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Crimes Act 1914

  • - C2010C00152
  • In force - Superseded Version
  • View Series
Act No. 12 of 1914 as amended, taking into account amendments up to Act No. 4 of 2010
An Act relating to Offences against the Commonwealth
Administered by: Attorney-General's
Registered 10 Mar 2010
Start Date 20 Feb 2010
End Date 28 Feb 2010
Table of contents.

 

Crimes Act 1914

Act No. 12 of 1914 as amended

This compilation was prepared on 24 February 2010
taking into account amendments up to Act No. 4 of 2010

Volume 2 includes:    Table of Contents
                                 Sections 23WM–91

Schedule

Note 1

Table of Acts

Act Notes

Table of Amendments

Notes 2 and 3

Table A

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

  


Contents

Part ID—Forensic procedures                                                                                         1

Division 4—Non‑intimate forensic procedures on suspect by order of senior constable            1

23WM.. Non‑intimate forensic procedure may be carried out by order of senior constable 1

23WN... Circumstances in which senior constable may order non‑intimate forensic procedures          2

23WO... Matters to be considered by senior constable before ordering forensic procedure  2

23WP.... Record of senior constable’s order..................................................... 3

Division 5—Forensic procedures on suspect by order of a magistrate 4

Subdivision A—General                                                                                             4

23WQ... Forensic procedure may be carried out by order of magistrate.......... 4

23WR.... Circumstances in which magistrate may order forensic procedure..... 4

Subdivision B—Final orders                                                                                     4

23WS.... Final order for carrying out of forensic procedure.............................. 4

23WT.... Matters to be considered by magistrate before ordering forensic procedure           5

23WU... Application for order.......................................................................... 6

23WV.... Securing the presence of suspect at hearing—suspect in custody..... 6

23WW... Securing the presence of suspect at hearing—suspect not in custody 7

23WX... Procedure at hearing of application for order..................................... 8

23WY.... Making of order.................................................................................. 9

Subdivision C—Interim orders                                                                                 9

23XA.... Interim order for carrying out of a forensic procedure....................... 9

23XB.... Application for interim order........................................................... 10

23XC.... Procedure at hearing of application for interim order....................... 11

23XD.... Making of interim order.................................................................... 11

23XE..... Records of application and interim order......................................... 12

23XF..... Suspect may be prevented from destroying or contaminating evidence  12

23XG.... Results of forensic procedure carried out under interim order......... 13

Subdivision D—Time limits for forensic procedures ordered by magistrates 13

23XGA. Application....................................................................................... 13

23XGB. Time for carrying out forensic procedure—suspect not in custody 13

23XGC. Arrest of suspect not in custody...................................................... 14

23XGD. Time for carrying out forensic procedure—suspect in custody....... 15

Subdivision E—Reports of proceedings under Division                                     16

23XH.... Restrictions on publication............................................................... 16

Division 6—Carrying out forensic procedures on suspects                  17

Subdivision A—General provisions                                                                       17

23XI...... General rules for carrying out forensic procedures........................... 17

23XIA... No questioning during forensic procedure........................................ 17

23XIB... Suspect must be cautioned before forensic procedure starts............ 17

23XJ..... Use of force in carrying out forensic procedures.............................. 18

23XK.... Forensic procedures not to be carried out in cruel, inhuman or degrading manner  18

23XL..... Taking of hair samples...................................................................... 18

Subdivision B—Persons involved in forensic procedures                                 18

23XM... Persons who may carry out forensic procedures............................. 18

Subdivision C—Further provisions about who may carry out forensic procedures            22

23XN.... Certain forensic procedures generally to be carried out by person of same sex as suspect     22

23XO.... Person may get help to carry out forensic procedures..................... 23

Subdivision D—Presence of other people while forensic procedure is carried out            23

23XP..... Medical practitioner or dentist of suspect’s choice may be present for intimate forensic procedures   23

23XQ.... Presence of interview friend or legal representative—children and incapable persons            24

23XR.... Presence of interview friend or legal representative—Aboriginal persons and Torres Strait Islanders   24

23XS..... Presence of constables...................................................................... 25

23XSA.. Presence of prison officers............................................................... 26

Subdivision E—Recording of forensic procedure                                               26

23XT.... Recording of forensic procedure....................................................... 26

Subdivision F—Procedure after forensic procedure is carried out                 27

23XU.... Samples—sufficient material to share.............................................. 27

23XUA. Samples—insufficient material to share........................................... 27

23XV.... Photographs...................................................................................... 28

23XW... Results of analysis............................................................................ 28

23XWA Preventing the carrying out of forensic procedure............................ 28

Division 6A—Carrying out of certain forensic procedures after conviction of serious and prescribed offenders                                                                                                  29

23XWB. Forensic procedures to which Division applies............................... 29

23XWC. Non‑intimate forensic procedures authorised to be carried out on offenders          29

23XWD Intimate forensic procedures authorised to be carried out on serious offenders      30

23XWE. Application of Division 6................................................................. 30

23XWF. Scope of authorisation...................................................................... 30

23XWG Informed consent to forensic procedures......................................... 31

23XWH Constable may request offender to consent to forensic procedure.. 31

23XWI.. Matters to be considered by constable before requesting consent to forensic procedure       31

23XWJ.. Matters that offender must be informed of before giving consent... 32

23XWK Circumstances in which constable may order non‑intimate forensic procedure      33

23XWL. Matters to be considered by constable............................................. 33

23XWM.................................... Recording of giving of information and consent  34

23XWN Record of constable’s order.............................................................. 34

23XWO Judge or magistrate order for carrying out forensic procedure on offender             34

23XWP. Carrying out forensic procedure following conviction..................... 35

Division 6B—Carrying out of forensic procedures on volunteers and certain other persons  37

23XWQ Carrying out of forensic procedures on volunteers.......................... 37

23XWR. Informed consent of volunteer or parent or guardian of volunteer... 38

23XWS. Recording of giving of information and consent............................... 39

23XWT. Withdrawal of consent...................................................................... 39

23XWU Circumstances in which magistrate may order the carrying out of forensic procedure on a child or incapable person.......................................................................................................... 40

23XWV. Retention of forensic material by order of a magistrate after volunteer, parent or guardian of child or incapable person withdraws consent............................................................................ 41

Division 7—Admissibility of evidence                                                               43

Subdivision A—Forensic evidence                                                                         43

23XX.... Inadmissibility of evidence from improper forensic procedures etc. 43

23XY.... Inadmissibility of evidence where forensic material required to be destroyed        45

Subdivision B—Other evidence                                                                              45

23XZ.... Admissibility of evidence relating to consent to forensic procedure 45

23YA.... Admissibility of evidence relating to carrying out of forensic procedure                45

23YB..... Obstructing the carrying out of forensic procedure.......................... 46

Division 8—Destruction of forensic material                                                 47

23YC..... Destruction of forensic material where interim order disallowed..... 47

23YD.... Destruction of forensic material after 12 months............................. 47

23YDAADestruction of forensic material taken from offender after conviction quashed     49

23YDABDestruction of forensic material where related evidence is inadmissible 49

Division 8A—Commonwealth and State/Territory DNA database systems        50

23YDACDefinitions........................................................................................ 50

23YDACAIntegration of Commonwealth DNA database system and State/Territory DNA database systems  52

23YDADSupply of forensic material for purposes of DNA database........... 53

23YDAEUse of information on Commonwealth DNA database system or NCIDD            54

23YDAF................................................. Permissible matching of DNA profiles  55

23YDAGRecording, retention and removal of identifying information on Commonwealth DNA database system             57

Division 9—General provisions relating to operation of this Part     59

23YDA. Interpreters....................................................................................... 59

23YE..... Powers etc. of legal representatives and interview friends............... 59

23YF..... Obligation of investigating constables relating to tape recordings.... 60

23YG.... Material required to be made available to suspect, offender or volunteer               61

23YH.... No charge to be made for giving material etc. to suspects, offenders and volunteers              62

23YI...... Proof of belief or suspicion.............................................................. 62

23YJ...... Proof of impracticability.................................................................. 62

23YJA... Proof that time should be disregarded.............................................. 62

23YK.... Proof of voluntary waiver of certain rights...................................... 62

23YL..... Liability for forensic procedures...................................................... 63

23YM... Experts not obliged to carry out forensic procedures....................... 63

23YN.... Retention of electronic recordings.................................................... 63

23YO.... Disclosure of information................................................................. 63

23YP..... Taking, retention and use of forensic material.................................. 65

23YQ.... Commissioner may delegate functions and powers.......................... 66

Division 10—Operation of this Part and effect on other laws               67

23YQA. Part does not apply to persons under 10......................................... 67

23YR..... Relationship with Part IAA............................................................. 67

23YS..... Relationship with Part IC................................................................. 67

23YU.... Application of other laws................................................................. 67

Division 11—Interjurisdictional enforcement                                               69

23YUA. Definitions........................................................................................ 69

23YUB.. Registration of orders....................................................................... 69

23YUC.. Carrying out of registered orders...................................................... 70

23YUD. Database information........................................................................ 70

Division 11A—Operation of this Part in relation to certain incidents 73

23YUE.. Definitions........................................................................................ 73

23YUF.. Application of this Division............................................................. 73

23YUG. Use of information on DNA database systems................................ 74

23YUH. Permissible matching of DNA profiles............................................. 75

23YUI... Disclosure of information................................................................. 75

23YUJ... This Division does not restrict operation of this Part...................... 76

23YUK. Review of operation of this Division............................................... 76

Division 11B—Concurrent operation of State and Territory laws     78

23YUL.. Concurrent operation of State and Territory laws........................... 78

Division 12—Review of operation of Part                                                       79

23YV..... Review of operation of Part............................................................. 79

Part II—Offences against the Government                                                           81

24AA.... Treachery.......................................................................................... 81

24AB.... Sabotage............................................................................................ 82

24AC.... Institution of prosecutions............................................................... 83

24F........ Certain acts done in good faith not unlawful.................................... 84

25.......... Inciting mutiny................................................................................. 85

26.......... Assisting prisoners of war to escape................................................ 86

27.......... Unlawful drilling............................................................................... 86

28.......... Interfering with political liberty....................................................... 86

29.......... Destroying or damaging Commonwealth property.......................... 87

Part IIA—Protection of the Constitution and of public and other services                88

30A....... Unlawful associations....................................................................... 88

30AA.... Application for declaration as to unlawful association.................... 89

30AB.... Attorney‑General may require information...................................... 90

30B....... Officers of unlawful associations..................................................... 91

30C....... Advocating or inciting to crime......................................................... 91

30D....... Giving or soliciting contributions for unlawful associations............ 91

30E........ Books etc. issued by unlawful association not transmissible by post 92

30F........ Prohibition of sale of books etc. issued by unlawful association..... 92

30FA..... Imprints on publications.................................................................. 92

30FC..... Owner etc. of building permitting meeting of unlawful association. 93

30FD..... Disqualification from voting of member of unlawful association..... 93

30G....... Forfeiture of property held by an unlawful association................... 93

30H....... Proof of membership of an association............................................ 93

30J........ Industrial disturbances, lock‑outs and strikes.................................. 94

30K....... Obstructing or hindering the performance of services...................... 95

30R....... Books etc. taken to have been issued by associations...................... 96

Part III—Offences relating to the administration of justice                         97

31.......... Interpretation.................................................................................... 97

34.......... Judge or magistrate acting oppressively or when interested............ 97

35.......... Giving false testimony...................................................................... 98

36.......... Fabricating evidence.......................................................................... 98

36A....... Intimidation of witnesses etc............................................................ 98

37.......... Corruption of witnesses................................................................... 99

38.......... Deceiving witnesses.......................................................................... 99

39.......... Destroying evidence......................................................................... 99

40.......... Preventing witnesses from attending Court.................................... 100

41.......... Conspiracy to bring false accusation.............................................. 100

42.......... Conspiracy to defeat justice........................................................... 101

43.......... Attempting to pervert justice......................................................... 102

44.......... Compounding offences................................................................... 103

45.......... Inserting advertisements without authority of Court..................... 103

46.......... Aiding prisoner to escape............................................................... 103

47.......... Escaping.......................................................................................... 105

47A....... Rescuing a prisoner from custody etc............................................ 105

47B....... Person unlawfully at large.............................................................. 105

47C....... Permitting escape............................................................................ 106

48.......... Harbouring etc. an escapee............................................................. 107

48A....... Sentence ceases to run while escaped prisoner at large.................. 107

49.......... Removing property under seizure.................................................. 107

Part IIIA—Child sex tourism                                                                                       108

Division 1—Preliminary                                                                                          108

50AA.... General............................................................................................ 108

50AB.... Meaning of act of indecency............................................................ 109

50AC.... Meaning of sexual intercourse........................................................ 109

50AD.... Who can be prosecuted for an offence committed overseas........... 110

Division 2—Sexual offences against children overseas                         111

50BA.... Sexual intercourse with child under 16........................................... 111

50BB..... Inducing child under 16 to engage in sexual intercourse.................. 111

50BC..... Sexual conduct involving child under 16......................................... 112

50BD.... Inducing child under 16 to be involved in sexual conduct............... 113

Division 3—Defences                                                                                               114

50CA.... Defence based on belief about age.................................................. 114

50CB..... Defence based on valid and genuine marriage................................. 114

50CC..... Defence must be proved on balance of probabilities...................... 114

50CD.... Jury may consider reasonableness of alleged belief........................ 114

Division 4—Offences of benefiting from, or encouraging, offences against this Part    115

50DA.... Benefiting from offence against this Part........................................ 115

50DB.... Encouraging offence against this Part............................................. 115

Division 5—Video link evidence                                                                        117

50EA..... When court may take evidence by video link................................. 117

50EB..... Motion of parties........................................................................... 117

50EC..... Technical requirements for video link............................................. 117

50ED..... Application of laws about witnesses............................................. 118

50EE..... Administration of oaths and affirmations....................................... 118

50EF..... Expenses......................................................................................... 118

50EG..... Other laws about foreign evidence not affected.............................. 118

Division 6—Other rules about conduct of trials                                         119

50FA..... Certain material taken to be evidence of age................................... 119

50FB..... Alternative verdicts........................................................................ 119

50FC..... Double jeopardy............................................................................. 120

50FD..... Sentencing....................................................................................... 120

Division 7—Saving of other laws                                                                        121

50GA.... Saving of other laws........................................................................ 121

Part IV—Piracy                                                                                                                    122

51.......... Interpretation.................................................................................. 122

52.......... Piracy.............................................................................................. 123

53.......... Operating a pirate‑controlled ship or aircraft................................. 123

54.......... Seizure of pirate ships and aircraft etc........................................... 123

55.......... Written consent of Attorney‑General required.............................. 124

56.......... Evidence of certain matters............................................................. 125

Part VI—Offences by and against public officers                                            126

70.......... Disclosure of information by Commonwealth officers.................. 126

Part VII—Official secrets and unlawful soundings                                          127

77.......... Interpretation.................................................................................. 127

79.......... Official secrets................................................................................ 128

80.......... Prohibited places............................................................................ 132

83.......... Unlawful soundings........................................................................ 133

85.......... Institution of prosecution............................................................... 134

85B....... Hearing in camera etc...................................................................... 134

85D....... Forfeiture of articles etc.................................................................. 135

Part VIIA—Offences relating to postal services                                              136

85E........ Interpretation—definitions............................................................. 136

85F........ Interpretation—expressions used in Australian Postal Corporation Act                137

85G....... Forgery of postage stamps etc....................................................... 137

85H....... Special paper for postage stamps................................................... 138

85N....... Wrongful delivery of postal article etc........................................... 139

85Q....... Forgery of postal messages etc....................................................... 139

85R....... Wrongful delivery of postal messages............................................ 139

85T....... Sending false postal messages......................................................... 139

85U....... Obstructing carriage of articles by post.......................................... 140

85V....... Interference with property of Australia Post................................. 140

85W...... Causing narcotic substances to be carried by post......................... 141

85Z....... Articles carried by post to be taken to be Australia Post’s property 141

85ZA.... Postage stamps to be valuable securities etc.................................. 141

Part VIIC—Pardons, quashed convictions and spent convictions           142

Division 1—Interpretation and application of Part                                   142

85ZL..... Interpretation of Part...................................................................... 142

85ZM... Meaning of conviction and spent conviction................................... 146

85ZN.... Meaning of quash........................................................................... 147

85ZP..... Application of Part......................................................................... 147

85ZQ.... Part binds the Crown...................................................................... 147

Division 2—Pardons for persons wrongly convicted, and quashed convictions                148

85ZR..... Pardons for persons wrongly convicted......................................... 148

85ZS..... Effect of pardons for persons wrongly convicted.......................... 148

85ZT..... Quashed convictions....................................................................... 149

85ZU.... Effect of quashed convictions......................................................... 150

Division 3—Spent convictions                                                                             151

85ZV..... Spent convictions........................................................................... 151

85ZW.... Effect of right of non‑disclosure..................................................... 152

Division 4—Convictions of further offences                                                153

85ZX.... Convictions of further Commonwealth or Territory offences....... 153

85ZY..... Convictions of further State or foreign offences............................. 153

Division 5—Complaints to Privacy Commissioner                                   155

85ZZ..... Privacy Commissioner’s functions................................................. 155

85ZZA.. Complaints to the Privacy Commissioner...................................... 156

85ZZB.. Identity of respondent to complaint.............................................. 156

85ZZC.. Investigation of complaints............................................................ 156

85ZZD.. Determinations of Privacy Commissioner...................................... 157

85ZZE.. Payment of compensation or expenses.......................................... 158

85ZZF.. Enforcement of determination or recommendation......................... 159

85ZZG.. Application of Privacy Act............................................................ 159

Division 6—Exclusions                                                                                            160

85ZZH.. Exclusions....................................................................................... 160

85ZZJ... Further exclusions—law enforcement agencies.............................. 161

85ZZK.. Fair reporting: pardons and quashed convictions........................... 162

85ZZL.. Criminal proceedings before the Federal Court of Australia.......... 162

Part VIII—Miscellaneous                                                                                              164

87.......... False certificates............................................................................. 164

89.......... Trespassing on Commonwealth land.............................................. 164

89A....... Discharging firearms on or over Commonwealth land.................... 165

90.......... Trespass by cattle or live stock...................................................... 166

90A....... Destroying etc. posters etc. relating to Commonwealth loans....... 166

90B....... False statements in documents filed etc. under laws of a Territory 166

91.......... Regulations..................................................................................... 166

Schedule—Form of explanation under section 23V                                         167

Notes                                                                                                                                          169


Part IDForensic procedures

Division 4Non‑intimate forensic procedures on suspect by order of senior constable

23WM  Non‑intimate forensic procedure may be carried out by order of senior constable

             (1)  A person is authorised to carry out a non‑intimate forensic procedure on a suspect by order of a senior constable under section 23WN. The person is authorised to carry out the procedure in accordance with Division 6 and not otherwise.

             (2)  This Division does not authorise the carrying out of a forensic procedure on a suspect who is:

                     (a)  a child; or

                     (b)  an incapable person.

             (3)  This Division does not authorise keeping a suspect in custody, in order to carry out a forensic procedure, after the expiration of the investigation period provided for by Part IC.

Note:          If it is necessary to keep a suspect in custody after the expiration of the Part IC investigation period in order to carry out a forensic procedure, an order of a magistrate under Division 5 will have to be obtained to authorise this.

             (4)  Nothing in this Part or Part IC prevents the carrying out of a forensic procedure, in accordance with a constable’s order under section 23WN, during the investigation period provided for by Part IC. However, neither carrying out the forensic procedure, nor any delays associated with carrying out the forensic procedure, operate to extend the investigation period provided for by Part IC.

Note:          By contrast, the carrying out of a forensic procedure in accordance with a magistrate’s order under Division 5, and associated delays, may delay the expiration of the investigation period provided for by Part IC.

23WN  Circumstances in which senior constable may order non‑intimate forensic procedures

                   A senior constable may order the carrying out of a non‑intimate forensic procedure on a suspect who is in custody if:

                     (a)  the suspect has been asked under Division 3 to consent to the carrying out of the forensic procedure; and

                     (b)  the suspect has not consented; and

                     (c)  the senior constable is satisfied as required by section 23WO.

23WO  Matters to be considered by senior constable before ordering forensic procedure

             (1)  The senior constable must be satisfied on the balance of probabilities that:

                     (a)  the suspect is in the lawful custody of a constable; and

                     (b)  there are reasonable grounds to believe that the suspect committed a relevant offence; and

                     (c)  there are reasonable grounds to believe that the forensic procedure is likely to produce evidence tending to confirm or disprove that the suspect committed a relevant offence; and

                     (d)  the carrying out of the forensic procedure without consent is justified in all the circumstances.

             (2)  In determining whether the carrying out of the forensic procedure without consent is justified in all the circumstances, the senior constable must balance the public interest in obtaining evidence tending to confirm or disprove that the suspect committed the offence concerned against the public interest in upholding the physical integrity of the suspect.

             (3)  In balancing those interests, the senior constable must have regard to the following matters:

                     (a)  the seriousness of the circumstances surrounding the commission of the relevant offence and the gravity of the relevant offence;

                     (b)  the degree of the suspect’s alleged participation in the commission of the relevant offence;

                     (c)  the age, physical health and mental health of the suspect, to the extent that they are known to the senior constable or can reasonably be discovered by the senior constable (by asking the suspect or otherwise);

                     (e)  whether there is a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that the suspect committed the relevant offence;

                      (f)  if the suspect gives any reasons for refusing to consent—the reasons;

                     (g)  any other matter considered relevant to balancing those interests.

             (4)  Without limiting the matters that the senior constable may take into account in considering, for the purposes of paragraph (3)(e), the intrusiveness of the forensic procedure, the senior constable must (where appropriate) take into account the religious beliefs of the suspect.

23WP  Record of senior constable’s order

             (1)  The senior constable must, at the time of, or as soon as practicable after, make an order under section 23WN, make a record of:

                     (a)  the order made; and

                     (b)  the date and time when the order was made; and

                     (c)  the reasons for making it;

and must sign the record.

             (2)  The senior constable must ensure that a copy of the record is made available to the suspect as soon as practicable after the record is made.


 

Division 5Forensic procedures on suspect by order of a magistrate

Subdivision AGeneral

23WQ  Forensic procedure may be carried out by order of magistrate

                   A person is authorised to carry out a forensic procedure on a suspect by order of a magistrate under section 23WS or 23XA. The person is authorised to carry out the procedure in accordance with Division 6 and not otherwise.

23WR  Circumstances in which magistrate may order forensic procedure

                   A magistrate may, under section 23WS or 23XA, order the carrying out of a forensic procedure on a suspect if:

                     (a)  the suspect is not in custody and has not consented to the forensic procedure; or

                     (b)  the suspect is in custody and has not consented to the forensic procedure; or

                     (c)  under section 23WE, the suspect cannot consent to the forensic procedure.

Subdivision BFinal orders

23WS  Final order for carrying out of forensic procedure

                   A magistrate may order the carrying out of a forensic procedure on a suspect if:

                     (a)  section 23WR applies; and

                     (b)  the magistrate is satisfied as required by section 23WT.

23WT  Matters to be considered by magistrate before ordering forensic procedure

             (1)  The magistrate must be satisfied on the balance of probabilities that:

                     (a)  the person on whom the procedure is proposed to be carried out is a suspect; and

                     (b)  on the evidence before him or her, there are reasonable grounds to believe that the suspect committed a relevant offence; and

                     (c)  there are reasonable grounds to believe that the forensic procedure is likely to produce evidence tending to confirm or disprove that the suspect committed a relevant offence; and

                     (d)  the carrying out of the forensic procedure is justified in all the circumstances.

             (2)  In determining whether the carrying out of the forensic procedure is justified in all the circumstances, the magistrate must balance the public interest in obtaining evidence tending to confirm or disprove that the suspect committed the offence concerned against the public interest in upholding the physical integrity of the suspect.

             (3)  In balancing those interests, the magistrate must have regard to the following matters:

                     (a)  the seriousness of the circumstances surrounding the commission of the relevant offence and the gravity of the relevant offence;

                     (b)  the degree of the suspect’s alleged participation in the commission of the relevant offence;

                     (c)  the age, physical health and mental health of the suspect, to the extent that they are known to the magistrate or can reasonably be discovered by the magistrate (by asking the suspect or otherwise);

                     (e)  if the suspect is a child or an incapable person—the welfare of the suspect;

                      (f)  whether there is a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that the suspect committed the relevant offence;

                     (g)  if the suspect gives any reasons for refusing to consent—the reasons;

                     (h)  if the suspect is in custody:

                              (i)  the period for which the suspect has already been detained; and

                             (ii)  the reasons for any delay in proposing the carrying out of the forensic procedure;

                      (i)  any other matter considered relevant to balancing those interests.

             (4)  Without limiting the matters that the magistrate may take into account in considering, for the purposes of paragraph (3)(f), the intrusiveness of the forensic procedure, the magistrate must (where appropriate) take into account the religious beliefs of the suspect.

23WU  Application for order

             (1)  An authorised applicant (but no other person) may apply to a magistrate for an order under section 23WS authorising him or her to arrange the carrying out of a forensic procedure on a suspect.

             (2)  An application for an order must:

                     (a)  be made in writing; and

                     (b)  be supported by evidence on oath or by affidavit dealing with the matters referred to in paragraphs 23WT(1)(a), (b), (c) and (d); and

                     (c)  specify the type of forensic procedure sought to be carried out; and

                     (d)  be made in the presence of the suspect (subject to any contrary order made by the magistrate).

23WV  Securing the presence of suspect at hearing—suspect in custody

             (1)  If the suspect is in the custody of another constable or is otherwise detained under a law of the Commonwealth, a State or a Territory (original custody), the magistrate may, on the application of a constable, issue a warrant directing the person holding the suspect in original custody to deliver the suspect into the custody of the constable (temporary custody) for the hearing of an application for an order under this Division.

             (2)  The constable given temporary custody must return the suspect to the place of original custody:

                     (a)  if the application for the order is refused—without delay; or

                     (b)  if the order is made—without delay at the end of the period for which the suspect may be detained in custody under section 23XGD.

23WW  Securing the presence of suspect at hearing—suspect not in custody

             (1)  If the suspect is not in custody, the magistrate may, on the application of a constable:

                     (a)  issue a summons for the appearance of the suspect at the hearing of the application; or

                     (b)  issue a warrant for the arrest of the suspect for the purpose of bringing the suspect before the magistrate for the hearing of the application.

             (2)  An application for a summons under subsection (1) must be:

                     (a)  made by information on oath; and

                     (b)  accompanied by an affidavit dealing with matters referred to in paragraphs (3)(a) and (b).

             (3)  The magistrate may issue a summons only if satisfied:

                     (a)  that the issue of the summons is necessary to ensure the appearance of the suspect at the hearing of the application; or

                     (b)  that the issue of the summons is otherwise justified.

             (4)  An application for a warrant under subsection (1) must be:

                     (a)  made by information on oath; and

                     (b)  accompanied by an affidavit dealing with matters referred to in paragraphs (5)(a), (b) and (c).

             (5)  The magistrate may issue a warrant only if satisfied:

                     (a)  that the arrest is necessary to ensure the appearance of the suspect at the hearing of the application, and that the issue of a summons would not ensure that appearance; or

                     (b)  that the suspect might destroy evidence that might be obtained by carrying out the forensic procedure; or

                     (c)  that the issue of the warrant is otherwise justified.

23WX  Procedure at hearing of application for order

             (1)  An order may only be made in the presence of the suspect concerned, subject to any contrary order made by the magistrate.

             (2)  A suspect who is:

                     (a)  a child; or

                     (b)  an incapable person;

must be represented by an interview friend and may also be represented by a legal practitioner.

             (3)  If the applicant believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander not covered by subsection (2), the suspect must be represented by an interview friend and may also be represented by a legal practitioner.

             (4)  Subsection (3) does not apply if the applicant believes on reasonable grounds that, having regard to the suspect’s level of education and understanding, the suspect is not at a disadvantage in relation to the hearing by comparison with members of the Australian community generally.

             (5)  Any other suspect (including a suspect covered by subsection (4)) may be represented by a legal practitioner.

             (6)  The suspect or his or her representative:

                     (a)  may call or cross‑examine the applicant for the order; and

                     (b)  may, with the leave of the magistrate, call or cross‑examine any other witnesses; and

                     (c)  may address the magistrate.

          (6A)  A magistrate must not give leave under paragraph (6)(b) unless the magistrate is of the opinion that there are substantial reasons why, in the interests of justice, the witness should be called or cross‑examined.

             (7)  In spite of subsection (2) or (3), the suspect’s interview friend may be excluded from the hearing if the interview friend unreasonably interferes with or obstructs the hearing of the application.

23WY  Making of order

             (1)  If a magistrate makes an order for the carrying out of a forensic procedure, the magistrate must:

                     (a)  give reasons for making the order; and

                     (b)  ensure that a written record of the order is kept; and

                     (c)  order the suspect to attend for the carrying out of the forensic procedure; and

                     (d)  inform the suspect that reasonable force may be used to ensure that he or she complies with the order for the carrying out of the forensic procedure.

             (2)  The magistrate may give directions as to the time, place and manner in which the procedure is to be carried out.

Subdivision CInterim orders

23XA  Interim order for carrying out of a forensic procedure

             (1)  A magistrate may make an interim order authorising the carrying out of a forensic procedure on a suspect that must be carried out without delay if:

                     (a)  section 23WR applies; and

                     (b)  the magistrate is satisfied that the probative value of evidence obtained as a result of the forensic procedure concerned is likely to be lost or destroyed if there is delay in carrying out the procedure; and

                     (c)  the magistrate is satisfied that there is sufficient evidence to indicate that a magistrate is reasonably likely to be satisfied of the existence of the matters referred to in subsection 23WT(1) when the application is finally determined.

             (2)  An interim order operates as provided by this Subdivision until a magistrate, at a hearing held under Subdivision B, confirms the interim order or disallows the interim order.

Note:          Subsection 23XD(2) requires that an interim order specify the intended date, time and place of the later hearing.

             (3)  Subdivision B applies in relation to an order confirming the interim order in the same way it applies in relation to an order under section 23WS, and an order confirming the interim order is taken to be an order under section 23WS.

23XB  Application for interim order

             (1)  An authorised applicant may, without bringing a suspect before a magistrate and without obtaining an order under section 23WS, make an application seeking an interim order authorising the carrying out of a forensic procedure on a suspect that must be carried out without delay.

             (2)  An application for an interim order must:

                     (a)  be supported by evidence on oath or by affidavit dealing with the matters referred to in paragraphs 23XA(1)(a), (b) and (c); and

                     (b)  specify the type of forensic procedure sought to be carried out.

             (3)  An application for an interim order may be made in person or, if that is not practicable, by telephone, radio, telex, facsimile or other means of transmission.

             (4)  The suspect must be in the presence of the authorised applicant when the application is made.

             (5)  If the suspect is:

                     (a)  a child; or

                     (b)  an incapable person;

an interview friend or legal representative of the suspect must also be in the presence of the authorised applicant.

             (6)  If the applicant believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander not covered by subsection (5), an interview friend or legal representative of the suspect must also be in the presence of the authorised applicant.

