were in force immediately before commencement;

the regulations have effect, after commencement, as if they had been made for the purposes of paragraph (b) of the definition of terrorist organisation in subsection 102.1(1), as in force after commencement.

             (2)  In this section, commencement means the commencement of this section.


 

Part 5.4Harming Australians

Division 104Harming Australians

104.1  Murder of an Australian citizen or a resident of Australia

             (1)  A person is guilty of an offence if:

                     (a)  the person engages in conduct outside Australia; and

                     (b)  the conduct causes the death of another person; and

                     (c)  the other person is an Australian citizen or a resident of Australia; and

                     (d)  the first-mentioned person intends to cause, or is reckless as to causing, the death of the Australian citizen or resident of Australia or any other person by the conduct.

Penalty:  Imprisonment for life.

             (2)  Absolute liability applies to paragraph (1)(c).

104.2  Manslaughter of an Australian citizen or a resident of Australia

             (1)  A person is guilty of an offence if:

                     (a)  the person engages in conduct outside Australia; and

                     (b)  the conduct causes the death of another person; and

                     (c)  the other person is an Australian citizen or a resident of Australia; and

                     (d)  the first-mentioned person intends that the conduct will cause serious harm, or is reckless as to a risk that the conduct will cause serious harm, to the Australian citizen or resident of Australia or any other person.

Penalty:  Imprisonment for 25 years.

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

104.3  Intentionally causing serious harm to an Australian citizen or a resident of Australia

             (1)  A person is guilty of an offence if:

                     (a)  the person engages in conduct outside Australia; and

                     (b)  the conduct causes serious harm to another person; and

                     (c)  the other person is an Australian citizen or a resident of Australia; and

                     (d)  the first-mentioned person intends to cause serious harm to the Australian citizen or resident of Australia or any other person by the conduct.

Penalty:  Imprisonment for 20 years.

             (2)  Absolute liability applies to paragraph (1)(c).

104.4  Recklessly causing serious harm to an Australian citizen or a resident of Australia

             (1)  A person is guilty of an offence if:

                     (a)  the person engages in conduct outside Australia; and

                     (b)  the conduct causes serious harm to another person; and

                     (c)  the other person is an Australian citizen or a resident of Australia; and

                     (d)  the first-mentioned person is reckless as to causing serious harm to the Australian citizen or resident of Australia or any other person by the conduct.

Penalty:  Imprisonment for 15 years.

             (2)  Absolute liability applies to paragraph (1)(c).

104.5  Saving of other laws

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

104.6  Bringing proceedings under this Division

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

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

104.7  Ministerial certificates relating to proceedings

             (1)  A Minister who administers one or more of the following Acts:

                     (a)  the Australian Citizenship Act 1948;

                     (b)  the Migration Act 1958;

                     (c)  the Australian Passports Act 2005;

may issue a certificate stating that a person is or was an Australian citizen or a resident of Australia at a particular time.

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

104.8  Geographical jurisdiction

                   Each offence against this Division applies:

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

                     (b)  if the alleged offence is an ancillary offence and the conduct to which the ancillary offence relates occurs outside Australia—whether or not the conduct constituting the ancillary offence occurs in Australia.

104.9  Meaning of causes death or harm

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


 

Chapter 7The proper administration of Government

Part 7.1Preliminary

Division 130Preliminary

130.1  Definitions

                   In this Chapter:

duty:

                     (a)  in relation to a person who is a Commonwealth public official—means any authority, duty, function or power that:

                              (i)  is conferred on the person as a Commonwealth public official; or

                             (ii)  the person holds himself or herself out as having as a Commonwealth public official; and

                     (b)  in relation to a person who is a public official—means any authority, duty, function or power that:

                              (i)  is conferred on the person as a public official; or

                             (ii)  the person holds himself or herself out as having as a public official.

gain means:

                     (a)  a gain in property, whether temporary or permanent; or

                     (b)  a gain by way of the supply of services;

and includes keeping what one has.

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

obtaining includes:

                     (a)  obtaining for another person; and

                     (b)  inducing a third person to do something that results in another person obtaining.

property includes:

                     (a)  real property; and

                     (b)  personal property; and

                     (c)  money; and

                     (d)  a thing in action or other intangible property; and

                     (e)  electricity; and

                      (f)  a wild creature that is:

                              (i)  tamed; or

                             (ii)  ordinarily kept in captivity; or

                            (iii)  reduced (or in the course of being reduced) into the possession of a person.

services includes any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities, but does not include rights or benefits being the supply of goods.

supply includes:

                     (a)  in relation to goods—supply (including re-supply) by way of sale, exchange, lease, hire or hire-purchase; and

                     (b)  in relation to services—provide, grant or confer.

Note:          The expression person includes a Commonwealth entity. This is the combined effect of paragraph 22(1)(a) of the Acts Interpretation Act 1901 (which provides that person includes a body politic or corporate), and the definition of person in the Dictionary.

130.2  When property belongs to a person

             (1)  For the purposes of this Chapter, property belongs to a person if, and only if:

                     (a)  the person has possession or control of the property; or

                     (b)  the person has a proprietary right or interest in the property, other than an equitable interest arising only from:

                              (i)  an agreement to transfer an interest; or

                             (ii)  an agreement to grant an interest; or

                            (iii)  a constructive trust.

             (2)  Subsection (1) has effect subject to subsections 134.1(9) and (10) (which deal with money transfers).

130.3  Dishonesty

                   For the purposes of this Chapter, dishonest means:

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

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

Note:          The following provisions affect the meaning of dishonesty:

(a)           section 131.2 (theft);

(b)           section 134.1 (obtaining property by deception).

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

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


 

Part 7.2Theft and other property offences

Division 131Theft

131.1  Theft

             (1)  A person is guilty of an offence if:

                     (a)  the person dishonestly appropriates property belonging to another with the intention of permanently depriving the other of the property; and

                     (b)  the property belongs to a Commonwealth entity.

Penalty:  Imprisonment for 10 years.

             (2)  For the purposes of this Code, an offence against subsection (1) is to be known as the offence of theft.

             (3)  Absolute liability applies to the paragraph (1)(b) element of the offence of theft.

             (4)  Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against subsection (1).

Note:          For alternative verdicts, see sections 132.1 and 134.1.

131.2  Special rules about the meaning of dishonesty

             (1)  For the purposes of this Division, a person’s appropriation of property belonging to another is taken not to be dishonest if the person appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.

             (2)  However, the rule in subsection (1) does not apply if the person appropriating the property held it as trustee or personal representative.

             (3)  For the purposes of this Division, a person’s appropriation of property belonging to another may be dishonest even if the person or another person is willing to pay for the property.

131.3  Appropriation of property

             (1)  For the purposes of this Division, any assumption of the rights of an owner to ownership, possession or control of property, without the consent of the person to whom it belongs, amounts to an appropriation of the property. This includes, in a case where a person has come by property (innocently or not) without committing theft, any later such assumption of rights without consent by keeping or dealing with it as owner.

             (2)  For the purposes of this Division, if property, or a right or interest in property, is, or purports to be, transferred or given to a person acting in good faith, a later assumption by the person of rights which the person had believed himself or herself to be acquiring does not, because of any defect in the transferor’s title, amount to an appropriation of the property.

131.4  Theft of land or things forming part of land

             (1)  For the purposes of this Division, a person cannot commit theft of land, except in the following cases:

                     (a)  the case where the person appropriates anything forming part of the land by severing it or causing it to be severed;

                     (b)  the case where:

                              (i)  the person is a trustee or personal representative, or is authorised (by power of attorney, as liquidator of a company or otherwise) to sell or dispose of land belonging to another; and

                             (ii)  the person appropriates the land, or anything forming part of it, by dealing with it in breach of the confidence reposed in the person.

             (2)  For the purposes of this section, land does not include incorporeal hereditaments.

131.5  Trust property

             (1)  For the purposes of this Division, if property is subject to a trust, the persons to whom the property belongs include any person who has a right to enforce the trust.

             (2)  Accordingly, for the purposes of this Division, an intention to defeat the trust is an intention to deprive any such person of the property.

131.6  Obligation to deal with property in a particular way

                   For the purposes of this Division, if:

                     (a)  a person receives property from or on account of another; and

                     (b)  the person is under a legal obligation to the other to retain and deal with that property or its proceeds in a particular way;

the property or proceeds belong (as against the person) to the other.

131.7  Property obtained because of fundamental mistake

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

                     (a)  a person gets property by another’s fundamental mistake; and

                     (b)  the person is under a legal obligation to make restoration (in whole or in part) of the property, its proceeds or value;

then, to the extent of that obligation, the property or proceeds belongs (as against the person) to the person entitled to restoration.

             (2)  For the purposes of this Division, an intention not to make restoration is:

                     (a)  an intention to permanently deprive the person so entitled of the property or proceeds; and

                     (b)  an appropriation of the property or proceeds without the consent of the person entitled to restoration.

             (3)  For the purposes of this section, a fundamental mistake is:

                     (a)  a mistake about the identity of the person getting the property; or

                     (b)  a mistake as to the essential nature of the property; or

                     (c)  a mistake about the amount of any money if the person getting the money is aware of the mistake at the time of getting the money.

             (4)  In this section:

money includes anything that is equivalent to money. For this purpose, cheques, negotiable instruments and electronic funds transfers are taken to be equivalent to money.

131.8  Property of a corporation sole

                   For the purposes of this Division, property of a corporation sole belongs to the corporation despite a vacancy in the corporation.

131.9  Property belonging to 2 or more persons

                   If property belongs to 2 or more persons, a reference in this Division (other than paragraph 131.1(1)(b)) to the person to whom the property belongs is a reference to all of those persons.

131.10  Intention of permanently depriving a person of property

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

                     (a)  a person appropriates property belonging to another without meaning the other permanently to lose the thing itself; and

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

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

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

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

                     (a)  a person has possession or control (lawfully or not) of property belonging to another; and

                     (b)  the person parts with the property under a condition as to its return that the person may not be able to perform; and

                     (c)  the parting is done for purposes of the person’s own and without the other’s authority;

the parting is taken to amount to treating the property as the person’s own to dispose of regardless of the other’s rights.

Note:          See also paragraph 131.7(2)(a).

131.11  General deficiency

             (1)  For the purposes of this Division, a person may be convicted of theft of all or any part of a general deficiency in money even though the deficiency is made up of any number of particular sums of money that were appropriated over a period of time.

             (2)  For the purposes of this Division, a person may be convicted of theft of all or any part of a general deficiency in property other than money even though the deficiency is made up of any number of particular items of property that were appropriated over a period of time.


 

Division 132Other property offences

132.1  Receiving

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

Penalty:  Imprisonment for 10 years.

             (2)  For the purposes of this Code, an offence against subsection (1) is to be known as the offence of receiving.

          (2A)  In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew or believed that the property belonged to a Commonwealth entity.

Stolen property

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

                     (a)  it is original stolen property (as defined by subsection (5)); or

                    (aa)  it is previously received property (as defined by subsection (5A)); or

                     (b)  it is tainted property (as defined by subsection (7)).

This subsection has effect subject to subsections (4) and (6).

             (4)  For the purposes of this section, stolen property does not include land obtained in the course of an offence against section 134.1.

