Contents
1............ Short title............................................................................................. 1
2............ Commencement................................................................................... 1
3............ The Criminal Code.............................................................................. 1
3A......... External Territories.............................................................................. 1
3B......... Offshore installations.......................................................................... 1
4............ Definitions.......................................................................................... 1
5............ Regulations......................................................................................... 2
Schedule—The Criminal Code 3
Chapter 1—Codification 3
Division 1 3
1.1......... Codification......................................................................................... 3
Chapter 2—General principles of criminal responsibility 4
Part 2.1—Purpose and application 4
Division 2 4
2.1......... Purpose............................................................................................... 4
2.2......... Application.......................................................................................... 4
2.3......... Application of provisions relating to intoxication................................ 4
Part 2.2—The elements of an offence 5
Division 3—General 5
3.1......... Elements.............................................................................................. 5
3.2......... Establishing guilt in respect of offences.............................................. 5
Division 4—Physical elements 6
4.1......... Physical elements................................................................................ 6
4.2......... Voluntariness...................................................................................... 6
4.3......... Omissions........................................................................................... 7
Division 5—Fault elements 8
5.1......... Fault elements..................................................................................... 8
5.2......... Intention.............................................................................................. 8
5.3......... Knowledge.......................................................................................... 8
5.4......... Recklessness....................................................................................... 8
5.5......... Negligence.......................................................................................... 9
5.6......... Offences that do not specify fault elements......................................... 9
Division 6—Cases where fault elements are not required 10
6.1......... Strict liability..................................................................................... 10
6.2......... Absolute liability............................................................................... 10
Part 2.3—Circumstances in which there is no criminal responsibility 11
Division 7—Circumstances involving lack of capacity 11
7.1......... Children under 10............................................................................. 11
7.2......... Children over 10 but under 14.......................................................... 11
7.3......... Mental impairment............................................................................ 11
Division 8—Intoxication 13
8.1......... Definition—self‑induced intoxication............................................... 13
8.2......... Intoxication (offences involving basic intent).................................... 13
8.3......... Intoxication (negligence as fault element).......................................... 14
8.4......... Intoxication (relevance to defences).................................................. 14
8.5......... Involuntary intoxication.................................................................... 15
Division 9—Circumstances involving mistake or ignorance 16
9.1......... Mistake or ignorance of fact (fault elements other than negligence).. 16
9.2......... Mistake of fact (strict liability).......................................................... 16
9.3......... Mistake or ignorance of statute law................................................... 17
9.4......... Mistake or ignorance of subordinate legislation................................ 17
9.5......... Claim of right.................................................................................... 18
Division 10—Circumstances involving external factors 19
10.1....... Intervening conduct or event............................................................. 19
10.2....... Duress............................................................................................... 19
10.3....... Sudden or extraordinary emergency.................................................. 19
10.4....... Self‑defence...................................................................................... 20
10.5....... Lawful authority................................................................................ 21
Part 2.4—Extensions of criminal responsibility 22
Division 11 22
11.1....... Attempt............................................................................................. 22
11.2....... Complicity and common purpose...................................................... 23
11.2A.... Joint commission.............................................................................. 24
11.3....... Commission by proxy....................................................................... 26
11.4....... Incitement.......................................................................................... 26
11.5....... Conspiracy........................................................................................ 27
11.6....... References in Acts to offences.......................................................... 29
Part 2.5—Corporate criminal responsibility 30
Division 12 30
12.1....... General principles............................................................................. 30
12.2....... Physical elements.............................................................................. 30
12.3....... Fault elements other than negligence................................................. 30
12.4....... Negligence........................................................................................ 32
12.5....... Mistake of fact (strict liability).......................................................... 32
12.6....... Intervening conduct or event............................................................. 33
Part 2.6—Proof of criminal responsibility 34
Division 13 34
13.1....... Legal burden of proof—prosecution................................................. 34