             (7)  Subsection (6) does not apply if the applicant believes on reasonable grounds that, having regard to the suspect’s level of education and understanding, the suspect is not at a disadvantage in relation to the application by comparison with members of the Australian community generally.

             (8)  If the suspect is not covered by subsection (5) or (6), the suspect’s legal representative (if any) must also be in the presence of the authorised applicant.

             (9)  In spite of subsection (5) or (6), the suspect’s interview friend may be excluded from the presence of the authorised applicant if the interview friend unreasonably interferes with or obstructs the making of the application.

23XC  Procedure at hearing of application for interim order

             (1)  If the application is made in person, or by telephone or radio or other form of oral communication, the magistrate must ensure that:

                     (a)  the suspect; and

                     (b)  the suspect’s legal representative, if any; and

                     (c)  the suspect’s interview friend, if any;

are given an opportunity to speak to the magistrate.

             (2)  If the application is made by telex, facsimile or other form of written communication, the magistrate must ensure that:

                     (a)  the suspect; and

                     (b)  the suspect’s legal representative, if any; and

                     (c)  the suspect’s interview friend, if any;

are given an opportunity to make a written submission to accompany the application, or to speak to the magistrate by telephone, radio or other form of oral communication.

23XD  Making of interim order

             (1)  A magistrate who makes an interim order must inform the applicant for the order personally, or by telephone, radio, telex, facsimile or other means of transmission:

                     (a)  that the order has been made; and

                     (b)  of the terms of the order, including the matters mentioned in subsection (2); and

                     (c)  of any orders made or directions given under subsection (3) in relation to the order.

             (2)  An interim order must specify the date, time and place at which a further hearing on the application will take place and the application will be finally determined.

             (3)  A magistrate may make such orders and give such directions in relation to an interim order as the magistrate may make or give in relation to an order under section 23WS.

23XE  Records of application and interim order

             (1)  The applicant for an interim order must, at the time of, or as soon as practicable after, applying for the interim order, make a record (the applicant’s record) of:

                     (a)  the application; and

                     (b)  the grounds for seeking the order; and

                     (c)  the order made; and

                     (d)  the date and time when the order was made; and

                     (e)  the magistrate’s name;

and sign the record.

             (2)  The applicant must send a copy of the applicant’s record to the magistrate as soon as practicable after it is made.

             (3)  The magistrate must, at the time of, or as soon as practicable after, making an interim order, make a record (the magistrate’s record) of:

                     (a)  the application; and

                     (b)  the grounds for seeking the order; and

                     (c)  the order made; and

                     (d)  the date and time when the order was made; and

                     (e)  the reasons for making it;

and sign the record.

             (4)  The magistrate must send a copy of the magistrate’s record to the applicant as soon as practicable after the record is made.

             (5)  The applicant must ensure that a copy of the magistrate’s record and a copy of the applicant’s record are made available to the suspect as soon as practicable after the applicant receives the magistrate’s record.

             (6)  If the applicant’s record does not, in all material respects, accord with the magistrate’s record, the order is taken to have had no effect.

23XF  Suspect may be prevented from destroying or contaminating evidence

             (1)  A constable may, while waiting for the application seeking an interim order to be determined, use reasonable force to prevent the suspect destroying or contaminating any evidence that might be obtained by carrying out the forensic procedure if the order is made.

             (2)  Nothing in this section authorises any person to carry out a forensic procedure before an interim order is made.

23XG  Results of forensic procedure carried out under interim order

             (1)  A sample taken under an interim order must not be analysed unless:

                     (a)  the sample is likely to perish before a final order is made; or

                     (b)  a final order is made.

             (2)  A person who conducts an analysis in the circumstances set out in paragraph (1)(a) must not intentionally disclose the results of the analysis to any person:

                     (a)  during the period before a final order is made; or

                     (b)  if the interim order is disallowed.

Penalty for a contravention of subsection (2):           Imprisonment for 12 months.

Subdivision DTime limits for forensic procedures ordered by magistrates

23XGA  Application

                   This Subdivision applies where a magistrate orders the carrying out of a forensic procedure on a suspect under this Part.

23XGB  Time for carrying out forensic procedure—suspect not in custody

             (1)  If a suspect who is not in custody presents himself or herself to the investigating constable to undergo the procedure ordered by the magistrate, the procedure must be carried out as quickly as reasonably possible but in any case within the following period:

                     (a)  if the suspect is a child or an incapable person, or the investigating constable believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander—2 hours after the suspect so presents himself or herself;

                     (b)  in any other case—4 hours after the suspect so presents himself or herself.

             (2)  In working out any period of time for the purposes of subsection (1), the following times are to be disregarded:

                     (a)  the time (if any) that is reasonably required to convey the suspect from the place where the suspect presents himself or herself to the investigating constable to the nearest premises where facilities for carrying out the procedure in accordance with this Part are available to the investigating constable;

                     (b)  any time during which carrying out the procedure is suspended or delayed to allow the suspect, or someone else on the suspect’s behalf, to communicate with a legal practitioner, friend, relative, parent, guardian, interpreter, medical practitioner, dentist or other person as provided by this Part;

                     (c)  any time during which carrying out the procedure is suspended or delayed to allow such a legal practitioner, friend, relative, parent, guardian, interpreter, medical practitioner, dentist or other person to arrive at the place where the procedure is to be carried out;

                     (d)  any time during which carrying out the procedure is suspended or delayed to allow the suspect to receive medical attention;

                     (e)  any time during which carrying out the procedure is suspended or delayed because of the suspect’s intoxication;

                      (f)  any reasonable time during which carrying out the procedure is suspended or delayed to allow the suspect to rest or recuperate;

                     (g)  any time during which carrying out the procedure is suspended or delayed at the request of the suspect.

23XGC  Arrest of suspect not in custody

             (1)  If the suspect is not in custody, the magistrate may, on the application of a constable, issue a warrant for the arrest of the suspect for the purpose of carrying out the forensic procedure.

             (2)  An application for a warrant must be:

                     (a)  made by information on oath; and

                     (b)  accompanied by an affidavit dealing with matters referred to in paragraphs (3)(a) and (b).

             (3)  The magistrate may issue a warrant only if satisfied:

                     (a)  that the arrest is necessary to ensure that the forensic procedure can be carried out; or

                     (b)  that the issue of the warrant is otherwise justified.

             (4)  A magistrate must not issue a warrant for the arrest of a suspect for the purpose of carrying out a forensic procedure if a warrant has previously been issued (by any magistrate) for the arrest of the suspect for the purpose of carrying out that forensic procedure.

23XGD  Time for carrying out forensic procedure—suspect in custody

             (1)  If the suspect is in custody (whether or not as the result of the issue of a warrant under section 23XGC), he or she may be detained in custody for such period (the detention period) as is reasonably necessary to carry out the forensic procedure but in any case for no longer than a period starting when:

                     (a)  the magistrate orders the carrying out of the procedure; or

                     (b)  the suspect is arrested pursuant to a warrant under section 23XGC;

whichever is later, and ending:

                     (c)  if the suspect is a child or an incapable person, or the investigating constable believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander—2 hours later; or

                     (d)  in any other case—4 hours later.

             (2)  In working out any period of time for the purposes of subsection (1), the following times are to be disregarded:

                     (a)  the time (if any) that is reasonably required to convey the suspect from the place where the suspect is when the detention period starts to the nearest premises where facilities for carrying out the procedure in accordance with this Part are available to the investigating constable;

                     (b)  any time during which carrying out the procedure is suspended or delayed to allow the suspect, or someone else on the suspect’s behalf, to communicate with a legal practitioner, friend, relative, parent, guardian, interpreter, medical practitioner, dentist or other person as provided by this Part;

                     (c)  any time during which carrying out the procedure is suspended or delayed to allow such a legal practitioner, friend, relative, parent, guardian, interpreter, medical practitioner, dentist or other person to arrive at the place where the procedure is to be carried out;

                     (d)  any time during which carrying out the procedure is suspended or delayed to allow the suspect to receive medical attention;

                     (e)  any time during which carrying out the procedure is suspended or delayed because of the suspect’s intoxication;

                      (f)  any reasonable time during which carrying out the procedure is suspended or delayed to allow the suspect to rest or recuperate;

                     (g)  any time during which the suspect is being questioned under Part IC;

                     (h)  any time that is to be disregarded under subsection 23C(7) or 23CA(8).

Subdivision EReports of proceedings under Division

23XH  Restrictions on publication

                   A person must not intentionally, in any report of a proceeding under this Division, publish:

                     (a)  the name of the suspect; or

                     (b)  any information likely to enable the identification of the suspect;

unless the suspect has been charged with a relevant offence or the magistrate, by order, has authorised such publication.

Penalty:  Imprisonment for 12 months.


 

Division 6Carrying out forensic procedures on suspects

Subdivision AGeneral provisions

23XI  General rules for carrying out forensic procedures

                   A forensic procedure:

                     (a)  must be carried out in circumstances affording reasonable privacy to the suspect; and

                     (b)  except as permitted (expressly or impliedly) by other provisions of this Part, must not be carried out in the presence or view of a person who is of the opposite sex to the suspect; and

                     (c)  must not be carried out in the presence or view of a person whose presence is not necessary for the purposes of the forensic procedure or required or permitted by another provision of this Part; and

                     (d)  must not involve the removal of more clothing than is necessary for the carrying out of the procedure; and

                     (e)  must not involve more visual inspection than is necessary for the carrying out of the procedure.

23XIA  No questioning during forensic procedure

                   A forensic procedure must not be carried out while the suspect is being questioned as defined in subsection 23B(6). If questioning has not been completed before the forensic procedure is to be carried out, it must be suspended while the forensic procedure is carried out.

23XIB  Suspect must be cautioned before forensic procedure starts

                   Before anyone starts to carry out a forensic procedure on a suspect, a constable must caution the suspect that he or she does not have to say anything while the procedure is carried out but that anything the person does say may be used in evidence.

23XJ  Use of force in carrying out forensic procedures

             (1)  Subject to subsection (2) and section 23XK, a person authorised to carry out a forensic procedure on a person, or a constable, may use reasonable force:

                     (a)  to enable a forensic procedure to be carried out; or

                     (b)  to prevent loss, destruction or contamination of any sample.

             (2)  All forensic procedures are to be carried out in a manner consistent with appropriate medical or other relevant professional standards.

23XK  Forensic procedures not to be carried out in cruel, inhuman or degrading manner

                   For the purpose of this Part, the carrying out of a forensic procedure is not of itself taken to be cruel, inhuman or degrading. However, nothing in this Part authorises the carrying out of a forensic procedure in a cruel, inhuman or degrading manner.

23XL  Taking of hair samples

                   A person is authorised to take a sample of hair of a suspect by removing the root of the hair only if:

                     (a)  the person takes only so much hair as the person believes is necessary for analysis of the sample, or other examination of the hair, to be carried out for the purpose of investigating the offence; and

                     (b)  each strand of hair is taken individually using the least painful technique known and available to the person.

Subdivision BPersons involved in forensic procedures

23XM  Persons who may carry out forensic procedures

             (1)  The table following subsection (4) shows, for each forensic procedure, the persons who may carry out the procedure under this Part. A person not specified in the second column of the table is not authorised to carry out a forensic procedure under this Part except as mentioned in section 23XO.

             (2)  The third column of the table following subsection (4) shows, for each forensic procedure, whether the suspect is entitled to request that a medical practitioner or dentist of the suspect’s choice is present while the forensic procedure is carried out.

Note:          Section 23XP makes detailed provision for the presence of a medical practitioner or dentist of the suspect’s choice while a forensic procedure is carried out.

             (3)  A person is authorised to carry out a particular forensic procedure if he or she is an appropriately qualified person in relation to the procedure even if the person also satisfies another description specified in the following table that is not specified in relation to the particular forensic procedure.

Example:    A constable who is an appropriately qualified person to take samples of blood may take such samples even though the table does not expressly list constables as persons who may take samples of blood.

             (4)  This section does not prevent a suspect from taking a sample of saliva, or a sample by buccal swab, from himself or herself under the supervision of an appropriately qualified person.

 

Who may carry out forensic procedures

 







Forensic procedure






Persons who may carry out forensic procedure

Is suspect entitled to request presence of medical practitioner or dentist of suspect’s choice?

1

external examination of the genital or anal area, the buttocks or, in the case of a female, the breasts

medical practitioner

nurse

appropriately qualified person

yes (medical practitioner)

2

the taking of a sample of blood

medical practitioner

nurse

appropriately qualified person

yes (medical practitioner)

3

the taking of a sample of saliva, or a sample by buccal swab

medical practitioner

dentist

dental technician

nurse

appropriately qualified person

yes (dentist or medical practitioner)

4

the taking of a sample of pubic hair

medical practitioner

nurse

appropriately qualified person

yes (medical practitioner)

5

the taking of a sample by swab or washing from the external genital or anal area, the buttocks or, in the case of a female, the breasts

medical practitioner

nurse

appropriately qualified person

yes (medical practitioner)

6

the taking of a sample by vacuum suction, scraping or lifting by tape from the external genital or anal area, the buttocks or, in the case of a female, the breasts

medical practitioner

nurse

appropriately qualified person

yes (medical practitioner)

7

the taking of a dental impression

medical practitioner

dentist

dental technician

yes (dentist or medical practitioner)

8

the taking of a photograph or a video recording of, or an impression or cast of a wound from, the genital or anal area, the buttocks or, in the case of a female, the breasts

appropriately qualified person

yes (medical practitioner)

9

external examination of a part of the body other than the genital or anal area, the buttocks or, in the case of a female, the breasts, that requires touching of the body or removal of clothing

medical practitioner

nurse

appropriately qualified person

no

10

the taking of a sample of hair other than pubic hair

medical practitioner

nurse

constable

appropriately qualified person

no

11

the taking of a sample from a nail or from under a nail

medical practitioner

nurse

constable

appropriately qualified person

no

12

the taking of a sample by swab or washing from any external part of the body other than the genital or anal area, the buttocks or, in the case of a female, the breasts

medical practitioner

nurse

appropriately qualified person

no

13

the taking of a sample by vacuum suction, scraping or lifting by tape from any external part of the body other than the genital or anal area, the buttocks or, in the case of a female, the breasts

medical practitioner

nurse

appropriately qualified person

no

14

the taking of a hand print, finger print, foot print or toe print

appropriately qualified person

no

15

the taking of a photograph or a video recording of, or an impression or cast of a wound from, an external part of the body other than the genital or anal area, the buttocks or, in the case of a female, the breasts

appropriately qualified person

no

Note:          Appropriately qualified (as used in the expression “appropriately qualified person”) is defined in section 23WA.

Subdivision CFurther provisions about who may carry out forensic procedures

23XN  Certain forensic procedures generally to be carried out by person of same sex as suspect

             (1)  If practicable, an intimate forensic procedure (other than the taking of a sample of blood, a sample of saliva, a buccal swab or a dental impression) is to be carried out:

                     (a)  if the suspect is an adult—by a person of the same sex as the suspect; or

                     (b)  if the suspect is a child—by a person of the sex chosen by the suspect or, if the suspect does not wish to make such a choice, by a person of the same sex as the suspect.

             (2)  If practicable, a non‑intimate forensic procedure for which the suspect is required to remove clothing other than his or her overcoat, coat, jacket, gloves, socks, shoes and hat is to be carried out:

                     (a)  if the suspect is an adult—by a person of the same sex as the suspect; or

                     (b)  if the suspect is a child—by a person of the sex chosen by the suspect or, if the suspect does not wish to make such a choice, by a person of the same sex as the suspect.

             (3)  If practicable, a person asked under section 23XO to help carry out a forensic procedure covered by subsection (1) or (2):

                     (a)  is to be:

                              (i)  if the suspect is an adult—a person of the same sex as the suspect; or

                             (ii)  if the suspect is a child—a person of the sex chosen by the suspect or, if the suspect does not wish to make such a choice, by a person of the same sex as the suspect; and

                     (b)  is to be a person who is not inappropriate to help carry out the forensic procedure.

23XO  Person may get help to carry out forensic procedures

             (1)  A person who is authorised to carry out a forensic procedure under the table in section 23XM is authorised to ask another person to help him or her to carry out the procedure, and the other person is authorised to give that help.

             (2)  A person who is asked to help carry out a forensic procedure need not be a person mentioned in the table in section 23XM.

             (3)  A person who is asked to help carry out a forensic procedure may use reasonable force to enable the forensic procedure to be carried out.

Subdivision DPresence of other people while forensic procedure is carried out

23XP  Medical practitioner or dentist of suspect’s choice may be present for intimate forensic procedures

             (1)  A suspect is entitled to request a medical practitioner or dentist (the expert) of his or her choice as shown in the table in section 23XM to be present while a forensic procedure (other than a non‑intimate forensic procedure) is carried out.

Note:          Section 23YE provides that the request may be made by the suspect’s legal representative or interview friend.

             (2)  The expert chosen is to be present at the forensic procedure unless he or she:

                     (a)  is unable, or does not wish, to attend; or

                     (b)  cannot be contacted;

within a reasonable time or, if relevant, within the time in which the person responsible for the effective carrying out of the forensic procedure considers the forensic procedure should be carried out if it is to be effective in affording evidence of the relevant offence.

23XQ  Presence of interview friend or legal representative—children and incapable persons

             (1)  This section applies if the suspect is:

                     (a)  a child; or

                     (b)  an incapable person.

             (2)  Either an interview friend or a legal representative (if he or she is not the interview friend) of the suspect must be present while the forensic procedure is carried out. Both an interview friend and a legal representative may be present.

             (3)  An interview friend (other than a legal representative) of the suspect may be excluded from the place where the forensic procedure is being carried out if the interview friend unreasonably interferes with or obstructs the carrying out of the procedure.

23XR  Presence of interview friend or legal representative—Aboriginal persons and Torres Strait Islanders

             (1)  This section applies if the investigating constable believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander not covered by section 23XQ.

             (2)  Either an interview friend or a legal representative (if he or she is not the interview friend) of the suspect must be present while the forensic procedure is carried out. Both an interview friend and a legal representative may be present.

             (3)  Subsection (2) does not apply if:

                     (a)  the investigating constable believes on reasonable grounds that, having regard to the suspect’s level of education and understanding, the suspect is not at a disadvantage in respect of the carrying out of the forensic procedure by comparison with members of the Australian community generally; or

                     (b)  the suspect expressly and voluntarily waives his or her right to have an interview friend present.

Note:          Section 23YK relates to proving a waiver under subsection (3).

             (4)  An interview friend (other than a legal representative) of the suspect may be excluded from the place where the forensic procedure is being carried out if the interview friend unreasonably interferes with or obstructs the carrying out of the procedure.

23XS  Presence of constables

             (1)  The number of constables that may be present during the carrying out of a forensic procedure must not exceed that which is reasonably necessary to ensure that the procedure is carried out effectively and in accordance with this Part.

             (2)  Where the presence of a constable (other than a constable who is carrying out or helping to carry out the procedure) is reasonably necessary to ensure that a forensic procedure is carried out effectively and in accordance with this Part, the constable is:

                     (a)  if the suspect is a child—to be of the same sex as the suspect; or

                     (b)  in any other case—to be of the same sex as the suspect unless it is not practicable for such a constable to attend within a reasonable time.

Note:          Section 23XN provides that, if practicable, most forensic procedures are to be carried out by persons of the same sex as the suspect.

             (3)  This section does not apply to the following forensic procedures:

                     (a)  the taking of hand prints, finger prints, foot prints or toe prints;

                     (b)  any non‑intimate forensic procedure that may be carried out without requiring the suspect to remove any clothing except his or her overcoat, coat, jacket, gloves, socks, shoes and hat.

23XSA  Presence of prison officers

                   If:

                     (a)  a particular suspect is being detained in prison; and

                     (b)  a forensic procedure is to be carried out on the suspect (whether or not the forensic procedure is to be carried out in prison);

one or more prison officers may be present while the forensic procedure is carried out.

Subdivision ERecording of forensic procedure

23XT  Recording of forensic procedure

             (1)  The carrying out of a forensic procedure (other than the taking of a hand print, finger print, foot print or toe print) must be video recorded unless:

                     (a)  the suspect objects to the video recording; or

                     (b)  the video recording is not practicable.

             (2)  Before the forensic procedure is carried out, the suspect must be informed:

                     (a)  of the reasons for video recording the carrying out of the forensic procedure, including the protection that the video recording provides for the suspect; and

                     (b)  that the suspect may object to the video recording.

             (3)  In spite of section 23YE, an interview friend of an Aboriginal person or a Torres Strait Islander not covered by section 23XQ has no right to object to the video recording of the forensic procedure.

Note:          Section 23YE gives interview friends and legal representatives general powers to act on behalf of suspects. Section 23XQ applies to children and incapable persons, including children or incapable persons who are Aboriginal persons or Torres Strait Islanders, but does not apply to other Aboriginal persons or Torres Strait Islanders.

             (4)  If the carrying out of the forensic procedure is not to be video recorded, the forensic procedure must be carried out in the presence of an independent person (not a constable).

Subdivision FProcedure after forensic procedure is carried out

23XU  Samples—sufficient material to share

             (1)  This section applies to a sample taken from a suspect under this Part if there is sufficient material to be analysed both in the investigation of the offence and on behalf of the suspect.

             (2)  The investigating constable must ensure that:

                     (a)  a part of the material sufficient for analysis is made available to the suspect as soon as practicable after the procedure has been carried out; and

                     (b)  that reasonable care is taken to ensure that the suspect’s part of the material is protected and preserved until the suspect receives it; and

                     (c)  that reasonable assistance is given to the suspect to ensure that the material is protected and preserved until it can be analysed.

Note:          Division 9 contains provisions about making material available to the suspect.

23XUA  Samples—insufficient material to share

             (1)  This section applies to a sample taken from a suspect under this Part if:

                     (a)  there is not sufficient material to be analysed both in the investigation of the offence and on behalf of the suspect; and

                     (b)  the material does not need to be analysed immediately after the sample is taken.

             (2)  The suspect is entitled to request that a person of his or her choice be present while the material is analysed in the investigation of the offence.

Note:          Section 23YE provides that the request may be made by the suspect’s legal representative or interview friend.

             (3)  The person chosen is to be present at the analysis of the material unless he or she:

                     (a)  is unable, or does not wish, to attend; or

                     (b)  cannot be contacted;

within a reasonable time or, if relevant, within the time in which the person responsible for analysing the material considers the analysis should be carried out if it is to provide valid results.

23XV  Photographs

                   Where a forensic procedure involves the taking of a photograph of a part of a suspect’s body, the investigating constable must ensure that a copy of the photograph is made available to the suspect.

Note:          Division 9 contains provisions about making copies of material available to the suspect.

23XW  Results of analysis

                   If material from a sample taken from a suspect is analysed in the investigation of the offence, the investigating constable must ensure that a copy of the results of the analysis is made available to the suspect.

Note:          Division 9 contains provisions about making copies of material available to the suspect.

23XWA  Preventing the carrying out of forensic procedure

                   A person is guilty of an offence if the person obstructs, hinders or resists a person carrying out a forensic procedure in accordance with this Part.

Penalty:  Imprisonment for 2 years.


 

Division 6ACarrying out of certain forensic procedures after conviction of serious and prescribed offenders

23XWB  Forensic procedures to which Division applies

Intimate forensic procedures to which Division applies

             (1)  This Division applies to the following intimate forensic procedures:

                     (a)  the taking of a sample of blood;

                     (b)  the taking of a buccal swab.

Non‑intimate forensic procedures to which Division applies

             (2)  This Division applies to the following non‑intimate forensic procedures:

                     (a)  the taking of samples of hair other than pubic hair;

                     (b)  the taking of fingerprints.

Application of Division

             (3)  A person is authorised by this section to carry out a forensic procedure under this Division on a serious offender or a prescribed offender whether convicted of the serious or prescribed offence concerned before or after the commencement of this section.

23XWC  Non‑intimate forensic procedures authorised to be carried out on offenders

             (1)  A person is authorised to carry out a non‑intimate forensic procedure to which this Division applies on a person (other than a child or an incapable person) who is a serious offender:

                     (a)  with the informed consent of the serious offender; or

                     (b)  by order of a constable under section 23XWK.

             (2)  A person is authorised to take the fingerprints of a prescribed offender (other than a child or an incapable person):

                     (a)  with the informed consent of the prescribed offender; or

                     (b)  by order of a constable under section 23XWK.

             (3)  A person is authorised to carry out a non‑intimate forensic procedure to which this Division applies on a child or an incapable person who is a serious offender, or to take the fingerprints of a child or incapable person who is a prescribed offender, by order of a magistrate under section 23XWO.

23XWD  Intimate forensic procedures authorised to be carried out on serious offenders

                   A person is authorised to carry out an intimate forensic procedure to which this Division applies on a person (other than a child or incapable person) who is a serious offender:

                     (a)  with the informed consent of the serious offender; or

                     (b)  by order of a magistrate under section 23XWO.

23XWE  Application of Division 6

             (1)  Division 6 applies to the carrying out under this Division of a forensic procedure on an offender as if the references to the suspect in Division 6 were references to the offender.

             (2)  A person is authorised by section 23XWC or 23XWD to carry out a forensic procedure under this Division in accordance with Division 6 as applied by this section and not otherwise.

23XWF  Scope of authorisation

             (1)  A person is not authorised to carry out a forensic procedure under this Division on a serious offender or a prescribed offender if the serious offender or prescribed offender is a suspect or a volunteer.

             (2)  A forensic procedure may be carried out on a serious offender or prescribed offender who is a suspect only if authorised by and in accordance with Divisions 2 to 5.

             (3)  A forensic procedure may be carried out on a serious offender or prescribed offender who is a volunteer only if authorised by and in accordance with Division 6B.

23XWG  Informed consent to forensic procedures

             (1)  An offender gives informed consent to a forensic procedure if the offender consents after a constable:

                     (a)  requests the offender to consent to the forensic procedure under section 23XWH; and

                     (b)  informs the offender about the forensic procedure in accordance with section 23XWJ; and

                     (c)  gives the offender the opportunity to communicate, or attempt to communicate, with a legal practitioner of the offender’s choice.

             (2)  The constable must allow the offender to communicate, or attempt to communicate, with the legal practitioner in private unless the constable suspects on reasonable grounds that the offender might attempt to destroy or contaminate any evidence that might be obtained by carrying out the forensic procedure.

Note:          Section 23YI states that the burden lies on the prosecution to prove on the balance of probabilities that a constable had a suspicion on reasonable grounds.

23XWH  Constable may request offender to consent to forensic procedure

                   A constable may request:

                     (a)  a serious offender (other than a child or an incapable person) to consent to an intimate or non‑intimate forensic procedure to which this Division applies being carried out on the serious offender; or

                     (b)  a prescribed offender (other than a child or an incapable person) to consent to the taking of the offender’s fingerprints.

23XWI  Matters to be considered by constable before requesting consent to forensic procedure

                   Before a request is made under section 23XWH, the constable must be satisfied on the balance of probabilities that:

                     (a)  in the case of a person on whom the procedure is proposed to be carried out who is not serving a sentence of imprisonment in a prison or other place of detention—that the person is an offender; and

                     (b)  the request for consent to carry out the forensic procedure is justified in all the circumstances.

23XWJ  Matters that offender must be informed of before giving consent

             (1)  The constable must inform the offender of the following:

                     (a)  the purpose for which the forensic procedure is required;

                     (b)  if the constable wants the forensic procedure carried out in relation to an offence—the offence concerned;

                     (c)  the way in which the forensic procedure is to be carried out;

                     (d)  that the forensic procedure may produce evidence against the offender that might be used in a court of law;

                     (e)  that the forensic procedure will be carried out by a person who may carry out the procedure under Division 6 as applied by section 23XWE;

Note:       See section 23XM.

                      (f)  if the forensic procedure is the taking of a sample of blood, that the offender may request that:

                              (i)  if the offender is serving a sentence of imprisonment in a prison or other place of detention—the prison medical officer be present while the blood is taken; or

                             (ii)  if the offender is not serving a sentence of imprisonment—a medical practitioner of the offender’s choice be present while the blood is taken;

                     (g)  that the offender may refuse consent to the carrying out of the forensic procedure;

                     (h)  the consequences of not consenting, as specified in subsection (2) or (3) (whichever is applicable);

                      (i)  the effect of section 23XZ (if applicable);

                      (j)  that information obtained from analysis of forensic material obtained may be placed on the Commonwealth DNA database system and used for the purposes of a criminal investigation or for any other purpose for which the Commonwealth DNA database system may be used under Division 8A.

Effect of failure to consent to non‑intimate forensic procedure

             (2)  The constable must inform a serious offender requested to undergo a non‑intimate forensic procedure to which this Division applies or a prescribed offender requested to consent to the taking of his or her fingerprints that, if the offender does not consent, a constable may order the carrying out of the forensic procedure under section 23XWK if the constable has taken into account the matters set out in section 23XWL.

Effect of failure to consent to intimate forensic procedure

             (3)  The constable must inform a serious offender requested to undergo an intimate forensic procedure to which this Division applies that, if the serious offender does not consent, an application may be made to a magistrate for an order authorising the carrying out of the forensic procedure.

23XWK  Circumstances in which constable may order non‑intimate forensic procedure

                   A constable may order the carrying out of a non‑intimate forensic procedure to which this Division applies on a serious offender or the taking of the fingerprints of a prescribed offender other than a child or an incapable person if:

                     (a)  the offender has been asked under section 23XWH to consent to the carrying out of the forensic procedure; and

                     (b)  the offender has not consented; and

                     (c)  the constable has taken into account the matters set out in section 23XWL.

23XWL  Matters to be considered by constable

                   In determining whether to make an order under section 23XWK, the constable is to take into account:

                     (a)  whether this Part would authorise the forensic procedure to be carried out in the absence of the order; and

                     (b)  the seriousness of the circumstances surrounding the offence committed by the offender; and

                     (c)  whether the carrying out of the forensic procedure could assist law enforcement, whether Federal or otherwise; and

                     (d)  whether the carrying out of the forensic procedure without consent is justified in all the circumstances.

23XWM  Recording of giving of information and consent

             (1)  The constable must, if practicable, ensure that the giving of the information about the proposed forensic procedure and the offender’s responses (if any) are tape recorded.

             (2)  If tape recording the giving of the information and the offender’s responses (if any) is not practicable, the constable must ensure that:

                     (a)  a written record of the giving of the information and the offender’s responses (if any) is made; and

                     (b)  a copy of the record is made available to the serious offender.

Note:          Division 9 contains provisions about making copies of material (including tapes) available to the serious offender.

23XWN  Record of constable’s order

             (1)  The constable must, at the time of, or as soon as practicable after, making an order under section 23XWK, make a record of:

                     (a)  the order; and

                     (b)  the date and time when the order was made; and

                     (c)  the reasons for making it, and sign the record.

             (2)  The constable must ensure that a copy of the record is made available to the offender as soon as practicable after the record is made.

23XWO  Judge or magistrate order for carrying out forensic procedure on offender

             (1)  An authorised applicant may apply to any judge or magistrate for an order directing a serious offender to consent to an intimate forensic procedure to which this Division applies being carried out on the serious offender.