Original stolen property

             (5)  For the purposes of this section, original stolen property is:

                     (a)  property, or a part of property, that:

                              (i)  was appropriated in the course of theft (whether or not the property, or the part of the property, is in the state it was in when it was so appropriated); and

                             (ii)  is in the possession or custody of the person who so appropriated the property; or

                     (b)  property, or a part of property, that:

                              (i)  was obtained in the course of an offence against section 134.1 (whether or not the property, or the part of the property, is in the state it was in when it was so obtained); and

                             (ii)  is in the possession or custody of the person who so obtained the property or the person for whom the property was so obtained.

Previously received property

          (5A)  For the purposes of this section, previously received property is property that:

                     (a)  was received in the course of an offence against subsection (1); and

                     (b)  is in the possession or custody of the person who received the property in the course of that offence.

             (6)  For the purposes of this section, property ceases to be original stolen property or previously received property:

                     (a)  after the property is restored:

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

                             (ii)  to other lawful possession or custody; or

                     (b)  after:

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

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

Tainted property

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

                     (a)  is (in whole or in part) the proceeds of sale of, or property exchanged for:

                              (i)  original stolen property; or

                             (ii)  previously received property; and

                     (b)  if subparagraph (a)(i) applies—is in the possession or custody of:

                              (i)  if the original stolen property was appropriated in the course of theft—the person who so appropriated the original stolen property; or

                             (ii)  if the original stolen property was obtained in the course of an offence against section 134.1—the person who so obtained the property or the person for whom the property was so obtained; and

                     (c)  if subparagraph (a)(ii) applies—is in the possession or custody of the person who received the previously received property in the course of an offence against subsection (1).

Money transfers

             (8)  For the purposes of this section, if, as a result of the application of subsection 134.1(9) or (10), an amount credited to an account held by a person is property obtained in the course of an offence against section 134.1:

                     (a)  while the whole or any part of the amount remains credited to the account, the property is taken to be in the possession of the person; and

                     (b)  if the person fails to take such steps as are reasonable in the circumstances to secure that the credit is cancelled—the person is taken to have received the property; and

                     (c)  subsection (6) of this section does not apply to the property.

Note:          Subsections 134.1(9) and (10) deal with money transfers.

Alternative verdicts

             (9)  If, in a prosecution for an offence of theft or an offence against section 134.1, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence of receiving, the trier of fact may find the defendant not guilty of the offence of theft or the section 134.1 offence but guilty of the offence of receiving, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

           (10)  If, in a prosecution for an offence of receiving, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence of theft or an offence against section 134.1, the trier of fact may find the defendant not guilty of the offence of receiving but guilty of the offence of theft or the section 134.1 offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

Receiving property stolen before commencement

           (11)  For the purposes of this section:

                     (a)  it is to be assumed that sections 131.1 and 134.1 had been in force at all times before the commencement of this section; and

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

Obtaining

           (12)  The definition of obtaining in section 130.1 does not apply to this section.

Note:          See subsection 134.1(3).

Definition

           (13)  In this section:

account has the same meaning as in section 133.1.

132.2  Robbery

             (1)  A person is guilty of an offence if the person commits theft and:

                     (a)  immediately before committing theft, the person:

                              (i)  uses force on another person; or

                             (ii)  threatens to use force then and there on another person;

                            with intent to commit theft or to escape from the scene; or

                     (b)  at the time of committing theft, or immediately after committing theft, the person:

                              (i)  uses force on another person; or

                             (ii)  threatens to use force then and there on another person;

                            with intent to commit theft or to escape from the scene.

Penalty:  Imprisonment for 15 years.

             (2)  For the purposes of this Code, an offence against subsection (1) is to be known as the offence of robbery.

Note:          Theft means an offence against section 131.1. Under section 131.1, an element of the offence of theft is that the property belongs to a Commonwealth entity.

             (3)  In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the property belonged to a Commonwealth entity.

132.3  Aggravated robbery

             (1)  A person is guilty of an offence if the person:

                     (a)  commits a robbery in company with one or more other persons; or

                     (b)  commits a robbery and, at the time of the robbery, has an offensive weapon with him or her.

Penalty:  Imprisonment for 20 years.

             (2)  For the purposes of this Code, an offence against subsection (1) is to be known as the offence of aggravated robbery.

Note:          Robbery means an offence against section 132.2. Under section 132.2, an element of the offence of robbery is that the defendant commits theft. Theft means an offence against section 131.1. Under section 131.1, an element of the offence of theft is that the property belongs to a Commonwealth entity.

          (2A)  In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the property belonged to a Commonwealth entity.

             (3)  In this section:

offensive weapon includes:

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

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

132.4  Burglary

             (1)  A person is guilty of an offence if:

                     (a)  the person enters, or remains in, a building, as a trespasser, with intent to commit theft of a particular item of property in the building; and

                     (b)  the property belongs to a Commonwealth entity.

Penalty:  Imprisonment for 13 years.

             (2)  For the purposes of this Code, an offence against subsection (1) is to be known as the offence of burglary.

          (2A)  In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the property belonged to a Commonwealth entity.

             (3)  A person is guilty of an offence if:

                     (a)  the person enters, or remains in, a building, as a trespasser, with intent to commit an offence in the building that involves causing harm to another person or damage to property; and

                    (aa)  the offence referred to in paragraph (a) is an offence against a law of the Commonwealth; and

                     (b)  the offence referred to in paragraph (a) is punishable by imprisonment for life or for a term of 5 years or more.

Penalty:  Imprisonment for 13 years.

          (3A)  In a prosecution for an offence against subsection (3), it is not necessary to prove that the defendant knew that the offence referred to in paragraph (3)(a) is an offence against a law of the Commonwealth.

             (4)  In a prosecution for an offence against subsection (3), it is not necessary to prove that the defendant knew that the offence referred to in paragraph (3)(a) is punishable by imprisonment for life or for a term of 5 years or more.

             (5)  For the purposes of this Code, an offence against subsection (3) is also to be known as the offence of burglary.

             (6)  A person is guilty of an offence if:

                     (a)  the person enters, or remains in, a building, as a trespasser, with intent to commit an offence in the building that involves causing harm to another person or damage to property; and

                    (aa)  the offence referred to in paragraph (a) is an offence against a law of the Commonwealth, a State or a Territory; and

                     (b)  the offence referred to in paragraph (a) is punishable by imprisonment for life or for a term of 5 years or more; and

                     (c)  the building is owned or occupied by a Commonwealth entity.

Penalty:  Imprisonment for 13 years.

          (6A)  In a prosecution for an offence against subsection (6), it is not necessary to prove that the defendant knew that the offence referred to in paragraph (6)(a) is an offence against a law of the Commonwealth, a State or a Territory.

             (7)  In a prosecution for an offence against subsection (6), it is not necessary to prove that the defendant knew that the offence referred to in paragraph (6)(a) is punishable by imprisonment for life or for a term of 5 years or more.

             (8)  Absolute liability applies to the paragraph (6)(c) element of the offence.

             (9)  For the purposes of this Code, an offence against subsection (6) is also to be known as the offence of burglary.

           (10)  For the purposes of this section, a person is taken not to be a trespasser:

                     (a)  merely because the person is permitted to enter, or remain in, a building for a purpose that is not the person’s intended purpose; or

                     (b)  if the person is permitted to enter, or remain in, a building as a result of fraud, misrepresentation or another person’s mistake.

           (12)  In this section:

building includes:

                     (a)  a part of a building; or

                     (b)  a mobile home or a caravan; or

                     (c)  a structure (whether or not movable), a vehicle, or a vessel, that is used, designed or adapted for residential purposes.

132.5  Aggravated burglary

             (1)  A person is guilty of an offence if the person:

                     (a)  commits a burglary in company with one or more other persons; or

                     (b)  commits a burglary, and at the time of the burglary, has an offensive weapon with him or her.

Penalty:  Imprisonment for 17 years.

             (2)  For the purposes of this Code, an offence against subsection (1) is to be known as the offence of aggravated burglary.

             (3)  In a prosecution for an offence against subsection (1) in relation to the offence of burglary created by subsection 132.4(1), it is not necessary to prove that the defendant knew that the property concerned belonged to a Commonwealth entity.

             (4)  In a prosecution for an offence against subsection (1) in relation to the offence of burglary created by subsection 132.4(3), it is not necessary to prove that:

                     (a)  the defendant knew that the offence referred to in paragraph 132.4(3)(a) is an offence against a law of the Commonwealth; or

                     (b)  the defendant knew that the offence referred to in paragraph 132.4(3)(a) is punishable by imprisonment for life or for a term of 5 years or more.

             (5)  In a prosecution for an offence against subsection (1) in relation to the offence of burglary created by subsection 132.4(6), it is not necessary to prove that:

                     (a)  the defendant knew that the offence referred to in paragraph 132.4(6)(a) is an offence against a law of the Commonwealth, a State or a Territory; or

                     (b)  the defendant knew that the offence referred to in paragraph 132.4(6)(a) is punishable by imprisonment for life or for a term of 5 years or more; or

                     (c)  the defendant knew that the building was owned or occupied by a Commonwealth entity.

             (6)  In this section:

offensive weapon includes:

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

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

132.6  Making off without payment

             (1)  A person is guilty of an offence if:

                     (a)  the person, knowing that immediate payment for any goods or services supplied by another person is required or expected from him or her, dishonestly makes off:

                              (i)  without having paid; and

                             (ii)  with intent to avoid payment of the amount due; and

                     (b)  the other person is a Commonwealth entity.

Penalty:  Imprisonment for 2 years.

             (2)  Absolute liability applies to the paragraph (1)(b) element of the offence.

             (3)  For the purposes of this section, immediate payment includes payment at the time of collecting goods in respect of which a service has been provided.

132.7  Going equipped for theft or a property offence

             (1)  A person is guilty of an offence if the person, when not at home, has with him or her any article with intent to use it in the course of, or in connection with, theft or a property offence.

Penalty:  Imprisonment for 3 years.

             (2)  In a prosecution for an offence against subsection (1) in relation to:

                     (a)  theft; or

                     (b)  robbery; or

                     (c)  aggravated robbery; or

                     (d)  the offence of burglary created by subsection 132.4(1); or

                     (e)  the offence of aggravated burglary that relates to the offence of burglary created by subsection 132.4(1); or

                      (f)  an offence against section 134.1;

it is not necessary to prove that the defendant knew that the property concerned belonged to a Commonwealth entity.

             (3)  In a prosecution for an offence against subsection (1) in relation to:

                     (a)  the offence of burglary created by subsection 132.4(3); or

                     (b)  the offence of aggravated burglary that relates to the offence of burglary created by subsection 132.4(3);

it is not necessary to prove that:

                     (c)  the defendant knew that the offence referred to in paragraph 132.4(3)(a) is an offence against a law of the Commonwealth; or

                     (d)  the defendant knew that the offence referred to in paragraph 132.4(3)(a) is punishable by imprisonment for life or for a term of 5 years or more.