13.2....... Standard of proof—prosecution........................................................ 34
13.3....... Evidential burden of proof—defence................................................ 34
13.4....... Legal burden of proof—defence....................................................... 35
13.5....... Standard of proof—defence.............................................................. 35
13.6....... Use of averments.............................................................................. 35
Part 2.7—Geographical jurisdiction 36
Division 14—Standard geographical jurisdiction 36
14.1....... Standard geographical jurisdiction.................................................... 36
Division 15—Extended geographical jurisdiction 39
15.1....... Extended geographical jurisdiction—category A.............................. 39
15.2....... Extended geographical jurisdiction—category B............................... 41
15.3....... Extended geographical jurisdiction—category C............................... 43
15.4....... Extended geographical jurisdiction—category D.............................. 45
Division 16—Miscellaneous 47
16.1....... Attorney‑General’s consent required for prosecution if alleged conduct occurs wholly in a foreign country in certain circumstances.................................................................................... 47
16.2....... When conduct taken to occur partly in Australia............................... 47
16.3....... Meaning of Australia........................................................................ 48
16.4....... Result of conduct.............................................................................. 48
Chapter 4—The integrity and security of the international community and foreign governments 49
Division 70—Bribery of foreign public officials 49
70.1....... Definitions........................................................................................ 49
70.2....... Bribing a foreign public official........................................................ 52
70.3....... Defence—conduct lawful in foreign public official’s country........... 55
70.4....... Defence—facilitation payments......................................................... 57
70.5....... Territorial and nationality requirements............................................. 59
70.6....... Saving of other laws......................................................................... 60
Division 71—Offences against United Nations and associated personnel 61
71.1....... Purpose............................................................................................. 61
71.2....... Murder of a UN or associated person............................................... 61
71.3....... Manslaughter of a UN or associated person..................................... 61
71.4....... Intentionally causing serious harm to a UN or associated person..... 62
71.5....... Recklessly causing serious harm to a UN or associated person........ 62
71.6....... Intentionally causing harm to a UN or associated person.................. 63
71.7....... Recklessly causing harm to a UN or associated person.................... 63
71.8....... Unlawful sexual penetration.............................................................. 64
71.9....... Kidnapping a UN or associated person............................................. 65
71.10..... Unlawful detention of UN or associated person............................... 66
71.11..... Intentionally causing damage to UN or associated person’s property etc. 66
71.12..... Threatening to commit other offences............................................... 67
71.13..... Aggravated offences......................................................................... 68
71.14..... Defence—activities involving serious harm...................................... 68
71.15..... Defence—medical or hygienic procedures........................................ 69
71.16..... Jurisdictional requirement................................................................. 69
71.17..... Exclusion of this Division if State/Territory laws provide for corresponding offences 70
71.18..... Double jeopardy................................................................................ 70
71.19..... Saving of other laws......................................................................... 70
71.20..... Bringing proceedings under this Division......................................... 70
71.21..... Ministerial certificates relating to proceedings................................... 70
71.22..... Jurisdiction of State courts preserved................................................ 71
71.23..... Definitions........................................................................................ 71
Division 72—Explosives and lethal devices 74
Subdivision A—International terrorist activities using explosive or lethal devices 74
72.1....... Purpose............................................................................................. 74
72.2....... ADF members not liable for prosecution.......................................... 74
72.3....... Offences............................................................................................ 74
72.4....... Jurisdictional requirement................................................................. 75
72.5....... Saving of other laws......................................................................... 76
72.6....... Double jeopardy and foreign offences.............................................. 76
72.7....... Bringing proceedings under this Subdivision................................... 77
72.8....... Ministerial certificates relating to proceedings................................... 77
72.9....... Jurisdiction of State courts preserved................................................ 78
72.10..... Definitions........................................................................................ 78
Subdivision B—Plastic explosives 78
72.11..... Purpose............................................................................................. 78
72.12..... Trafficking in unmarked plastic explosives etc.................................. 78
72.13..... Importing or exporting unmarked plastic explosives etc................... 79
72.14..... Manufacturing unmarked plastic explosives etc................................ 79
72.15..... Possessing unmarked plastic explosives etc...................................... 80
72.16..... Defences........................................................................................... 80
72.17..... Packaging requirements for plastic explosives.................................. 81
72.18..... Authorisation for research etc........................................................... 82
72.19..... Authorisation for defence and police purposes—15 year limit.......... 83
72.20..... Authorisation for existing stocks—3 year limit................................. 84
72.21..... Authorisation of manufacturers—6 month transitional period.......... 85