             (2)  An authorised applicant may apply to any judge or magistrate for an order for the carrying out of a non‑intimate forensic procedure to which this Division applies on a child or an incapable person who is a serious offender.

             (3)  An application under subsection (1) or (2) must be accompanied by an affidavit by the authorised applicant dealing with the matters referred to in subsection (7).

             (4)  An authorised applicant may apply to any judge or magistrate for an order for the taking of the fingerprints under this Division of a child or an incapable person who is a prescribed offender.

             (5)  An authorised applicant may make an application under this section to the judge or magistrate that is sentencing an offender or to any other judge or magistrate at a later time.

             (6)  A judge or magistrate may order the carrying out of a forensic procedure under this Division if satisfied that the carrying out of the forensic procedure is justified in all the circumstances.

             (7)  In determining whether to make an order under this section, a judge or magistrate is to take into account:

                     (a)  whether this Part would authorise the forensic procedure to be carried out in the absence of the order; and

                     (b)  the seriousness of the circumstances surrounding the commission of the offence by the offender; and

                     (c)  whether the carrying out of the forensic procedure could assist law enforcement, whether Federal or otherwise; and

                     (d)  whether the carrying out of the forensic procedure is justified in all the circumstances.

             (8)  An order under this section takes effect immediately. However, the person who conducts any analysis of forensic material obtained as a result of carrying out the forensic procedure on an offender must not disclose the results of the analysis:

                     (a)  until the expiration of any appeal period or after the final determination of any appeal in relation to the offence concerned, whichever is the later; or

                     (b)  if the conviction is quashed.

23XWP  Carrying out forensic procedure following conviction

             (1)  If:

                     (a)  an offender is in prison or another place of detention; and

                     (b)  a judge or magistrate orders the offender to permit a forensic procedure to be carried out under this Division;

the judge or magistrate may order that a constable and a Division 6 person be permitted to attend on the offender in the prison or place of detention to allow the forensic procedure to be carried out.

             (2)  In subsection (1), Division 6 person means a person who, under Division 6 as applied by section 23XWE, may carry out the forensic procedure.

             (3)  If a judge or magistrate orders an offender who is not in a prison or another place of detention to permit a forensic procedure to be carried out, the judge or magistrate may order the offender to attend at a police station (or other place specified by the judge or magistrate) within a period specified by the judge or magistrate to allow the forensic procedure to be carried out.

             (4)  An offender ordered to permit the carrying out of a forensic procedure is guilty of an offence if the offender, without reasonable excuse, refuses or fails to permit the forensic procedure to be carried out.

Penalty:  Imprisonment for 12 months.

Note:          A defendant bears the evidential burden in relation to the exception of reasonable excuse—see subsection 13.3(3) of the Criminal Code.


 

Division 6BCarrying out of forensic procedures on volunteers and certain other persons

23XWQ  Carrying out of forensic procedures on volunteers

             (1)  In this Part:

volunteer means a person:

                     (a)  who volunteers to a constable to undergo a forensic procedure; or

                     (b)  in the case of a child or incapable person—whose parent or guardian volunteers on the child or incapable person’s behalf to a constable that the child or incapable person undergo a forensic procedure.

             (2)  A person is authorised to carry out a forensic procedure:

                     (a)  on a volunteer other than a child or an incapable person—with the informed consent of the volunteer given in accordance with section 23XWR; or

                     (b)  on a volunteer who is a child or an incapable person:

                              (i)  with the informed consent of the parent or guardian of the volunteer given in accordance with section 23XWR or by order of a magistrate under section 23XWU; and

                             (ii)  after the person has informed the child or incapable person that, even though consent has been given or an order made, if he or she objects to or resists the carrying out of the forensic procedure it will not be carried out.

             (3)  This section only authorises a person to carry out a forensic procedure if the procedure is necessary, or incidental to, the carrying out of an AFP function.

             (4)  This section does not authorise a person to carry out a forensic procedure on a child or an incapable person who objects to or resists the carrying out of the forensic procedure.

             (5)  Division 6 applies to the carrying out of a forensic procedure under this Division as if the references to a suspect in that Division were references to a volunteer referred to in this section. A person is authorised by this section to carry out a forensic procedure on a volunteer in accordance with Division 6 as so applied and not otherwise.

23XWR  Informed consent of volunteer or parent or guardian of volunteer

             (1)  A volunteer, or parent or guardian of a volunteer, gives informed consent in accordance with this section if the volunteer, parent or guardian consents in the presence of an independent person (not being a constable) after a constable informs the volunteer, parent or guardian of the following matters:

                     (a)  the way in which the forensic procedure is to be carried out;

                     (b)  that the volunteer is under no obligation to undergo the forensic procedure;

                     (c)  that the forensic procedure may produce evidence that might be used in a court of law;

                     (d)  to the extent that they are relevant, the matters specified in subsection (2);

                     (e)  that the volunteer, parent or guardian may consult a legal practitioner of the volunteer’s, parent’s or guardian’s choice before deciding whether or not to consent to the forensic procedure;

                      (f)  that the volunteer, parent or guardian may at any time withdraw consent to:

                              (i)  the volunteer undergoing the forensic procedure; or

                             (ii)  retention of the forensic material taken; or

                            (iii)  retention of information obtained from the analysis of that material.

             (2)  The constable must inform the volunteer, or parent or guardian of the volunteer, of the following:

                     (a)  that information obtained from analysis of forensic material taken from a person under this Division, and as to the identity of the person, may be placed on the Commonwealth DNA database system;

                     (b)  that the volunteer has a choice as to whether the information is stored on the volunteers (limited purposes) index or the volunteers (unlimited purposes) index of that system;

                    (ba)  if the information is placed on the volunteers (limited purposes) index—the purpose for which the information is placed on the index and that the information may only be used for that purpose;

                     (c)  if the information is placed on the volunteers (unlimited purposes) index—that the information may be used for the purposes of a criminal investigation or any other purpose for which the Commonwealth DNA database system may be used under Division 8A;

                     (d)  that information placed on the Commonwealth DNA database system will be retained for such period as the Commissioner and the volunteer (or, in the case of a volunteer who is a child or an incapable person, a parent or guardian of the volunteer) agree and must then be removed from the system;

                     (e)  any other matters prescribed by the regulations.

23XWS  Recording of giving of information and consent

             (1)  The constable must, if practicable, ensure that the giving of the information about the proposed forensic procedure and the volunteer’s or volunteer’s parent’s or guardian’s responses (if any) are tape recorded.

             (2)  If tape recording the giving of information and the volunteer’s, parent’s or guardian’s responses (if any) is not practicable, the constable must ensure that:

                     (a)  a written record of the giving of the information and the volunteer’s, parent’s or guardian’s responses (if any) is made; and

                     (b)  a copy of the record is made available to the volunteer, parent or guardian.

23XWT  Withdrawal of consent

             (1)  If a volunteer, or parent or guardian of the volunteer, expressly withdraws consent to the carrying out of a forensic procedure under this Division (or if the withdrawal of such consent can reasonably be inferred from the volunteer’s, parent’s or guardian’s conduct) before or during the carrying out of the forensic procedure:

                     (a)  the forensic procedure is to be treated from the time of the withdrawal as a forensic procedure for which consent has been refused; and

                     (b)  the forensic procedure is not to proceed except (in the case of a child or incapable person) by order of a magistrate under section 23XWU.

             (2)  If:

                     (a)  a forensic procedure is carried out on a volunteer under this Division; and

                     (b)  after the procedure is carried out, the volunteer, or the parent or guardian of the volunteer, expressly withdraws consent to retention of the forensic material taken or of information obtained from the analysis of that material;

then, subject to any order made under section 23XWV, the forensic material and any information obtained from analysis of the material is to be destroyed as soon as practicable after the consent is withdrawn.

             (3)  A constable may request, but cannot require, a parent or guardian who withdraws consent to the carrying out of a forensic procedure under this Division to confirm the withdrawal of consent in writing.

23XWU  Circumstances in which magistrate may order the carrying out of forensic procedure on a child or incapable person

             (1)  A magistrate may order the carrying out of a forensic procedure on a child or incapable person if:

                     (a)  the consent of the parent or guardian of the child or incapable person to the carrying out of the forensic procedure cannot reasonably be obtained from a parent or guardian of the child or incapable person; or

                     (b)  the parent or guardian of the child or incapable person refuses consent to the carrying out of the forensic procedure and the magistrate is satisfied that there are reasonable grounds to believe:

                              (i)  that the parent or guardian is a suspect; and

                             (ii)  that the forensic procedure is likely to produce evidence tending to confirm or disprove that he or she committed an offence; or

                     (c)  the parent or guardian of the child or incapable person consented to the carrying out of the forensic procedure, but subsequently withdraws that consent.

             (2)  In determining whether to make an order under this section, the magistrate is to take into account the following:

                     (a)  whether this Part would authorise the carrying out of the forensic procedure apart from this section;

                     (b)  if the forensic procedure is being carried out for the purposes of the investigation of a particular offence—the seriousness of the circumstances surrounding the commission of the offence;

                     (c)  the best interests of the child or incapable person;

                     (d)  so far as they can be ascertained, any wishes of the child or incapable person with respect to whether the forensic procedure should be carried out;

Note:          A forensic procedure cannot be carried out on a child or an incapable person who objects to or resists the carrying out of the procedure even if the magistrate makes an order. See subparagraph 23XWQ(2)(b)(ii) and subsection 23XWQ(3).

                     (e)  except in the circumstances referred to in paragraph (1)(b), any wishes expressed by the parent or guardian of the child or incapable person with respect to whether the forensic procedure should be carried out;

                      (f)  whether the carrying out of the forensic procedure is justified in all the circumstances.

             (3)  An order under this section may:

                     (a)  require the forensic procedure to be carried out at a time, or place, or in a manner, specified in the order; or

                     (b)  specify the period for which forensic material obtained from carrying out the procedure may be retained.

23XWV  Retention of forensic material by order of a magistrate after volunteer, parent or guardian of child or incapable person withdraws consent

             (1)  An authorised applicant may apply to a magistrate for an order under subsection (2).

             (2)  A magistrate may order that forensic material taken or information obtained from carrying out a forensic procedure on a volunteer who withdraws consent, or parent or guardian of a volunteer who withdraws consent, as the case may be, to the retention of the material be retained if the magistrate is satisfied that:

                     (a)  during an investigation into the commission of a serious offence, material reasonably believed to be from the body of a person who committed the offence had been found:

                              (i)  at the scene of the offence; or

                             (ii)  on the victim of the offence or anything reasonably believed to have been worn or carried by the victim when the offence was committed; or

                            (iii)  on the volunteer or anything reasonably believed to have been worn or carried by the volunteer at the scene of the offence or when the offence was committed; or

                            (iv)  on an object or person reasonably believed to have been associated with the commission of the offence; and

                     (b)  there are reasonable grounds to believe that information obtained from analysis of the forensic material taken from the volunteer is likely to produce evidence of probative value in relation to the serious offence being investigated; and

                     (c)  the retention of the forensic material taken from the volunteer is justified in all the circumstances.

             (3)  The order may specify the period for which the forensic material taken or information obtained from carrying out the procedure may be retained.


 

Division 7Admissibility of evidence

Subdivision AForensic evidence

23XX  Inadmissibility of evidence from improper forensic procedures etc.

             (1)  This section applies where:

                     (a)  a forensic procedure has been carried out on a person; and

                     (b)  there has been a breach of, or failure to comply with:

                              (i)  any provision of this Part in relation to a forensic procedure carried out on the person (including, but not limited to, any breach or failure to comply with a provision requiring things to be done at any time before or after the forensic procedure is carried out); or

                             (ii)  any provision of Division 8A with respect to recording or use of information on the Commonwealth DNA database system.

             (2)  This section does not apply where:

                     (a)  a provision of this Part required forensic material to be destroyed; and

                     (b)  the forensic material has not been destroyed.

Note:          Section 23XY applies where this Part requires forensic material to have been destroyed.

             (3)  This section applies to:

                     (a)  evidence of forensic material, or evidence consisting of forensic material, taken from the person by the forensic procedure; and

                     (b)  evidence of any results of the analysis of the forensic material; and

                     (c)  any other evidence made or obtained as a result of or in connection with the carrying out of the forensic procedure.

             (4)  Where this section applies, evidence described in subsection (3) is not admissible in any proceedings against the person in a court unless:

                     (a)  the person does not object to the admission of the evidence; or

                     (b)  the court is satisfied on the balance of probabilities of matters that, in the court’s opinion, justify the admission of the evidence in the proceedings in spite of the failure to comply with the provisions of this Part.

             (5)  The matters that may be considered by the court for the purposes of paragraph (4)(b) are the following:

                     (a)  the probative value of the evidence, including whether equivalent evidence or evidence of equivalent probative value could have been obtained by other means;

                     (b)  the reasons given for the failure to comply with the provisions of this Part;

                     (c)  the gravity of the failure to comply with the provisions of this Part, and whether the failure deprived the person of a significant protection under this Part;

                     (d)  whether the failure to comply with the provisions of this Part was intentional or reckless;

                     (e)  the nature of the provision of this Part that was not complied with;

                      (f)  the nature of the offence concerned and the subject matter of the proceedings;

                     (g)  whether admitting the evidence would seriously undermine the protection given to persons by this Part;

                     (h)  any other matters the court considers to be relevant.

             (6)  The probative value of the evidence does not by itself justify the admission of the evidence.

             (7)  If a judge permits evidence to be given before a jury under subsection (4), the judge must:

                     (a)  inform the jury of the breach of, or failure to comply with, a provision of this Part; and

                     (b)  give the jury such warning about the evidence as the judge thinks appropriate in the circumstances.

23XY  Inadmissibility of evidence where forensic material required to be destroyed

             (1)  If a provision of this Part requires forensic material taken from a person by a forensic procedure to be destroyed, subsection (2) applies to:

                     (a)  evidence of the forensic material; and

                     (b)  if the material has not been destroyed—evidence consisting of the forensic material; and

                     (c)  any results of the analysis of the forensic material; and

                     (d)  any other evidence made or obtained as a result of or in connection with the carrying out of the forensic procedure.

             (2)  The results of the analysis, and the other evidence, are not admissible if adduced by the prosecution in any proceedings against the person, but may be admissible if adduced in such proceedings by the person.

Subdivision BOther evidence

23XZ  Admissibility of evidence relating to consent to forensic procedure

                   Evidence of a person’s refusal or failure to consent, or withdrawal of consent, to a forensic procedure is not admissible in proceedings against the person except to establish or rebut an allegation that a constable or another person investigating the commission of the offence concerned acted contrary to law in carrying out that investigation.

23YA  Admissibility of evidence relating to carrying out of forensic procedure

                   In spite of subsection 23XX(4), evidence of how a forensic procedure was carried out is admissible in proceedings against the person in a court:

                     (a)  to establish or rebut an allegation that unreasonable force was used to enable the procedure to be carried out; or

                     (b)  to determine the admissibility of a confession or admission or other evidence adverse to the person where the person alleges that the evidence was induced or obtained by the use of unreasonable force; or

                     (c)  to establish or rebut an allegation that the forensic procedure was not carried out in accordance with Division 6.

23YB  Obstructing the carrying out of forensic procedure

             (1)  This section applies where a constable or magistrate has ordered the carrying out of a forensic procedure on a suspect under this Part.

             (2)  Subject to subsections (3) and (4), evidence that the suspect:

                     (a)  refused to comply with any reasonable direction in connection with the carrying out of the forensic procedure; or

                     (b)  obstructed, resisted, hindered, used violence against, threatened or intimidated a person in connection with the carrying out of the forensic procedure;

is admissible in any proceedings against the suspect in respect of a relevant offence.

             (3)  Evidence described in subsection (2) is not admissible if the forensic procedure was in fact carried out satisfactorily.

             (4)  Evidence described in subsection (2) is not admissible unless it is established that the suspect:

                     (a)  had been informed by a constable as described in subsection 23WA(4); or

                     (b)  otherwise knew;

that the fact of refusing to comply with the direction, or obstructing, resisting, hindering, using violence against, threatening or intimidating the person, in connection with the carrying out of the forensic procedure might be used in evidence against the suspect.

             (5)  The court or jury may draw such inferences from the evidence described in subsection (2) as appear to the court or jury to be proper in the circumstances, having regard to any evidence given by or on behalf of the suspect.


 

Division 8Destruction of forensic material

23YC  Destruction of forensic material where interim order disallowed

             (1)  If an interim order for the carrying out of a forensic procedure made under section 23XA is disallowed after the forensic procedure is carried out, the investigating constable must ensure that:

                     (a)  all forensic material obtained as a result of the carrying out of the procedure is destroyed as soon as practicable after the disallowance; and

                     (b)  a copy of the results of any analysis of the forensic material are made available to the suspect.

Note:          Division 9 contains provisions about making copies of material available to the suspect.

             (2)  If an order for the carrying out of a forensic procedure made under section 23XWU or for the retention of forensic material under section 23XWV specifies a period for which forensic material obtained as a result of the carrying out of the procedure may be retained, the forensic material is to be destroyed as soon as practicable after the end of the period.

23YD  Destruction of forensic material after 12 months

             (1)  This section applies where forensic material has been taken from a suspect by a forensic procedure carried out under this Part (except Divisions 6A and 6B).

             (2)  If:

                     (a)  a period of 12 months has elapsed since the forensic material was taken; and

                     (b)  proceedings in respect of a relevant offence have not been instituted against the suspect, or have been discontinued;

the forensic material must be destroyed as soon as practicable unless a warrant for apprehension of the suspect has been issued.

             (3)  If:

                     (a)  the suspect is found to have committed a relevant offence but no conviction is recorded; or

                     (b)  the suspect is acquitted of such an offence and:

                              (i)  no appeal is lodged against the acquittal; or

                             (ii)  an appeal is lodged against the acquittal and the acquittal is confirmed or the appeal is withdrawn;

                            the forensic material must be destroyed as soon as practicable unless an investigation into, or a proceeding against the suspect for, another relevant offence is pending.

             (4)  If a warrant for the apprehension of the suspect is issued during the period of 12 months after forensic material is taken, the forensic material must be destroyed as soon as practicable after:

                     (a)  the warrant lapses; or

                     (b)  a period of 12 months elapses after the suspect is apprehended.

             (5)  A magistrate may, on application by a constable or the Director of Public Prosecutions, extend for a period not exceeding 12 months the period for which forensic material may be retained under this section, if the magistrate is satisfied there are special reasons for doing so.

             (6)  A magistrate to whom an application is made under subsection (5) is not to extend the period unless:

                     (a)  the person from whom the forensic material was taken has been notified by the applicant for the extension that the application has been made; and

                     (b)  the person or his or her legal representative or interview friend (if any) has been given the opportunity to speak to or make a submission to the magistrate concerning the extension.

             (7)  An extension in relation to particular forensic material may be given on more than one occasion.

             (8)  The magistrate is to ensure that the responsible person in relation to the Commonwealth DNA database system is notified of any extension given under this section.

23YDAA  Destruction of forensic material taken from offender after conviction quashed

                   The constable who obtained an authority under section 23XWG, 23XWK or 23XWO for the carrying out of a forensic procedure on an offender whose conviction is quashed after the making of the order must ensure that any forensic material obtained as a result of the carrying out of the procedure is destroyed as soon as practicable after the conviction is quashed.

23YDAB  Destruction of forensic material where related evidence is inadmissible

                   If a magistrate finds that evidence described in subsection 23XX(3) relating to a forensic procedure is inadmissible under section 23XX, the Commissioner must, as soon as practicable, ensure that any forensic material taken from the person by that forensic procedure is destroyed.


 

Division 8ACommonwealth and State/Territory DNA database systems

23YDAC  Definitions

                   In this Part:

Commonwealth agency means:

                     (a)  the Commonwealth; or

                     (b)  an authority of the Commonwealth.

Commonwealth DNA database system means a database (whether in computerised or other form and however described) containing:

                     (a)  the following indexes of DNA profiles (in so far as they relate to material taken or obtained by a Commonwealth agency):

                              (i)  a crime scene index;

                             (ii)  a missing persons index;

                            (iii)  an unknown deceased persons index;

                            (iv)  a serious offenders index;

                             (v)  a volunteers (unlimited purposes) index;

                            (vi)  a volunteers (limited purposes) index;

                           (vii)  a suspects index;

                            and, if the material is forensic material, information that may be used to identify the person from whose forensic material each DNA profile was derived; and

                     (b)  a statistical index (in so far as it relates to forensic material taken in accordance with this Part); and

                     (c)  any other index prescribed by the regulations for the purposes of this definition.

crime scene index means an index of DNA profiles derived from forensic material found:

                     (a)  at any place (whether within or outside Australia) where an offence (whether a prescribed offence or an offence under the law of a participating jurisdiction) was, or is reasonably suspected of having been, committed; or

                     (b)  on or within the body of the victim, or a person reasonably suspected of being a victim, of a prescribed offence; or

                     (c)  on anything worn or carried by the victim at the time when a prescribed offence was, or is reasonably suspected of having been, committed; or

                     (d)  on or within the body of any person, on any thing, or at any place, associated with the commission of a prescribed offence.

missing persons index means an index of DNA profiles derived from forensic material of:

                     (a)  persons who are missing; and

                     (b)  volunteers who are relatives by blood of missing persons.

National Criminal Investigation DNA Database or NCIDD means the database that is known as the National Criminal Investigation DNA Database and that is managed by the Commonwealth.

NCIDD: see National Criminal Investigation DNA Database.

serious offenders index means an index of DNA profiles derived from forensic material taken from:

                     (a)  serious offenders in accordance with Division 6A, or under a corresponding law of a participating jurisdiction; and

                     (b)  suspects who have been convicted of a prescribed offence or an offence under a corresponding law of a participating jurisdiction.

State/Territory DNA database system means a database (whether in computerised or other form and however described) held by, or on behalf of, a participating jurisdiction for the purposes of a corresponding law.

statistical index means an index of information that:

                     (a)  is obtained from the analysis of forensic material taken from persons in accordance with this Part or under a corresponding law of a participating jurisdiction; and

                     (b)  has been compiled for statistical purposes; and

                     (c)  cannot be used to discover the identity of persons from whom the forensic material was taken.

suspects index means an index of DNA profiles derived from forensic material taken from suspects in accordance with Division 3, 4 or 5 or under a corresponding law of a participating jurisdiction.

unknown deceased persons index means an index of DNA profiles derived from forensic material of deceased persons whose identities are unknown.

volunteers (limited purposes) index means an index of DNA profiles derived from forensic material taken in accordance with Division 6B or under a corresponding law of a participating jurisdiction from volunteers who (or whose parents or guardians) have been informed that information obtained will be used only for a purpose specified to them under paragraph 23XWR(2)(b).

volunteers (unlimited purposes) index means an index of DNA profiles derived from forensic material taken:

                     (a)  from volunteers who (or whose parents or guardians) have been informed under paragraph 23XWR(2)(c) that information obtained may be used for the purpose of a criminal investigation or any other purpose for which the Commonwealth DNA database system may be used under this Division, in accordance with Division 6B, or under a corresponding law of a participating jurisdiction; and

                     (b)  from deceased persons whose identity is known.

23YDACA  Integration of Commonwealth DNA database system and State/Territory DNA database systems

             (1)  The whole or a part of the Commonwealth DNA database system, or information obtained from the Commonwealth DNA database system, may be integrated (whether electronically or otherwise) with:

                     (a)  the whole or a part of one or more State/Territory DNA database systems; or

                     (b)  information obtained from one or more State/Territory DNA database systems;

to form part of NCIDD.

             (2)  A participating jurisdiction, or an authority of a participating jurisdiction, may access NCIDD to the extent that it consists of:

                     (a)  the whole or a part of the State/Territory DNA database system of the participating jurisdiction; or

                     (b)  information obtained from the State/Territory DNA database system of the participating jurisdiction;

but only if the participating jurisdiction, or the authority of the participating jurisdiction, is required or authorised by or under a law of the participating jurisdiction to access the State/Territory DNA database system of the participating jurisdiction.

             (3)  No part of a State/Territory DNA database system, and no information obtained from a State/Territory DNA database system, forms part of the Commonwealth DNA database system by reason only of any integration referred to in subsection (1).

             (4)  No part of the Commonwealth DNA database system, and no information obtained from the Commonwealth DNA database system, forms part of a State/Territory DNA database system by reason only of any integration referred to in subsection (1).

             (5)  The existence of the Commonwealth DNA database system or a State/Territory DNA database system is not affected by reason only of any integration referred to in subsection (1).

23YDAD  Supply of forensic material for purposes of DNA database

             (1)  A person is guilty of an offence if:

                     (a)  the person engages in conduct; and

                     (b)  the person’s conduct results in the forensic material taken from any person, and which is required to be destroyed, under this Part or under a corresponding law of a participating jurisdiction, to be supplied to another person; and

                     (c)  the person is reckless as to whether the forensic material is required to be destroyed and the supply of the material to the other person; and

                     (d)  the person intends that the forensic material be analysed for the purpose of deriving a DNA profile for inclusion on an index of the Commonwealth DNA database system.

Penalty:  Imprisonment for 2 years.

             (2)  A person is guilty of an offence if:

                     (a)  the person engages in conduct; and

                     (b)  that conduct results in the supply of forensic material to any person and the person is reckless as to that result; and

                     (c)  the person is reckless as to whether the forensic material is not excluded forensic material; and

                     (d)  the person intends that the forensic material be analysed for the purpose of deriving a DNA profile for inclusion on an index of the Commonwealth DNA database system.

Penalty:  Imprisonment for 2 years.

             (3)  In this section:

excluded forensic material means forensic material:

                     (a)  found at a crime scene; or

                     (b)  taken from a suspect in accordance with Division 3, 4 or 5 or under a corresponding law of a participating jurisdiction; or

                     (c)  taken from a serious offender or a volunteer in accordance with Division 6A or 6B or under a corresponding law of a participating jurisdiction; or

                     (d)  taken from the body of a deceased person; or

                     (e)  that is from the body of a missing person; or

                      (f)  taken from a volunteer who is a relative by blood of a deceased or missing person.

23YDAE  Use of information on Commonwealth DNA database system or NCIDD

             (1)  A person is guilty of an offence if the person accesses information stored on the Commonwealth DNA database system or NCIDD otherwise than in accordance with this section.

Penalty:  Imprisonment for 2 years.

             (2)  A person may access information stored on the Commonwealth DNA database system or NCIDD for one or more of the following purposes:

                     (a)  the purpose of forensic comparison permitted under section 23YDAF (permissible matching);

                     (b)  the purpose of making the information available, in accordance with the regulations, to the person to whom the information relates;

                     (c)  the purpose of administering the Commonwealth DNA database system, NCIDD or a State/Territory DNA database system;

                     (d)  the purpose of any arrangement mentioned in subsection 23YUD(1) or (1A) entered into between the Commonwealth and a State or Territory for the provision of access to information contained in the Commonwealth DNA database system or a State/Territory DNA database system by law enforcement officers or by any other persons prescribed by the regulations;

                     (e)  the purpose of and in accordance with the Mutual Assistance in Criminal Matters Act 1987 or the Extradition Act 1988;

                      (f)  the purpose of a coronial inquest or inquiry;

                     (g)  the purpose of an investigation of a complaint by the Privacy Commissioner of the Commonwealth or of a participating jurisdiction.

          (2A)  A person may access information stored on NCIDD in the circumstances permitted by subsection 23YDACA(2).

             (3)  This section does not apply to information that cannot be used to discover the identity of any person.

23YDAF  Permissible matching of DNA profiles

             (1)  A matching of a DNA profile on an index of the Commonwealth DNA database system specified in column 1 of the following table with a DNA profile on another index of the system specified in column 2, 3, 4, 5, 6, 7 or 8 of the table is not permitted by this Part if:

                     (a)  “no” is shown in relation to the index specified in column 2, 3, 4, 5, 6, 7 or 8 opposite the index specified in column 1; or

                     (b)  “only if within purpose” is shown in relation to the index specified in column 2, 3, 4, 5, 6, 7 or 8 opposite the volunteers (limited purposes) index specified in column 1 and the matching is carried out for a purpose other than a purpose for which the DNA profile placed on the volunteers (limited purposes) index specified in column 1 was so placed.

 

Profile to be matched

Is matching permitted?

Column 1

Column 2
Crime scene

Column 3
Suspects

Column 4
Volunteers (limited purposes)

Column 5
Volunteers (unlimited purposes)

Column 6
Serious offenders

Column 7
Missing persons

Column 8
Unknown deceased persons

1. crime scene

yes

yes

only if within purpose

yes

yes

yes

yes

2. suspects

yes

yes

only if within purpose

yes

yes

yes

yes

3. volunteers (limited purposes)

only if within purpose

only if within purpose

only if within purpose

only if within purpose

only if within purpose

only if within purpose

only if within purpose

4. volunteers (unlimited purposes)

yes

yes

only if within purpose

yes

yes

yes

yes

5. serious offenders

yes

yes

only if within purpose

yes

yes

yes

yes

6. missing persons

yes

yes

only if within purpose

yes

yes

yes

yes

7.
unknown deceased persons

yes

yes

only if within purpose

yes

yes

yes

yes

             (2)  A person is guilty of an offence if:

                     (a)  the person’s conduct causes the matching that is not permitted by this Part of a DNA profile on an index of the Commonwealth DNA database system with a DNA profile on the same or another index of the Commonwealth DNA database system; and

                     (b)  the person is reckless as to any such matching of profiles.

Penalty:  Imprisonment for 2 years.

             (3)  This section does not make it an offence for conduct to cause a matching that is not permitted by this Part if the matching is solely for the purposes of administering the Commonwealth DNA database system.

Note:          A defendant bears the evidential burden in relation to the matter in subsection (3)—see subsection 13.3(3) of the Criminal Code.

23YDAG  Recording, retention and removal of identifying information on Commonwealth DNA database system

             (1)  A person is guilty of an offence if:

                     (a)  the person’s conduct causes any identifying information about a person obtained from forensic material taken from the person under this Part to be recorded or retained in the Commonwealth DNA database system at any time after this Part requires the forensic material to be destroyed; and

                     (b)  the person is reckless as to the recording or retention or whether the forensic material is required to be destroyed.

Penalty:  Imprisonment for 2 years.

             (2)  The responsible person is guilty of an offence if he or she does not ensure that any identifying information, relating to a person from whose forensic material a DNA profile on the volunteers (unlimited purposes) index or volunteers (limited purposes) index of the Commonwealth DNA database system was derived, is removed from the system as soon as practicable after the end of the identifying period for the profile.

Penalty:  Imprisonment for 2 years.

Note:          See subsection 23WA(1) for responsible person.

             (3)  The responsible person is guilty of an offence if he or she does not ensure that any identifying information relating to a DNA profile of an offender on the serious offenders index of the Commonwealth DNA database system is removed from the system as soon as practicable after becoming aware that the offender has been pardoned or acquitted of the offence concerned or if the conviction has been quashed.

Penalty:  Imprisonment for 2 years.

Note:          See subsection 23WA(1) for responsible person.