             (4)  In a prosecution for an offence against subsection (1) in relation to:

                     (a)  the offence of burglary created by subsection 132.4(6); or

                     (b)  the offence of aggravated burglary that relates to the offence of burglary created by subsection 132.4(6);

it is not necessary to prove that:

                     (c)  the defendant knew that the offence referred to in paragraph 132.4(6)(a) is an offence against a law of the Commonwealth, a State or a Territory; or

                     (d)  the defendant knew that the offence referred to in paragraph 132.4(6)(a) is punishable by imprisonment for life or for a term of 5 years or more; or

                     (e)  the defendant knew that the building was owned or occupied by a Commonwealth entity.

             (5)  In this section:

property offence means:

                     (a)  robbery; or

                     (b)  aggravated robbery; or

                     (c)  burglary; or

                     (d)  aggravated burglary; or

                     (e)  an offence against subsection 132.8(1); or

                      (f)  an offence against section 134.1.

Note:          It is an element of the offence of theft, and of each property offence, that the property belongs to a Commonwealth entity.

132.8  Dishonest taking or retention of property

Taking

             (1)  A person is guilty of an offence if the person:

                     (a)  on a particular occasion, dishonestly takes one or more items of property belonging to a Commonwealth entity, where:

                              (i)  the value or total value of the property is $500 or more; or

                             (ii)  the absence of the property from the possession, custody or control of the person who would otherwise have had possession, custody or control would be likely to cause substantial disruption to activities carried on by or on behalf of a Commonwealth entity; and

                     (b)  does not have consent to do so from the person who has authority to give consent.

Penalty:  Imprisonment for 2 years.

Retention

             (2)  A person is guilty of an offence if the person:

                     (a)  on a particular occasion, takes one or more items of property belonging to a Commonwealth entity; and

                     (b)  dishonestly retains any or all of those items; and

                     (c)  does not have consent to the retention from the person who has authority to give consent; and

                     (d)  either:

                              (i)  at the time of the taking of the property, the value or total value of the property was $500 or more; or

                             (ii)  the absence of the property from the possession, custody or control of the person who would otherwise have had possession, custody or control is likely to cause substantial disruption to activities carried on by or on behalf of a Commonwealth entity.

Penalty:  Imprisonment for 2 years.

132.9  Geographical jurisdiction

                   Section 15.4 (extended geographical jurisdiction—category D) applies to each offence against this Division.


 

Part 7.3Fraudulent conduct

Division 133Preliminary

133.1  Definitions

                   In this Part:

account means an account (including a loan account, a credit card account or a similar account) with a bank or other financial institution.

deception means an intentional or reckless deception, whether by words or other conduct, and whether as to fact or as to law, and includes:

                     (a)  a deception as to the intentions of the person using the deception or any other person; and

                     (b)  conduct by a person that causes a computer, a machine or an electronic device to make a response that the person is not authorised to cause it to do.


 

Division 134Obtaining property or a financial advantage by deception

134.1  Obtaining property by deception

             (1)  A person is guilty of an offence if:

                     (a)  the person, by a deception, dishonestly obtains property belonging to another with the intention of permanently depriving the other of the property; and

                     (b)  the property belongs to a Commonwealth entity.

Penalty:  Imprisonment for 10 years.

             (2)  Absolute liability applies to the paragraph (1)(b) element of the offence.

Obtaining property

             (3)  For the purposes of this section (and for the purposes of the application of section 132.1 to this section), a person (the first person) is taken to have obtained property if, and only if:

                     (a)  the first person obtains ownership, possession or control of it for himself or herself or for another person; or

                     (b)  the first person enables ownership, possession or control of it to be retained by himself or herself; or

                     (c)  the first person induces a third person to pass ownership, possession or control of it to another person; or

                     (d)  the first person induces a third person to enable another person to retain ownership, possession or control of it; or

                     (e)  subsection (9) or (10) applies.

             (4)  The definition of obtaining in section 130.1 does not apply for the purposes of this section (or for the purposes of the application of section 132.1 to this section).

             (5)  For the purposes of this section, a person’s obtaining of property belonging to another may be dishonest even if the person or another person is willing to pay for the property.

Intention of permanently depriving a person of property

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

                     (a)  a person obtains property belonging to another without meaning the other permanently to lose the thing itself; and

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

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

             (7)  For the purposes of subsection (6), a borrowing or lending of a thing amounts to treating the thing as the borrower’s or lender’s own to dispose of regardless of another’s rights if, and only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.

             (8)  For the purposes of subsection (6), if:

                     (a)  a person has possession or control (lawfully or not) of property belonging to another; and

                     (b)  the person parts with the property under a condition as to its return that the person may not be able to perform; and

                     (c)  the parting is done for purposes of the person’s own and without the other’s authority;

the parting is taken to amount to treating the property as the person’s own to dispose of regardless of the other’s rights.

Money transfers

             (9)  For the purposes of this section (and for the purposes of the application of section 132.1 to this section), if a person (the first person) causes an amount to be transferred from an account held by another person (the second person) to an account held by the first person:

                     (a)  the amount is taken to have been property that belonged to the second person; and

                     (b)  the first person is taken to have obtained the property for himself or herself with the intention of permanently depriving the second person of the property.

           (10)  For the purposes of this section (and for the purposes of the application of section 132.1 to this section), if a person (the first person) causes an amount to be transferred from an account held by another person (the second person) to an account held by a third person:

                     (a)  the amount is taken to have been property that belonged to the second person; and

                     (b)  the first person is taken to have obtained the property for the third person with the intention of permanently depriving the second person of the property.

           (11)  For the purposes of this section (and for the purposes of the application of section 132.1 to this section), if:

                     (a)  a credit is made to an account (the credited account); and

                     (b)  a debit is made to another account (the debited account); and

                     (c)  either:

                              (i)  the credit results from the debit; or

                             (ii)  the debit results from the credit;

the amount of the credit is taken to be transferred from the debited account to the credited account.

           (12)  For the purposes of this section (and for the purposes of the application of section 132.1 to this section), a person is taken to cause an amount to be transferred from an account if the person induces another person to transfer the amount from the account (whether or not the other person is the holder of the account).

General deficiency

           (13)  A person may be convicted of an offence against this section involving all or any part of a general deficiency in money even though the deficiency is made up of any number of particular sums of money that were obtained over a period of time.

           (14)  A person may be convicted of an offence against this section involving all or any part of a general deficiency in property other than money even though the deficiency is made up of any number of particular items of property that were obtained over a period of time.

Alternative verdicts

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

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

134.2  Obtaining a financial advantage by deception

             (1)  A person is guilty of an offence if:

                     (a)  the person, by a deception, dishonestly obtains a financial advantage from another person; and

                     (b)  the other person is a Commonwealth entity.

Penalty:  Imprisonment for 10 years.

             (2)  Absolute liability applies to the paragraph (1)(b) element of the offence.

134.3  Geographical jurisdiction

                   Section 15.4 (extended geographical jurisdiction—category D) applies to each offence against this Division.


 

Division 135Other offences involving fraudulent conduct

135.1  General dishonesty

Obtaining a gain

             (1)  A person is guilty of an offence if:

                     (a)  the person does anything with the intention of dishonestly obtaining a gain from another person; and

                     (b)  the other person is a Commonwealth entity.

Penalty:  Imprisonment for 5 years.

             (2)  In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the other person was a Commonwealth entity.

Causing a loss

             (3)  A person is guilty of an offence if:

                     (a)  the person does anything with the intention of dishonestly causing a loss to another person; and

                     (b)  the other person is a Commonwealth entity.

Penalty:  Imprisonment for 5 years.

             (4)  In a prosecution for an offence against subsection (3), it is not necessary to prove that the defendant knew that the other person was a Commonwealth entity.

             (5)  A person is guilty of an offence if:

                     (a)  the person dishonestly causes a loss, or dishonestly causes a risk of loss, to another person; and

                     (b)  the first-mentioned person knows or believes that the loss will occur or that there is a substantial risk of the loss occurring; and

                     (c)  the other person is a Commonwealth entity.

Penalty:  Imprisonment for 5 years.

             (6)  Absolute liability applies to the paragraph (5)(c) element of the offence.

Influencing a Commonwealth public official

             (7)  A person is guilty of an offence if:

                     (a)  the person does anything with the intention of dishonestly influencing a public official in the exercise of the official’s duties as a public official; and

                     (b)  the public official is a Commonwealth public official; and

                     (c)  the duties are duties as a Commonwealth public official.

Penalty:  Imprisonment for 5 years.

             (8)  In a prosecution for an offence against subsection (7), it is not necessary to prove that the defendant knew:

                     (a)  that the official was a Commonwealth public official; or

                     (b)  that the duties were duties as a Commonwealth public official.

135.2  Obtaining financial advantage

             (1)  A person is guilty of an offence if:

                     (a)  the person engages in conduct; and

                    (aa)  as a result of that conduct, the person obtains a financial advantage for himself or herself from another person; and

                    (ab)  the person knows or believes that he or she is not eligible to receive that financial advantage; and

                     (b)  the other person is a Commonwealth entity.

Penalty:  Imprisonment for 12 months.

          (1A)  Absolute liability applies to the paragraph (1)(b) element of the offence.

             (2)  A person is guilty of an offence if:

                     (a)  the person engages in conduct; and

                    (aa)  as a result of that conduct, the person obtains a financial advantage for another person from a third person; and

                    (ab)  the person knows or believes that the other person is not eligible to receive that financial advantage; and

                     (b)  the third person is a Commonwealth entity.

Penalty:  Imprisonment for 12 months.

          (2A)  Absolute liability applies to the paragraph (2)(b) element of the offence.

             (3)  For the purposes of subsection (2), a person is taken to have obtained a financial advantage for another person from a Commonwealth entity if the first-mentioned person induces the Commonwealth entity to do something that results in the other person obtaining the financial advantage.

             (4)  The definition of obtaining in section 130.1 does not apply to this section.

135.4  Conspiracy to defraud

Obtaining a gain

             (1)  A person is guilty of an offence if:

                     (a)  the person conspires with another person with the intention of dishonestly obtaining a gain from a third person; and

                     (b)  the third person is a Commonwealth entity.

Penalty:  Imprisonment for 10 years.

             (2)  In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the third person was a Commonwealth entity.

Causing a loss

             (3)  A person is guilty of an offence if:

                     (a)  the person conspires with another person with the intention of dishonestly causing a loss to a third person; and

                     (b)  the third person is a Commonwealth entity.

Penalty:  Imprisonment for 10 years.

             (4)  In a prosecution for an offence against subsection (3), it is not necessary to prove that the defendant knew that the third person was a Commonwealth entity.

             (5)  A person is guilty of an offence if:

                     (a)  the person conspires with another person to dishonestly cause a loss, or to dishonestly cause a risk of loss, to a third person; and

                     (b)  the first-mentioned person knows or believes that the loss will occur or that there is a substantial risk of the loss occurring; and

                     (c)  the third person is a Commonwealth entity.

Penalty:  Imprisonment for 10 years.

             (6)  In a prosecution for an offence against subsection (5), it is not necessary to prove that the defendant knew that the third person was a Commonwealth entity.

Influencing a Commonwealth public official

             (7)  A person is guilty of an offence if:

                     (a)  the person conspires with another person with the intention of dishonestly influencing a public official in the exercise of the official’s duties as a public official; and

                     (b)  the public official is a Commonwealth public official; and

                     (c)  the duties are duties as a Commonwealth public official.

Penalty:  Imprisonment for 10 years.