72.22..... Authorisation for overseas defence purposes—7 day limit............... 86
72.23..... Authorisation for overseas Australian Federal Police purposes—7 day limit 87
72.24..... Forfeited plastic explosives............................................................... 87
72.25..... Surrendered plastic explosives.......................................................... 88
72.26..... Destruction of plastic explosives obtained overseas for defence purposes 88
72.27..... Destruction of plastic explosives obtained overseas for Australian Federal Police purposes 89
72.28..... Delegation by Minister...................................................................... 89
72.29..... Delegation by Minister for Defence.................................................. 89
72.30..... Review by Administrative Appeals Tribunal of authorisation decisions 90
72.31..... Geographical jurisdiction.................................................................. 90
72.32..... Saving of other laws......................................................................... 90
72.33..... Marking requirements....................................................................... 90
72.34..... Detection agents and minimum manufacture concentrations............. 91
72.35..... Presumption as to concentration of detection agent........................... 92
72.36..... Definitions........................................................................................ 92
Subdivision C—Cluster munitions and explosive bomblets 95
72.37..... Purpose............................................................................................. 95
72.38..... Offences relating to cluster munitions............................................... 95
72.39..... Defence—acquisition or retention authorised by Defence Minister.. 96
72.40..... Defence—transfer for destruction etc................................................ 97
72.41..... Defence—acts by Australians in military cooperation with countries not party to Convention on Cluster Munitions.......................................................................................................... 98
72.42..... Defence—acts by military personnel of countries not party to Convention on Cluster Munitions 99
72.43..... Forfeiture of cluster munition.......................................................... 100
72.44..... Application of this Subdivision to explosive bomblets................... 100
72.45..... Definitions...................................................................................... 100
Division 73—People smuggling and related offences 102
Subdivision A—People smuggling offences 102
73.1....... Offence of people smuggling.......................................................... 102
73.2....... Aggravated offence of people smuggling (danger of death or serious harm etc.) 102
73.3....... Aggravated offence of people smuggling (at least 5 people)........... 103
73.3A.... Supporting the offence of people smuggling................................... 104
73.4....... Jurisdictional requirement............................................................... 104
73.5....... Attorney‑General’s consent required.............................................. 104
Subdivision B—Document offences related to people smuggling and unlawful entry into foreign countries 105
73.6....... Meaning of travel or identity document.......................................... 105
73.7....... Meaning of false travel or identity document.................................. 105
73.8....... Making, providing or possessing a false travel or identity document 106
73.9....... Providing or possessing a travel or identity document issued or altered dishonestly or as a result of threats 106
73.10..... Providing or possessing a travel or identity document to be used by a person who is not the rightful user 107
73.11..... Taking possession of or destroying another person’s travel or identity document 108
73.12..... Jurisdictional requirement............................................................... 108
Chapter 5—The security of the Commonwealth 109
Part 5.1—Treason and urging violence 109
Division 80—Treason and urging violence 109
Subdivision A—Preliminary 109
80.1A.... Definition of organisation.............................................................. 109
Subdivision B—Treason 109
80.1....... Treason........................................................................................... 109
80.1AA. Treason—materially assisting enemies etc...................................... 110
Subdivision C—Urging violence 112
80.2....... Urging violence against the Constitution etc................................... 112
80.2A.... Urging violence against groups....................................................... 113
80.2B.... Urging violence against members of groups................................... 114
Subdivision D—Common provisions 116
80.3....... Defence for acts done in good faith................................................. 116
80.4....... Extended geographical jurisdiction for offences.............................. 118
80.6....... Division not intended to exclude State or Territory law.................. 118
Part 5.2—Offences relating to espionage and similar activities 119
Division 90—Preliminary 119
90.1....... Definitions...................................................................................... 119
Division 91—Offences relating to espionage and similar activities 121
91.1....... Espionage and similar activities....................................................... 121
91.2....... Defence—information lawfully available........................................ 123
Division 93—Prosecutions and hearings 124
93.1....... Institution of prosecution................................................................ 124
93.2....... Hearing in camera etc...................................................................... 124
Division 94—Forfeiture 126
94.1....... Forfeiture of articles etc................................................................... 126
Part 5.3—Terrorism 127
Division 100—Preliminary 127
100.1..... Definitions...................................................................................... 127
100.2..... Referring States............................................................................... 131
100.3..... Constitutional basis for the operation of this Part............................ 132
100.4..... Application of provisions................................................................ 133
100.5..... Application of Acts Interpretation Act 1901.................................... 136
100.6..... Concurrent operation intended........................................................ 136
100.7..... Regulations may modify operation of this Part to deal with interaction between this Part and State and Territory laws........................................................................................................ 137