             (4)  In this section:

identifying information means any information that could be used:

                     (a)  to discover the identity of the person from whose forensic material the DNA profile was derived; or

                     (b)  to get information about an identifiable person.

identifying period for a DNA profile means the following:

                     (a)  except as provided by paragraphs (b) and (c), the period of 12 months after the DNA profile is placed on the Commonwealth DNA database system;

                     (b)  if the DNA profile is derived from forensic material taken from a volunteer—such period after the DNA profile is placed on the Commonwealth DNA database system as is agreed by the Commissioner and the volunteer (or, in the case of a volunteer who is a child or an incapable person, a parent or guardian of the volunteer);

                     (c)  if the DNA profile is derived from forensic material taken from a deceased person (not being a person who was a volunteer) whose identity is known—such period as the Commissioner orders the responsible person to retain identifying information relating to the profile.


 

Division 9General provisions relating to operation of this Part

23YDA  Interpreters

             (1)  Where:

                     (a)  a constable proposes to take an action listed in subsection (2); and

                     (b)  the constable believes on reasonable grounds that the suspect is unable, because of inadequate knowledge of the English language or a physical disability, to communicate orally with reasonable fluency in the English language;

the constable must, before taking the proposed action, arrange for the presence of an interpreter, and defer taking the proposed action until the interpreter is present.

             (2)  The actions are as follows:

                     (a)  asking a suspect to consent to a forensic procedure (Division 3);

                     (b)  ordering the carrying out of a non‑intimate forensic procedure on a suspect who is in custody (Division 4);

                     (c)  applying to a magistrate for a final order or an interim order for the carrying out of a forensic procedure on a suspect (Division 5);

                     (d)  cautioning a suspect (Division 6);

                     (e)  carrying out, or arranging for the carrying out of, a forensic procedure on a suspect (Division 6);

                      (f)  giving a suspect an opportunity to view a video recording made under this Part (section 23YF).

23YE  Powers etc. of legal representatives and interview friends

             (1)  A request or objection that may be made by a suspect or offender under this Part may be made on the suspect’s or offender’s behalf by:

                     (a)  in any case—the suspect’s or offender’s legal representative; or

                     (b)  if the suspect or offender is a child or an incapable person—an interview friend of the suspect or offender; or

                     (c)  if the investigating constable believes on reasonable grounds that the suspect or offender is an Aboriginal person or a Torres Strait Islander—an interview friend of the suspect or offender.

             (2)  If:

                     (a)  a provision of this Part requires a suspect or offender to be informed of a matter; and

                     (b)  an interview friend or legal representative of the suspect is present when the suspect or offender is to be so informed; and

                     (c)  the suspect or offender is so informed in a language (including in sign language or braille) in which the suspect’s or offender’s interview friend or legal representative is not able to communicate with reasonable fluency;

the interview friend or legal representative must also be informed of the matter in a language in which the interview friend or legal representative is able to communicate with reasonable fluency.

23YF  Obligation of investigating constables relating to tape recordings

             (1)  If a tape recording is made as required by a provision of this Part, the investigating constable must ensure that:

                     (a)  if an audio recording only or a video recording only is made—the recording, or a copy of it, is made available to the suspect, offender or volunteer; and

                     (b)  if both an audio recording and a video recording are made:

                              (i)  the audio recording, or a copy of it, is made available to the suspect, offender or volunteer; and

                             (ii)  the suspect, offender or volunteer is given an opportunity to view the video recording; and

                     (c)  in any case, if a transcript of the tape recording is made—a copy of the transcript is made available to the suspect, offender or volunteer.

             (2)  Where an investigating constable is required to ensure that a suspect, offender or volunteer is given an opportunity to view a video recording made under this Part, the investigating constable must ensure that the same opportunity is given to:

                     (a)  in any case—the suspect’s, offender’s or volunteer’s legal representative; and

                     (b)  if the suspect, offender or volunteer is a child or an incapable person—an interview friend of the suspect, offender or volunteer; and

                     (c)  if the investigating constable believes on reasonable grounds that the suspect, offender or volunteer is an Aboriginal person or a Torres Strait Islander—an interview friend of the suspect, offender or volunteer.

             (3)  If section 23YD requires forensic material taken from a suspect, offender or volunteer by a forensic procedure to be destroyed, the investigating constable must ensure that any video recording of the carrying out of the forensic procedure is also destroyed.

23YG  Material required to be made available to suspect, offender or volunteer

             (1)  Material from samples, copies, or any other material, that must be made available to a suspect, offender or volunteer under this Part:

                     (a)  may be sent to the suspect, offender or volunteer at his or her last known address (if any), or to the suspect’s, offender’s or volunteer’s legal representative (if any) at his or her last known address; or

                     (b)  if there is no known address as mentioned in paragraph (a)—may be made available for collection by the suspect, offender or volunteer at the police station where the investigating constable was based at the time the forensic procedure was carried out.

             (2)  Material of any kind (other than material from samples and copies of records made under section 23XE) that is required by this Part to be made available to a suspect, offender or volunteer must be made available in accordance with subsection (1):

                     (a)  within 7 days after the material comes into existence; or

                     (b)  if the material is requested by the suspect, offender or volunteer or the suspect’s, offender’s or volunteer’s interview friend or legal representative, within 7 days of the request.

Note:          The timing of making sample material available is covered in section 23XU. The timing of making copies of section 23XE records available is covered in subsection 23XE(5).

23YH  No charge to be made for giving material etc. to suspects, offenders and volunteers

                   If a provision of this Part requires material of any kind to be given to a suspect, offender or volunteer, or an opportunity to view a video recording to be given to a suspect, offender or volunteer, the material or the opportunity to view the video must be given without charge.

23YI  Proof of belief or suspicion

                   In any proceedings, the burden lies on the prosecution to prove on the balance of probabilities that a constable had a belief on reasonable grounds, or suspected on reasonable grounds, as to a matter referred to in this Part.

23YJ  Proof of impracticability

                   In any proceedings, the burden lies on the prosecution to prove on the balance of probabilities that it was not practicable to do something required by this Part to be done if practicable.

23YJA  Proof that time should be disregarded

                   In any proceedings, the burden lies on the prosecution to prove on the balance of probabilities that any particular time was covered by a provision of subsection 23WLA(2), 23XGB(2) or 23XGD(2).

23YK  Proof of voluntary waiver of certain rights

                   In any proceedings:

                     (a)  the burden lies on the prosecution to prove that an Aboriginal person or Torres Strait Islander has waived a right as mentioned in subsection 23WG(3) or subsection 23XR(3); and

                     (b)  the burden is not discharged unless the court is satisfied on the balance of probabilities that the person voluntarily waived that right, and did so with full knowledge and understanding of what he or she was doing.

23YL  Liability for forensic procedures

                   No civil or criminal liability is incurred by any person (including a constable) who carries out, or helps to carry out, a forensic procedure under this Part in respect of anything properly and necessarily done in good faith by the person in carrying out or helping to carry out the forensic procedure if the person believed on reasonable grounds that:

                     (a)  informed consent had been given to the carrying out of the forensic procedure; or

                     (b)  the carrying out of the forensic procedure without informed consent had been duly ordered by a constable or magistrate under this Part.

Note:          This section does not provide any protection in respect of action taken maliciously.

23YM  Experts not obliged to carry out forensic procedures

                   Nothing in this Part requires a medical practitioner, nurse, dentist, dental technician or appropriately qualified person to carry out a forensic procedure.

23YN  Retention of electronic recordings

             (1)  A tape recording made by a constable in accordance with this Part that is no longer required for investigative or evidentiary purposes may be retained for such other purposes, and for such period, as the Commissioner directs.

             (2)  A recording that is retained under this section is to be stored so as to protect it against unauthorised access or use by any person.

23YO  Disclosure of information

             (1)  A person is guilty of an offence if:

                     (a)  the person has access to any information stored on the Commonwealth DNA database system or NCIDD or to any other information revealed by a forensic procedure carried out on a suspect, offender or volunteer; and

                     (b)  the person’s conduct causes the disclosure of information other than as provided by this section; and

                     (c)  the person is reckless as to any such disclosure.

Penalty:  Imprisonment for 2 years.

          (1A)  Paragraph (1)(a) does not apply to access to information stored on NCIDD in the circumstances permitted by subsection 23YDACA(2).

             (2)  A person may only disclose information stored on the Commonwealth DNA database system or NCIDD for one or more of the following purposes:

                     (a)  the purposes of forensic comparison in the course of a criminal investigation by a constable or other person prescribed by the regulations;

                     (b)  the purposes of making the information available, in accordance with the regulations, to the person to whom the information relates;

                     (c)  the purposes of administering the Commonwealth DNA database system, NCIDD or a State/Territory DNA database system;

                     (d)  the purposes of any arrangement mentioned in subsection 23YUD(1) or (1A) entered into between the Commonwealth and a State or Territory for the provision of access to information contained in the Commonwealth DNA database system or a State/Territory DNA database system by law enforcement officers or by any other persons prescribed by the regulations;

                     (e)  the purposes of, and in accordance with, the Mutual Assistance in Criminal Matters Act 1987 or the Extradition Act 1988;

                      (f)  the purpose of a coronial inquest or inquiry;

                     (g)  the purposes of an investigation by the Privacy Commissioner or the Ombudsman of the Commonwealth or of a participating jurisdiction.

             (3)  A person may only disclose information revealed by the carrying out of a forensic procedure as follows:

                     (a)  if the person is the suspect, offender or volunteer to whom the information relates;

                     (b)  if the information is already publicly available;

                     (c)  in accordance with any other provision of this Part;

                     (d)  in accordance with the Mutual Assistance in Criminal Matters Act 1987 or the Extradition Act 1988;

                     (e)  for the purposes of the investigation of any offence or offences generally;

                      (f)  for the purpose of a decision whether to institute proceedings for any offence;

                     (g)  for the purpose of proceedings for any offence;

                     (h)  for the purpose of a coronial inquest or inquiry;

                      (i)  for the purpose of civil proceedings (including disciplinary proceedings) that relate to the way in which the procedure is carried out;

                     (ia)  for the purpose of dealing with or investigating, under Part V or the Australian Federal Police Act 1979, an AFP conduct or practices issue (within the meaning of that Act) that relates to the way in which the procedure is carried out;

                      (j)  for the purposes of the suspect’s, offender’s or volunteer’s medical treatment;

                     (k)  for the purpose of the medical treatment of the victim of an offence that there are reasonable grounds to believe was committed by the suspect;

                      (l)  if the suspect, offender or volunteer consents in writing to the disclosure.

             (4)  This section does not apply to information that cannot be used to discover the identity of any person.

23YP  Taking, retention and use of forensic material

Taking, retention and use authorised by laws of other jurisdictions

             (1)  Nothing in this Part affects the taking, retention or use of forensic material, or information obtained from forensic material, if the taking, retention or use of the material is authorised by or under a law of a State or a Territory.

             (2)  Forensic material, or information obtained from it, that was taken in accordance with a law of a State or a Territory may be retained or used for investigative, evidentiary or statistical purposes of the Commonwealth. The material or information may be retained or used even if its retention or use would, but for this subsection, constitute a breach of, or failure to comply with, any provision of this Part relating to the carrying out of forensic procedures.

Use and retention of forensic material taken before commencement of subsection

             (3)  Forensic material, or information obtained from it, that is taken in accordance with a law of a State or a Territory, as in force immediately before the commencement of this subsection, may be retained or used for investigative, evidentiary or statistical purposes of the Commonwealth. The material or information may be retained or used even if its retention or use would, but for this subsection, constitute a breach of, or failure to comply with, any provision of this Part relating to the carrying out of forensic procedures.

23YQ  Commissioner may delegate functions and powers

             (1)  The Commissioner of the Australian Federal Police may delegate all or any of his or her functions and powers under this Part to a constable or staff member.

             (2)  In subsection (1), staff member has the meaning it has in the Australian Federal Police Act 1979.


 

Division 10Operation of this Part and effect on other laws

23YQA  Part does not apply to persons under 10

                   This Part does not authorise the carrying out of a forensic procedure on a person who is under 10 years of age.

23YR  Relationship with Part IAA

                   This Part does not apply to the taking of hand prints, finger prints, foot prints or toe prints:

                     (a)  from a suspect who is under 18 years of age or is incapable of managing his or her affairs, if the suspect has been arrested and charged as mentioned in section 3ZJ; or

                     (b)  from a suspect who is at least 18 years of age and is capable of managing his or her affairs, if the suspect is in lawful custody in respect of an offence as mentioned in section 3ZJ.

Note:          Part IAA deals with the taking of identification material as defined in subsection 3ZJ(1) (which includes prints) from suspects described in paragraphs 23YR(a) and (b).

23YS  Relationship with Part IC

             (1)  Nothing in this Part is intended to limit the rights and protections provided by Part IC to the extent that the provisions of that Part can operate in circumstances covered by this Part.

             (2)  The rights and protections conferred by this Part are in addition to those conferred by Part IC but, to the extent (if any) that compliance with this Part results in compliance with Part IC, the requirements of Part IC are satisfied.

23YU  Application of other laws

             (1)  This Part is not intended to limit or exclude the operation of another law of the Commonwealth or of a law of a State or Territory relating to:

                     (a)  the carrying out of forensic procedures, including procedures not referred to in this Part; or

                    (aa)  without limiting paragraph (a), the carrying out of breath analysis or a breath test or the production of samples of blood and urine to determine the level of alcohol or drugs, if any, present in a person’s body; or

                     (b)  the taking of forensic samples, including samples not referred to in this Part; or

                     (c)  the taking of identification evidence; or

                     (d)  the carrying out of searches of the person; or

                     (e)  the retention or use of forensic material or information obtained as a result of activities described in paragraphs (a), (b), (c) and (d).

             (2)  To avoid any doubt, it is declared that even though another law of the Commonwealth provides power to do one or more of the things referred to in subsection (1), a similar power conferred by this Part may be used despite the existence of the power under the other law.


 

Division 11Interjurisdictional enforcement

23YUA  Definitions

                   In this Part:

appropriate authority means:

                     (a)  in relation to a participating jurisdiction other than the Australian Capital Territory—an authority exercising, in relation to the police force of that jurisdiction, functions corresponding to those of the Commissioner and any other authority prescribed by the regulations; or

                     (b)  in relation to the Australian Capital Territory—the Commissioner and any other authority prescribed by the regulations.

corresponding law means a law that:

                     (a)  relates to the carrying out of forensic procedures and DNA databases; and

                     (b)  either:

                              (i)  substantially corresponds to this Part; or

                             (ii)  is prescribed by the regulations for the purposes of this definition.

participating jurisdiction means a State or Territory in which there is a corresponding law in force.

responsible Minister of a participating jurisdiction means a Minister of that jurisdiction who is responsible for administration of a corresponding law.

23YUB  Registration of orders

             (1)  The Minister may enter into arrangements with the responsible Ministers of the participating jurisdictions for the establishment and maintenance, in one or more of those jurisdictions, of a register of orders for the carrying out of forensic procedures made under this Part or corresponding laws of participating jurisdictions.

             (2)  An order is registered when a copy of the order (being a copy certified by the person who made it) is registered in accordance with the law of the participating jurisdiction in which the register is kept.

             (3)  An application for registration of an order, or for cancellation of registration of an order, may be made by an appropriate authority.

23YUC  Carrying out of registered orders

             (1)  A person is authorised to carry out the forensic procedure authorised by an order that is registered in accordance with an arrangement referred to in subsection 23YUB(1) anywhere in the Commonwealth. The person is authorised to carry out the procedure in accordance with Division 6 and not otherwise.

             (2)  A constable, or other person assisting a constable in accordance with this Part or a corresponding law of a participating jurisdiction, is not compelled by this Part, or an arrangement referred to in subsection 23YUB(1), to execute an order registered under such an arrangement.

23YUD  Database information

             (1)  The Minister may, on behalf of the Commonwealth, enter into arrangements with a responsible Minister of a participating jurisdiction under which:

                     (a)  information from the Commonwealth DNA database system is to be transmitted to the appropriate authority in the participating jurisdiction; and

                     (b)  information from the State/Territory DNA database system of the participating jurisdiction is to be transmitted to the Commissioner.

These arrangements may deal with keeping, and otherwise managing, such information. Subject to subsection (1B), these arrangements may also deal with using such information.

          (1A)  CrimTrac may, on behalf of the Commonwealth, enter into an arrangement with a participating jurisdiction in relation to:

                     (a)  transmission of information to or from the Commonwealth DNA database system, or any State/Territory DNA database system; or

                     (b)  keeping, and otherwise managing, such information; or

                     (c)  subject to subsection (1B), using such information.

       (1AA)  Subject to subsection (1B), an arrangement with a participating jurisdiction under subsection (1A) may deal with:

                     (a)  CrimTrac comparing information transmitted in accordance with that arrangement with other information on NCIDD; and

                     (b)  CrimTrac identifying matches that are found because of such comparisons and CrimTrac transmitting information arising from such matches to that participating jurisdiction.

        (1AB)  Subsection (1AA) does not limit subsection (1A).

          (1B)  Information that is transmitted under this section must not be used except for the purpose of:

                     (a)  the investigation of a matter relating to the participating jurisdiction, or proceedings in respect of that matter; or

                     (b)  the investigation of a matter relating to the Commonwealth, or proceedings in respect of that matter.

             (2)  Information that is transmitted under this section must not be recorded, or maintained in any database of information that may be used to discover the identity of a person or to obtain information about an identifiable person at any time after this Part or a corresponding law of a participating jurisdiction requires the forensic material to which it relates to be destroyed.

             (3)  In this section:

CrimTrac means the CrimTrac Agency, established as an Executive Agency by the Governor‑General by order under section 65 of the Public Service Act 1999.

investigation of a matter means:

                     (a)  in relation to a participating jurisdiction:

                              (i)  an investigation of an offence against the law of that jurisdiction; or

                             (ii)  an investigation of a missing person; or

                            (iii)  an investigation for the purpose of identifying a deceased person; or

                     (b)  in relation to the Commonwealth:

                              (i)  an investigation of an offence against the law of the Commonwealth; or

                             (ii)  an investigation of a missing person; or

                            (iii)  an investigation for the purpose of identifying a deceased person.


 

Division 11AOperation of this Part in relation to certain incidents

23YUE  Definitions

                   In this Division:

incident includes a series of incidents.

permitted purpose means either or both of the following:

                     (a)  the purpose of identifying an unidentified person who died in or as a result of an incident in relation to which this Division applies;

                     (b)  the purpose of conducting a criminal investigation in relation to such an incident.

23YUF  Application of this Division

             (1)  This Division applies in relation to the following incidents:

                     (a)  the bombings that occurred in Bali, Indonesia on 12 October 2002 (local time);

                     (b)  any incident that the Minister determines, in writing, to be an incident in relation to which this Division applies.

             (2)  Before making a determination under paragraph (1)(b), the Minister must be satisfied that:

                     (a)  if the determination would relate to an incident occurring wholly outside Australia and Norfolk Island—one or more Australian citizens or Australian residents have died in or as a result of the incident; and

                     (b)  it is appropriate in the circumstances for this Division to apply in relation to the incident.

          (2A)  The Minister must not make a determination under paragraph (1)(b) relating to an incident occurring wholly within Australia or Norfolk Island unless:

                     (a)  the Minister suspects on reasonable grounds that the incident involves the commission of:

                              (i)  an offence against a law of the Commonwealth; or

                             (ii)  a State offence that has a federal aspect; or

                            (iii)  an offence against a law of a Territory; or

                     (b)  the Minister suspects on reasonable grounds that victims of the incident are persons of a kind with respect to whom the Commonwealth Parliament has power to make laws; or

                     (c)  the Minister is satisfied that the incident is or has created a national emergency.

          (2B)  Without limiting paragraph (2A)(b), the reference in that paragraph to persons of a kind with respect to whom the Commonwealth Parliament has power to make laws includes references to the following:

                     (a)  aliens;

                     (b)  persons receiving pensions, benefits or allowances from the Commonwealth;

                     (c)  members of the Australian Defence Force;

                     (d)  persons employed by, or holding an office in, the Commonwealth;

                     (e)  residents of a Territory.

             (3)  A determination under paragraph (1)(b) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

23YUG  Use of information on DNA database systems

             (1)  Despite section 23YDAE, a person may access information stored on the Commonwealth DNA database system or NCIDD if:

                     (a)  the access is for the purpose of forensic comparison under a law of a State or Territory relating to forensic procedures and DNA databases; and

                     (b)  the forensic comparison is for a permitted purpose.

             (2)  Despite any law of a State or Territory relating to forensic procedures and DNA databases, a person may access information stored on the Commonwealth DNA database system, NCIDD or a State/Territory DNA database system if:

                     (a)  the access is for the purpose of forensic comparison under this Part; and

                     (b)  the forensic comparison is for a permitted purpose.

             (3)  Despite section 23YDAE or any law of a State or Territory relating to forensic procedures and DNA databases, a person may access information stored on the Commonwealth DNA database system, NCIDD or a State/Territory DNA database system if the access is for the purpose of disclosing that information under section 23YUI.

23YUH  Permissible matching of DNA profiles

             (1)  Despite section 23YDAF, a person may match a DNA profile on the unknown deceased persons index of the Commonwealth DNA database system with another DNA profile on that index if the matching is for a permitted purpose.

             (2)  Despite any law of a State or Territory relating to forensic procedures and DNA databases, a person may match a DNA profile on the unknown deceased persons index of a State/Territory DNA database system with another DNA profile on that index, or with another DNA profile on the unknown deceased persons index of the Commonwealth DNA database system, if the matching is for a permitted purpose.

23YUI  Disclosure of information

             (1)  Despite section 23YO, or any law of a State or Territory relating to forensic procedures and DNA databases, a person may disclose information stored on the Commonwealth DNA database system, NCIDD or a State/Territory DNA database system if:

                     (a)  the disclosure is to:

                              (i)  any law enforcement agency (within the meaning of the Australian Crime Commission Act 2002); or

                             (ii)  a foreign law enforcement agency (within the meaning of that Act); or

                            (iii)  the International Criminal Police Organisation; or

                            (iv)  any other agency or body of the Commonwealth, a State or a Territory, or of a foreign country, prescribed by the regulations; and

                     (b)  the information is relevant to the activities of that agency or body; and

                     (c)  the disclosure is for a permitted purpose.

             (2)  Despite section 23YO, or any law of a State or Territory relating to forensic procedures and DNA databases, a person may disclose information stored on the Commonwealth DNA database system, NCIDD or a State/Territory DNA database system if:

                     (a)  the information concerns the result of a match of an unknown deceased person’s DNA profile with a missing person’s DNA profile; and

                     (b)  the disclosure is made to a relative, guardian, spouse, de facto partner or friend of the deceased person.

23YUJ  This Division does not restrict operation of this Part

                   This Division does not limit the circumstances in which a person may:

                     (a)  access information stored on the Commonwealth DNA database system, NCIDD or a State/Territory DNA database system; or

                     (b)  match a DNA profile on an index of the Commonwealth DNA database system or a State/Territory DNA database system; or

                     (c)  disclose information stored on the Commonwealth DNA database system, NCIDD or a State/Territory DNA database system;

under this Part.

Note:          See section 23YU on the effect of this Part on other laws.

23YUK  Review of operation of this Division

             (1)  The Minister must cause an independent review of the operation of this Division to be undertaken as soon as possible after the first anniversary of the commencement of item 1 of Schedule 1 to the Crimes Amendment Act 2002 referred to in subsection 2(1) of that Act.

             (2)  A person who undertakes the review must give the Minister a written report of the review.

             (3)  The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after its receipt by the Minister.

             (4)  In this section:

independent review means a review undertaken by persons who:

                     (a)  in the Minister’s opinion, possess appropriate qualifications to undertake the review; and

                     (b)  include a nominee of the Attorney‑General, a nominee of the Commissioner of the Australian Federal Police, a nominee of the Director of Public Prosecutions, a nominee of the Ombudsman and a nominee of the Privacy Commissioner.


 

Division 11BConcurrent operation of State and Territory laws

23YUL  Concurrent operation of State and Territory laws

                   The application of this Part in relation to State offences that have a federal aspect is not intended to limit or exclude the concurrent operation of any law of a State or of the Australian Capital Territory.

Note 1:       Subsection 3(1) defines State to include the Northern Territory.

Note 2:       Section 3AA has the effect that an offence against a law of the Australian Capital Territory is a State offence that has a federal aspect.


 

Division 12Review of operation of Part

23YV  Review of operation of Part

             (1)  The Minister must cause an independent review of:

                     (a)  the operation of this Part; and

                     (b)  the extent to which the forensic procedures permitted by this Part have contributed to the conviction of suspects; and

                    (ba)  the effectiveness of independent oversight and accountability mechanisms for the DNA database system; and

                    (bb)  any disparities between the legislative and regulatory regimes of the Commonwealth and participating jurisdictions for the collection and use of DNA evidence; and

                    (bc)  any issues relating to privacy or civil liberties arising from forensic procedures permitted by this part; and

                     (c)  any other matter in relation to this Part which, in the Minister’s view, should be considered;

to be undertaken as soon as possible after the first anniversary of the commencement of Schedule 1 to the Crimes Amendment (Forensic Procedures) Act 2001 referred to in subsection 2(2) of that Act.

             (2)  A person who undertakes the review must give the Minister a written report of the review.

             (3)  The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after its receipt by the Minister.

             (4)  In this section:

independent review means a review undertaken by persons who:

                     (a)  in the Minister’s opinion, possess appropriate qualifications to undertake the review; and

                     (b)  include a nominee of the Attorney‑General, a nominee of the Commissioner of the Australian Federal Police, a nominee of the Director of Public Prosecutions, a nominee of the Ombudsman and a nominee of the Privacy Commissioner.

             (5)  If a written report tabled under subsection (3) identifies inadequacies in respect of the matters referred to in subsection (1):

                     (a)  the Minister must cause persons to commence, no later than 1 November 2009, a further independent review to ascertain whether the inadequacies have been effectively dealt with; and

                     (b)  subsections (2), (3) and (4) apply in relation to the report of that further review in the same manner as they apply in respect of the report of the original review.


 

Part IIOffences against the Government

  

24AA  Treachery

             (1)  A person shall not:

                     (a)  do any act or thing with intent:

                              (i)  to overthrow the Constitution of the Commonwealth by revolution or sabotage; or

                             (ii)  to overthrow by force or violence the established government of the Commonwealth, of a State or of a proclaimed country; or

                     (b)  within the Commonwealth or a Territory not forming part of the Commonwealth:

                              (i)  levy war, or do any act preparatory to levying war, against a proclaimed country;

                             (ii)  assist by any means whatever, with intent to assist, a proclaimed enemy of a proclaimed country; or

                            (iii)  instigate a person to make an armed invasion of a proclaimed country.

             (2)  Where a part of the Defence Force is on, or is proceeding to, service outside the Commonwealth and the Territories not forming part of the Commonwealth, a person shall not assist by any means whatever, with intent to assist, any persons:

                     (a)  against whom that part of the Defence Force, or a force that includes that part of the Defence Force is or is likely to be opposed; and

                     (b)  who are specified, or included in a class of persons specified, by proclamation to be persons in respect of whom, or a class of persons in respect of which, this subsection applies.

             (3)  A person who contravenes a provision of this section shall be guilty of an indictable offence, called treachery.

Penalty:  Imprisonment for life.

             (4)  In this section:

proclaimed country means a country specified by proclamation made for the purpose of this definition to be a proclaimed country, and includes any colony, overseas territory or protectorate of that country, or any territory for the international relations of which that country is responsible, which is a colony, overseas territory, protectorate or territory to which the proclamation is expressed to extend.

proclaimed enemy, in relation to a proclaimed country, means an enemy:

                     (a)  of and at war with a proclaimed country, whether or not the existence of a state of war has been declared; and

                     (b)  specified by proclamation made for the purpose of this definition to be an enemy of and at war with that country.

             (5)  A proclamation shall not be made for the purpose of the definition of proclaimed country, or for the purpose of the definition of proclaimed enemy, in subsection (4) except in pursuance of a resolution of each House of the Parliament passed within the preceding period of 21 days.

24AB  Sabotage

             (1)  In this section:

act of sabotage means the destruction, damage or impairment, with the intention of prejudicing the safety or defence of the Commonwealth, of any article:

                     (a)  that is used, or intended to be used, by the Defence Force or a part of the Defence Force or is used, or intended to be used, in the Commonwealth or a Territory not forming part of the Commonwealth, by the armed forces of a country that is a proclaimed country for the purposes of section 24AA;

                     (b)  that is used, or intended to be used, in or in connexion with the manufacture, investigation or testing of weapons or apparatus of war;

                     (c)  that is used, or intended to be used, for any purpose that relates directly to the defence of the Commonwealth; or

                     (d)  that is in or forms part of a place that is a prohibited place within the meaning of section 80.

article includes any thing, substance or material.

             (2)  A person who:

                     (a)  carries out an act of sabotage; or

                     (b)  has in his or her possession any article that is capable of use, and which he or she intends for use, in carrying out an act of sabotage;

shall be guilty of an indictable offence.

Penalty:  Imprisonment for 15 years.

             (3)  On a prosecution under this section it is not necessary to show that the accused person was guilty of a particular act tending to show an intention to prejudice the safety or defence of the Commonwealth and, notwithstanding that such an act is not proved against him or her, he or she may be convicted if, from the circumstances of the case, from his or her conduct or from his or her known character as proved, it appears that his or her intention was to prejudice the safety or defence of the Commonwealth.

             (4)  On a prosecution under this section, evidence is not admissible by virtue of subsection (3) if the magistrate exercising jurisdiction with respect to the examination and commitment for trial of the defendant, or the judge presiding at the trial, as the case may be, is of the opinion that that evidence:

                     (a)  would not tend to show that the defendant intended to prejudice the safety or defence of the Commonwealth; or

                     (b)  would, having regard to all the circumstances of the case and notwithstanding subsection (5), prejudice the fair trial of the defendant.

             (5)  If evidence referred to in subsection (4) is admitted at the trial, the judge shall direct the jury that the evidence may be taken into account by the jury only on the question whether the defendant intended to prejudice the safety or defence of the Commonwealth and must be disregarded by the jury in relation to any other question.

24AC  Institution of prosecutions

             (1)  Proceedings for the commitment for trial of a person, or for the summary conviction of a person, in respect of an offence against section 24AA or 24AB shall not be instituted except by the Attorney‑General or with the consent of the Attorney‑General or of a person thereto authorized in writing by the Attorney‑General.

             (2)  Notwithstanding that consent has not been obtained as provided by subsection (1):

                     (a)  a person may be arrested for an offence referred to in that subsection; or

                     (b)  a warrant for the arrest of a person for such an offence may be issued and executed;

and he or she may be charged, and may be remanded in custody or on bail, but:

                     (c)  no further proceedings shall be taken until that consent has been obtained; and

                     (d)  he or she shall be discharged if proceedings are not continued within a reasonable time.

24F  Certain acts done in good faith not unlawful

             (1)  Nothing in the preceding provisions of this Part makes it unlawful for a person:

                     (a)  to endeavour in good faith to show that the Sovereign, the Governor‑General, the Governor of a State, the Administrator of a Territory, or the advisers of any of them, or the persons responsible for the government of another country, has or have been, or is or are, mistaken in any of his, her or their counsels, policies or actions;

                     (b)  to point out in good faith errors or defects in the government, the constitution, the legislation or the administration of justice of or in the Commonwealth, a State, a Territory or another country, with a view to the reformation of those errors or defects;

                     (c)  to excite in good faith another person to attempt to procure by lawful means the alteration of any matter established by law in the Commonwealth, a State, a Territory or another country;

                     (d)  to point out in good faith, in order to bring about their removal, any matters that are producing, or have a tendency to produce, feelings of ill‑will or hostility between different classes of persons; or

                     (e)  to do anything in good faith in connexion with an industrial dispute or an industrial matter.