             (8)  In a prosecution for an offence against subsection (7), it is not necessary to prove that the defendant knew:

                     (a)  that the official was a Commonwealth public official; or

                     (b)  that the duties were duties as a Commonwealth public official.

General provisions

             (9)  For a person to be guilty of an offence against this section:

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

                     (b)  the person and at least one other party to the agreement must have intended to do the thing pursuant to the agreement; and

                     (c)  the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.

           (10)  A person may be found guilty of an offence against this section even if:

                     (a)  obtaining the gain, causing the loss, causing the risk of loss, or influencing the Commonwealth public official, as the case may be, is impossible; or

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

                     (c)  each other party to the agreement is a person who is not criminally responsible; or

                     (d)  subject to subsection (11), all other parties to the agreement have been acquitted of the offence.

           (11)  A person cannot be found guilty of an offence against this section if:

                     (a)  all other parties to the agreement have been acquitted of such an offence; and

                     (b)  a finding of guilt would be inconsistent with their acquittal.

           (12)  A person cannot be found guilty of an offence against this section if, before the commission of an overt act pursuant to the agreement, the person:

                     (a)  withdrew from the agreement; and

                     (b)  took all reasonable steps to prevent the doing of the thing.

           (13)  A court may dismiss a charge of an offence against this section if the court thinks that the interests of justice require the court to do so.

           (14)  Proceedings for an offence against this section must not be commenced without the consent of the Director of Public Prosecutions. However, before the necessary consent has been given, a person may be:

                     (a)  arrested for an offence against this section; or

                     (b)  charged with an offence against this section; or

                     (c)  remanded in custody or released on bail in connection with an offence against this section.

135.5  Geographical jurisdiction

                   Section 15.4 (extended geographical jurisdiction—category D) applies to each offence against this Division.


 

Part 7.4False or misleading statements

Division 136False or misleading statements in applications

136.1  False or misleading statements in applications

Knowledge

             (1)  A person is guilty of an offence if:

                     (a)  the person makes a statement (whether orally, in a document or in any other way); and

                     (b)  the person does so knowing that the statement:

                              (i)  is false or misleading; or

                             (ii)  omits any matter or thing without which the statement is misleading; and

                     (c)  the statement is made in, or in connection with:

                              (i)  an application for a licence, permit or authority; or

                             (ii)  an application for registration; or

                            (iii)  an application or claim for a benefit; and

                     (d)  any of the following subparagraphs applies:

                              (i)  the statement is made to a Commonwealth entity;

                             (ii)  the statement is made to a person who is exercising powers or performing functions under, or in connection with, a law of the Commonwealth;

                            (iii)  the statement is made in compliance or purported compliance with a law of the Commonwealth.

Penalty:  Imprisonment for 12 months.

          (1A)  Absolute liability applies to each of the subparagraph (1)(d)(i), (ii) and (iii) elements of the offence.

             (2)  Subsection (1) does not apply as a result of subparagraph (1)(b)(i) if the statement is not false or misleading in a material particular.

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

             (3)  Subsection (1) does not apply as a result of subparagraph (1)(b)(ii) if the statement did not omit any matter or thing without which the statement is misleading in a material particular.

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

Recklessness

             (4)  A person is guilty of an offence if:

                     (a)  the person makes a statement (whether orally, in a document or in any other way); and

                     (b)  the person does so reckless as to whether the statement:

                              (i)  is false or misleading; or

                             (ii)  omits any matter or thing without which the statement is misleading; and

                     (c)  the statement is made in, or in connection with:

                              (i)  an application for a licence, permit or authority; or

                             (ii)  an application for registration; or

                            (iii)  an application or claim for a benefit; and

                     (d)  any of the following subparagraphs applies:

                              (i)  the statement is made to a Commonwealth entity;

                             (ii)  the statement is made to a person who is exercising powers or performing functions under, or in connection with, a law of the Commonwealth;

                            (iii)  the statement is made in compliance or purported compliance with a law of the Commonwealth.

Penalty:  Imprisonment for 6 months.

          (4A)  Absolute liability applies to each of the subparagraph (4)(d)(i), (ii) and (iii) elements of the offence.

             (5)  Subsection (4) does not apply as a result of subparagraph (4)(b)(i) if the statement is not false or misleading in a material particular.

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

             (6)  Subsection (4) does not apply as a result of subparagraph (4)(b)(ii) if the statement did not omit any matter or thing without which the statement is misleading in a material particular.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (6). See subsection 13.3(3).

Alternative verdicts

             (7)  If, in a prosecution for an offence against subsection (1), the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence against subsection (4), the trier of fact may find the defendant not guilty of the offence against subsection (1) but guilty of the offence against subsection (4), so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

Geographical jurisdiction

             (8)  Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against subsection (1) or (4).

Definition

             (9)  In this section:

benefit includes any advantage and is not limited to property.


 

Division 137False or misleading information or documents

137.1  False or misleading information

             (1)  A person is guilty of an offence if:

                     (a)  the person gives information to another person; and

                     (b)  the person does so knowing that the information:

                              (i)  is false or misleading; or

                             (ii)  omits any matter or thing without which the information is misleading; and

                     (c)  any of the following subparagraphs applies:

                              (i)  the information is given to a Commonwealth entity;

                             (ii)  the information is given to a person who is exercising powers or performing functions under, or in connection with, a law of the Commonwealth;

                            (iii)  the information is given in compliance or purported compliance with a law of the Commonwealth.

Penalty:  Imprisonment for 12 months.

          (1A)  Absolute liability applies to each of the subparagraph (1)(c)(i), (ii) and (iii) elements of the offence.

             (2)  Subsection (1) does not apply as a result of subparagraph (1)(b)(i) if the information is not false or misleading in a material particular.

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

             (3)  Subsection (1) does not apply as a result of subparagraph (1)(b)(ii) if the information did not omit any matter or thing without which the information is misleading in a material particular.

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

             (4)  Subsection (1) does not apply as a result of subparagraph (1)(c)(i) if, before the information was given by a person to the Commonwealth entity, the Commonwealth entity did not take reasonable steps to inform the person of the existence of the offence against subsection (1).

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

             (5)  Subsection (1) does not apply as a result of subparagraph (1)(c)(ii) if, before the information was given by a person (the first person) to the person mentioned in that subparagraph (the second person), the second person did not take reasonable steps to inform the first person of the existence of the offence against subsection (1).

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

             (6)  For the purposes of subsections (4) and (5), it is sufficient if the following form of words is used:

“Giving false or misleading information is a serious offence”.

137.2  False or misleading documents

             (1)  A person is guilty of an offence if:

                     (a)  the person produces a document to another person; and

                     (b)  the person does so knowing that the document is false or misleading; and

                     (c)  the document is produced in compliance or purported compliance with a law of the Commonwealth.

Penalty:  Imprisonment for 12 months.

             (2)  Subsection (1) does not apply if the document is not false or misleading in a material particular.

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

             (3)  Subsection (1) does not apply to a person who produces a document if the document is accompanied by a written statement signed by the person or, in the case of a body corporate, by a competent officer of the body corporate:

                     (a)  stating that the document is, to the knowledge of the first-mentioned person, false or misleading in a material particular; and

                     (b)  setting out, or referring to, the material particular in which the document is, to the knowledge of the first-mentioned person, false or misleading.

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

137.3  Geographical jurisdiction

                   Section 15.4 (extended geographical jurisdiction—category D) applies to each offence against this Division.


 

Part 7.5Unwarranted demands

Division 138Preliminary

138.1  Unwarranted demand with menaces

             (1)  For the purposes of this Part, a person (the first person) makes an unwarranted demand with menaces of another person if, and only if:

                     (a)  the first person makes a demand with menaces of the other person; and

                     (b)  the first person does not believe that he or she has reasonable grounds for making the demand; and

                     (c)  the first person does not reasonably believe that the use of the menaces is a proper means of reinforcing the demand.

             (2)  This Part applies to a demand whether or not it is for property.

             (3)  This Part applies to a demand with menaces, whether or not the menaces relate to conduct to be engaged in by the person making the demand.

138.2  Menaces

             (1)  For the purposes of this Part, menaces includes:

                     (a)  a threat (whether express or implied) of conduct that is detrimental or unpleasant to another person; or

                     (b)  a general threat of detrimental or unpleasant conduct that is implied because of the status, office or position of the maker of the threat.

Threat against an individual

             (2)  For the purposes of this Part, a threat against an individual is taken not to be menaces unless:

                     (a)  both:

                              (i)  the threat would be likely to cause the individual to act unwillingly; and

                             (ii)  the maker of the threat is aware of the vulnerability of the individual to the threat; or

                     (b)  the threat would be likely to cause a person of normal stability and courage to act unwillingly.

Threat against a person who is not an individual

             (3)  For the purposes of this Part, a threat against a person who is not an individual is taken not to be menaces unless:

                     (a)  the threat would ordinarily cause an unwilling response; or

                     (b)  the threat would be likely to cause an unwilling response because of a particular vulnerability of which the maker of the threat is aware.


 

Division 139Unwarranted demands

139.1  Unwarranted demands of a Commonwealth public official

                   A person is guilty of an offence if:

                     (a)  the person makes an unwarranted demand with menaces of another person; and

                     (b)  the demand or the menaces are directly or indirectly related to:

                              (i)  the other person’s capacity as a Commonwealth public official; or

                             (ii)  any influence the other person has in the other person’s capacity as a Commonwealth public official; and

                     (c)  the first-mentioned person does so with the intention of:

                              (i)  obtaining a gain; or

                             (ii)  causing a loss; or

                            (iii)  influencing the official in the exercise of the official’s duties as a Commonwealth public official.

Penalty:  Imprisonment for 12 years.

139.2  Unwarranted demands made by a Commonwealth public official

                   A Commonwealth public official is guilty of an offence if:

                     (a)  the official makes an unwarranted demand with menaces of another person; and

                     (b)  the demand or the menaces are directly or indirectly related to:

                              (i)  the official’s capacity as a Commonwealth public official; or

                             (ii)  any influence the official has in the official’s capacity as a Commonwealth public official; and

                     (c)  the official does so with the intention of:

                              (i)  obtaining a gain; or

                             (ii)  causing a loss; or

                            (iii)  influencing another Commonwealth public official in the exercise of the other official’s duties as a Commonwealth public official.

Penalty:  Imprisonment for 12 years.

139.3  Geographical jurisdiction

                   Section 15.3 (extended geographical jurisdiction—category C) applies to each offence against this Division.


 

Part 7.6Bribery and related offences

Division 140Preliminary

140.1  Definition

                   In this Part:

benefit includes any advantage and is not limited to property.

140.2  Obtaining

             (1)  For the purposes of this Part, a person is taken to have obtained a benefit for another person if the first-mentioned person induces a third person to do something that results in the other person obtaining the benefit.

             (2)  The definition of obtaining in section 130.1 does not apply to this Part.


 

Division 141Bribery

141.1  Bribery of a Commonwealth public official

Giving a bribe

             (1)  A person is guilty of an offence if:

                     (a)  the person dishonestly:

                              (i)  provides a benefit to another person; or

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

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

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

                     (b)  the person does so with the intention of influencing a public official (who may be the other person) in the exercise of the official’s duties as a public official; and

                     (c)  the public official is a Commonwealth public official; and

                     (d)  the duties are duties as a Commonwealth public official.