100.8..... Approval for changes to or affecting this Part................................. 137
Division 101—Terrorism 139
101.1..... Terrorist acts................................................................................... 139
101.2..... Providing or receiving training connected with terrorist acts........... 139
101.4..... Possessing things connected with terrorist acts............................... 140
101.5..... Collecting or making documents likely to facilitate terrorist acts..... 141
101.6..... Other acts done in preparation for, or planning, terrorist acts.......... 142
Division 102—Terrorist organisations 144
Subdivision A—Definitions 144
102.1..... Definitions...................................................................................... 144
102.1A.. Reviews by Parliamentary Joint Committee on Intelligence and Security 147
Subdivision B—Offences 149
102.2..... Directing the activities of a terrorist organisation............................ 149
102.3..... Membership of a terrorist organisation........................................... 149
102.4..... Recruiting for a terrorist organisation.............................................. 149
102.5..... Training a terrorist organisation or receiving training from a terrorist organisation 150
102.6..... Getting funds to, from or for a terrorist organisation...................... 151
102.7..... Providing support to a terrorist organisation................................... 151
102.8..... Associating with terrorist organisations.......................................... 152
Subdivision C—General provisions relating to offences 155
102.9..... Extended geographical jurisdiction for offences.............................. 155
102.10... Alternative verdicts......................................................................... 155
Division 103—Financing terrorism 156
103.1..... Financing terrorism......................................................................... 156
103.2..... Financing a terrorist........................................................................ 156
103.3..... Extended geographical jurisdiction for offences.............................. 157
Division 104—Control orders 158
Subdivision A—Object of this Division 158
104.1..... Object of this Division.................................................................... 158
Subdivision B—Making an interim control order 158
104.2..... Attorney‑General’s consent to request an interim control order...... 158
104.3..... Requesting the court to make an interim control order.................... 160
104.4..... Making an interim control order...................................................... 160
104.5..... Terms of an interim control order.................................................... 161
Subdivision C—Making an urgent interim control order 163
104.6..... Requesting an urgent interim control order by electronic means..... 163
104.7..... Making an urgent interim control order by electronic means........... 164
104.8..... Requesting an urgent interim control order in person...................... 165
104.9..... Making an urgent interim control order in person........................... 166
104.10... Obtaining the Attorney‑General’s consent within 4 hours.............. 166
104.11... Court to assume that exercise of power not authorised by urgent interim control order 167
Subdivision D—Confirming an interim control order 168
104.12... Service, explanation and notification of an interim control order..... 168
104.12A Election to confirm control order..................................................... 169
104.13... Lawyer may request a copy of an interim control order.................. 170
104.14... Confirming an interim control order................................................ 170
104.15... When a declaration, or a revocation, variation or confirmation of a control order, is in force 172
104.16... Terms of a confirmed control order................................................. 172
104.17... Service of a declaration, or a revocation, variation or confirmation of a control order 173
Subdivision E—Rights in respect of a control order 173
104.18... Application by the person for a revocation or variation of a control order 173
104.19... Application by the AFP Commissioner for a revocation or variation of a control order 174
104.20... Revocation or variation of a control order....................................... 175
104.21... Lawyer may request a copy of a control order................................ 175
104.22... Treatment of photographs and impressions of fingerprints............. 176
Subdivision F—Adding obligations, prohibitions or restrictions to a control order 176
104.23... Application by the AFP Commissioner for addition of obligations, prohibitions or restrictions 176
104.24... Varying a control order................................................................... 178
104.25... Terms of a varied control order....................................................... 179
104.26... Service and explanation of a varied control order............................ 179
Subdivision G—Contravening a control order 180
104.27... Offence for contravening a control order........................................ 180
Subdivision H—Miscellaneous 180
104.28... Special rules for young people........................................................ 180
104.28A Interlocutory proceedings................................................................ 181
104.29... Reporting requirements................................................................... 181
104.30... Requirement to notify Attorney‑General of declarations, revocations or variations 182
104.31... Queensland public interest monitor functions and powers not affected 182
104.32... Sunset provision............................................................................. 182
Division 105—Preventative detention orders 183
Subdivision A—Preliminary 183
105.1..... Object.............................................................................................. 183
105.2..... Issuing authorities for continued preventative detention orders....... 183
105.3..... Police officer detaining person under a preventative detention order 184
Subdivision B—Preventative detention orders 184
105.4..... Basis for applying for, and making, preventative detention orders.. 184
105.5..... No preventative detention order in relation to person under 16 years of age 185
105.5A.. Special assistance for person with inadequate knowledge of English language or disability 186
105.6..... Restrictions on multiple preventative detention orders.................... 187
105.7..... Application for initial preventative detention order.......................... 188
105.8..... Senior AFP member may make initial preventative detention order 190
105.9..... Duration of initial preventative detention order............................... 192