             (2)  For the purpose of subsection (1), an act or thing done:

                     (a)  for a purpose intended to be prejudicial to the safety or defence of the Commonwealth;

                     (b)  with intent to assist an enemy:

                              (i)  at war with the Commonwealth; and

                             (ii)  specified by proclamation made for the purpose of paragraph 80.1(1)(e) of the Criminal Code to be an enemy at war with the Commonwealth;

                    (ba)  with intent to assist:

                              (i)  another country; or

                             (ii)  an organisation (within the meaning of section 100.1 of the Criminal Code);

                            that is engaged in armed hostilities against the Australian Defence Force;

                     (c)  with intent to assist a proclaimed enemy, as defined by subsection 24AA(4) of this Act, of a proclaimed country as so defined;

                     (d)  with intent to assist persons specified in paragraphs 24AA(2)(a) and (b) of this Act; or

                     (e)  with the intention of causing violence or creating public disorder or a public disturbance;

is not an act or thing done in good faith.

25  Inciting mutiny

             (1)  Any person who intentionally attempts:

                     (a)  to seduce any person serving in the Queen’s Forces from his or her duty and allegiance; or

                     (b)  to incite any person serving in the Queen’s Forces to commit an act of mutiny, or any traitorous or mutinous act; or

                     (c)  to incite any person serving in the Queen’s Forces to make or endeavour to make a mutinous assembly;

shall be guilty of an indictable offence.

Penalty:  Imprisonment for life.

             (2)  In this section the expression “person serving in the Queen’s Forces” includes any person serving in an arm of the Defence Force of Australia or in the armed forces of the United Kingdom or any British possession.

26  Assisting prisoners of war to escape

                   A person who intentionally aids an alien enemy who is a prisoner of war to escape, or in his or her escape, from a prison or place of confinement, or from the Commonwealth or a Territory not forming part of the Commonwealth, shall be guilty of an indictable offence.

Penalty:  Imprisonment for life.

27  Unlawful drilling

             (1)  Any person who:

                     (a)  in contravention of the directions of a proclamation by the Governor‑General in that behalf, trains or drills any other person to the use of arms or the practice of military exercises, movements, or evolutions; or

                     (b)  is present at any meeting or assembly of persons, held in contravention of the directions of a proclamation by the Governor‑General, for the purpose of there training or drilling any other person to the use of arms or the practice of military exercises, movements, or evolutions;

shall be guilty of an indictable offence.

Penalty:  Imprisonment for 5 years.

             (2)  Any person who, at any meeting or assembly held in contravention of the directions of a proclamation by the Governor‑General in that behalf, is trained or drilled to the use of arms or the practice of military exercises, movements, or evolutions, shall be guilty of an indictable offence.

Penalty:  Imprisonment for 2 years.

28  Interfering with political liberty

                   Any person who, by violence or by threats or intimidation of any kind, hinders or interferes with the free exercise or performance, by any other person, of any political right or duty, shall be guilty of an offence.

Penalty:  Imprisonment for 3 years.

29  Destroying or damaging Commonwealth property

             (1)  Any person who intentionally destroys or damages any property, whether real or personal, belonging to the Commonwealth or to any public authority under the Commonwealth, shall be guilty of an offence.

Penalty:  Imprisonment for 10 years.

             (2)  For the purposes of an offence against subsection (1), absolute liability applies to the physical element of circumstance of the offence, that the property is property belonging to the Commonwealth or to any public authority under the Commonwealth.

Note:          For absolute liability, see section 6.2 of the Criminal Code.


 

Part IIAProtection of the Constitution and of public and other services

  

30A  Unlawful associations

             (1)  The following are hereby declared to be unlawful associations, namely:

                     (a)  any body of persons, incorporated or unincorporated, which by its constitution or propaganda or otherwise advocates or encourages:

                              (i)  the overthrow of the Constitution of the Commonwealth by revolution or sabotage;

                             (ii)  the overthrow by force or violence of the established government of the Commonwealth or of a State or of any other civilized country or of organized government; or

                            (iii)  the destruction or injury of property of the Commonwealth or of property used in trade or commerce with other countries or among the States;

                            or which is, or purports to be, affiliated with any organization which advocates or encourages any of the doctrines or practices specified in this paragraph;

                     (b)  any body of persons, incorporated or unincorporated, which by its constitution or propaganda or otherwise advocates or encourages the doing of any act having or purporting to have as an object the carrying out of a seditious intention (see subsection (3)).

          (1A)  Without limiting the effect of the provisions of subsection (1), any body of persons, incorporated or unincorporated, which is, in pursuance of section 30AA, declared by the Federal Court of Australia to be an unlawful association, shall be deemed to be an unlawful association for the purposes of this Act.

             (2)  Any branch or committee of an unlawful association, and any institution or school conducted by or under the authority or apparent authority of an unlawful association, shall, for all the purposes of this Act, be deemed to be an unlawful association.

             (3)  In this section:

seditious intention means an intention to use force or violence to effect any of the following purposes:

                     (a)  to bring the Sovereign into hatred or contempt;

                     (b)  to urge disaffection against the following:

                              (i)  the Constitution;

                             (ii)  the Government of the Commonwealth;

                            (iii)  either House of the Parliament;

                     (c)  to urge another person to attempt to procure a change, otherwise than by lawful means, to any matter established by law of the Commonwealth;

                     (d)  to promote feelings of ill‑will or hostility between different groups so as to threaten the peace, order and good government of the Commonwealth.

30AA  Application for declaration as to unlawful association

             (1)  The Attorney‑General may apply to the Federal Court of Australia for an order calling upon any body of persons, incorporated or unincorporated, to show cause why it should not be declared to be an unlawful association.

             (2)  An application under subsection (1):

                     (a)  shall be made on the ground that the body of persons to which it relates is one which is described in subsection 30A(1); and

                     (b)  shall be by summons which may contain averments setting out the facts relied upon in support of the application.

             (4)  Service of a summons under this section upon the body of persons specified in the summons may be effected by publication of the summons in the Gazette and in a daily newspaper circulating in the city or town in which the head office in Australia of that body is stated in the summons to be situate, but the Court may order such further or other service as it thinks fit.

             (5)  Any officer or member of the body of persons specified in any summons issued under this section may appear on behalf of that body to show cause.

             (7)  If cause to the contrary is not shown to the satisfaction of the Court, it may make an order declaring the respondent body of persons to be an unlawful association.

             (8)  Any person who is an interested person in relation to any declaration made under this section may, within 14 days after the making of any such declaration, apply to the Federal Court of Australia for the setting aside of the order.

             (9)  Any application made under subsection (8) shall be heard by a Full Court of the Federal Court of Australia, and upon the hearing of the application the Court may affirm or annul the order.

30AB  Attorney‑General may require information

             (1)  If the Attorney‑General believes that any person has in his or her possession any information or documents relating to an unlawful association, he or she may require the person, or, in the case of a corporation, any person holding a specified office in the corporation:

                     (a)  to answer questions;

                     (b)  to furnish information; and

                     (c)  allow the inspection of documents belonging to, or in the possession of, that person or that corporation, as the case may be;

relating to:

                     (d)  any money, property or funds belonging to or held by or on behalf of an unlawful association, or as to which there is reasonable cause to believe that they belong to or are held by or on behalf of an unlawful association;

                     (e)  any payments made directly or indirectly by, to, or on behalf of, an unlawful association, or as to which there is reasonable cause to believe that they are so made; or

                      (f)  any transactions to which an unlawful association is or is reasonably believed to be a party.

             (2)  Any person failing or neglecting to answer questions, furnish information or produce documents as required in pursuance of this section, shall be guilty of an offence.

Penalty:  Imprisonment for 6 months.

30B  Officers of unlawful associations

                   Any person over the age of 18 years who is a member of an unlawful association, and any person who occupies or acts in any office or position in or of an unlawful association, or who acts as a representative of an unlawful association, or who acts as a teacher in any institution or school conducted by or under the authority or apparent authority of an unlawful association, shall be guilty of an offence.

Penalty:  Imprisonment for 1 year.

30C  Advocating or inciting to crime

                   Any person who by speech or writing advocates or encourages:

                     (a)  the overthrow of the Constitution of the Commonwealth by revolution or sabotage;

                     (b)  the overthrow by force or violence of the established government of the Commonwealth or of a State or of any other civilized country or of organized government; or

                     (c)  the destruction or injury of property of the Commonwealth or of property used in trade or commerce with other countries or among the States;

shall be guilty of an offence and shall be liable on conviction to imprisonment for any period not exceeding 2 years.

30D  Giving or soliciting contributions for unlawful associations

             (1)  Any person who:

                     (a)  gives or contributes money or goods to an unlawful association; or

                     (b)  receives or solicits subscriptions or contributions of money or goods for an unlawful association;

shall be guilty of an offence.

Penalty:  Imprisonment for 6 months.

             (2)  For the purposes of this section the printer and the publisher of a newspaper or periodical which contains any solicitation of subscriptions or contributions of money or goods for an unlawful association, or any notification or indication as to places where or persons to whom payment or delivery may be made of subscriptions or contributions of money or goods for an unlawful association, shall be deemed to solicit subscriptions or contributions of money or goods for an unlawful association.

30E  Books etc. issued by unlawful association not transmissible by post

             (1)  No book, periodical, pamphlet, handbill, poster or newspaper issued by or on behalf or in the interests of any unlawful association shall:

                     (a)  if posted in Australia, be transmitted through the post; or

                     (b)  in the case of a newspaper, be registered as a newspaper under the provisions of the Postal Services Act 1975.

             (2)  Any newspaper registered under that Act, which is issued by or on behalf or in the interests of any unlawful association, shall be removed from the register.

             (3)  Any book, periodical, pamphlet, handbill, poster or newspaper posted in Australia, the transmission of which would be a contravention of this Act, shall be forfeited to the Commonwealth and shall be destroyed or disposed of as provided in the regulations in force under the Postal Services Act 1975.

30F  Prohibition of sale of books etc. issued by unlawful association

                   Any person who intentionally prints, publishes, sells or exposes for sale or who intentionally circulates or distributes any book, periodical, pamphlet, handbill, poster or newspaper for or in the interests of or issued by any unlawful association shall be guilty of an offence.

Penalty:  Imprisonment for 6 months.

30FA  Imprints on publications

             (1)  The imprint appearing upon any book, periodical, pamphlet, handbill, poster or newspaper shall, in any proceedings under this Part, be prima facie evidence that the book, periodical, pamphlet, handbill, poster or newspaper was printed or published by or on behalf of, or in the interests of, the person or body of persons specified in the imprint.

             (2)  For the purposes of this section, imprint means a statement of the name and address of the printer or of the publisher of the book, periodical, pamphlet, handbill, poster or newspaper with or without a description of the place where it is printed.

30FC  Owner etc. of building permitting meeting of unlawful association

                   Any person who, being the owner, lessee, agent or superintendent of any building, room, premises or place, intentionally permits therein any meeting of an unlawful association or of any branch or committee thereof, shall be guilty of an offence.

Penalty:  Imprisonment for 6 months.

30FD  Disqualification from voting of member of unlawful association

                   Any person who, at the date of any declaration made by a court under this Part declaring any body of persons to be an unlawful association, is a member of the Committee or Executive of that association, shall not for a period of 7 years from that date be entitled to have his or her name placed on or retained on any roll of electors for the Senate or House of Representatives, or to vote at any Senate election or House of Representatives election unless so entitled under section 41 of the Constitution.

30G  Forfeiture of property held by an unlawful association

                   All goods and chattels belonging to an unlawful association, or held by any person for or on behalf of an unlawful association, and all books, periodicals, pamphlets, handbills, posters or newspapers issued by or on behalf of, or in the interests of, an unlawful association shall be forfeited to the Commonwealth.

30H  Proof of membership of an association

                   In any prosecution under this Act, proof that the defendant has, at any time since the commencement of this section:

                     (a)  been a member of an association;

                     (b)  attended a meeting of an association;

                     (c)  spoken publicly in advocacy of an association or its objects; or

                     (d)  distributed literature of an association;

shall, in the absence of proof to the contrary, be evidence that at all times material to the case he or she was a member of the association.

30J  Industrial disturbances, lock‑outs and strikes

             (1)  If at any time the Governor‑General is of opinion that there exists in Australia a serious industrial disturbance prejudicing or threatening trade or commerce with other countries or among the States, he or she may make a Proclamation to that effect, which Proclamation shall be and remain in operation for the purposes of this section until it is revoked.

             (2)  Any person who, during the operation of such Proclamation, takes part in or continues, or incites to, urges, aids or encourages the taking part in, or continuance of, a lock‑out or strike:

                     (a)  in relation to employment in or in connexion with the transport of goods or the conveyance of passengers in trade or commerce with other countries or among the States; or

                     (b)  in relation to employment in, or in connexion with, the provision of any public service by the Commonwealth or by any Department or public authority under the Commonwealth;

shall be guilty of an offence, and shall be liable on conviction to imprisonment for any period not exceeding one year.

             (3)  For the purposes of this section:

employee includes any person whose usual occupation is as an employee.

employer includes any person whose usual occupation is as an employer.

lock‑out includes the closing of a place or part of a place of employment, if the closing is unreasonable, and the total or partial refusal of employers, acting in combination, to give work, if the refusal is unreasonable, or the total or partial suspension of work by an employer, if the suspension is unreasonable, with a view to compel his or her employees, or to aid another employer in compelling his or her employees, to accept any term or condition of employment.

strike includes the total or partial cessation of work by employees, acting in combination, if the cessation is unreasonable, as a means of enforcing compliance with demands made by them or by other employees on employers, and the total or partial refusal of employees, acting in combination, to accept work, if the refusal is unreasonable, and also includes job control.

30K  Obstructing or hindering the performance of services

                   Whoever, by violence to the person or property of another person, or by spoken or written threat or intimidation of any kind to whomsoever directed, or, without reasonable cause or excuse, by boycott or threat of boycott of person or property:

                     (b)  compels or induces any person employed in or in connexion with the provision of any public service by the Commonwealth or by any Department or public authority under the Commonwealth to surrender or depart from his or her employment;

                     (c)  prevents any person from offering or accepting employment in or in connexion with the provision of any public service by the Commonwealth or by any Department or public authority under the Commonwealth;

                     (d)  obstructs or hinders the transport of goods or the conveyance of passengers in trade or commerce with other countries or among the States;

                     (e)  compels or induces any person employed in or in connexion with the transport of goods or the conveyance of passengers in trade or commerce with other countries or among the States to surrender or depart from his or her employment; or

                      (f)  prevents any person from offering or accepting employment in or in connexion with the transport of goods or the conveyance of passengers in trade or commerce with other countries or among the States;

shall be guilty of an offence.

Penalty:  Imprisonment for 1 year.

30R  Books etc. taken to have been issued by associations

             (5)  Any book, periodical, pamphlet, handbill, poster or newspaper purporting to be issued by or on behalf of, or in the interests of, an association shall, unless the contrary is proved, be deemed to be so issued.


 

Part IIIOffences relating to the administration of justice

  

31  Interpretation

                   In this Part, unless the contrary intention appears:

holder of a judicial office means the holder of a judicial office under the Commonwealth, or the holder of a judicial office acting in the exercise of federal jurisdiction, and includes an arbitrator or umpire under any law of the Commonwealth or of a Territory.

judicial proceeding means a proceeding in or before a federal court, court exercising federal jurisdiction or court of a Territory, and includes a proceeding before a body or person acting under the law of the Commonwealth, or of a Territory, in which evidence may be taken on oath.

34  Judge or magistrate acting oppressively or when interested

             (1)  Any person who:

                     (a)  being a judge or magistrate and being required or authorized by law to admit any person accused of an offence against the law of the Commonwealth to bail, in abuse of his or her office, requires excessive and unreasonable bail; or

                     (b)  being a judge or magistrate, intentionally and perversely exercises federal jurisdiction in any matter in which he or she has a personal interest;

shall be guilty of an offence.

Penalty:  Imprisonment for 2 years.

             (2)  Paragraph (1)(a) does not apply if the judge or magistrate has a reasonable excuse.

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

35  Giving false testimony

             (1)  Any person who, in any judicial proceeding, or with the intention of instituting any judicial proceeding, intentionally gives false testimony touching any matter, material in that proceeding, shall be guilty of an indictable offence.

Penalty:  Imprisonment for 5 years.

          (1A)  For the purposes of an offence against subsection (1), strict liability applies to the physical element of circumstance of the offence, that the matter is material in the proceeding.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (2)  For the purpose of this section it is immaterial whether the testimony was given on oath or not on oath, or was given orally or in writing, or whether the court or tribunal to which it was given was properly constituted or was held in the proper place, or whether the person who gave the testimony was a competent witness or not, or whether the testimony was admissible or not.

36  Fabricating evidence

                   Any person who, with intent to mislead any tribunal in any judicial proceeding, intentionally:

                     (a)  fabricates evidence; or

                     (b)  makes use of fabricated evidence;

shall be guilty of an offence.

Penalty:  Imprisonment for 5 years.

36A  Intimidation of witnesses etc.

                   A person who:

                     (a)  threatens, intimidates or restrains;

                     (b)  uses violence to or inflicts an injury on;

                     (c)  causes or procures violence, damage, loss or disadvantage to; or

                     (d)  causes or procures the punishment of;

a person for or on account of his or her having appeared, or being about to appear, as a witness in a judicial proceeding shall be guilty of an indictable offence.

Penalty:  Imprisonment for 5 years.

37  Corruption of witnesses

                   Any person who:

                     (a)  gives, confers, or procures, or promises or offers to give, confer, procure or attempt to procure, any property or benefit of any kind to, upon, or for, any person, upon any agreement or understanding that any person called or to be called as a witness in any judicial proceeding shall give false testimony or withhold true testimony; or

                     (b)  does an act with the intention of inducing a person called or to be called as a witness in any judicial proceeding to give false testimony, or to withhold true testimony; or

                     (c)  asks, receives, or obtains, or agrees to receive or obtain, any property or benefit of any kind for himself or herself, or any other person, upon any agreement or understanding that any person shall as a witness in any judicial proceeding give false testimony or withhold true testimony;

shall be guilty of an indictable offence.

Penalty:  Imprisonment for 5 years.

38  Deceiving witnesses

                   Any person who practices any fraud or deceit, or intentionally makes or exhibits any false statement, representation, token, or writing, to any person called or to be called as a witness in any judicial proceeding, with intent to affect the testimony of that person as a witness, shall be guilty of an offence.

Penalty:  Imprisonment for 2 years.

39  Destroying evidence

                   Any person who, knowing that any book, document, or other thing of any kind, is or may be required in evidence in a judicial proceeding, intentionally destroys it or renders it illegible or undecipherable or incapable of identification, with intent thereby to prevent it from being used in evidence, shall be guilty of an offence.

Penalty:  Imprisonment for 5 years.

40  Preventing witnesses from attending Court

                   A person who intentionally prevents another person who has been summoned to attend as a witness in a judicial proceeding from attending as a witness or from producing anything in evidence pursuant to the subpoena or summons shall be guilty of an offence.

Penalty:  Imprisonment for 1 year.

41  Conspiracy to bring false accusation

             (1)  Any person who conspires with another to charge any person falsely or cause any person to be falsely charged with any offence against the law of the Commonwealth or of a Territory, shall be guilty of an indictable offence.

Penalty:  Imprisonment for 10 years.

             (2)  For a person to be guilty of an offence against subsection (1):

                     (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 a person be charged falsely with an offence 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.

             (3)  A person may be found guilty of an offence against subsection (1) even if:

                     (a)  charging a person falsely pursuant to the agreement 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 (4), all other parties to the agreement have been acquitted of the offence.

             (4)  A person cannot be found guilty of an offence against subsection (1) 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.

             (5)  A person cannot be found guilty of an offence against subsection (1) 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 false charging.

             (6)  A court may dismiss a charge of an offence against subsection (1) if the court thinks that the interests of justice require the court to do so.

             (7)  Section 11.1 of the Criminal Code does not apply to an offence against subsection (1).

42  Conspiracy to defeat justice

             (1)  Any person who conspires with another to obstruct, prevent, pervert, or defeat, the course of justice in relation to the judicial power of the Commonwealth, shall be guilty of an indictable offence.

Penalty:  Imprisonment for 5 years.

             (2)  For the purposes of an offence against subsection (1), absolute liability applies to the physical element of circumstance of the offence, that the judicial power is of the Commonwealth.

Note:          For absolute liability, see section 6.2 of the Criminal Code.

             (3)  For a person to be guilty of an offence against subsection (1):

                     (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 obstruct, prevent, pervert or defeat the course of justice 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.

             (4)  A person may be found guilty of an offence against subsection (1) even if:

                     (a)  obstructing, preventing, perverting or defeating the course of justice pursuant to the agreement 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 (5), all other parties to the agreement have been acquitted of the offence.

             (5)  A person cannot be found guilty of an offence against subsection (1) 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.

             (6)  A person cannot be found guilty of an offence against subsection (1) 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 obstruction, prevention, perversion or defeat.

             (7)  A court may dismiss a charge of an offence against subsection (1) if the court thinks that the interests of justice require the court to do so.

             (8)  Section 11.1 of the Criminal Code does not apply to an offence against subsection (1).

43  Attempting to pervert justice

             (1)  Any person who attempts, in any way not specially defined in this Act, to obstruct, prevent, pervert, or defeat, the course of justice in relation to the judicial power of the Commonwealth, shall be guilty of an offence.

Penalty:  Imprisonment for 5 years.

             (2)  For the purposes of an offence against subsection (1), absolute liability applies to the physical element of circumstance of the offence, that the judicial power is of the Commonwealth.

Note:          For absolute liability, see section 6.2 of the Criminal Code.

             (3)  For the person to be guilty of an offence against subsection (1), 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.

             (4)  A person may be found guilty of an offence against subsection (1) even if doing the thing attempted is impossible.

44  Compounding offences

                   Any person who asks receives or obtains, or agrees to receive or obtain, any property or benefit of any kind for himself or herself, or any other person, upon any agreement or understanding that he or she will compound or conceal any indictable offence against the law of the Commonwealth or a Territory, or will abstain from, discontinue, or delay any prosecution for any such offence, or will withhold any evidence thereof, shall be guilty of an offence.

Penalty:  Imprisonment for 3 years.

45  Inserting advertisements without authority of Court

                   Any person who, without authority, or knowing the advertisement to be false in any material particular, inserts in the Gazette or in any newspaper an advertisement purporting to be published under the authority of any federal court, any court in the exercise of federal jurisdiction or any court of a Territory, shall be guilty of an offence.

Penalty:  Imprisonment for 2 years.

46  Aiding prisoner to escape

             (1)  Any person who:

                     (a)  aids a person in escaping, or attempting to escape, from lawful custody in respect of any offence against the law of the Commonwealth or of a Territory;

                    (aa)  aids a person who has been lawfully arrested in respect of any offence against a law of the Commonwealth or of a Territory to escape, or to attempt to escape, from that arrest;

                    (ab)  aids a person who is lawfully detained under Division 6 or 7 of Part IB or section 20BS in respect of any offence against the law of the Commonwealth or of a Territory to escape, or to attempt to escape, from that detention; or

                     (b)  conveys anything into a prison, lock‑up or other place of lawful detention with intent to facilitate the escape therefrom of a prisoner who is in custody in respect of an offence against the law of the Commonwealth or of a Territory;

shall be guilty of an indictable offence.

Penalty:  Imprisonment for 5 years.

          (1A)  For a person to be guilty of an offence against paragraph (1)(a), (aa) or (ab):

                     (a)  the person’s conduct must have in fact aided the escape or attempted escape by the person in custody, under arrest or in detention (the escapee); and

                     (b)  the escapee must have actually escaped or attempted to escape.

          (1B)  For a person to be guilty of an offence against paragraph (1)(a), (aa) or (ab), the person must have intended that his or her conduct would aid the escape or attempted escape by the escapee.

          (1C)  A person cannot be found guilty of an offence against paragraph (1)(a), (aa) or (ab) if, before the escape or attempted escape, the person:

                     (a)  terminated his or her aid to the escapee; and

                     (b)  took all reasonable steps to prevent the escape or attempted escape.

          (1D)  A person may be found guilty of an offence against paragraph (1)(a), (aa) or (ab) even if the escapee has not been prosecuted, or has not been found guilty of an offence, in relation to the escape or attempted escape.

             (2)  In this section:

Territory does not include the Australian Capital Territory.

47  Escaping

                   A person who has been lawfully arrested, is in lawful custody, or is lawfully detained under Division 6 or 7 of Part IB or section 20BS, in respect of any offence against a law of the Commonwealth or of a Territory (other than the Australian Capital Territory) and who escapes from that arrest, custody or detention is guilty of an offence.

Penalty:  Imprisonment for 5 years.

47A  Rescuing a prisoner from custody etc.

             (1)  A person who:

                     (a)  rescues by force a person (other than a person referred to in paragraph (c) or (d)) from lawful custody in respect of any offence against a law of the Commonwealth or of a Territory with which the person has been charged;

                     (b)  rescues by force a person who has been lawfully arrested in respect of any offence against a law of the Commonwealth or of a Territory with which the person has not been charged;

                     (c)  rescues by force a prisoner who is in lawful custody in any prison, lock‑up or other place of lawful detention in respect of any offence against a law of the Commonwealth or of a Territory from that prison, lock‑up or place; or

                     (d)  rescues by force a person who is lawfully detained under Division 6 or 7 of Part IB or section 20BS in respect of any offence against a law of the Commonwealth or of a Territory from that detention;

is guilty of an offence.

Penalty:  Imprisonment for 14 years.

             (2)  In this section:

Territory does not include the Australian Capital Territory.

47B  Person unlawfully at large

             (1)  A person who:

                     (a)  in accordance with a permission given under a law of a State or Territory, leaves a prison, lock‑up or other place of lawful detention where the person is in custody, or is detained under Division 6 or 7 of Part IB or section 20BS, in respect of any offence against a law of the Commonwealth or of a Territory; and

                     (b)  refuses or fails to return to that prison, lock‑up or other place in accordance with that permission;

is guilty of an offence.

Penalty:  Imprisonment for 5 years.

          (1A)  Paragraph (1)(b) does not apply if the person has a reasonable excuse.

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

             (2)  In this section:

Territory does not include the Australian Capital Territory.

47C  Permitting escape

          (1A)  In this section:

Territory does not include the Australian Capital Territory.

             (1)  A person who:

                     (a)  is an officer of a prison, lock‑up or other place of lawful detention, a constable or a Commonwealth officer;

                     (b)  is charged for the time being with the custody or detention of another person (including a person detained under Division 6 or 7 of Part IB or section 20BS) in respect of any offence against a law of the Commonwealth or of a Territory; and

                     (c)  intentionally or negligently permits the other person to escape from that custody or detention;

is guilty of an offence.

             (2)  A constable or a Commonwealth officer, who intentionally or negligently permits a person who has been lawfully arrested in respect of any offence against a law of the Commonwealth or of a Territory to escape from that arrest, is guilty of an offence.

Penalty:  Imprisonment for 5 years.

48  Harbouring etc. an escapee

                   A person who harbours, maintains or employs another person knowing the other person to have escaped from a place where the person is held in lawful custody or detention in respect of any offence against a law of the Commonwealth or of a Territory (other than the Australian Capital Territory) is guilty of an offence.

Penalty:  Imprisonment for 5 years.

48A  Sentence ceases to run while escaped prisoner at large

             (1)  A person who commits an offence against section 47 or 47B shall, upon being returned to lawful custody, undergo, in addition to any punishment imposed for that offence, the punishment that the person would have undergone if the person had not escaped.

             (2)  If a person who is undergoing punishment for an offence against a law of the Commonwealth or of a Territory commits an offence against a law of a State or Territory that corresponds to section 47 or 47B, the person is, upon being returned to lawful custody, to undergo (in addition to any punishment imposed for the corresponding offence and any other punishment that the person is required to undergo under the law of the State or Territory) the punishment that the person would have undergone for the first‑mentioned offence if the person had not escaped.

49  Removing property under seizure

                   Any person who, when any property has been attached or taken under the process or authority of any federal court, court acting in the exercise of federal jurisdiction or any court of a Territory, intentionally receives, removes, retains, conceals or disposes of the property, with intent to hinder or defeat the attachment or process, shall be guilty of an offence.

Penalty:  Imprisonment for 2 years.


 

Part IIIAChild sex tourism

Division 1Preliminary

50AA  General

             (1)  In this Part:

act of indecency has the meaning given by section 50AB.

Australia includes the external Territories.

induce means induce by threats, promises or otherwise.

offence, in the case of a reference to an offence against this Part or against a particular provision of it, has a meaning affected by subsections (2) and (3) of this section.

sexual intercourse has the meaning given by section 50AC.

vagina includes:

                     (a)  any part of a female person’s genitalia; and

                     (b)  a surgically constructed vagina.

             (2)  A reference in this Part (except section 50DB) to an offence against this Part or against a particular provision of it includes:

                     (a)  a reference to:

                              (i)  an offence against section 6 or 50DB; or

                             (ii)  an offence against section 11.1 or 11.5 of the Criminal Code;

                            that relates to an offence against this Part or against that provision of it; and

                     (b)  a reference to an offence against this Part, or against that provision of it, because of section 11.2, 11.2A or 11.3 of the Criminal Code.

             (3)  A reference in section 50DB to an offence against this Part or against a particular provision of it does not include a reference to such an offence because of section 11.2 or 11.2A of the Criminal Code.

             (4)  Section 11.4 of the Criminal Code does not apply to an offence against this Part.

             (5)  Section 11.5 of the Criminal Code does not apply to an offence against section 50DB.

50AB  Meaning of act of indecency

             (1)  In this Part:

act of indecency means an act that:

                     (a)  is of a sexual nature; and

                     (b)  involves the human body, or bodily actions or functions; and

                     (c)  is so unbecoming or offensive that it amounts to a gross breach of ordinary contemporary standards of decency and propriety in the Australian community.

             (2)  To avoid doubt, act of indecency includes an indecent assault.

50AC  Meaning of sexual intercourse

             (1)  In this Part:

sexual intercourse means:

                     (a)  the penetration, to any extent, of the vagina or anus of a person by any part of the body of another person; or

                     (b)  the penetration, to any extent, of the vagina or anus of a person, carried out by another person by an object; or

                     (c)  fellatio; or

                     (d)  cunnilingus; or

                     (e)  the continuation of any activity mentioned in paragraph (a), (b), (c) or (d).

             (2)  Paragraph (1)(a) or (b) does not apply to an act of penetration if:

                     (a)  it is carried out for a proper medical or hygienic purpose; or

                     (b)  it is carried out for a proper law enforcement purpose.