Penalty:  Imprisonment for 10 years.

             (2)  In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew:

                     (a)  that the official was a Commonwealth public official; or

                     (b)  that the duties were duties as a Commonwealth public official.

Receiving a bribe

             (3)  A Commonwealth public official is guilty of an offence if:

                     (a)  the official dishonestly:

                              (i)  asks for a benefit for himself, herself or another person; or

                             (ii)  receives or obtains a benefit for himself, herself or another person; or

                            (iii)  agrees to receive or obtain a benefit for himself, herself or another person; and

                     (b)  the official does so with the intention:

                              (i)  that the exercise of the official’s duties as a Commonwealth public official will be influenced; or

                             (ii)  of inducing, fostering or sustaining a belief that the exercise of the official’s duties as a Commonwealth public official will be influenced.

Penalty:  Imprisonment for 10 years.

Geographical jurisdiction

             (4)  Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against subsection (1) or (3).


 

Division 142Offences relating to bribery

142.1  Corrupting benefits given to, or received by, a Commonwealth public official

Giving a corrupting benefit

             (1)  A person is guilty of an offence if:

                     (a)  the person dishonestly:

                              (i)  provides a benefit to another person; or

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

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

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

                     (b)  the receipt, or expectation of the receipt, of the benefit would tend to influence a public official (who may be the other person) in the exercise of the official’s duties as a public official; and

                     (c)  the public official is a Commonwealth public official; and

                     (d)  the duties are duties as a Commonwealth public official.

Penalty:  Imprisonment for 5 years.

             (2)  In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew:

                     (a)  that the official was a Commonwealth public official; or

                     (b)  that the duties were duties as a Commonwealth public official.

Receiving a corrupting benefit

             (3)  A Commonwealth public official is guilty of an offence if:

                     (a)  the official dishonestly:

                              (i)  asks for a benefit for himself, herself or another person; or

                             (ii)  receives or obtains a benefit for himself, herself or another person; or

                            (iii)  agrees to receive or obtain a benefit for himself, herself or another person; and

                     (b)  the receipt, or expectation of the receipt, of the benefit would tend to influence a Commonwealth public official (who may be the first-mentioned official) in the exercise of the official’s duties as a Commonwealth public official.

Penalty:  Imprisonment for 5 years.

Benefit in the nature of a reward

             (4)  For the purposes of subsections (1) and (3), it is immaterial whether the benefit is in the nature of a reward.

142.2  Abuse of public office

             (1)  A Commonwealth public official is guilty of an offence if:

                     (a)  the official:

                              (i)  exercises any influence that the official has in the official’s capacity as a Commonwealth public official; or

                             (ii)  engages in any conduct in the exercise of the official’s duties as a Commonwealth public official; or

                            (iii)  uses any information that the official has obtained in the official’s capacity as a Commonwealth public official; and

                     (b)  the official does so with the intention of:

                              (i)  dishonestly obtaining a benefit for himself or herself or for another person; or

                             (ii)  dishonestly causing a detriment to another person.

Penalty:  Imprisonment for 5 years.

             (2)  A person is guilty of an offence if:

                     (a)  the person has ceased to be a Commonwealth public official in a particular capacity; and

                     (b)  the person uses any information that the person obtained in that capacity as a Commonwealth public official; and

                     (c)  the person does so with the intention of:

                              (i)  dishonestly obtaining a benefit for himself or herself or for another person; or

                             (ii)  dishonestly causing a detriment to another person.

Penalty:  Imprisonment for 5 years.

             (3)  Paragraph (2)(a) applies to a cessation by a person:

                     (a)  whether or not the person continues to be a Commonwealth public official in some other capacity; and

                     (b)  whether the cessation occurred before, at or after the commencement of this section.

142.3  Geographical jurisdiction

                   Section 15.4 (extended geographical jurisdiction—category D) applies to each offence against this Division.


 

Part 7.7Forgery and related offences

Division 143Preliminary

143.1  Definitions

             (1)  In this Part:

document includes:

                     (a)  any paper or other material on which there is writing; or

                     (b)  any paper or other material on which there are marks, figures, symbols or perforations that are:

                              (i)  capable of being given a meaning by persons qualified to interpret them; or

                             (ii)  capable of being responded to by a computer, a machine or an electronic device; or

                     (c)  any article or material (for example, a disk or a tape) from which information is capable of being reproduced with or without the aid of any other article or device.

false Commonwealth document has the meaning given by section 143.3.

false document has the meaning given by section 143.2.

information means information, whether in the form of data, text, sounds, images or in any other form.

             (2)  The following are examples of things covered by the definition of document in subsection (1):

                     (a)  a credit card;

                     (b)  a debit card;

                     (c)  a card by means of which property can be obtained.

143.2  False documents

             (1)  For the purposes of this Part, a document is a false document if, and only if:

                     (a)  the document, or any part of the document:

                              (i)  purports to have been made in the form in which it is made by a person who did not make it in that form; or

                             (ii)  purports to have been made in the form in which it is made on the authority of a person who did not authorise its making in that form; or

                     (b)  the document, or any part of the document:

                              (i)  purports to have been made in the terms in which it is made by a person who did not make it in those terms; or

                             (ii)  purports to have been made in the terms in which it is made on the authority of a person who did not authorise its making in those terms; or

                     (c)  the document, or any part of the document:

                              (i)  purports to have been altered in any respect by a person who did not alter it in that respect; or

                             (ii)  purports to have been altered in any respect on the authority of a person who did not authorise its alteration in that respect; or

                     (d)  the document, or any part of the document:

                              (i)  purports to have been made or altered by a person who did not exist; or

                             (ii)  purports to have been made or altered on the authority of a person who did not exist; or

                     (e)  the document, or any part of the document, purports to have been made or altered on a date on which, at a time at which, at a place at which, or otherwise in circumstances in which, it was not made or altered.

             (2)  For the purposes of this Part, a person is taken to make a false document if the person alters a document so as to make it a false document (whether or not it was already a false document before the alteration).

             (3)  This section has effect as if a document that purports to be a true copy of another document were the original document.

143.3  False Commonwealth documents

             (1)  For the purposes of this Part, a document is a false Commonwealth document if, and only if:

                     (a)  the document, or any part of the document:

                              (i)  purports to have been made in the form in which it is made by a Commonwealth entity, or a Commonwealth public official, who did not make it in that form; or

                             (ii)  purports to have been made in the form in which it is made on the authority of a Commonwealth entity, or a Commonwealth public official, who did not authorise its making in that form; or

                     (b)  the document, or any part of the document:

                              (i)  purports to have been made in the terms in which it is made by a Commonwealth entity, or a Commonwealth public official, who did not make it in those terms; or

                             (ii)  purports to have been made in the terms in which it is made on the authority of a Commonwealth entity, or a Commonwealth public official, who did not authorise its making in those terms; or

                     (c)  the document, or any part of the document:

                              (i)  purports to have been altered in any respect by a Commonwealth entity, or a Commonwealth public official, who did not alter it in that respect; or

                             (ii)  purports to have been altered in any respect on the authority of a Commonwealth entity, or a Commonwealth public official, who did not authorise its alteration in that respect; or

                     (d)  the document, or any part of the document:

                              (i)  purports to have been made or altered by a Commonwealth entity, or a Commonwealth public official, who did not exist; or

                             (ii)  purports to have been made or altered on the authority of a Commonwealth entity, or a Commonwealth public official, who did not exist; or

                     (e)  the document, or any part of the document, purports to have been made or altered by a Commonwealth entity, or a Commonwealth public official, on a date on which, at a time at which, at a place at which, or otherwise in circumstances in which, it was not made or altered.

             (2)  For the purposes of this Part, a person is taken to make a false Commonwealth document if the person alters a document so as to make it a false Commonwealth document (whether or not it was already a false Commonwealth document before the alteration).

             (3)  This section has effect as if a document that purports to be a true copy of another document were the original document.

             (4)  A reference in this section to a Commonwealth public official is a reference to a person in the person’s capacity as a Commonwealth public official.

143.4  Inducing acceptance of false documents

                   If it is necessary for the purposes of this Part to prove an intent to induce a person in the person’s capacity as a public official to accept a false document as genuine, it is not necessary to prove that the defendant intended so to induce a particular person in the person’s capacity as a public official.


 

Division 144Forgery

144.1  Forgery

             (1)  A person is guilty of an offence if:

                     (a)  the person makes a false document with the intention that the person or another will use it:

                              (i)  to dishonestly induce a third person in the third person’s capacity as a public official to accept it as genuine; and

                             (ii)  if it is so accepted, to dishonestly obtain a gain, dishonestly cause a loss, or dishonestly influence the exercise of a public duty or function; and

                     (b)  the capacity is a capacity as a Commonwealth public official.

Penalty:  Imprisonment for 10 years.

             (2)  In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the capacity was a capacity as a Commonwealth public official.

             (3)  A person is guilty of an offence if:

                     (a)  the person makes a false document with the intention that the person or another will use it:

                              (i)  to dishonestly cause a computer, a machine or an electronic device to respond to the document as if the document were genuine; and

                             (ii)  if it is so responded to, to dishonestly obtain a gain, dishonestly cause a loss, or dishonestly influence the exercise of a public duty or function; and

                     (b)  the response is in connection with the operations of a Commonwealth entity.

Penalty:  Imprisonment for 10 years.

             (4)  In a prosecution for an offence against subsection (3), it is not necessary to prove that the defendant knew that the response was in connection with the operations of a Commonwealth entity.

             (5)  A person is guilty of an offence if:

                     (a)  the person makes a false document with the intention that the person or another will use it:

                              (i)  to dishonestly induce a third person to accept it as genuine; and

                             (ii)  if it is so accepted, to dishonestly obtain a gain, dishonestly cause a loss, or dishonestly influence the exercise of a public duty or function; and

                     (b)  the false document is a false Commonwealth document.

Penalty:  Imprisonment for 10 years.

             (6)  In a prosecution for an offence against subsection (5), it is not necessary to prove that the defendant knew that the false document was a false Commonwealth document.

             (7)  A person is guilty of an offence if:

                     (a)  the person makes a false document with the intention that the person or another will use it:

                              (i)  to dishonestly cause a computer, a machine or an electronic device to respond to the document as if the document were genuine; and

                             (ii)  if it is so responded to, to dishonestly obtain a gain, dishonestly cause a loss, or dishonestly influence the exercise of a public duty or function; and

                     (b)  the false document is a false Commonwealth document.

Penalty:  Imprisonment for 10 years.

             (8)  In a prosecution for an offence against subsection (7), it is not necessary to prove that the defendant knew that the false document was a false Commonwealth document.

             (9)  Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against subsection (1), (3), (5) or (7).


 

Division 145Offences relating to forgery

145.1  Using forged document

             (1)  A person is guilty of an offence if:

                     (a)  the person knows that a document is a false document and uses it with the intention of:

                              (i)  dishonestly inducing another person in the other person’s capacity as a public official to accept it as genuine; and

                             (ii)  if it is so accepted, dishonestly obtaining a gain, dishonestly causing a loss, or dishonestly influencing the exercise of a public duty or function; and

                     (b)  the capacity is a capacity as a Commonwealth public official.