105.10... Extension of initial preventative detention order.............................. 193
105.10A Notice of application for continued preventative detention order..... 194
105.11... Application for continued preventative detention order................... 194
105.12... Judge, AAT member or retired judge may make continued preventative detention order 196
105.13... Duration of continued preventative detention order......................... 197
105.14... Extension of continued preventative detention order....................... 198
105.14A Basis for applying for, and making, prohibited contact order.......... 199
105.15... Prohibited contact order (person in relation to whom preventative detention order is being sought) 200
105.16... Prohibited contact order (person in relation to whom preventative detention order is already in force) 201
105.17... Revocation of preventative detention order or prohibited contact order 201
105.18... Status of person making continued preventative detention order..... 203
Subdivision C—Carrying out preventative detention orders 204
105.19... Power to detain person under preventative detention order............. 204
105.20... Endorsement of order with date and time person taken into custody 206
105.21... Requirement to provide name etc.................................................... 206
105.22... Power to enter premises.................................................................. 207
105.23... Power to conduct a frisk search...................................................... 208
105.24... Power to conduct an ordinary search.............................................. 208
105.25... Warrant under Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 209
105.26... Release of person from preventative detention................................ 209
105.27... Arrangement for detainee to be held in State or Territory prison or remand centre 211
Subdivision D—Informing person detained about preventative detention order 212
105.28... Effect of initial preventative detention order to be explained to person detained 212
105.29... Effect of continued preventative detention order to be explained to person detained 214
105.30... Person being detained to be informed of extension of preventative detention order 215
105.31... Compliance with obligations to inform........................................... 216
105.32... Copy of preventative detention order.............................................. 216
Subdivision E—Treatment of person detained 218
105.33... Humane treatment of person being detained.................................... 218
105.33A Detention of persons under 18........................................................ 218
105.34... Restriction on contact with other people.......................................... 219
105.35... Contacting family members etc....................................................... 219
105.36... Contacting Ombudsman etc............................................................ 220
105.37... Contacting lawyer........................................................................... 221
105.38... Monitoring contact under section 105.35 or 105.37........................ 223
105.39... Special contact rules for person under 18 or incapable of managing own affairs 224
105.40... Entitlement to contact subject to prohibited contact order................ 226
105.41... Disclosure offences......................................................................... 226
105.42... Questioning of person prohibited while person is detained............. 231
105.43... Taking fingerprints, recordings, samples of handwriting or photographs 233
105.44... Use of identification material........................................................... 235
105.45... Offences of contravening safeguards.............................................. 236
Subdivision F—Miscellaneous 236
105.46... Nature of functions of Federal Circuit Court Judge........................ 236
105.47... Annual report.................................................................................. 237
105.48... Certain functions and powers not affected...................................... 237
105.49... Queensland public interest monitor functions and powers not affected 238
105.50... Law relating to legal professional privilege not affected.................. 238
105.51... Legal proceedings in relation to preventative detention orders........ 238
105.52... Review by State and Territory courts.............................................. 239
105.53... Sunset provision............................................................................. 241
Division 106—Transitional provisions 242
106.1..... Saving—regulations originally made for the purposes of paragraph (c) of the definition of terrorist organisation 242
106.2..... Saving—regulations made for the purposes of paragraph (a) of the definition of terrorist organisation 242
106.3..... Application provision...................................................................... 243
106.4..... Saving—Federal Magistrates.......................................................... 243
Part 5.4—Harming Australians 244
Division 115—Harming Australians 244
115.1..... Murder of an Australian citizen or a resident of Australia............... 244
115.2..... Manslaughter of an Australian citizen or a resident of Australia..... 244
115.3..... Intentionally causing serious harm to an Australian citizen or a resident of Australia 244
115.4..... Recklessly causing serious harm to an Australian citizen or a resident of Australia 245
115.5..... Saving of other laws....................................................................... 245
115.6..... Bringing proceedings under this Division....................................... 245
115.7..... Ministerial certificates relating to proceedings................................. 246
115.8..... Geographical jurisdiction................................................................ 246
115.9..... Meaning of causes death or harm................................................... 246
Chapter 7—The proper administration of Government 247
Part 7.1—Preliminary 247
Division 130—Preliminary 247
130.1..... Definitions...................................................................................... 247
130.2..... When property belongs to a person................................................. 248
130.3..... Dishonesty...................................................................................... 249
130.4..... Determination of dishonesty to be a matter for the trier of fact........ 249
Part 7.2—Theft and other property offences 250
Division 131—Theft 250
131.1..... Theft................................................................................................ 250
131.2..... Special rules about the meaning of dishonesty................................ 250
131.3..... Appropriation of property............................................................... 251