50AD  Who can be prosecuted for an offence committed overseas

                   A person must not be charged with an offence against this Part that the person allegedly committed outside Australia unless, at the time of the offence, the person was:

                     (a)  an Australian citizen; or

                     (b)  a resident of Australia; or

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

                     (d)  any other body corporate that carries on its activities principally in Australia.


 

Division 2Sexual offences against children overseas

50BA  Sexual intercourse with child under 16

             (1)  A person must not, while outside Australia, engage in sexual intercourse with a person who is under 16.

Penalty:  Imprisonment for 17 years.

             (2)  For the purposes of an offence against subsection (1), absolute liability applies to the following physical elements of circumstance of the offence:

                     (a)  that the sexual intercourse is engaged in outside Australia;

                     (b)  that the person referred to in that subsection as being under 16 is in fact under 16.

Note 1:       For absolute liability, see section 6.2 of the Criminal Code.

Note 2:       For a defence based on belief about age, see section 50CA.

50BB  Inducing child under 16 to engage in sexual intercourse

             (1)  A person must not induce a person who is under 16 to engage in sexual intercourse with a third person outside Australia and in the presence of the first‑mentioned person.

Penalty:  Imprisonment for 17 years.

             (2)  For the purposes of an offence against subsection (1), absolute liability applies to the following physical elements of circumstance of the offence:

                     (a)  that the sexual intercourse is engaged in outside Australia;

                     (b)  that the person referred to in that subsection as being under 16 is in fact under 16.

Note 1:       For absolute liability, see section 6.2 of the Criminal Code.

Note 2:       For a defence based on belief about age, see section 50CA.

50BC  Sexual conduct involving child under 16

             (1)  A person (the first person) contravenes this section if, while the first person is outside Australia:

                     (a)  the first person commits an act of indecency on a person who is under 16; or

                     (b)  the first person submits to an act of indecency committed by a person who is under 16; or

                     (c)  the first person commits an act of indecency in the presence of a person who is under 16 (the child), and the first person intends to derive gratification from the child’s presence during the act; or

                     (d)  the first person submits to an act of indecency committed in the presence of a person who is under 16 (the child), and the first person intends to derive gratification from the child’s presence during the act; or

                     (e)  the first person engages in sexual intercourse with another person in the presence of a person who is under 16 (the child), and the first person intends to derive gratification from the child’s presence during the sexual intercourse.

Penalty:  Imprisonment for 12 years.

             (2)  For the purposes of an offence against subsection (1), absolute liability applies to such of the following physical elements of circumstance as are relevant to the offence:

                     (a)  that the first person is outside Australia;

                     (b)  that the person referred to in that subsection as being under 16 is in fact under 16;

                     (c)  in the case of an offence against paragraph (1)(a), (b), (c) or (d)—that the act of indecency referred to in that paragraph is in fact an act of indecency.

Note 1:       For absolute liability, see section 6.2 of the Criminal Code.

Note 2:       For a defence based on belief about age, see section 50CA.

50BD  Inducing child under 16 to be involved in sexual conduct

             (1)  A person (the first person) must not induce a person who is under 16 to commit, to submit to, or to be present while a third person commits, an act of indecency that:

                     (a)  is committed outside Australia and in the presence of the first person; and

                     (b)  is not committed by or on the first person.

Penalty:  Imprisonment for 12 years.

          (1A)  For the purposes of an offence against subsection (1), absolute liability applies to the following physical elements of circumstance of the offence:

                     (a)  that the act of indecency is committed outside Australia;

                     (b)  that the person referred to in that subsection as being under 16 is in fact under 16;

                     (c)  that the act of indecency referred to in that subsection is in fact an act of indecency.

Note 1:       For absolute liability, see section 6.2 of the Criminal Code.

Note 2:       For a defence based on belief about age, see section 50CA.

             (2)  A person (the first person) must not induce a person who is under 16 to be present while a third person engages in sexual intercourse with a fourth person outside Australia and in the presence of the first person.

Penalty:  Imprisonment for 12 years.

             (3)  For the purposes of an offence against subsection (2), absolute liability applies to the following physical elements of circumstance of the offence:

                     (a)  that the sexual intercourse is engaged in outside Australia;

                     (b)  that the person referred to in that subsection as being under 16 is in fact under 16.

Note 1:       For absolute liability, see section 6.2 of the Criminal Code.

Note 2:       For a defence based on belief about age, see section 50CA.


 

Division 3Defences

50CA  Defence based on belief about age

                   It is a defence to a prosecution for an offence against Division 2 that the defendant believed at the time of the sexual intercourse or act of indecency that the person in relation to whom the offence was allegedly committed was 16 or over.

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

50CB  Defence based on valid and genuine marriage

                   It is a defence to a prosecution for an offence against Division 2 that:

                     (a)  at the time of the sexual intercourse or act of indecency, there existed between the defendant and the person in relation to whom the offence was allegedly committed a marriage that was valid, or recognised as valid, under the law of:

                              (i)  the place where the marriage was solemnised; or

                             (ii)  the place where the offence was allegedly committed; or

                            (iii)  the place of the defendant’s residence or domicile; and

                     (b)  when it was solemnised, the marriage was genuine.

Note:          A defendant bears an evidential burden in relation to the matters in this section (see subsection 13.3(3) of the Criminal Code).

50CC  Defence must be proved on balance of probabilities

                   A defence under this Division must be proved on the balance of probabilities.

50CD  Jury may consider reasonableness of alleged belief

                   In determining whether the defendant believed as mentioned in section 50CA, the jury may take into account whether the alleged belief was reasonable in the circumstances.


 

Division 4Offences of benefiting from, or encouraging, offences against this Part

50DA  Benefiting from offence against this Part

             (1)  A person contravenes this section if:

                     (a)  the person does an act, or makes an omission, whether within or outside Australia, with the intention of benefiting, whether financially or not, from conduct of a kind that would constitute an offence against this Part; and

                     (b)  the act or omission is reasonably capable of resulting in the person benefiting from such conduct;

whether or not that conduct in fact occurs or has occurred.

Penalty:  Imprisonment for 17 years.

          (1A)  Absolute liability applies to paragraph (1)(b).

Note:          For absolute liability, see section 6.2 of the Criminal Code.

          (1B)  In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the conduct mentioned in paragraph (1)(a) would be of a kind that would constitute an offence against this Part.

             (2)  An example of an act covered by paragraph (1)(b) is profiting from an arrangement that facilitates an offence against this Part.

50DB  Encouraging offence against this Part

             (1)  A person contravenes this section if:

                     (a)  the person does an act, or makes an omission, whether within or outside Australia, with the intention of encouraging conduct of a kind that would constitute an offence against this Part (other than this section); and

                     (b)  the act or omission is reasonably capable of encouraging such conduct;

whether or not that conduct in fact occurs.

Penalty:  Imprisonment for 17 years.

          (1A)  Absolute liability applies to paragraph (1)(b).

Note:          For absolute liability, see section 6.2 of the Criminal Code.

          (1B)  In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the conduct mentioned in paragraph (1)(a) would be of a kind that would constitute an offence against this Part (other than this section).

             (2)  In this section:

encourage means:

                     (a)  encourage, incite to, or urge, by any means whatever, for example, by written, electronic or other form of communication; or

                     (b)  aid, facilitate, or contribute to, in any way whatever.

             (3)  These are examples of acts covered by paragraph (1)(b):

                     (a)  organising an arrangement that facilitates an offence against this Part (other than this section);

                     (b)  assisting a person to travel outside Australia in order to commit an act that would constitute an offence against Division 2;

                     (c)  advertising an offer so to assist a person or an arrangement for so assisting a person.


 

Division 5Video link evidence

50EA  When court may take evidence by video link

                   In a proceeding for an offence against this Part, the court may direct that a witness give evidence by video link if:

                     (a)  the witness will give the evidence from outside Australia; and

                     (b)  the witness is not a defendant in the proceeding; and

                     (c)  the facilities required by section 50EC are available or can reasonably be made available; and

                     (d)  the court is satisfied that attendance of the witness at the court to give the evidence would:

                              (i)  cause unreasonable expense or inconvenience; or

                             (ii)  cause the witness psychological harm or unreasonable distress; or

                            (iii)  cause the witness to become so intimidated or distressed that his or her reliability as a witness would be significantly reduced; and

                     (e)  the court is satisfied that it is consistent with the interests of justice that the evidence be taken by video link.

50EB  Motion of parties

                   A direction can only be made on application by a party to the proceeding.

50EC  Technical requirements for video link

             (1)  A witness can give evidence under a direction only if:

                     (a)  the courtroom or other place in Australia where the court is sitting (the Australian point); and

                     (b)  the place where the evidence is given (the overseas point);

are equipped with video facilities that:

                     (c)  enable appropriate persons at the Australian point to see and hear the witness give the evidence; and

                     (d)  enable appropriate persons at the overseas point to see and hear appropriate persons at the Australian point.

             (2)  In subsection (1):

appropriate persons means such persons as the court considers appropriate.

50ED  Application of laws about witnesses

             (1)  A person who gives evidence under a direction is taken to give it at the courtroom or other place in Australia where the court is sitting.

             (2)  Subsection (1) has effect, for example, for the purposes of laws relating to evidence, procedure, contempt of court and perjury.

50EE  Administration of oaths and affirmations

                   An oath or affirmation to be sworn or made by a witness who is to give evidence under a direction may be administered either:

                     (a)  by means of the video link, in as nearly as practicable the same way as if the witness were to give the evidence at the courtroom or other place in Australia where the court is sitting; or

                     (b)  as follows:

                              (i)  on behalf of the court and as directed by it;

                             (ii)  by a person (whether an Australian official or not) authorised by the court;

                            (iii)  at the place where the witness is to give the evidence.

50EF  Expenses

                   A court may make such orders as are just for payment of expenses incurred in connection with giving evidence under a direction by the court under this Division.

50EG  Other laws about foreign evidence not affected

                   This Division does not prevent any other law about taking evidence of a witness outside Australia from applying for the purposes of a proceeding for an offence against this Part.


 

Division 6Other rules about conduct of trials

50FA  Certain material taken to be evidence of age

             (1)  In determining for the purposes of this Part whether a person is under 16, or was under 16 at a particular time, or how old a person is or was at a particular time, a jury or court may treat any of the following as admissible evidence:

                     (a)  the person’s appearance;

                     (b)  medical or other scientific opinion;

                     (c)  a document that is or appears to be an official or medical record from a country outside Australia;

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

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

             (3)  If, on a trial for an offence against this Part, evidence may be treated as admissible because of subsection (1), the court must warn the jury that it must be satisfied beyond reasonable doubt in determining the question.

50FB  Alternative verdicts

             (1)  If, on a trial for an offence against section 50BA, the jury is not satisfied that the defendant is guilty of the offence, but is satisfied that he or she is guilty of an offence against section 50BC, it may find the defendant not guilty of the offence against section 50BA but guilty of the offence against section 50BC.

             (2)  If, on a trial for an offence against section 50BB, the jury is not satisfied that the defendant is guilty of the offence, but is satisfied that he or she is guilty of an offence against subsection 50BD(1), it may find the defendant not guilty of the offence against section 50BB but guilty of the offence against subsection 50BD(1).

50FC  Double jeopardy

                   If a person has been convicted or acquitted in a country outside Australia of an offence against the law of that country in respect of any conduct, the person cannot be convicted of an offence against this Part in respect of that conduct.

50FD  Sentencing

             (1)  In determining the sentence to be passed, or the order to be made, in respect of a person for an offence against Division 2, the court must take into account the age and maturity of the person in relation to whom the offence was committed, so far as these matters are relevant and known to the court.

             (2)  The matters mentioned in subsection (1) are in addition to any other matters the court must take into account, for example, the matters mentioned in subsection 16A(2).


 

Division 7Saving of other laws

50GA  Saving of other laws

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


 

Part IVPiracy

  

51  Interpretation

                   In this Part:

act of piracy means an act of violence, detention or depredation committed for private ends by the crew or passengers of a private ship or aircraft and directed:

                     (a)  if the act is done on the high seas or in the coastal sea of Australia—against another ship or aircraft or against persons or property on board another ship or aircraft; or

                     (b)  if the act is done in a place beyond the jurisdiction of any country—against a ship, aircraft, persons or property.

Australia includes the External Territories.

coastal sea of Australia means:

                     (a)  the territorial sea of Australia; and

                     (b)  the sea on the landward side of the territorial sea of Australia and not within the limits of a State or Territory;

and includes airspace over those seas.

high seas means seas that are beyond the territorial sea of Australia and of any foreign country and includes the airspace over those seas.

offence against this Part includes:

                     (a)  an offence against section 6 that relates to an offence against a provision of this Part; and

                     (b)  an offence against a provision of this Part that is taken to have been committed because of section 11.2 or 11.2A of the Criminal Code; and

                     (c)  an offence against section 11.1, 11.4 or 11.5 of the Criminal Code that relates to an offence against a provision of this Part.

pirate‑controlled ship or aircraft means a private ship or aircraft which is under the control of persons that:

                     (a)  have used, are using or intend to use the ship or aircraft in the commission of acts of piracy; or

                     (b)  have seized control of the ship or aircraft by an act of piracy.

place beyond the jurisdiction of any country means a place, other than the high seas, that is not within the territorial jurisdiction of Australia or of any foreign country.

private ship or aircraft means a ship or aircraft that is not being operated for naval, military, customs or law enforcement purposes by Australia or by a foreign country, and includes a ship or aircraft that has been taken over by its crew or passengers.

ship means a vessel of any type not permanently attached to the sea‑bed, and includes any dynamically supported craft, submersible, or any other floating craft, other than a vessel that has been withdrawn from navigation or is laid up.

52  Piracy

                   A person must not perform an act of piracy.

Penalty:  Imprisonment for life.

53  Operating a pirate‑controlled ship or aircraft

             (1)  A person must not voluntarily participate in the operation of a pirate‑controlled ship or aircraft knowing that it is such a ship or aircraft.

Penalty:  Imprisonment for 15 years.

             (2)  This section applies to acts performed on the high seas, in places beyond the jurisdiction of any country or in Australia.

54  Seizure of pirate ships and aircraft etc.

             (1)  A member of the Defence Force or a member of the Australian Federal Police may seize:

                     (a)  a ship or aircraft that he or she reasonably believes to be a pirate‑controlled ship or aircraft; or

                     (b)  a thing on board such a ship or aircraft, being a thing that appears to be connected with the commission of an offence against this Part.

             (2)  A seizure may be effected:

                     (a)  in Australia; or

                     (b)  on the high seas; or

                     (c)  in a place beyond the jurisdiction of any country.

             (3)  The Supreme Court of a State or Territory may:

                     (a)  on the application by the custodian of, or a person with an interest in, a ship, aircraft or thing seized under this section, order that the ship, aircraft or thing be returned to its lawful owner; or

                     (b)  on its own motion, or on application:

                              (i)  if:

                                        (A)  a person has been convicted of an offence against this Part; and

                                        (B)  the ship, aircraft or thing was used in, or was otherwise involved in the commission of, the offence;

                                   order that the ship, aircraft or thing be forfeited to the Commonwealth; or

                             (ii)  make any order relating to the seizure, detention or disposal of the ship, aircraft or thing.

             (4)  An order to return a ship, aircraft or thing may be made subject to conditions, including conditions as to the payment to the Commonwealth of reasonable costs of seizure and detention and conditions as to the giving of security for payment of its value should it be forfeited.

55  Written consent of Attorney‑General required

             (1)  A prosecution for an offence against this Part requires the consent of the Attorney‑General.

             (2)  Despite subsection (1):

                     (a)  a person may be arrested for an offence referred to in subsection (1), and a warrant for such an arrest may be issued and executed; and

                     (b)  a person may be charged with such an offence; and

                     (c)  a person so charged may be remanded in custody or on bail;

but no further step in the proceedings referred to in subsection (1) is to be taken until the Attorney‑General’s consent has been given.

             (3)  Nothing in subsection (2) prevents the discharge of the accused if proceedings are not continued within a reasonable time.

56  Evidence of certain matters

             (1)  A certificate by the Minister for Foreign Affairs and Trade, or by an eligible person authorised by that Minister to make such a certificate, stating that:

                     (a)  specified waters were, at a specified time:

                              (i)  part of the high seas; or

                             (ii)  within the coastal sea of Australia; or

                     (b)  a specified place was, at a specified time, a place beyond the jurisdiction of any country;

is, for the purposes of any proceedings for an offence against this Part, evidence of the facts stated in the certificate.

             (2)  In this section:

eligible person means an SES employee in the Department of Foreign Affairs and Trade.


 

Part VIOffences by and against public officers

  

70  Disclosure of information by Commonwealth officers

             (1)  A person who, being a Commonwealth officer, publishes or communicates, except to some person to whom he or she is authorized to publish or communicate it, any fact or document which comes to his or her knowledge, or into his or her possession, by virtue of being a Commonwealth officer, and which it is his or her duty not to disclose, shall be guilty of an offence.

             (2)  A person who, having been a Commonwealth officer, publishes or communicates, without lawful authority or excuse (proof whereof shall lie upon him or her), any fact or document which came to his or her knowledge, or into his or her possession, by virtue of having been a Commonwealth officer, and which, at the time when he or she ceased to be a Commonwealth officer, it was his or her duty not to disclose, shall be guilty of an offence.

Penalty:  Imprisonment for 2 years.


 

Part VIIOfficial secrets and unlawful soundings

  

77  Interpretation

             (1)  In this Part, unless the contrary intention appears:

article includes any thing, substance or material.

cipher includes:

                     (a)  a code or cryptogram;

                     (b)  a system, method, device or machine whereby a cipher, code or cryptogram may be created; and

                     (c)  a code word, password or identification signal.

information means information of any kind whatsoever, whether true or false and whether in a material form or not, and includes:

                     (a)  an opinion; and

                     (b)  a report of a conversation.

model includes design, pattern and specimen.

plan includes a written record of a survey or of a bearing or measurement taken for the purpose of fixing the position of a place.

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, collecting, recording, using, having in possession, communicating, receiving or retaining include obtaining, collecting, recording, using, having in possession, communicating, receiving 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, collected, recorded, used, possessed, communicated, received or retained;

                     (b)  expressions referring to obtaining or retaining any sketch, plan, photograph, model, cipher, note, document, article or information include copying or causing to be copied the whole or a part of the sketch, plan, photograph, model, cipher, note, document, article or information; and

                     (c)  expressions referring to the communication of any sketch, plan, photograph, model, cipher, note, document, article or information include the transfer or transmission, or the publishing, of the sketch, plan, photograph, model, cipher, note, document, article or information.

             (3)  A reference in the Part to a sketch, plan, photograph, model, cipher, note, document or article or to information shall be read as including a reference to a copy of, a part of or a copy of a part of a sketch, plan, photograph, model, cipher, note, document or article or information.

             (4)  For the purposes of this Part, a place that is occupied by, or a thing that is under the control of, the Commonwealth shall be deemed to belong to the Commonwealth.

             (5)  This Part applies to and in relation to a sketch, plan, photograph, model, cipher, note, document or article by whomsoever it is made and whatsoever information it contains.

79  Official secrets

             (1)  For the purposes of this section, a sketch, plan, photograph, model, cipher, note, document, or article is a prescribed sketch, plan, photograph, model, cipher, note, document or article in relation to a person, and information is prescribed information in relation to a person, if the person has it in his or her possession or control and:

                     (a)  it has been made or obtained in contravention of this Part or in contravention of section 91.1 of the Criminal Code;

                     (b)  it has been entrusted to the person by a Commonwealth officer or a person holding office under the Queen or he or she has made or obtained it owing to his or her position as a person:

                              (i)  who is or has been a Commonwealth officer;

                             (ii)  who holds or has held office under the Queen;

                            (iii)  who holds or has held a contract made on behalf of the Queen or the Commonwealth;

                            (iv)  who is or has been employed by or under a person to whom a preceding subparagraph applies; or

                             (v)  acting with the permission of a Minister;

                            and, by reason of its nature or the circumstances under which it was entrusted to him or her or it was made or obtained by him or her or for any other reason, it is his or her duty to treat it as secret; or

                     (c)  it relates to a prohibited place or anything in a prohibited place and:

                              (i)  he or she knows; or

                             (ii)  by reason of its nature or the circumstances under which it came into his or her possession or control or for any other reason, he or she ought to know;

                            that it should not be communicated to a person not authorized to receive it.

             (2)  If a person with the intention of prejudicing the security or defence of the Commonwealth or a part of the Queen’s dominions:

                     (a)  communicates a prescribed sketch, plan, photograph, model, cipher, note, document or article, or prescribed information, to a person, other than:

                              (i)  a person to whom he or she is authorized to communicate it; or

                             (ii)  a person to whom it is, in the interest of the Commonwealth or a part of the Queen’s dominions, his or her duty to communicate it;

                            or permits a person, other than a person referred to in subparagraph (i) or (ii), to have access to it;

                     (b)  retains a prescribed sketch, plan, photograph, model, cipher, note, document or article in his or her possession or control when he or she has no right to retain it or when it is contrary to his or her duty to retain it; or

                     (c)  fails to comply with a direction given by lawful authority with respect to the retention or disposal of a prescribed sketch, plan, photograph, model, cipher, note, document or article;

he or she shall be guilty of an indictable offence.

Penalty:  Imprisonment for 7 years.

             (3)  If a person communicates a prescribed sketch, plan, photograph, model, cipher, note, document or article, or prescribed information, to a person, other than:

                     (a)  a person to whom he or she is authorized to communicate it; or

                     (b)  a person to whom it is, in the interest of the Commonwealth or a part of the Queen’s dominions, his or her duty to communicate it;

or permits a person, other than a person referred to in paragraph (a) or (b), to have access to it, he or she shall be guilty of an offence.

Penalty:  Imprisonment for 2 years.

             (4)  If a person:

                     (a)  retains a prescribed sketch, plan, photograph, model, cipher, note, document or article in his or her possession or control when he or she has no right to retain it or when it is contrary to his or her duty to retain it;

                     (b)  fails to comply with a direction given by lawful authority with respect to the retention or disposal of a prescribed sketch, plan, photograph, model, cipher, note, document or article; or

                     (c)  fails to take reasonable care of a prescribed sketch, plan, photograph, model, cipher, note, document or article, or prescribed information, or to ensure that it is not communicated to a person not authorized to receive it or so conducts himself or herself as to endanger its safety;

he or she shall be guilty of an offence.

Penalty:  Imprisonment for 6 months.

             (5)  If a person receives any sketch, plan, photograph, model, cipher, note, document, article or information, knowing or having reasonable ground to believe, at the time when he or she receives it, that it is communicated to him or her in contravention of section 91.1 of the Criminal Code or subsection (2) of this section, he or she shall be guilty of an indictable offence unless he or she proves that the communication was contrary to his or her desire.

Penalty:  Imprisonment for 7 years.

             (6)  If a person receives any sketch, plan, photograph, model, cipher, note, document, article or information, knowing, or having reasonable ground to believe, at the time when he or she receives it, that it is communicated to him or her in contravention of subsection (3), he or she shall be guilty of an offence unless he or she proves that the communication was contrary to his or her desire.

Penalty:  Imprisonment for 2 years.

             (7)  On a prosecution under subsection (2) it is not necessary to show that the accused person was guilty of a particular act tending to show an intention to prejudice the security or defence of the Commonwealth or a part of the Queen’s dominions and, notwithstanding that such an act is not proved against him or her, he or she may be convicted if, from the circumstances of the case, from his or her conduct or from his or her known character as proved, it appears that his or her intention was to prejudice the security or defence of the Commonwealth or a part of the Queen’s dominions.

             (8)  On a prosecution under this section, evidence is not admissible by virtue of subsection (7) if the magistrate exercising jurisdiction with respect to the examination and commitment for trial of the defendant, or the judge presiding at the trial, as the case may be, is of the opinion that that evidence, if admitted:

                     (a)  would not tend to show that the defendant intended to prejudice the security or defence of the Commonwealth or a part of the Queen’s dominions; or

                     (b)  would, having regard to all the circumstances of the case and notwithstanding subsection (9), prejudice the fair trial of the defendant.

             (9)  If evidence referred to in subsection (8) is admitted at the trial, the judge shall direct the jury that the evidence may be taken into account by the jury only on the question whether the defendant intended to prejudice the security or defence of the Commonwealth or a part of the Queen’s dominions and must be disregarded by the jury in relation to any other question.

           (10)  A person charged with an offence against subsection (2) may be found guilty of an offence against subsection (3) or (4) and a person charged with an offence against subsection (5) may be found guilty of an offence against subsection (6).

80  Prohibited places

                   The following places shall be prohibited places:

                     (a)  any work of defence, arsenal, factory, dockyard, aerodrome, camp, ship, aircraft, telegraph or signal station, or office, belonging to the Queen or the Commonwealth, and any other place belonging to the Queen or the Commonwealth used for the purpose of building, repairing, making, obtaining or storing any ship, aircraft, arms, or materials or instruments for use in time of war, or any plans or documents relating thereto;

                    (aa)  any camp, barracks or place where prisoners of war, internees or members of the Defence Force are detained;

                     (b)  any place not belonging to the Queen or the Commonwealth where any ship, aircraft, arms, or materials or instruments of use in time of war, or any plans of documents relating thereto, are being made, repaired, obtained, tested or stored under contract with, or with any person on behalf of, the Queen or the Commonwealth;

                     (c)  any place belonging to the Queen or the Commonwealth which is for the time being declared by the Governor‑General to be a prohibited place for the purposes of this Part on the ground that information with respect thereto, or damage thereto, would be useful to an enemy or to a foreign power; and

                     (d)  any railway, road, way, or channel, or other means of communication by land or water (including any works or structures being part thereof or connected therewith), or any place used for gas, water, electricity works or other works for purposes of a public character, or any place where any ship, aircraft, arms, or materials or instruments of use in time of war, or any plans or documents relating thereto, are being made, repaired, obtained, tested or stored otherwise than on behalf of the Queen or the Commonwealth, which is for the time being declared by the Governor‑General by proclamation to be a prohibited place for the purposes of this Part, on the ground that information with respect thereto, or the destruction or obstruction thereof, or interference therewith, would be useful to an enemy or to a foreign power.

83  Unlawful soundings

             (1)  Any person who in the Commonwealth or in any Territory:

                     (a)  takes any unlawful soundings;

                     (b)  makes any record of any unlawful soundings;

                     (c)  intentionally has in possession any record of unlawful soundings;

                     (d)  communicates to any person outside the Commonwealth or any Territory any record of or information concerning unlawful soundings; or

                     (e)  communicates to any other person any record of or information concerning unlawful soundings with intent that the record or information may be communicated to any person outside the Commonwealth or any Territory;

shall be guilty of an indictable offence.

Penalty:  Imprisonment for 2 years.

             (2)  For the purposes of this section all soundings taken in the territorial waters of the Commonwealth or any Territory shall be deemed to be unlawful unless they were made under the authority of the Queen, the Commonwealth Government, or a State Government, or the Government of a Territory, or were reasonably necessary for the navigation of the vessel from which they were taken or for any purpose in which the vessel from which they were taken was lawfully engaged.

             (3)  In any prosecution under this section, proof that any soundings were not unlawfully taken shall lie upon the defendant.

             (4)  Any figure or word or sign representing a figure (other than the printed figures appearing on any official or recognized map or chart) appearing on any map or sketch of any portion of the coast or territorial waters of Australia or of a Territory shall, in the absence of satisfactory proof to the contrary, be deemed to be a record of an unlawful sounding, but nothing in this subsection shall affect proof of unlawful soundings in any other manner.

             (5)  All records of unlawful soundings including all maps or charts having thereon any record of unlawful soundings shall be forfeited to the Commonwealth.

             (6)  A reference in this section to soundings shall be read as including a reference to a hydrographic survey and a reference to the taking of soundings shall be read as including a reference to the making of a hydrographic survey.

85  Institution of prosecution

             (1)  A prosecution under this Part shall be instituted only by or with the consent of the Attorney‑General or of a person acting under his or her direction but 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 he or she may be remanded in custody or on bail, notwithstanding that the consent of the Attorney‑General or a person acting under his or her direction has not been obtained, but no further proceedings shall be taken until that consent has been obtained.

             (2)  Nothing in this section shall prevent the discharging of the accused if proceedings are not continued within a reasonable time.

85B  Hearing in camera etc.

             (1)  At any time before or during the hearing before a federal court, a court exercising federal jurisdiction or a court of a Territory of an application or other proceedings, whether in pursuance of this Act or otherwise, the judge or magistrate, or other person presiding or competent to preside over the proceedings, may, if satisfied that such a course is expedient in the interest of the defence of the Commonwealth:

                     (a)  order that some or all of the members of the public shall be excluded during the whole or a part of the hearing of the application or proceedings;

                     (b)  order that no report of the whole or a specified part of or relating to the application or proceedings shall 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, either before, during or after the hearing of the application or the proceedings, 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.

             (2)  A person who contravenes or fails to comply with an order made or direction given in pursuance of this section shall be guilty of an offence.

Penalty:  Imprisonment for 5 years.

85D  Forfeiture of articles etc.

                   A photograph, sketch, plan, model, article, cipher, note, record, document, die, key, badge, device, seal, stamp or paper which is made, obtained, collected, recorded, retained, forged, possessed or otherwise dealt with in contravention of this Part is forfeited to the Commonwealth.


 

Part VIIAOffences relating to postal services

  

85E  Interpretation—definitions

                   In this Part, unless the contrary intention appears:

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

Australia Post means the Australian Postal Corporation.

carried by post means carried by or through Australia Post.

employee, in relation to Australia Post, includes a person who performs services for or on behalf of Australia Post and an employee of such a person.

mail‑bag includes a package, parcel, container or wrapper belonging to Australia Post in which articles in the course of post are customarily contained, whether or not it actually contains such articles.

postal message means:

                     (a)  a material record of an unwritten communication:

                              (i)  carried by post; or

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

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

                              (i)  carried by post; or

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

85F  Interpretation—expressions used in Australian Postal Corporation Act

                   Unless the contrary intention appears, expressions used in this Part, and in the Australian Postal Corporation Act 1989, have the same respective meanings as in that Act.

85G  Forgery of postage stamps etc.

             (1)  A person shall not forge a postage stamp.

Penalty:  Imprisonment for 10 years.

             (2)  A person shall not utter a postage stamp knowing it to be forged.

Penalty:  Imprisonment for 10 years.

             (3)  A person shall not make, use, have in his or her possession, or sell or otherwise dispose of, any paper or article that has affixed to it, or printed on it, a mark, label or design resembling, apparently intended to resemble or pass for, or likely to be mistaken for, a postage stamp, knowing it is not a postage stamp.

Penalty:  Imprisonment for 5 years.

             (4)  A person shall not make, use, have in his or her possession, or sell or otherwise dispose of, any article resembling, apparently intended to resemble or pass for, or likely to be mistaken for, an envelope, letter‑card, aerogram or other article on which Australia Post has caused a postage stamp to be affixed or printed, knowing that it is not such an article.

Penalty:  Imprisonment for 5 years.

             (5)  A person shall not make, use, have in his or her possession, or sell or otherwise dispose of, any die, plate or instrument capable of making a mark, label or design in the form of, or in a form resembling, apparently intended to resemble or pass for, or likely to be mistaken for, a postage stamp, knowing that it is such a die, plate or instrument.