Penalty:  Imprisonment for 10 years.

             (2)  In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the capacity was a capacity as a Commonwealth public official.

             (3)  A person is guilty of an offence if:

                     (a)  the person knows that a document is a false document and uses it with the intention of:

                              (i)  dishonestly causing a computer, a machine or an electronic device to respond to the document as if the document were genuine; and

                             (ii)  if it is so responded to, dishonestly obtaining a gain, dishonestly causing a loss, or dishonestly influencing the exercise of a public duty or function; and

                     (b)  the response is in connection with the operations of a Commonwealth entity.

Penalty:  Imprisonment for 10 years.

             (4)  In a prosecution for an offence against subsection (3), it is not necessary to prove that the defendant knew that the response was in connection with the operations of a Commonwealth entity.

             (5)  A person is guilty of an offence if:

                     (a)  the person knows that a document is a false document and uses it with the intention of:

                              (i)  dishonestly inducing another person to accept it as genuine; and

                             (ii)  if it is so accepted, dishonestly obtaining a gain, dishonestly causing a loss, or dishonestly influencing the exercise of a public duty or function; and

                     (b)  the false document is a false Commonwealth document.

Penalty:  Imprisonment for 10 years.

             (6)  In a prosecution for an offence against subsection (5), it is not necessary to prove that the defendant knew that the false document was a false Commonwealth document.

             (7)  A person is guilty of an offence if:

                     (a)  the person knows that a document is a false document and uses it with the intention of:

                              (i)  dishonestly causing a computer, a machine or an electronic device to respond to the document as if the document were genuine; and

                             (ii)  if it is so responded to, dishonestly obtaining a gain, dishonestly causing a loss, or dishonestly influencing the exercise of a public duty or function; and

                     (b)  the false document is a false Commonwealth document.

Penalty:  Imprisonment for 10 years.

             (8)  In a prosecution for an offence against subsection (7), it is not necessary to prove that the defendant knew that the false document was a false Commonwealth document.

145.2  Possession of forged document

             (1)  A person is guilty of an offence if:

                     (a)  the person knows that a document is a false document and has it in his or her possession with the intention that the person or another will use it:

                              (i)  to dishonestly induce a third person in the third person’s capacity as a public official to accept it as genuine; and

                             (ii)  if it is so accepted, to dishonestly obtain a gain, dishonestly cause a loss, or dishonestly influence the exercise of a public duty or function; and

                     (b)  the capacity is a capacity as a Commonwealth public official.

Penalty:  Imprisonment for 10 years.

             (2)  In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the capacity was a capacity as a Commonwealth public official.

             (3)  A person is guilty of an offence if:

                     (a)  the person knows that a document is a false document and has it in his or her possession with the intention that the person or another will use it:

                              (i)  to dishonestly cause a computer, a machine or an electronic device to respond to the document as if the document were genuine; and

                             (ii)  if it is so responded to, to dishonestly obtain a gain, dishonestly cause a loss, or dishonestly influence the exercise of a public duty or function; and

                     (b)  the response is in connection with the operations of a Commonwealth entity.

Penalty:  Imprisonment for 10 years.

             (4)  In a prosecution for an offence against subsection (3), it is not necessary to prove that the defendant knew that the response was in connection with the operations of a Commonwealth entity.

             (5)  A person is guilty of an offence if:

                     (a)  the person knows that a document is a false document and has it in his or her possession with the intention that the person or another will use it:

                              (i)  to dishonestly induce a third person to accept it as genuine; and

                             (ii)  if it is so accepted, to dishonestly obtain a gain, dishonestly cause a loss, or dishonestly influence the exercise of a public duty or function; and

                     (b)  the false document is a false Commonwealth document.

Penalty:  Imprisonment for 10 years.

             (6)  In a prosecution for an offence against subsection (5), it is not necessary to prove that the defendant knew that the false document was a false Commonwealth document.

             (7)  A person is guilty of an offence if:

                     (a)  the person knows that a document is a false document and has it in his or her possession with the intention that the person or another will use it:

                              (i)  to dishonestly cause a computer, a machine or an electronic device to respond to the document as if the document were genuine; and

                             (ii)  if it is so responded to, to dishonestly obtain a gain, dishonestly cause a loss, or dishonestly influence the exercise of a public duty or function; and

                     (b)  the false document is a false Commonwealth document.

Penalty:  Imprisonment for 10 years.

             (8)  In a prosecution for an offence against subsection (7), it is not necessary to prove that the defendant knew that the false document was a false Commonwealth document.

145.3  Possession, making or adaptation of devices etc. for making forgeries

             (1)  A person is guilty of an offence if:

                     (a)  the person knows that a device, material or other thing is designed or adapted for the making of a false document (whether or not the device, material or thing is designed or adapted for another purpose); and

                     (b)  the person has the device, material or thing in his or her possession with the intention that the person or another person will use it to commit an offence against section 144.1.

Penalty:  Imprisonment for 10 years.

             (2)  A person is guilty of an offence if:

                     (a)  the person makes or adapts a device, material or other thing; and

                     (b)  the person knows that the device, material or other thing is designed or adapted for the making of a false document (whether or not the device, material or thing is designed or adapted for another purpose); and

                     (c)  the person makes or adapts the device, material or thing with the intention that the person or another person will use it to commit an offence against section 144.1.

Penalty:  Imprisonment for 10 years.

             (3)  A person is guilty of an offence if:

                     (a)  the person knows that a device, material or other thing is designed or adapted for the making of a false Commonwealth document (whether or not the device, material or thing is designed or adapted for another purpose); and

                     (b)  the person has the device, material or thing in his or her possession; and

                     (c)  the person does not have a reasonable excuse for having the device, material or thing in his or her possession.

Penalty:  Imprisonment for 2 years.

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

             (4)  A person is guilty of an offence if:

                     (a)  the person makes or adapts a device, material or other thing; and

                     (b)  the person knows that the device, material or other thing is designed or adapted for the making of a false Commonwealth document (whether or not the device, material or thing is designed or adapted for another purpose).

Penalty:  Imprisonment for 2 years.

Note:          See also section 10.5 (lawful authority).

145.4  Falsification of documents etc.

             (1)  A person is guilty of an offence if:

                     (a)  the person dishonestly damages, destroys, alters, conceals or falsifies a document; and

                     (b)  the document is:

                              (i)  kept, retained or issued for the purposes of a law of the Commonwealth; or

                             (ii)  made by a Commonwealth entity or a person in the capacity of a Commonwealth public official; or

                            (iii)  held by a Commonwealth entity or a person in the capacity of a Commonwealth public official; and

                     (c)  the first-mentioned person does so with the intention of:

                              (i)  obtaining a gain; or

                             (ii)  causing a loss.

Penalty:  Imprisonment for 7 years.

          (1A)  Absolute liability applies to the paragraph (1)(b) element of the offence.

             (2)  A person is guilty of an offence if:

                     (a)  the person dishonestly damages, destroys, alters, conceals or falsifies a document; and

                     (b)  the person does so with the intention of:

                              (i)  obtaining a gain from another person; or

                             (ii)  causing a loss to another person; and

                     (c)  the other person is a Commonwealth entity.

Penalty:  Imprisonment for 7 years.

             (3)  In a prosecution for an offence against subsection (2), it is not necessary to prove that the defendant knew that the other person was a Commonwealth entity.

145.5  Giving information derived from false or misleading documents

             (1)  A person is guilty of an offence if:

                     (a)  the person dishonestly gives information to another person; and

                     (b)  the information was derived, directly or indirectly, from a document that, to the knowledge of the first-mentioned person, is false or misleading in a material particular; and

                     (c)  the document is:

                              (i)  kept, retained or issued for the purposes of a law of the Commonwealth; or

                             (ii)  made by a Commonwealth entity or a person in the capacity of a Commonwealth public official; or

                            (iii)  held by a Commonwealth entity or a person in the capacity of a Commonwealth public official; and

                     (d)  the first-mentioned person does so with the intention of:

                              (i)  obtaining a gain; or

                             (ii)  causing a loss.

Penalty:  Imprisonment for 7 years.

          (1A)  Absolute liability applies to the paragraph (1)(c) element of the offence.

             (2)  A person is guilty of an offence if:

                     (a)  the person dishonestly gives information to another person; and

                     (b)  the information was derived, directly or indirectly, from a document that, to the knowledge of the first-mentioned person, is false or misleading in a material particular; and

                     (c)  the first-mentioned person does so with the intention of:

                              (i)  obtaining a gain from another person; or

                             (ii)  causing a loss to another person; and

                     (d)  the other person is a Commonwealth entity.

Penalty:  Imprisonment for 7 years.

             (3)  In a prosecution for an offence against subsection (2), it is not necessary to prove that the defendant knew that the other person was a Commonwealth entity.

145.6  Geographical jurisdiction

                   Section 15.4 (extended geographical jurisdiction—category D) applies to each offence against this Division.


 

Part 7.8Causing harm to, and impersonation and obstruction of, Commonwealth public officials

Division 146Preliminary

146.1  Definitions

                   In this Part:

Commonwealth law enforcement officer means a person who is:

                     (a)  a member or special member of the Australian Federal Police; or

                     (b)  a member of the Board of the Australian Crime Commission established under section 7B of the Australian Crime Commission Act 2002; or

                    (ba)  an examiner (within the meaning of that Act); or

                     (c)  a member of the staff of the ACC (within the meaning of that Act); or

                     (d)  the Chief Executive Officer of Customs; or

                     (e)  a person employed in the Australian Customs Service.

fear includes apprehension.

harm means:

                     (a)  physical harm (whether temporary or permanent); or

                     (b)  harm to a person’s mental health (whether temporary or permanent);

but does not include being subjected to a force or impact that is within the limits of what is reasonably acceptable as incidental to:

                     (c)  social interaction; or

                     (d)  life in the community.

harm to a person’s mental health includes significant psychological harm to the person, but does not include a reference to ordinary emotional reactions (for example, distress, grief, fear or anger).

physical harm includes:

                     (a)  unconsciousness; and

                     (b)  pain; and

                     (c)  disfigurement; and

                     (d)  infection with a disease; and

                     (e)  any physical contact with a person that the person might reasonably object to in the circumstances (whether or not the person was aware of it at the time).

serious harm means any harm (including the cumulative effect of more than one harm) that:

                     (a)  endangers, or is likely to endanger, a person’s life; or

                     (b)  is, or is likely to be, significant and longstanding.

146.2  Causing harm

                   For the purposes of this Part, a person’s conduct is taken to cause harm if it substantially contributes to harm.


 

Division 147Causing harm to Commonwealth public officials

147.1  Causing harm to a Commonwealth public official etc.

Causing harm to a Commonwealth public official

             (1)  A person (the first person) is guilty of an offence if:

                     (a)  the first person engages in conduct; and

                     (b)  the first person’s conduct causes harm to a public official; and

                     (c)  the first person intends that his or her conduct cause harm to the official; and

                     (d)  the harm is caused without the consent of the official; and

                     (e)  the first person engages in his or her conduct because of:

                              (i)  the official’s status as a public official; or

                             (ii)  any conduct engaged in by the official in the official’s capacity as a public official; and

                    (ea)  the public official is a Commonwealth public official; and

                    (eb)  if subparagraph (e)(i) applies—the status mentioned in that subparagraph was status as a Commonwealth public official; and

                    (ec)  if subparagraph (e)(ii) applies—the conduct mentioned in that subparagraph was engaged in by the official in the official’s capacity as a Commonwealth public official.

Penalty:

                      (f)  if the official is a Commonwealth judicial officer or a Commonwealth law enforcement officer—imprisonment for 13 years; or

                     (g)  in any other case—imprisonment for 10 years.

          (1A)  Absolute liability applies to the paragraphs (1)(ea), (eb) and (ec) elements of the offence.

          (1B)  If:

                     (a)  a person is charged with an offence against subsection (1); and

                     (b)  the public official concerned is a Commonwealth judicial officer or a Commonwealth law enforcement officer;

a court of summary jurisdiction may, with the consent of the defendant and the prosecutor and if the court is satisfied that it is proper to do so, determine the charge summarily.

          (1C)  If a court of summary jurisdiction convicts a person of an offence against subsection (1) in accordance with subsection (1B), the penalty that the court may impose is a sentence of imprisonment not exceeding 2 years or a fine not exceeding 120 penalty units, or both.

Causing harm to a former Governor-General, former Minister or former Parliamentary Secretary

             (2)  A person (the first person) is guilty of an offence if:

                     (a)  the first person engages in conduct; and

                     (b)  the first person’s conduct causes harm to another person; and

                     (c)  the other person is a former Governor-General, a former Minister or a former Parliamentary Secretary; and

                     (d)  the first person intends that his or her conduct cause harm to the other person; and

                     (e)  the harm is caused without the consent of the other person; and

                      (f)  the first person engages in his or her conduct because of:

                              (i)  the other person’s status as a former Governor-General, former Minister or former Parliamentary Secretary; or

                             (ii)  any conduct engaged in by the other person in the other person’s former capacity as a Governor-General, Minister or Parliamentary Secretary.

Penalty:  Imprisonment for 10 years.

147.2  Threatening to cause harm to a Commonwealth public official etc.

Threatening to cause serious harm

             (1)  A person (the first person) is guilty of an offence if:

                     (a)  the first person makes to another person (the second person) a threat to cause serious harm to the second person or to a third person; and

                     (b)  the second person or the third person is a public official; and

                     (c)  the first person:

                              (i)  intends the second person to fear that the threat will be carried out; or

                             (ii)  is reckless as to causing the second person to fear that the threat will be carried out; and

                     (d)  the first person makes the threat because of:

                              (i)  the official’s status as a public official; or

                             (ii)  any conduct engaged in by the official in the official’s capacity as a public official; and

                    (da)  the official is a Commonwealth public official; and

                    (db)  if subparagraph (d)(i) applies—the status mentioned in that subparagraph was status as a Commonwealth public official; and

                    (dc)  if subparagraph (d)(ii) applies—the conduct mentioned in that subparagraph was engaged in by the official in the official’s capacity as a Commonwealth public official.

Penalty: 

                     (e)  if the official is a Commonwealth judicial officer or a Commonwealth law enforcement officer—imprisonment for 9 years; or

                      (f)  in any other case—imprisonment for 7 years.

          (1A)  Absolute liability applies to the paragraphs (1)(da), (db) and (dc) elements of the offence.

Threatening to cause harm

             (2)  A person (the first person) is guilty of an offence if:

                     (a)  the first person makes to another person (the second person) a threat to cause harm to the second person or to a third person; and

                     (b)  the second person or the third person is a public official; and

                     (c)  the first person:

                              (i)  intends the second person to fear that the threat will be carried out; or

                             (ii)  is reckless as to causing the second person to fear that the threat will be carried out; and

                     (d)  the first person makes the threat because of:

                              (i)  the official’s status as a public official; or

                             (ii)  any conduct engaged in by the official in the official’s capacity as a public official; and

                     (e)  the official is a Commonwealth public official; and

                      (f)  if subparagraph (d)(i) applies—the status mentioned in that subparagraph was status as a Commonwealth public official; and

                     (g)  if subparagraph (d)(ii) applies—the conduct mentioned in that subparagraph was engaged in by the official in the official’s capacity as a Commonwealth public official.

Penalty:  Imprisonment for 2 years

          (2A)  Absolute liability applies to the paragraphs (2)(e), (f) and (g) elements of the offence.

Threatening to cause serious harm to a former Governor-General, former Minister or former Parliamentary Secretary

             (3)  A person (the first person) is guilty of an offence if:

                     (a)  the first person makes to another person (the second person) a threat to cause serious harm to the second person or to a third person; and

                     (b)  the second person or the third person is a former Governor-General, a former Minister or a former Parliamentary Secretary; and

                     (c)  the first person:

                              (i)  intends the second person to fear that the threat will be carried out; or

                             (ii)  is reckless as to causing the second person to fear that the threat will be carried out; and

                     (d)  the first person makes the threat because of:

                              (i)  the second or third person’s status as a former Governor-General, a former Minister or a former Parliamentary Secretary; or

                             (ii)  any conduct engaged in by the second or third person in the second or third person’s former capacity as a Governor-General, a Minister or a Parliamentary Secretary.

Penalty:  Imprisonment for 7 years.

Threats

             (4)  For the purposes of this section, a threat may be:

                     (a)  express or implied; or

                     (b)  conditional or unconditional.

Unnecessary to prove that a threatened person actually feared harm

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

147.3  Geographical jurisdiction

                   Section 15.3 (extended geographical jurisdiction—category C) applies to each offence against this Division.


 

Division 148Impersonation of Commonwealth public officials

148.1  Impersonation of an official by a non-official

             (1)  A person other than a Commonwealth public official is guilty of an offence if:

                     (a)  on a particular occasion, the person impersonates another person in that other person’s capacity as a Commonwealth public official; and

                     (b)  the first-mentioned person does so knowing it to be in circumstances when the official is likely to be on duty; and

                     (c)  the first-mentioned person does so with intent to deceive.

Penalty:  Imprisonment for 2 years.

             (2)  A person other than a Commonwealth public official is guilty of an offence if:

                     (a)  the person falsely represents himself or herself to be a Commonwealth public official in a particular capacity; and

                     (b)  the person does so in the course of doing an act, or attending a place, in the assumed capacity of such an official.

Penalty:  Imprisonment for 2 years.

          (2A)  For the purposes of subsection (2), it is immaterial whether that capacity as a Commonwealth public official exists or is fictitious.

             (3)  A person other than a Commonwealth public official is guilty of an offence if:

                     (a)  the person:

                              (i)  impersonates another person in that other person’s capacity as a Commonwealth public official; or

                             (ii)  falsely represents himself or herself to be a Commonwealth public official in a particular capacity; and

                     (b)  the first-mentioned person does so with the intention of:

                              (i)  obtaining a gain; or

                             (ii)  causing a loss; or

                            (iii)  influencing the exercise of a public duty or function; and

                     (c)  if subparagraph (a)(i) applies—the first-mentioned person also does so with intent to deceive.

Penalty:  Imprisonment for 5 years.

          (3A)  For the purposes of subparagraph (3)(a)(ii), it is immaterial whether that capacity as a Commonwealth public official exists or is fictitious.

             (4)  The definition of duty in section 130.1 does not apply to this section.

             (5)  To avoid doubt, for the purposes of this section:

                     (a)  impersonation does not include conduct engaged in solely for satirical purposes; and

                     (b)  false representation does not include conduct engaged in solely for satirical purposes.

148.2  Impersonation of an official by another official

             (1)  A Commonwealth public official is guilty of an offence if:

                     (a)  on a particular occasion, the official impersonates another person in that other person’s capacity as a Commonwealth public official; and

                     (b)  the first-mentioned official does so knowing it to be in circumstances when the other official is likely to be on duty; and

                     (c)  the first-mentioned official does so with intent to deceive.

Penalty:  Imprisonment for 2 years.

             (2)  A Commonwealth public official is guilty of an offence if:

                     (a)  the official falsely represents himself or herself to be a Commonwealth public official in a particular capacity; and

                     (b)  the official does so in the course of doing an act, or attending a place, in the assumed capacity of such an official.

Penalty:  Imprisonment for 2 years.

          (2A)  For the purposes of subsection (2), it is immaterial whether that capacity as a Commonwealth public official exists or is fictitious.

             (3)  A Commonwealth public official is guilty of an offence if:

                     (a)  the official:

                              (i)  impersonates another person in the other person’s capacity as a Commonwealth public official; or

                             (ii)  falsely represents himself or herself to be a Commonwealth public official in a particular capacity; and

                     (b)  the first-mentioned official does so with the intention of:

                              (i)  obtaining a gain; or

                             (ii)  causing a loss; or

                            (iii)  influencing the exercise of a public duty or function; and

                     (c)  if subparagraph (a)(i) applies—the first-mentioned official also does so with intent to deceive.

Penalty:  Imprisonment for 5 years.

          (3A)  For the purposes of subparagraph (3)(a)(ii), it is immaterial whether that capacity as a Commonwealth public official exists or is fictitious.

             (4)  The definition of duty in section 130.1 does not apply to this section.

             (5)  To avoid doubt, for the purposes of this section:

                     (a)  impersonation does not include conduct engaged in solely for satirical purposes; and

                     (b)  false representation does not include conduct engaged in solely for satirical purposes.

148.3  Geographical jurisdiction

                   Section 15.3 (extended geographical jurisdiction—category C) applies to each offence against this Division.


 

Division 149Obstruction of Commonwealth public officials

149.1  Obstruction of Commonwealth public officials

             (1)  A person is guilty of an offence if:

                     (a)  the person knows that another person is a public official; and

                     (b)  the first-mentioned person obstructs, hinders, intimidates or resists the official in the performance of the official’s functions; and

                     (c)  the official is a Commonwealth public official; and

                     (d)  the functions are functions as a Commonwealth public official.

Penalty:  Imprisonment for 2 years.

             (2)  In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew:

                     (a)  that the official was a Commonwealth public official; or

                     (b)  that the functions were functions as a Commonwealth public official.

             (3)  For the purposes of this section, it is immaterial whether the defendant was aware that the public official was performing the official’s functions.

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

             (5)  The definition of duty in section 130.1 does not apply to this section.

             (6)  In this section:

function:

                     (a)  in relation to a person who is a public official—means any authority, duty, function or power that is conferred on the person as a public official; or

                     (b)  in relation to a person who is a Commonwealth public official—means any authority, duty, function or power that is conferred on the person as a Commonwealth public official.


 

Part 7.20Miscellaneous

Division 261Miscellaneous

261.1  Saving of other laws

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

261.2  Contempt of court

                   This Chapter does not limit the power of a court to punish a contempt of the court.

261.3  Ancillary offences

                   To avoid doubt, subsection 11.6(2) does not apply to the following provisions:

                     (a)  subsection 131.1(2) (theft);

                     (b)  subsection 132.1(2) (receiving);

                     (c)  subsection 132.2(2) (robbery);

                     (d)  subsection 132.3(2) (aggravated robbery);

                     (e)  subsections 132.4(2), (5) and (9) (burglary);

                      (f)  subsection 132.5(2) (aggravated burglary);

                     (g)  the definitions of aggravated burglary, aggravated robbery, burglary, receiving, robbery and theft in the Dictionary.