Penalty:  Imprisonment for 5 years.

          (5A)  Subsections (3), (4) and (5) do not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (5A) (see subsection 13.3(3) of the Criminal Code).

             (6)  A person shall be taken to utter a forged postage stamp if the person:

                     (a)  tenders it or puts it off; or

                     (c)  uses or deals with it; or

                     (e)  attempts to induce any person to use, deal with, act on or accept it.

85H  Special paper for postage stamps

             (1)  A person shall not:

                     (a)  intentionally make, use, have in his or her possession, or sell or otherwise dispose of, paper:

                              (i)  supplied for, or used by, Australia Post for the purpose of printing postage stamps; or

                             (ii)  resembling, or apparently intended to resemble or pass for, paper supplied for, or used by, Australia Post for that purpose;

                     (b)  intentionally make, use, have in his or her possession, or sell or otherwise dispose of, paper:

                              (i)  supplied for, or used by, a person other than Australia Post for the purpose of printing postage stamps for Australia Post; or

                             (ii)  resembling, or apparently intended to resemble or pass for, paper supplied for, or used by, a person other than Australia Post for that purpose; or

                     (c)  intentionally make, use, have in his or her possession, or sell or otherwise dispose of, any instrument or thing for making a mark, label or design resembling, or apparently intended to resemble or pass for, any distinctive mark, label or design used on any paper especially supplied for the purpose of the printing of postage stamps by or on behalf of Australia Post.

Penalty:  Imprisonment for 5 years.

             (2)  Subsection (1) does not apply if the person has a reasonable excuse.

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

85N  Wrongful delivery of postal article etc.

                   A person shall not intentionally cause an article in the course of post to be delivered to, or received by, a person other than the person to whom it is directed or that person’s authorised agent.

Penalty:  Imprisonment for 1 year.

85Q  Forgery of postal messages etc.

             (1)  A person shall not forge a postal message.

Penalty:  Imprisonment for 10 years.

             (2)  A person shall not utter a postal message knowing it to be forged.

Penalty:  Imprisonment for 10 years.

             (3)  A person shall be taken to utter a forged postal message if the person:

                     (a)  tenders it or puts it off; or

                     (c)  uses or deals with it; or

                     (e)  attempts to induce any person to use, deal with, act on or accept it.

85R  Wrongful delivery of postal messages

                   A person shall not intentionally cause a postal message to be delivered to or received by a person other than the person to whom it is directed or that person’s authorised agent.

Penalty:  Imprisonment for 1 year.

85T  Sending false postal messages

                   A person shall not:

                     (a)  intentionally and without a person’s authority, submit, or cause to be submitted, to Australia Post as a postal message signed or to be sent by the person, a postal message that was not so signed or to be sent;

                     (b)  intentionally submit, or cause to be submitted, to Australia Post a postal message signed with the name of a fictitious person;

                     (c)  intentionally and without the authority of the person sending a postal message, alter the postal message; or

                     (d)  intentionally write, issue or deliver a document purporting to be a postal message that has been carried by post knowing that it is not such a message.

Penalty:  Imprisonment for 1 year.

85U  Obstructing carriage of articles by post

                   A person shall not intentionally obstruct or hinder the carriage by post of any article.

Penalty:  Imprisonment for 2 years.

85V  Interference with property of Australia Post

             (1)  A person shall not, without the authority of Australia Post, intentionally tamper or interfere with a post‑box, or stamp vending machine, erected by Australia Post, or any other property belonging to Australia Post.

Penalty:  Imprisonment for 1 year.

          (1A)  For the purposes of an offence against subsection (1), absolute liability applies to whichever one of the following physical elements of circumstance is relevant to the offence:

                     (a)  that the post‑box, or stamp vending machine, is erected by Australia Post;

                     (b)  that the property belongs to Australia Post.

Note:          For absolute liability, see section 6.2 of the Criminal Code.

             (2)  A person shall not, without the authority of Australia Post, intentionally alter, tamper or interfere with, or obliterate any notice, writing or other marking on or attached to property belonging to Australia Post.

Penalty:  30 penalty units.

             (3)  For the purposes of an offence against subsection (2), absolute liability applies to the physical element of circumstance of the offence, that the notice, writing or other marking is on or attached to property belonging to Australia Post.

Note:          For absolute liability, see section 6.2 of the Criminal Code.

85W  Causing narcotic substances to be carried by post

             (1)  A person shall not intentionally cause to be carried by post an article that consists of, encloses or contains a prescribed narcotic substance within the meaning of the Customs Act 1901.

Penalty:  Imprisonment for 2 years.

             (2)  Where an act constitutes an offence against a law of a State or Territory, the validity of the law is not affected merely because the act also constitutes an offence against subsection (1).

85Z  Articles carried by post to be taken to be Australia Post’s property

                   For the purpose of any prosecution for an offence in relation to an article carried by post or under the control of Australia Post, the article shall be taken to be the property of Australia Post.

85ZA  Postage stamps to be valuable securities etc.

                   A postage stamp, and any document issued by Australia Post in relation to the carriage by post of money or a direction to pay an amount of money, shall be taken to be a valuable security for the purposes of any law relating to larceny.


 

Part VIICPardons, quashed convictions and spent convictions

Division 1Interpretation and application of Part

85ZL  Interpretation of Part

                   In this Part, unless the contrary intention appears:

AUSTRAC means the Australian Transaction Reports and Analysis Centre continued in existence by the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006.

Commonwealth authority means:

                     (a)  a Commonwealth Minister;

                     (b)  a Commonwealth Department;

                    (ba)  the Defence Force;

                     (c)  a body (whether incorporated or not), or a tribunal, established or appointed for a public purpose by or under a Commonwealth law, not being:

                              (i)  an incorporated company, society or association; or

                             (ii)  an organisation registered, or an association recognised, under the Fair Work (Registered Organisations) Act 2009, or a branch of such an organisation or association;

                     (d)  a body established or appointed by the Governor‑General, or by a Commonwealth Minister, otherwise than by or under a Commonwealth law;

                     (e)  a person holding or performing the duties of an office established by or under, or an appointment made under, a Commonwealth law other than the office of Secretary of a Commonwealth Department;

                      (f)  a person holding or performing the duties of an appointment made by the Governor‑General, or by a Commonwealth Minister, otherwise than under a Commonwealth law;

                     (g)  a federal court;

                     (h)  the Supreme Court of the Australian Capital Territory; or

                      (j)  the Australian Federal Police.

Commonwealth Department means an Agency within the meaning of the Public Service Act 1999.

Commonwealth law means:

                     (a)  an Act other than:

                              (i)  the Australian Capital Territory (Self‑Government) Act 1988; or

                             (ii)  the Northern Territory (Self‑Government) Act 1978;

                     (b)  an instrument (including rules, regulations or by‑laws) made under an Act (other than an Act referred to in subparagraph (a)(i) or (ii)); or

                     (c)  any other legislation that applies as a law of the Commonwealth (other than legislation in so far as it is applied by an Act referred to in subparagraph (a)(i) or (ii)), to the extent that it operates as such a law.

Commonwealth Minister means a Minister of State of the Commonwealth.

Commonwealth offence means an offence against a Commonwealth law.

complaint means a complaint under subsection 85ZZA(1).

designated offence means:

                     (a)  a sexual offence; or

                     (b)  any other offence against the person if the victim of the offence was under 18 at the time the offence was committed.

designated position means a position in a Commonwealth authority which the head of the authority has determined to be a designated security assessment position whose duties are likely to involve access to national security information classified as secret or top secret.

foreign law means a law of a foreign country.

foreign offence means an offence against a foreign law.

intelligence or security agency means:

                     (a)  the Australian Security Intelligence Organisation; or

                     (b)  the Australian Secret Intelligence Service; or

                     (c)  the Office of National Assessments; or

                     (d)  that part of the Department of Defence known as the Defence Signals Directorate; or

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

                      (f)  that part of the Department of Defence known as the Defence Imagery and Geospatial Organisation.

law enforcement agency means:

                     (a)  the Australian Federal Police;

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

                    (ba)  Customs;

                    (bb)  the Australian Commission for Law Enforcement Integrity;

                     (c)  the ACC;

                     (e)  the CrimTrac Agency;

                      (f)  the Independent Commission Against Corruption established under the Independent Commission Against Corruption Act, 1988 of the State of New South Wales, or a similar body established under a law of another State;

                     (g)  the New South Wales Crime Commission established under the New South Wales Crime Commission Act 1985 of New South Wales, or a similar body established under a law of another State;

                     (h)  the Office of the Director of Public Prosecutions, or a similar body established under a State law;

                      (j)  a Director of Public Prosecutions, or a person performing a similar function, appointed under a law of a State;

                     (k)  staff appointed to assist a Director or person referred to in paragraph (j); or

                    (m)  officers or members of the Attorney‑General’s Department of a State or a similar State Department, or of a body administered by such a Department, being officers or members whose primary function is the institution or conduct of proceedings for State offences.

national security information means information affecting the defence, security or international relations of Australia.

Privacy Act means the Privacy Act 1988.

Secretary, in relation to a Commonwealth Department, means the Agency Head within the meaning of the Public Service Act 1999.

security has the same meaning as in the Australian Security Intelligence Organisation Act 1979.

spent, in relation to a conviction, has the meaning given it in section 85ZM.

State includes the Australian Capital Territory and the Northern Territory.

State authority means:

                     (a)  a State Minister;

                     (b)  a State Department;

                     (c)  a body (whether incorporated or not), or a tribunal, established or appointed for a public purpose by or under a State law, not being:

                              (i)  an incorporated company, society or association;

                             (ii)  an association of employers or employees that is registered or recognised under a State law dealing with the conciliation and arbitration of industrial disputes; or

                            (iii)  the body corporate constituted under subsection 6(1) of the Legal Practitioners Ordinance 1970 of the Australian Capital Territory or a similar body constituted under a law of another State;

                     (d)  a body established or appointed by a Governor of a State, or by a State Minister, or by the Australian Capital Territory Executive or the Administrator of the Northern Territory otherwise than by or under a State law;

                     (e)  a person holding or performing the duties of an office established by or under, or an appointment made under, a State law, other than the office of head of a State Department (however described);

                      (f)  a person holding or performing the duties of an appointment, being an appointment made by a Governor of a State or by a State Minister, or by the Australian Capital Territory Executive or the Administrator of the Northern Territory otherwise than under a State law;

                     (g)  a State court; or

                     (h)  a State police force.

State law means a law in force in a State (other than a Commonwealth law).

State offence means an offence against a State law.

Territory does not include the Australian Capital Territory or the Northern Territory.

Territory law means a law in force in a Territory (other than a Commonwealth law).

Territory offence means an offence against a Territory law.

waiting period, in relation to an offence, means:

                     (a)  if the person convicted of the offence was dealt with as a minor in relation to the conviction—the period of 5 years beginning on the day on which the person was convicted of the offence; or

                     (b)  in any other case—the period of 10 years beginning on the day on which the person was convicted of the offence.

85ZM  Meaning of conviction and spent conviction

             (1)  For the purposes of this Part, a person shall be taken to have been convicted of an offence if:

                     (a)  the person has been convicted, whether summarily or on indictment, of the offence;

                     (b)  the person has been charged with, and found guilty of, the offence but discharged without conviction; or

                     (c)  the person has not been found guilty of the offence, but a court has taken it into account in passing sentence on the person for another offence.

             (2)  For the purposes of this Part, a person’s conviction of an offence is spent if:

                     (a)  the person has been granted a pardon for a reason other than that the person was wrongly convicted of the offence; or

                     (b)  the person was not sentenced to imprisonment for the offence, or was not sentenced to imprisonment for the offence for more than 30 months, and the waiting period for the offence has ended.

85ZN  Meaning of quash

                   For the purposes of this Part, a person’s conviction of an offence shall be taken to have been quashed:

                     (a)  where the person was convicted of the offence—if the conviction has been quashed or set aside;

                     (b)  where the person was found guilty of the offence, but discharged without conviction—if the finding of guilt has been quashed or set aside; or

                     (c)  where the person was not found guilty of the offence, but a court has taken it into account in passing sentence on the person for another offence:

                              (i)  if the person’s conviction of the other offence has been quashed or set aside; or

                             (ii)  if the court’s decision to take the offence into account has been set aside.

85ZP  Application of Part

             (1)  This Part applies in relation to a person convicted of an offence whether the person was convicted before or after the commencement of this Part.

             (2)  A reference in this Part to a person convicted of an offence does not include a reference to a body corporate.

             (3)  Nothing in this Part authorises a person or body to disclose or take into account a conviction of an offence if to do so would contravene any Commonwealth law, State law, Territory law or foreign law.

Note:          An exception is a disclosure to the Federal Court of Australia for the purposes of indictable primary proceedings, criminal appeal proceedings or related matters (see section 85ZZL).

             (4)  Nothing in this Part affects anything lawfully done before a pardon is granted or a conviction is quashed or spent.

85ZQ  Part binds the Crown

                   This Part binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory, of the Northern Territory and of Norfolk Island.


 

Division 2Pardons for persons wrongly convicted, and quashed convictions

85ZR  Pardons for persons wrongly convicted

             (1)  Despite any other Commonwealth law or any State law or Territory law, where a person has been granted a free and absolute pardon for a Commonwealth offence or a Territory offence because the person was wrongly convicted of the offence:

                     (a)  the person shall be taken, in any State or Territory, for all purposes, never to have been convicted of the offence; and

                     (b)  the person shall be taken, in a foreign country, by any Commonwealth authority or State authority in that country, for all purposes, never to have been convicted of the offence.

             (2)  Despite any other Commonwealth law or any Territory law, where, under a State law or a foreign law a person is, in particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence under a law of that State or foreign country:

                     (a)  the person shall be taken, in any Territory, in corresponding circumstances or for a corresponding purpose, never to have been convicted of that offence; and

                     (b)  the person shall be taken, in any State or foreign country, in corresponding circumstances or for a corresponding purpose, by any Commonwealth authority in that State or country, never to have been convicted of that offence.

85ZS  Effect of pardons for persons wrongly convicted

                   Without affecting the generality of section 85ZR, but despite any other Commonwealth law or any State law or Territory law, where, under section 85ZR, a person is, in particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence:

                     (a)  the person is not required, in those circumstances or for that purpose, to disclose the fact that the person was charged with, or convicted of, the offence;

                     (b)  it is lawful for the person to claim, in those circumstances, or for that purpose, on oath or otherwise, that he or she was not charged with, or convicted of, the offence;

                     (c)  in the case of a Commonwealth offence or a Territory offence—the person is not otherwise subject to any legal duty or disability to which he or she would not have been subject if he or she had not been convicted; and

                     (d)  anyone else who knows, or could reasonably be expected to know, that section 85ZR applies to the person in relation to the offence shall not:

                              (i)  without the person’s consent, disclose the fact that the person was charged with, or convicted of, the offence to any other person, or to a Commonwealth authority or State authority, where it is lawful for the first‑mentioned person not to disclose it to that other person or that authority; or

                             (ii)  in those circumstances, or for that purpose, take account of the fact that the person was charged with, or convicted of, the offence.

85ZT  Quashed convictions

             (1)  Despite any other Commonwealth law or any State law or Territory law, where a person’s conviction of a Commonwealth offence or a Territory offence has been quashed, the person is not required:

                     (a)  in any State or Territory—to disclose to any person, for any purpose, the fact that the person has been charged with, or convicted of, the offence; or

                     (b)  in a foreign country—to disclose to any Commonwealth authority or State authority in that country, for any purpose, the fact that the person has been charged with, or convicted of, the offence.

             (2)  Despite any other Commonwealth law or any Territory law, where a person’s conviction of a State offence or a foreign offence has been quashed, the person is not required:

                     (a)  in any Territory—to disclose to any person, for any purpose, the fact that the person has been charged with, or convicted of, the offence; or

                     (b)  in any State or foreign country—to disclose to any Commonwealth authority in that State or country, for any purpose, the fact that the person has been charged with, or convicted of, the offence.

85ZU  Effect of quashed convictions

                   Despite any other Commonwealth law or any State law or Territory law, where, under section 85ZT, it is lawful for a person not to disclose, in particular circumstances, or for a particular purpose, the fact that he or she was charged with, or convicted of, an offence:

                     (a)  it is lawful for the person to claim, in those circumstances, or for that purpose, on oath or otherwise, that he or she was not charged with, or convicted of, the offence; and

                     (b)  anyone else who knows, or could reasonably be expected to know, that section 85ZT applies to the person in relation to the offence shall not:

                              (i)  without the person’s consent, disclose the fact that the person was charged with, or convicted of, the offence to any other person, or to a Commonwealth authority or State authority, where it is lawful for the first‑mentioned person not to disclose it to that other person or that authority; or

                             (ii)  in those circumstances, or for that purpose, take account of the fact that the person was charged with, or convicted of, the offence.


 

Division 3Spent convictions

85ZV  Spent convictions

             (1)  Subject to Division 6, but despite any other Commonwealth law or any State law or Territory law, if a person’s conviction of a Commonwealth offence or a Territory offence is spent, the person is not required:

                     (a)  in any State or Territory—to disclose to any person, for any purpose, the fact that the person has been charged with, or convicted of, the offence; or

                     (b)  in a foreign country—to disclose to any Commonwealth authority or State authority in that country, for any purpose, the fact that the person has been charged with, or convicted of, the offence.

             (2)  Subject to Division 6, but despite any other Commonwealth law or any Territory law, if a person’s conviction of a State offence or a foreign offence is spent, the person is not required:

                     (a)  in any Territory—to disclose to any person, for any purpose, the fact that the person has been charged with, or convicted of, the offence; or

                     (b)  in any State or foreign country—to disclose to any Commonwealth authority in that State or country, for any purpose, the fact that the person has been charged with, or convicted of, the offence.

             (3)  Subject to Division 6, but despite any other Commonwealth law or any Territory law, where:

                     (a)  a person was convicted of a State offence;

                     (b)  subsection (2) does not apply to the person in relation to the offence; and

                     (c)  under a law in force in that State, being a law dealing with the disclosure or taking into account of spent convictions (however described in that law) it is lawful for the person, in particular circumstances or for a particular purpose, not to disclose the fact that the person was charged with, or convicted of, the offence;

the person is not required, in corresponding circumstances or for a corresponding purpose:

                     (d)  in a Territory—to disclose the fact that the person was charged with, or convicted of, the offence; or

                     (e)  in a State or foreign country—to disclose that fact to any Commonwealth authority in that State or country.

85ZW  Effect of right of non‑disclosure

                   Subject to Division 6, but despite any other Commonwealth law, or any State law or Territory law, where, under section 85ZV, it is lawful for a person not to disclose, in particular circumstances, or for a particular purpose, the fact that he or she was charged with, or convicted of, an offence:

                     (a)  it is lawful for the person to claim, in those circumstances, or for that purpose, on oath or otherwise, that he or she was not charged with, or convicted of, the offence; and

                     (b)  anyone else who knows, or could reasonably be expected to know, that section 85ZV applies to the person in relation to the offence shall not:

                              (i)  without the person’s consent, disclose the fact that the person was charged with, or convicted of, the offence to any other person, or to a Commonwealth authority or State authority, where it is lawful for the first‑mentioned person not to disclose it to that other person or that authority; or

                             (ii)  in those circumstances, or for that purpose, take account of the fact that the person was charged with, or convicted of, the offence.


 

Division 4Convictions of further offences

85ZX  Convictions of further Commonwealth or Territory offences

             (1)  Where:

                     (a)  Division 3 applies to a person in relation to an offence of which the person was convicted, or would (unless an order is made under this section) so apply to the person if the waiting period for the offence had ended; and

                     (b)  before or after the end of the waiting period for the offence, the person is convicted summarily, by a court exercising federal jurisdiction or a court of a Territory, of another offence, being an offence committed during that waiting period;

the court may order that Division 3 ceases to apply or does not apply to the person, as the case requires, in relation to the earlier offence until the waiting period for the later offence has ended.

             (2)  Where:

                     (a)  Division 3 applies to a person in relation to an offence of which the person was convicted, or would (but for this subsection) so apply to the person if the waiting period for the offence had ended; and

                     (b)  before or after the end of the waiting period for the offence, the person is convicted on indictment, by a court exercising federal jurisdiction or a court of a Territory, of another offence, being an offence committed during that waiting period;

Division 3 ceases to apply or does not apply to the person, as the case requires, in relation to the earlier offence until the waiting period for the later offence has ended.

85ZY  Convictions of further State or foreign offences

                   Subject to subsection 85ZV(3), where:

                     (a)  Division 3 applies to a person in relation to an offence of which the person was convicted, or would so apply to the person if the waiting period for the offence had ended; and

                     (b)  before or after the end of the waiting period for the offence, the person is convicted (whether summarily or on indictment) by a court of a State (not being a court exercising federal jurisdiction) or a court of a foreign country, of another offence, being an offence committed during that waiting period;

Division 3 ceases to apply or does not apply to the person, as the case requires, in relation to the earlier offence until the waiting period for the later offence has ended.


 

Division 5Complaints to Privacy Commissioner

85ZZ  Privacy Commissioner’s functions

             (1)  The Privacy Commissioner has the following functions:

                     (a)  to investigate an act or practice of a person or of a Commonwealth authority or State authority that may breach Division 2 or 3 and, where the Commissioner considers it appropriate, to try, by conciliation, to effect a settlement of the matters that gave rise to the investigation;

                     (b)  to receive and examine any written requests for complete or partial exclusion of persons from the application of Division 3 and advise the Minister whether an exclusion should be granted and whether there should be any restrictions on the circumstances in which an exclusion would apply.

             (2)  In the performance of those functions, the Privacy Commissioner shall:

                     (a)  have due regard for the protection of important human rights and social interests that compete with the rights given by this Part, including the recognition of the right of government and business to achieve their objectives in an efficient way;

                     (b)  take account of:

                              (i)  international obligations accepted by Australia, including those concerning the international technology of communications; and

                             (ii)  developing general international guidelines relevant to the better protection of individual privacy;

                     (c)  take into account the nature of the offence concerned;

                     (d)  ensure that his or her advice is, within the limitations of the powers of the Commonwealth, capable of acceptance, adaptation and extension in any State or Territory; and

                     (e)  ensure that his or her directions and advice are consistent with the Information Privacy Principles set out in section 14 of the Privacy Act.

85ZZA  Complaints to the Privacy Commissioner

             (1)  A person may complain to the Privacy Commissioner about an act or practice of another person or of a Commonwealth authority or State authority that may be a breach of Division 2 or 3.

             (2)  A complaint shall be in writing.

             (3)  It is the duty of members of the Privacy Commissioner’s staff to give appropriate help to a person who wishes to make a complaint and wants help to formulate the complaint.

             (4)  The complaint shall specify the respondent to the complaint.

85ZZB  Identity of respondent to complaint

             (1)  If a complaint is about an act or practice of a Commonwealth Department or a State Department, or an officer of such a Department, the Secretary or head of the Department is the respondent to the complaint.

             (2)  If a complaint is about an act or practice of another Commonwealth authority or State authority, or a member or officer of such an authority, being an authority that is within the responsibility of a Commonwealth or State Minister but not within the responsibility of a Commonwealth Department or a State Department, the Minister is the respondent to the complaint.

             (3)  If a complaint is about an act or practice of any other Commonwealth authority or State authority, or a member or officer of such an authority, the chief executive officer of the authority is the respondent to the complaint.

             (4)  If a complaint is about an act or practice of a person other than a Commonwealth authority or a State authority, that person is the respondent to the complaint.

85ZZC  Investigation of complaints

             (1)  The Privacy Commissioner shall consider a complaint, and shall investigate the act or practice complained of, if the act or practice may be a breach of Division 2 or 3.

             (2)  The Privacy Commissioner may decide not to investigate, or not to investigate further, an act or practice about which a complaint has been made if satisfied that:

                     (a)  the act or practice is not a breach of Division 2 or 3;

                     (b)  the complainant has not complained to the respondent about the act or practice;

                     (c)  the complainant has complained to the respondent, and that the respondent:

                              (i)  has dealt, or is dealing, adequately with the complaint; or

                             (ii)  has not yet had an adequate opportunity to deal with the complaint;

                     (d)  the complaint was made more than 12 months after the complainant became aware of the act or practice;

                     (e)  the complaint is frivolous, vexatious, misconceived or lacking in substance;

                      (f)  the act or practice is the subject of an application under another Commonwealth law, or under a State law or a Territory law, and that the subject‑matter of the complaint has been, or is being, dealt with adequately under that law; or

                     (g)  the act or practice could be made the subject of an application under another Commonwealth law, or under a State law or a Territory law, for a more appropriate remedy.

85ZZD  Determinations of Privacy Commissioner

             (1)  After investigating a complaint, the Commissioner may:

                     (a)  make a determination dismissing the complaint; or

                     (b)  find the complaint substantiated and make a determination that includes one or more of the following:

                              (i)  a declaration that the authority or person about whom the complaint was made has engaged in conduct unlawful under this Act and should not repeat or continue that conduct;

                             (ii)  a declaration that the respondent should do any reasonable act or carry out any reasonable course of conduct to redress any loss or damage suffered by the complainant;

                            (iii)  a declaration that the respondent should employ or re‑employ the complainant;

                            (iv)  a declaration that the respondent should promote the complainant;

                             (v)  a declaration that the complainant is entitled to a specified amount by way of compensation for any loss or damage suffered because of the act or practice about which the complaint was made;

                            (vi)  a declaration that the termination of a contract or agreement should be varied to redress any loss or damage suffered by the complainant;

                           (vii)  a declaration that it would be inappropriate for any further action to be taken in the matter.

             (2)  The Privacy Commissioner may require one or both parties to a complaint to attend such counselling as is specified by the Commissioner with a view to settling the matter to which the complaint relates.

             (3)  When making a determination, the Privacy Commissioner shall state any findings of fact upon which the determination is based.

             (4)  When making a determination, the Privacy Commissioner may declare that the complainant is entitled to a specified amount to reimburse the complainant for expenses reasonably incurred in connection with the making of the complaint and the investigation of the complaint.

             (5)  In paragraph (1)(b):

damage includes humiliation suffered by the complainant or injury to his or her feelings.

85ZZE  Payment of compensation or expenses

                   Where a determination under paragraph 85ZZD(1)(b) includes a declaration of a kind referred to in subparagraph 85ZZD(1)(b)(v) or subsection 85ZZD(4), the declaration has effect as a declaration that the complainant is entitled to receive the specified amount:

                     (a)  if the complaint was about an act or practice of a Commonwealth authority—from the Commonwealth;

                     (b)  if the complaint was about an act or practice of a State authority—from that State; or

                     (c)  in any other case—from the respondent.

85ZZF  Enforcement of determination or recommendation

             (1)  The Privacy Commissioner or the complainant may apply to the Federal Court of Australia for an order to enforce a determination under paragraph 85ZZD(1)(b) or subsection 85ZZD(4).

             (2)  If the Federal Court of Australia is satisfied that the authority or person about whom the complaint was made has done anything that is a breach of Division 2 or 3 the court may make any orders it thinks fit (including a declaration of right).

             (3)  An order may give effect to a determination.

85ZZG  Application of Privacy Act

             (1)  Sections 42 to 48 (inclusive) of the Privacy Act, and sections 50, 64 to 68 (inclusive), 96 and 98 of that Act apply, with any necessary changes, in relation to a complaint as if the complaint had been made under subsection 36(1) of that Act.

             (2)  Where a provision of the Privacy Act is applied under subsection (1) or (2), a reference in that provision to an agency shall be read as a reference to a Commonwealth authority or a State authority, as the case requires.


 

Division 6Exclusions

85ZZH  Exclusions

                   Division 3 does not apply in relation to the disclosure of information to or by, or the taking into account of information by a person or body referred to in one of the following paragraphs for the purpose specified in relation to the person or body:

                     (a)  a law enforcement agency, for the purpose of making decisions in relation to prosecution or sentencing or of assessing:

                              (i)  prospective employees or prospective members of the agency; or

                             (ii)  persons proposed to be engaged as consultants to, or to perform services for, the agency or a member of the agency;

                     (b)  an intelligence or security agency, for the purpose of assessing:

                              (i)  prospective employees or prospective members of the agency; or

                             (ii)  persons proposed to be engaged as consultants to, or to perform services for, the agency or a member of the agency;

                     (c)  a court or tribunal established under a Commonwealth law, a State law or a Territory law, for the purpose of making a decision, including a decision in relation to sentencing;

                     (d)  a person who makes a decision under the Migration Act 1958, the Australian Citizenship Act 2007, or the Immigration Act 1980 of the Territory of Norfolk Island, for the purpose of making that decision;

                     (e)  a person or body who employs or otherwise engages other persons in relation to the care, instruction or supervision of minors, for the purpose of finding out whether a person who is being assessed by the person or body for that employment or engagement has been convicted of a designated offence;

                      (f)  a person or body who otherwise makes available care, instruction or supervision services for minors, for the purpose of finding out whether a person who is being assessed by the person or body in connection with those services has been convicted of a designated offence;

                     (g)  a Commonwealth authority, for the purpose of assessing appointees or prospective appointees to a designated position;

                     (h)  AUSTRAC, for the purpose of assessing:

                              (i)  prospective members of the staff of AUSTRAC; or

                             (ii)  persons proposed to be engaged as consultants under subsection 225(1) of the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006; or

                            (iii)  persons whose services are proposed to be made available to AUSTRAC under subsection 225(3) of that Act;

                      (j)  the Australian Government Solicitor, for the purpose of instituting or conducting proceedings for Commonwealth offences;

                     (k)  a prescribed person or body, for a prescribed purpose, in relation to a conviction for a prescribed offence.

85ZZJ  Further exclusions—law enforcement agencies

             (1)  Division 3 does not apply in relation to:

                     (a)  the disclosure of information by a law enforcement agency, or an employee or member of a law enforcement agency, to another law enforcement agency, or an employee or member of another law enforcement agency, where the disclosure is made in the discharge of the duties of the first‑mentioned agency, employee or member;

                     (b)  filing or recording information that comes into the possession of a law enforcement agency, or an employee or member of a law enforcement agency, where the filing or recording is done in the discharge of the duties of the agency, employee or member; or

                     (c)  the use by a law enforcement agency of information relating to the investigation or prevention of crime, where the investigation or prevention of crime is a function of the agency.

             (2)  In this section:

employee, in relation to a law enforcement agency, includes a person engaged as a consultant to, or to perform services for, the agency or a member of the agency.

85ZZK  Fair reporting: pardons and quashed convictions

                   The publication of a fair and accurate report of the circumstances in which a person was granted a pardon (on any ground), or a person’s conviction was quashed, and of any related court proceedings, is not a breach of Division 2 or 3.

85ZZL  Criminal proceedings before the Federal Court of Australia

             (1)  The Federal Court of Australia (and an officer of that court) may:

                     (a)  require a person to disclose information to the court, or an officer of the court, about any Commonwealth offence, State offence, Territory offence or foreign offence in relation to which the person has been charged or convicted; and

                     (b)  take into account that information;

for the purposes of indictable primary proceedings, criminal appeal proceedings or matters relating to either such proceedings.