 

Chapter 8Offences against humanity and related offences

  

Division 268Genocide, crimes against humanity, war crimes and crimes against the administration of the justice of the International Criminal Court

Subdivision A—Introductory

268.1  Purpose of Division

             (1)  The purpose of this Division is to create certain offences that are of international concern and certain related offences.

             (2)  It is the Parliament’s intention that the jurisdiction of the International Criminal Court is to be complementary to the jurisdiction of Australia with respect to offences in this Division that are also crimes within the jurisdiction of that Court.

             (3)  Accordingly, the International Criminal Court Act 2002 does not affect the primacy of Australia’s right to exercise its jurisdiction with respect to offences created by this Division that are also crimes within the jurisdiction of the International Criminal Court.

268.2  Outline of offences

             (1)  Subdivision B creates offences each of which is called genocide.

             (2)  Subdivision C creates offences each of which is called a crime against humanity.

             (3)  Subdivisions D, E, F, G and H create offences each of which is called a war crime.

             (4)  Subdivision J creates offences each of which is called a crime against the administration of the justice of the International Criminal Court.

Subdivision B—Genocide

268.3  Genocide by killing

                   A person (the perpetrator) commits an offence if:

                     (a)  the perpetrator causes the death of one or more persons; and

                     (b)  the person or persons belong to a particular national, ethnical, racial or religious group; and

                     (c)  the perpetrator intends to destroy, in whole or in part, that national, ethnical, racial or religious group, as such.

Penalty:  Imprisonment for life.

268.4  Genocide by causing serious bodily or mental harm

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

                     (a)  the perpetrator causes serious bodily or mental harm to one or more persons; and

                     (b)  the person or persons belong to a particular national, ethnical, racial or religious group; and

                     (c)  the perpetrator intends to destroy, in whole or in part, that national, ethnical, racial or religious group, as such.

Penalty:  Imprisonment for life.

             (2)  In subsection (1):

causes serious bodily or mental harm includes, but is not restricted to, commits acts of torture, rape, sexual violence or inhuman or degrading treatment.

268.5  Genocide by deliberately inflicting conditions of life calculated to bring about physical destruction

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

                     (a)  the perpetrator inflicts certain conditions of life upon one or more persons; and

                     (b)  the person or persons belong to a particular national, ethnical, racial or religious group; and

                     (c)  the perpetrator intends to destroy, in whole or in part, that national, ethnical, racial or religious group, as such; and

                     (d)  the conditions of life are intended to bring about the physical destruction of that group, in whole or in part.

Penalty:  Imprisonment for life.

             (2)  In subsection (1):

conditions of life includes, but is not restricted to, intentional deprivation of resources indispensable for survival, such as deprivation of food or medical services, or systematic expulsion from homes.

268.6  Genocide by imposing measures intended to prevent births

                   A person (the perpetrator) commits an offence if:

                     (a)  the perpetrator imposes certain measures upon one or more persons; and

                     (b)  the person or persons belong to a particular national, ethnical, racial or religious group; and

                     (c)  the perpetrator intends to destroy, in whole or in part, that national, ethnical, racial or religious group, as such; and

                     (d)  the measures imposed are intended to prevent births within that group.

Penalty:  Imprisonment for life.

268.7  Genocide by forcibly transferring children

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

                     (a)  the perpetrator forcibly transfers one or more persons; and

                     (b)  the person or persons belong to a particular national, ethnical, racial or religious group; and

                     (c)  the perpetrator intends to destroy, in whole or in part, that national, ethnical, racial or religious group, as such; and

                     (d)  the transfer is from that group to another national, ethnical, racial or religious group; and

                     (e)  the person or persons are under the age of 18 years; and

                      (f)  the perpetrator knows that, or is reckless as to whether, the person or persons are under that age.

Penalty:  Imprisonment for life.

             (2)  In subsection (1):

forcibly transfers one or more persons includes transfers one or more persons:

                     (a)  by threat of force or coercion (such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power) against the person or persons or against another person; or

                     (b)  by taking advantage of a coercive environment.

Subdivision C—Crimes against humanity

268.8  Crime against humanity—murder

                   A person (the perpetrator) commits an offence if:

                     (a)  the perpetrator causes the death of one or more persons; and

                     (b)  the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.

Penalty:  Imprisonment for life.

268.9  Crime against humanity—extermination

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

                     (a)  the perpetrator causes the death of one or more persons; and

                     (b)  the perpetrator’s conduct constitutes, or takes place as part of, a mass killing of members of a civilian population; and

                     (c)  the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.

Penalty:  Imprisonment for life.

             (2)  In subsection (1):

causes the death of includes causes death by intentionally inflicting conditions of life (such as the deprivation of access to food or medicine) intended to bring about the destruction of part of a population.

268.10  Crime against humanity—enslavement

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

                     (a)  the perpetrator exercises any or all of the powers attaching to the right of ownership over one or more persons (including the exercise of a power in the course of trafficking in persons, in particular women and children); and

                     (b)  the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.

Penalty:  Imprisonment for 25 years.

             (2)  In subsection (1):

exercises any or all of the powers attaching to the right of ownership over a person includes purchases, sells, lends or barters a person or imposes on a person a similar deprivation of liberty and also includes exercise a power arising from a debt incurred or contract made by a person.

268.11  Crime against humanity—deportation or forcible transfer of population

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

                     (a)  the perpetrator forcibly displaces one or more persons, by expulsion or other coercive acts, from an area in which the person or persons are lawfully present to another country or location; and

                     (b)  the forcible displacement is contrary to paragraph 4 of article 12 or article 13 of the Covenant; and

                     (c)  the perpetrator knows of, or is reckless as to, the factual circumstances that establish the lawfulness of the presence of the person or persons in the area; and

                     (d)  the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.

Penalty:  Imprisonment for 17 years.

             (2)  Strict liability applies to paragraph (1)(b).

             (3)  In subsection (1):

forcibly displaces one or more persons includes displaces one or more persons:

                     (a)  by threat of force or coercion (such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power) against the person or persons or against another person; or

                     (b)  by taking advantage of a coercive environment.

268.12  Crime against humanity—imprisonment or other severe deprivation of physical liberty

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

                     (a)  the perpetrator imprisons one or more persons or otherwise severely deprives one or more persons of physical liberty; and

                     (b)  the perpetrator’s conduct violates article 9, 14 or 15 of the Covenant; and

                     (c)  the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.

Penalty:  Imprisonment for 17 years.

             (2)  Strict liability applies to paragraph (1)(b).

268.13  Crime against humanity—torture

                   A person (the perpetrator) commits an offence if:

                     (a)  the perpetrator inflicts severe physical or mental pain or suffering upon one or more persons who are in the custody or under the control of the perpetrator; and

                     (b)  the pain or suffering does not arise only from, and is not inherent in or incidental to, lawful sanctions; and

                     (c)  the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.

Penalty:  Imprisonment for 25 years.

268.14  Crime against humanity—rape

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

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

                     (b)  the perpetrator knows of, or is reckless as to, the lack of consent; and

                     (c)  the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.

Penalty:  Imprisonment for 25 years.

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

                     (a)  the perpetrator causes another person to sexually penetrate the perpetrator without the consent of the other person; and

                     (b)  the perpetrator knows of, or is reckless as to, the lack of consent; and

                     (c)  the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.

Penalty:  Imprisonment for 25 years.

             (3)  In this section:

consent means free and voluntary agreement.

The following are examples of circumstances in which a person does not consent to an act:

(a)           the person submits to the act because of force or the fear of force to the person or to someone else;

(b)           the person submits to the act because the person is unlawfully detained;

(c)           the person is asleep or unconscious, or is so affected by alcohol or another drug as to be incapable of consenting;

(d)           the person is incapable of understanding the essential nature of the act;

(e)           the person is mistaken about the essential nature of the act (for example, the person mistakenly believes that the act is for medical or hygienic purposes);

(f)            the person submits to the act because of psychological oppression or abuse of power;

(g)           the person submits to the act because of the perpetrator taking advantage of a coercive environment.

             (4)  In this section:

sexually penetrate means:

                     (a)  penetrate (to any extent) the genitalia or anus of a person by any part of the body of another person or by any object manipulated by that other person; or

                     (b)  penetrate (to any extent) the mouth of a person by the penis of another person; or

                     (c)  continue to sexually penetrate as defined in paragraph (a) or (b).

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

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

268.15  Crime against humanity—sexual slavery

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

                     (a)  the perpetrator causes another person to enter into or remain in sexual slavery; and

                     (b)  the perpetrator intends to cause, or is reckless as to causing, that sexual slavery; and

                     (c)  the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.

Penalty:  Imprisonment for 25 years.

             (2)  For the purposes of this section, sexual slavery is the condition of a person who provides sexual services and who, because of the use of force or threats:

                     (a)  is not free to cease providing sexual services; or

                     (b)  is not free to leave the place or area where the person provides sexual services.

             (3)  In this section:

sexual service means the use or display of the body of the person providing the service for the sexual gratification of others.

threat means:

                     (a)  a threat of force; or

                     (b)  a threat to cause a person’s deportation; or

                     (c)  a threat of any other detrimental action unless there are reasonable grounds for the threat of that action in connection with the provision of sexual services by a person.

268.16  Crime against humanity—enforced prostitution

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

                     (a)  the perpetrator causes one or more persons to engage in one or more acts of a sexual nature without the consent of the person or persons, including by being reckless as to whether there is consent; and

                     (b)  the perpetrator intends that he or she, or another person, will obtain pecuniary or other advantage in exchange for, or in connection with, the acts of a sexual nature; and

                     (c)  the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.

Penalty:  Imprisonment for 25 years.

             (2)  In subsection (1):

consent means free and voluntary agreement.

The following are examples of circumstances in which a person does not consent to an act:

(a)           the person submits to the act because of force or the fear of force to the person or to someone else;

(b)           the person submits to the act because the person is unlawfully detained;

(c)           the person is asleep or unconscious, or is so affected by alcohol or another drug as to be incapable of consenting;

(d)           the person is incapable of understanding the essential nature of the act;

(e)           the person is mistaken about the essential nature of the act (for example, the person mistakenly believes that the act is for medical or hygienic purposes);

(f)            the person submits to the act because of psychological oppression or abuse of power;

(g)           the person submits to the act because of the perpetrator taking advantage of a coercive environment.

threat of force or coercion includes:

                     (a)  a threat of force or coercion such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power; or

                     (b)  taking advantage of a coercive environment.

             (3)  In subsection (1), being reckless as to whether there is consent to one or more acts of a sexual nature includes not giving any thought to whether or not the person or persons are consenting to engaging in the act or acts of a sexual nature.

268.17  Crime against humanity—forced pregnancy

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

                     (a)  the perpetrator unlawfully confines one or more women forcibly made pregnant; and

                     (b)  the perpetrator intends to affect the ethnic composition of any population or to destroy, wholly or partly, a national, ethnical, racial or religious group, as such; and

                     (c)  the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.

Penalty:  Imprisonment for 25 years.

             (2)  In subsection (1):

forcibly made pregnant includes made pregnant by a consent that was affected by deception or by natural, induced or age-related incapacity.

             (3)  To avoid doubt, this section does not affect any other law of the Commonwealth or any law of a State or Territory.

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