Note:          The officers of the Federal Court of Australia are referred to in section 18N of the Federal Court of Australia Act 1976.

             (2)  Division 3 does not apply in relation to a disclosure of information, or a taking into account of information, under subsection (1).

             (3)  Subsections (1) and (2) have effect despite section 85ZP and any other Commonwealth law, and any State law, Territory law or foreign law.

             (4)  For the purposes of references in this section to foreign law or foreign offence, a foreign country is taken to include a region where:

                     (a)  the region is a colony, territory or protectorate of a foreign country; or

                     (b)  the region is part of a foreign country; or

                     (c)  the region is under the protection of a foreign country; or

                     (d)  a foreign country exercises jurisdiction or control over the region; or

                     (e)  a foreign country is responsible for the region’s international relations.

             (5)  In this section:

criminal appeal proceedings has the same meaning as in the Federal Court of Australia Act 1976.

indictable primary proceedings has the same meaning as in the Federal Court of Australia Act 1976.


 

Part VIIIMiscellaneous

  

87  False certificates

                   Any person who, being authorized or required by a law of the Commonwealth to give any certificate touching any matter by virtue whereof the rights of any person may be harmfully affected, gives a certificate which is, to his or her knowledge, false in any material particular, shall be guilty of an offence.

Penalty:  Imprisonment for 2 years.

89  Trespassing on Commonwealth land

             (1)  A person who, without lawful excuse (proof whereof shall lie upon him or her), trespasses or goes upon any prohibited Commonwealth land shall be guilty of an offence.

Penalty:  10 penalty units.

             (2)  Where a person is found upon prohibited Commonwealth land, a constable, a protective service officer or an authorized Commonwealth officer may request the person to furnish his or her name and address to the constable or officer and, if the person fails to comply with the request, he or she shall be guilty of an offence.

Penalty:  10 penalty units.

             (3)  Where a person is found upon prohibited Commonwealth land and a constable or authorized Commonwealth officer has reasonable grounds to believe that that person has gone upon the land in circumstances that amount to an offence against subsection (1), the constable or officer may apprehend that person and that person may be detained in proper custody to be dealt with according to law.

             (4)  An authorized Commonwealth officer shall not, under this section, request a person to furnish his or her name or address, or apprehend a person, unless he or she first produces to the person the instrument by virtue of which he or she is an authorized Commonwealth officer.

             (5)  In this section:

authorized Commonwealth officer means a Commonwealth officer declared by a Minister, by instrument in writing, to be an authorized Commonwealth officer for the purposes of this section.

prohibited Commonwealth land means land belonging to, or in the occupation of, the Commonwealth or a public authority under the Commonwealth, being land upon which is posted a notice to the effect that trespassing upon the land is prohibited.

protective service officer has the same meaning as in the Australian Federal Police Act 1979.

89A  Discharging firearms on or over Commonwealth land

             (1)  A person who, without lawful authority or excuse (proof whereof shall lie upon him or her), discharges a firearm upon or over a prohibited area shall be guilty of an offence and the firearms shall be forfeited to the Commonwealth.

Penalty:  Imprisonment for 6 months.

             (2)  A person who commits an offence against this section may be apprehended by a constable or an authorized Commonwealth officer and detained in proper custody to be dealt with according to law.

             (3)  An authorized Commonwealth officer shall not, under this section, apprehend a person unless he or she first produces to the person the instrument by virtue of which he or she is an authorized Commonwealth officer.

             (4)  In this section:

authorized Commonwealth officer means a Commonwealth officer declared by a Minister, by instrument in writing, to be an authorized Commonwealth officer for the purposes of this section.

prohibited area means land belonging to, or in the occupation of, the Commonwealth or a public authority under the Commonwealth, being land upon which is posted a notice to the effect that shooting upon or over the land is prohibited.

90  Trespass by cattle or live stock

                   Any person who, without lawful excuse (proof whereof shall lie upon him or her), suffers or permits any cattle or other live stock in his or her possession, custody, or control, to trespass or stray upon any land belonging to, or in the occupation of, the Commonwealth, shall be guilty of an offence.

Penalty:  1 penalty unit.

90A  Destroying etc. posters etc. relating to Commonwealth loans

                   A person shall not, without lawful authority, destroy, injure, disfigure or remove a poster, advertisement or notice relating to a Commonwealth loan.

Penalty:  Imprisonment for 1 year.

90B  False statements in documents filed etc. under laws of a Territory

                   A person who:

                     (a)  in a document that, under a law of a Territory, is, or is required to be, produced or furnished to, or filed or lodged with, a Commonwealth officer; or

                     (b)  in a document that is required to be registered under, or to be prepared for the purposes of, a law of a Territory;

intentionally makes a statement that the person knows is false shall be guilty of an offence.

Penalty:  Imprisonment for 2 years.

91  Regulations

                   The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to this Act.


ScheduleForm of explanation under section 23V

Section 23V            

  

  

              When you were interviewed by                    , I/we made a record in writing of what you said, and what we said to you, in the interview. I/We made the record *at the time of the interview/*as soon as practicable after the interview. It is in *English/*the language that you used in the interview. I/We will give you a copy.

              I am now going to read it to you in the                language that you used in the interview.

              You can interrupt the reading at any time if you think there is something wrong with the record. At the end of the reading you can tell me/us about anything else you think is wrong with the record, as well as the things you mentioned during the reading.

              I/We will make a tape recording of reading the record and everything you say, or I/we say to you, during the reading and at the end. I/We will give you a copy of that tape recording and, if a transcript is made, a copy of that transcript.

*Delete whichever is not applicable.


Notes to the Crimes Act 1914

Note 1

The Crimes Act 1914 as shown in this compilation comprises Act No. 12, 1914 amended as indicated in the Tables below.

The Crimes Act 1914 was amended by the Workplace Relations Amendment (Work Choices) (Consequential Amendments) Regulations 2006 (No. 1) (SLI 2006 No. 50). The amendment is incorporated in this compilation.

For application, saving or transitional provisions made by the Corporations (Repeals, Consequentials and Transitionals) Act 2001, see Act No. 55, 2001.

All relevant information pertaining to application, saving or transitional provisions prior to 29 June 1998 is not included in this compilation. For subsequent information see Table A.

Table of Acts

Act

Number
and year

Date
of Assent

Date of commencement

Application, saving or transitional provisions

 

Crimes Act 1914

12, 1914

29 Oct 1914

29 Oct 1914

 

 

Crimes Act 1915

6, 1915

7 May 1915

29 Oct 1914
(see s. 3)

 

as amended by

 

 

 

 

 

War Precautions Act Repeal Act 1920

54, 1920

2 Dec 1920

2 Dec 1920

 

War Precautions Act Repeal Act 1920

54, 1920

2 Dec 1920

2 Dec 1920

 

Crimes Act 1926

9, 1926

16 Mar 1926

29 Mar 1926 (see Gazette 1926, p. 437)

 

Crimes Act 1928

13, 1928

22 June 1928

22 June 1928

 

Crimes Act 1932

30, 1932

30 May 1932

30 May 1932

 

Judiciary Act 1937

5, 1937

3 July 1937

3 July 1937

S. 5

 

Crimes Act 1941

6, 1941

4 Apr 1941

3 Sept 1939

 

Defence (Transitional Provisions) Act 1946

77, 1946

14 Dec 1946

1 Jan 1947

 

Statute Law Revision Act 1950

80, 1950

16 Dec 1950

31 Dec 1950

S. 16

 

Crimes Act 1955

10, 1955

31 May 1955

31 May 1955

 

Crimes Act 1959

11, 1959

23 Apr 1959

S. 4: 14 Jan 1960 (see s. 2 and Gazette 1960, p. 47)
Remainder: Royal Assent

 

Crimes Act 1960

84, 1960

13 Dec 1960

13 Dec 1960

 

Statute Law Revision (Decimal Currency) Act 1966

93, 1966

29 Oct 1966

1 Dec 1966

 

Crimes Act 1973

33, 1973

27 May 1973

27 May 1973

 

Statute Law Revision Act 1973

216, 1973

19 Dec 1973

31 Dec 1973

Ss. 9(1) and 10

 

Postal and Telecommunications Commissions (Transitional Provisions) Act 1975

56, 1975

12 June 1975

Ss. 4 and 38:
1 July 1975 (see s. 2(1) and Gazette 1975, No. S122)
Remainder: Royal Assent

 

Jurisdiction of Courts (Miscellaneous Amendments) Act 1979

19, 1979

28 Mar 1979

Parts II–XVII
(ss. 3–123):15 May 1979 (see Gazette 1979, No. S86)
Remainder: Royal Assent

S. 124

 

Australian Federal Police (Consequential Amendments) Act 1979

155, 1979

28 Nov 1979

19 Oct 1979 (see s. 2 and Gazette 1979, No. S206)

 

Australian Federal Police (Consequential Amendments) Act 1980

70, 1980

28 May 1980

28 May 1980

 

Crimes (Currency) Act 1981

122, 1981

17 Sept 1981

Ss. 1–3: Royal Assent
Remainder: 16 Dec 1985 (see s. 2(2))

 

as amended by

 

 

 

 

 

Statute Law (Miscellaneous Provisions) Act (No. 2) 1985

193, 1985

16 Dec 1985

S. 3: (a)

S. 16

 

Crimes Amendment Act 1982

67, 1982

16 June 1982

Ss. 1, 2 and 14: Royal Assent
Ss. 6, 8 and 9: 16 Dec 1985
Remainder: 1 Nov 1982 (see Gazette 1982, No. G43, p. 2)

Ss. 4(2), 5(2), 7(2), 8(2), (3), 10(2) and 13(2)
S. 6(2) (rep. by 193, 1985, s. 3)

 

as amended by

 

 

 

 

 

Statute Law (Miscellaneous Provisions) Act (No. 2) 1985

193, 1985

16 Dec 1985

S. 3: Royal Assent (b)

S. 16

 

Statute Law (Miscellaneous Amendments) Act
(No. 2) 1982

80, 1982

22 Sept 1982

Part XXII
(ss. 60–65):
16 Dec 1985 (c)

 

Defence Force (Miscellaneous Provisions) Act 1982

153, 1982

31 Dec 1982

3 July 1985 (see s. 2 and Gazette 1985, No. S255)

 

Statute Law (Miscellaneous Provisions) Act (No. 2) 1983

91, 1983

22 Nov 1983

S. 3: Royal Assent (d)

S. 6(1)

 

Director of Public Prosecutions (Consequential Amendments) Act 1983

114, 1983

14 Dec 1983

S. 8: 16 Dec 1985 (see s. 2(2), (3))
Remainder: 5 Mar 1984 (see s. 2(1) and Gazette 1984, No. S55)

 

Radiocommunications (Transitional Provisions and Consequential Amendments) Act 1983

136, 1983

22 Dec 1983

27 Aug 1985 (see s. 2 and Gazette 1985, No. S322)

S. 5

 

Australian Government Solicitor (Consequential Amendments) Act 1984

10, 1984

10 Apr 1984

S. 3: 16 Dec 1985 (e)

S. 4(1) and (3)

 

Public Service Reform Act 1984

63, 1984

25 June 1984

S. 152(1): 20 July 1984 (see Gazette 1984, No. S276) (f)

 

Statute Law (Miscellaneous Provisions) Act (No. 2) 1984

165, 1984

25 Oct 1984

S. 3: Royal Assent (g)

Ss. 2(32) and 6(1)

 

Statute Law (Miscellaneous Provisions) Act (No. 2) 1985

193, 1985

16 Dec 1985

S. 3: (h)

S. 8

 

Statute Law (Miscellaneous Provisions) Act (No. 1) 1986

76, 1986

24 June 1986

S. 3: (j)

S. 9

 

Intelligence and Security (Consequential Amendments) Act 1986

102, 1986

17 Oct 1986

1 Feb 1987 (see s. 2 and Gazette 1987, No. S13)

 

Statute Law (Miscellaneous Provisions) Act (No. 2) 1986

168, 1986

18 Dec 1986

S. 3: Royal Assent (k)

S. 5(1)

 

Proceeds of Crime (Miscellaneous Amendments) Act 1987

73, 1987

5 June 1987

5 June 1987 (see s. 2)

 

Crimes Legislation Amendment Act 1987

120, 1987

16 Dec 1987

Ss. 10, 12, 13 and 15: 13 Jan 1988 (l)
Ss. 11 and 14:
1 Mar 1989 (see Gazette 1989, No. S54) (l)
Ss. 16–18: 19 Dec 1988 (see Gazette 1988, No. S384) (l)

 

Statute Law (Miscellaneous Provisions) Act 1987

141, 1987

18 Dec 1987

S. 3: Royal Assent (m)

S. 5(1), (6) and (7)

 

Telecommunications and Postal Services (Transitional Provisions and Consequential Amendments) Act 1989

63, 1989

19 June 1989

Part 2 (ss. 3–5): 1 July 1989 (see Gazette 1989, No. S230) (n)

 

Crimes Legislation Amendment Act 1989

108, 1989

30 June 1989

S. 10: 1 July 1990
Parts 5–7
(ss. 7–35): 28 July 1989
Part 8 (ss. 36–43): 1 July 1989
Remainder: Royal Assent

S. 12

 

Crimes Legislation Amendment Act (No. 2) 1989

4, 1990

17 Jan 1990

Ss. 3–19 and
23–35: 17 July 1990 (o)
Ss. 20–22: 1 July 1990 (o)

Ss. 23–28, 30–33 and 35(3)

 

as amended by

 

 

 

 

Crimes Legislation Enhancement Act 2003

41, 2003

3 June 2003

Schedule 2 (items 5, 6): (zn)

Law and Justice Legislation Amendment Act 1989

11, 1990

17 Jan 1990

Parts 1 and 3 (ss. 1, 2, 6, 7): Royal Assent
Ss. 8–10: 17 July 1990
Ss. 12, 15, 51(1)(b) and 51(2): 17 Jan 1990 (see s. 2(5))
Remainder: 14 Feb 1990

 

Defence Legislation Amendment Act 1990

75, 1990

22 Oct 1990

S. 3 (in part): 15 Dec 1990 (see Gazette 1990, No. S316)
S. 4(1): 30 June 1989
S. 5: 30 June 1990 (see s. 2(5))
Remainder: Royal Assent

 

Crimes Legislation Amendment Act 1991

28, 1991

4 Mar 1991

Ss. 24, 25, 27, 28 and 30(a), (c): Royal Assent (p)
Ss. 26 and 29: 1 Apr 1991 (p)
S. 30(b): 29 Apr 1991 (see Gazette 1991, No. S108) (p)

 

Crimes (Investigation of Commonwealth Offences) Amendment Act 1991

59, 1991

9 May 1991

Ss. 1 and 2: Royal Assent
Remainder: 1 Nov 1991 (see Gazette 1991, No. S291)

 

Telecommunications (Transitional Provisions and Consequential Amendments) Act 1991

99, 1991

27 June 1991

Part 1 (ss. 1, 2): Royal Assent
Part 2 (ss. 3–22), s. 23 and Part 4 (s. 25): 1 July 1991
Remainder: 1 Feb 1992 (see s. 2(3) and Gazette 1992, No. S32)

 

as amended by

 

 

 

 

 

AUSSAT Repeal Act 1991

145, 1991

21 Oct 1991

(see 145, 1991 below)

 

Proceeds of Crime Legislation Amendment Act 1991

120, 1991

27 June 1991

Ss. 1 and 2: Royal Assent
Remainder: 27 Dec 1991 (see s. 2(3))

 

Crimes Legislation Amendment Act (No. 2) 1991

123, 1991

23 Aug 1991

Ss. 5–10, Parts
3–7 (ss. 11–34), Part 9 (ss. 38, 39) and ss. 40–50: 20 Sept 1991
Part 8 (ss. 35–37): 6 Dec 1991 (see Gazette 1991, No. S330)
S. 51: 23 Feb 1992
Remainder: Royal Assent

 

Crimes Amendment Act 1991

140, 1991

27 Sept 1991

25 Oct 1991

 

AUSSAT Repeal Act 1991

145, 1991

21 Oct 1991

Part 3 (ss. 8–12):
1 Feb 1992 (see Gazette 1992, No. S46)
Remainder: Royal Assent

S. 11(2)

 

Crimes Legislation Amendment Act 1992

164, 1992

11 Dec 1992

Ss. 3–17: 1 Feb 1993 (see Gazette 1993, No. GN1)
Remainder: 8 Jan 1993

 

Industrial Relations Reform Act 1993

98, 1993

22 Dec 1993

Div. 3 of Part 7 (s. 62): 30 Mar 1994 (see Gazette 1994, No. S104) (q)

 

Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994

65, 1994

30 May 1994

30 Nov 1994

 

as amended by

 

 

 

 

 

Crimes Legislation Enhancement Act 2003

41, 2003

3 June 2003

Schedule 3 (item 5): (zn)
Schedule 3 (item 42): Royal Assent

Sch. 3 (item 42) [see Table A]

Crimes (Child Sex Tourism) Amendment Act 1994

105, 1994

5 July 1994

5 July 1994

 

Law and Justice Legislation Amendment Act (No. 2) 1994

141, 1994

28 Nov 1994

S. 3 (items 1–10): 30 Nov 1994 (r)

 

as amended by

 

 

 

 

 

Statute Law Revision Act 1996

43, 1996

25 Oct 1996

Schedule 3 (items 37, 38): 28 Nov 1994 (s)

 

Crimes Legislation Enhancement Act 2003

41, 2003

3 June 2003

Schedule 2 (item 14): (zn)

Australian Postal Corporation Amendment Act 1994

142, 1994

5 Dec 1994

Ss. 4(a), (f), 14(c), (d) and 16(a): 1 Jan 1995
Remainder: Royal Assent

 

Crimes and Other Legislation Amendment Act 1994

182, 1994

19 Dec 1994

Ss. 8, 9, 14(a), 15(a), 16(a), 17(a), 18(b) and 20–22: Royal Assent (t)
Ss. 10–13, 14(b), 15(b), 16(b), 17(b), 18(a) and 19: 16 Jan 1995 (t)

S. 9

 

as amended by

 

 

 

 

 

Statute Law Revision Act 1996

43, 1996

25 Oct 1996

Schedule 3 (item 10): 19 Dec 1994 (u)

 

Evidence (Transitional Provisions and Consequential Amendments) Act 1995

3, 1995

23 Feb 1995

S. 14: Royal Assent (v)
Ss. 17–20: (v)

S. 14

 

Crimes Amendment Act 1995

11, 1995

15 Mar 1995

15 Sept 1995

 

Crimes Amendment (Controlled Operations) Act 1996

28, 1996

8 July 1996

8 July 1996

 

as amended by

 

 

 

 

Crimes Legislation Enhancement Act 2003

41, 2003

3 June 2003

Schedule 3 (item 6): (zn)
Schedule 3 (item 42): Royal Assent

Sch. 3 (item 42) [see Table A]

Workplace Relations and Other Legislation Amendment Act 1996

60, 1996

25 Nov 1996

Schedule 16 (item 59): (w)
Schedule 19 (item 16): Royal Assent (w)

S. 2(2) and (6) (am. by 77, 1996, Sch. 3 [items 1, 2])

 

as amended by

 

 

 

 

 

Workplace Relations and Other Legislation Amendment Act (No. 2) 1996

77, 1996

19 Dec 1996

Schedule 3 (items 1, 2): (x)

 

Crimes and Other Legislation Amendment Act 1997

20, 1997

7 Apr 1997

Schedule 1 (item 9): Royal Assent (y)

 

Law and Justice Legislation Amendment Act 1997

34, 1997

17 Apr 1997

Schedule 4: Royal Assent (z)

 

Telecommunications (Transitional Provisions and Consequential Amendments) Act 1997

59, 1997

3 May 1997

Schedule 1 (items 16–34): 1 July 1997 (za)

 

Audit (Transitional and Miscellaneous) Amendment Act 1997

152, 1997

24 Oct 1997

Schedule 2 (items 636–638): 1 Jan 1998 (see Gazette 1997, No. GN49) (zb)

 

Crimes Amendment (Enforcement of Fines) Act 1998

49, 1998

29 June 1998

29 June 1998

Sch. 1 (items 2, 8) [see Table A]

 

as amended by

 

 

 

 

Statute Law Revision Act 2006

9, 2006

23 Mar 2006

Schedule 2 (item 14): (zba)

Financial Sector Reform (Amendments and Transitional Provisions) Act 1998

54, 1998

29 June 1998

Schedule 18 (item 45): 1 July 1998 (see Gazette 1998, No. S316) (zc)

 

Crimes Amendment (Forensic Procedures) Act 1998

96, 1998

23 July 1998

Schedule 1, Schedule 2 (items 1–11,
13–19) and Schedule 3: 23 Jan 1999
Schedule 2 (item 12): (zd)
Remainder: Royal Assent

 

as amended by

 

 

 

 

Crimes Legislation Enhancement Act 2003

41, 2003

3 June 2003

Schedule 3 (item 41): (zn)
Schedule 3 (item 42): Royal Assent

Sch. 3 (item 42) [see Table A]

Broadcasting Services Amendment (Online Services) Act 1999

90, 1999

16 July 1999

16 July 1999

 

Crimes Amendment (Fine Enforcement) Act 1999

123, 1999

13 Oct 1999

13 Oct 1999

Sch. 1 (item 5) [see Table A]

 

Public Employment (Consequential and Transitional) Amendment Act 1999

146, 1999

11 Nov 1999

Schedule 1 (items 343–348): 5 Dec 1999 (see Gazette 1999, No. S584) (ze)

 

Australian Security Intelligence Organisation Legislation Amendment Act 1999

161, 1999

10 Dec 1999

Schedule 3 (items 1, 22, 23): (zf)

 

Privacy Amendment (Office of the Privacy Commissioner) Act 2000

2, 2000

29 Feb 2000

1 July 2000 (see Gazette 2000, No. S229)

 

Australian Federal Police Legislation Amendment Act 2000

9, 2000

7 Mar 2000

2 July 2000 (see Gazette 2000, No. S328)

Sch. 3 (items 20, 23, 34, 35) [see Table A]

 

Crimes at Sea Act 2000

13, 2000

31 Mar 2000

Ss. 1 and 2: Royal Assent
Remainder: 31 Mar 2001

Sch. 2 (item 11) [see Table A]

 

Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000

137, 2000

24 Nov 2000

Ss. 1–3 and Schedule 1 (items 1, 4, 6, 7,
9–11, 32): Royal Assent
Remainder: 24 May 2001

Sch. 2 (items 418, 419) [see Table A]

 

Crimes Amendment (Forensic Procedures) Act 2001

22, 2001

6 Apr 2001

Schedule 1 (items 1, 4–77,
80–86): 20 June 2001 (see Gazette 2001, No. GN24)
Schedule 1 (items 78, 79): (zg)
Remainder: Royal Assent

 

as amended by

 

 

 

 

 

Statute Law Revision Act 2002

63, 2002

3 July 2002

Schedule 2 (item 6): (zga)

 

Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001

24, 2001

6 Apr 2001

S. 4(1), (2) and Schedule 10: (zh)
Schedule 1 (items 1, 2): 4 May 2001 (zh)
Schedule 51 (item 4): 15 Dec 2001 (zh)

S. 4(1) and (2) [see Table A]

 

Crimes Amendment (Age Determination) Act 2001

37, 2001

7 May 2001

4 June 2001

 

Corporations (Repeals, Consequentials and Transitionals) Act 2001

55, 2001

28 June 2001

Ss. 4–14 and Schedule 3 (item 147): 15 July 2001 (see Gazette 2001, No. S285) (zi)

Ss. 4–14 [see Note 1]

 

National Crime Authority Legislation Amendment Act 2001

135, 2001

1 Oct 2001

Schedules 1–7 and 9–12: 12 Oct 2001 (see Gazette 2001, No. S428)
Schedule 8: 13 Oct 2001 (see Gazette 2001, No. S428)
Remainder: Royal Assent

Measures to Combat Serious and Organised Crime Act 2001

136, 2001

1 Oct 2001

Ss. 1–3: Royal Assent
Schedules 1 and 2: 12 Oct 2001 (see Gazette 2001, No. S428)
Schedule 4 (item 10): [see (zj) and Note 2]
Remainder: 29 Oct 2001

Sch. 1 (items 18, 41, 48) and Sch. 4 (item 51) [see Table A]

Cybercrime Act 2001

161, 2001

1 Oct 2001

21 Dec 2001 (see Gazette 2001, No. S529)

 

Criminal Code Amendment (Anti‑hoax and Other Measures) Act 2002

9, 2002

4 Apr 2002

Schedule 1: 16 Oct 2001 (zk)
Remainder: Royal Assent

 

Security Legislation Amendment (Terrorism) Act 2002

65, 2002

5 July 2002

Schedule 1 (items 6, 8–13): 6 July 2002

 

Proceeds of Crime (Consequential Amendments and Transitional Provisions) Act 2002

86, 2002

11 Oct 2002

Ss. 1–3: Royal Assent
Remainder: 1 Jan 2003 (see s. 2(1) and Gazette 2002, No. GN44)

 

Crimes Amendment Act 2002

88, 2002

23 Oct 2002

Schedule 1 (item 1): 12 Oct 2002
Schedule 1 (item 2): (zl)
Remainder: Royal Assent

 

Criminal Code Amendment (Espionage and Related Matters) Act 2002

91, 2002

31 Oct 2002

S. 4: Royal Assent
Schedule 1 (items 1A, 1–3) and Schedule 2 (items 3, 4): 28 Nov 2002
Schedule 2 (items 1, 2): (zm)

S. 4 [see Table A]
S. 2(4) (am. by 100, 2005, Sch. 2 [item 10])
S. 2(5) (am. by 100, 2005, Sch. 2 [item 11])

 

as amended by

 

 

 

 

Statute Law Revision Act 2005

100, 2005

6 July 2005

Schedule 2 (items 10, 11): (zma)

Workplace Relations Legislation Amendment (Registration and Accountability of Organisations) (Consequential Provisions) Act 2002

105, 2002

14 Nov 2002

Schedule 3 (item 37): 12 May 2003 (see s. 2 and Gazette 2002, No. GN49)

 

Australian Crime Commission Establishment Act 2002

125, 2002

10 Dec 2002

Schedule 2 (items
5–30): 1 Jan 2003

 

Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Act 2002

141, 2002

19 Dec 2002

Schedules 1, 2 and Schedule 3 (items
1–22, 24–26): 16 Jan 2003
Schedule 3 (item 23): 1 Jan 2003 (see s. 2(1) and Gazette 2002, No. GN44)
Remainder: Royal Assent

S. 4 [see Table A]

 

Crimes Legislation Enhancement Act 2003

41, 2003

3 June 2003

Schedule 1 (items
1–7, 7A) and Schedule 3 (items
2–4, 8–13, 37–40, 42): Royal Assent
Schedule 1 (items 7B–7F): 1 Mar 2003
Schedule 1 (items 8, 9): (zn)
Schedule 3 (item 16): (zn)
Schedule 3 (item 17): (zn)
Schedule 3 (items 18–29): (zn)

Sch. 1 (items 5, 7, 7F) and Sch. 3 (item 42) [see Table A]

 

Telecommunications Interception and Other Legislation Amendment Act 2003

113, 2003

12 Nov 2003

Schedule 1: 6 Feb 2004 (see Gazette 2004, No. S27)
Remainder: Royal Assent

 

Law and Justice Legislation Amendment Act 2004

62, 2004

26 May 2004

Schedule 1 (item 13): (zo)

 

Australian Federal Police and Other Legislation Amendment Act 2004

64, 2004

22 June 2004

Schedule 2 (item 5): 1 July 2004
Schedule 3 (items 3D, 4–6, 6A, 7, 7A, 7B, 8–13, 13A, 13B, 14–16): 22 Dec 2004

 

as amended by

 

 

 

 

Statute Law Revision Act 2005

100, 2005

6 July 2005

Schedule 2 (item 7): (zoa)

Anti‑terrorism Act 2004

104, 2004

30 June 2004

1 July 2004

S. 4(1A) and (1B) [see Table A]

 

Anti‑terrorism Act (No. 2) 2004

124, 2004

16 Aug 2004

Schedule 3: 17 Aug 2004
Remainder: Royal Assent

 

Anti‑terrorism Act (No. 3) 2004

125, 2004

16 Aug 2004

Schedules 1 and 2: 13 Sept 2004
Schedule 3 (item 6): (zp)
Remainder: Royal Assent

 

Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No. 2) 2004

127, 2004

31 Aug 2004

Schedule 1 (items
3–5, 30, 31): 1 Mar 2005

Sch. 1 (item 30)
Sch. 1 (item 31) (am. by 40, 2006, Sch. 1 [item 16]) [see Table A]

 

as amended by

 

 

 

 

 

Telecommunications (Interception) Amendment Act 2006

40, 2006

3 May 2006

Schedule 1 (item 16): 13 June 2006 (see F2006L01623)

 

Australian Passports (Transitionals and Consequentials) Act 2005

7, 2005

18 Feb 2005

Ss. 4–11 and Schedule 1: 1 July 2005 (see s. 2(1))
Remainder: Royal Assent

 

Financial Framework Legislation Amendment Act 2005

8, 2005

22 Feb 2005

S. 4 and Schedule 1 (items 122, 123, 496): Royal Assent

S. 4 and Sch. 1 (item 496) [see Table A]

 

Crimes Amendment Act 2005

87, 2005

6 July 2005

6 July 2005

 

Criminal Code Amendment (Trafficking in Persons Offences) Act 2005

96, 2005

6 July 2005

Schedules 1 and 2: 3 Aug 2005
Remainder: Royal Assent

 

Statute Law Revision Act 2005

100, 2005

6 July 2005

Schedule 1 (items 8–10): Royal Assent
Schedule 1 (item 11): (zq)

 

Intelligence Services Legislation Amendment Act 2005

128, 2005

4 Nov 2005

Schedules 1–8: 2 Dec 2005
Remainder: Royal Assent

 

Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005

129, 2005

8 Nov 2005

Schedule 1 (items 2–13, 75, 76): 6 Dec 2005

Sch. 1 (items 75, 76) [see Table A]

 

Law and Justice Legislation Amendment (Video Link Evidence and Other Measures) Act 2005

136, 2005

15 Nov 2005

16 Nov 2005

Sch. 1 (items 7, 19) [see Table A]

 

Anti‑Terrorism Act (No. 2) 2005

144, 2005

14 Dec 2005

S. 4: Royal Assent
Schedules 5 and 6: 15 Dec 2005
Schedule 7 (items 1–4): 11 Jan 2006

S. 4 [see Table A]

 

Statute Law Revision Act 2006

9, 2006

23 Mar 2006

Schedule 1 (item 10): (zr)
Schedule 1 (items 11, 12): Royal Assent

 

ASIO Legislation Amendment Act 2006

54, 2006

19 June 2006

Schedule 1 (item 11): 20 June 2006

 

Law Enforcement (AFP Professional Standards and Related Measures) Act 2006

84, 2006

30 June 2006

Schedule 3 (items 33–35): 30 Dec 2006 (see s. 2(1))

 

Law Enforcement Integrity Commissioner (Consequential Amendments) Act 2006

86, 2006

30 June 2006

Schedule 1 (items 11–31): 30 Dec 2006 (see s. 2(1))