131.4..... Theft of land or things forming part of land.................................... 251
131.5..... Trust property................................................................................. 251
131.6..... Obligation to deal with property in a particular way........................ 252
131.7..... Property obtained because of fundamental mistake......................... 252
131.8..... Property of a corporation sole......................................................... 253
131.9..... Property belonging to 2 or more persons........................................ 253
131.10... Intention of permanently depriving a person of property................ 253
131.11... General deficiency........................................................................... 254
Division 132—Other property offences 255
132.1..... Receiving........................................................................................ 255
132.2..... Robbery.......................................................................................... 258
132.3..... Aggravated robbery........................................................................ 259
132.4..... Burglary.......................................................................................... 260
132.5..... Aggravated burglary....................................................................... 262
132.6..... Making off without payment........................................................... 263
132.7..... Going equipped for theft or a property offence............................... 263
132.8..... Dishonest taking or retention of property........................................ 265
132.9..... Geographical jurisdiction................................................................ 266
Part 7.3—Fraudulent conduct 267
Division 133—Preliminary 267
133.1..... Definitions...................................................................................... 267
Division 134—Obtaining property or a financial advantage by deception 268
134.1..... Obtaining property by deception..................................................... 268
134.2..... Obtaining a financial advantage by deception.................................. 271
134.3..... Geographical jurisdiction................................................................ 271
Division 135—Other offences involving fraudulent conduct 272
135.1..... General dishonesty.......................................................................... 272
135.2..... Obtaining financial advantage......................................................... 273
135.4..... Conspiracy to defraud..................................................................... 274
135.5..... Geographical jurisdiction................................................................ 276
Part 7.4—False or misleading statements 277
Division 136—False or misleading statements in applications 277
136.1..... False or misleading statements in applications................................ 277
Division 137—False or misleading information or documents 280
137.1..... False or misleading information...................................................... 280
137.2..... False or misleading documents....................................................... 281
137.3..... Geographical jurisdiction................................................................ 282
Part 7.5—Unwarranted demands 283
Division 138—Preliminary 283
138.1..... Unwarranted demand with menaces................................................ 283
138.2..... Menaces.......................................................................................... 283
Division 139—Unwarranted demands 285
139.1..... Unwarranted demands of a Commonwealth public official............. 285
139.2..... Unwarranted demands made by a Commonwealth public official... 285
139.3..... Geographical jurisdiction................................................................ 286
Part 7.6—Bribery and related offences 287
Division 140—Preliminary 287
140.1..... Definition........................................................................................ 287
140.2..... Obtaining........................................................................................ 287
Division 141—Bribery 288
141.1..... Bribery of a Commonwealth public official.................................... 288
Division 142—Offences relating to bribery 291
142.1..... Corrupting benefits given to, or received by, a Commonwealth public official 291
142.2..... Abuse of public office..................................................................... 292
142.3..... Geographical jurisdiction................................................................ 293
Part 7.7—Forgery and related offences 294
Division 143—Preliminary 294
143.1..... Definitions...................................................................................... 294
143.2..... False documents.............................................................................. 295
143.3..... False Commonwealth documents.................................................... 296
143.4..... Inducing acceptance of false documents.......................................... 297
Division 144—Forgery 298
144.1..... Forgery........................................................................................... 298
Division 145—Offences relating to forgery 300
145.1..... Using forged document................................................................... 300
145.2..... Possession of forged document...................................................... 301
145.3..... Possession, making or adaptation of devices etc. for making forgeries 303
145.4..... Falsification of documents etc......................................................... 304
145.5..... Giving information derived from false or misleading documents.... 305
145.6..... Geographical jurisdiction................................................................ 306
Part 7.8—Causing harm to, and impersonation and obstruction of, Commonwealth public officials 307
Division 146—Preliminary 307
146.1..... Definitions...................................................................................... 307
146.2..... Causing harm.................................................................................. 308
Division 147—Causing harm to Commonwealth public officials 309
147.1..... Causing harm to a Commonwealth public official etc..................... 309
147.2..... Threatening to cause harm to a Commonwealth public official etc.. 311
147.3..... Geographical jurisdiction................................................................ 313
Division 148—Impersonation of Commonwealth public officials 314
148.1..... Impersonation of an official by a non‑official................................. 314
148.2..... Impersonation of an official by another official............................... 315
148.3..... Geographical jurisdiction................................................................ 316
Division 149—Obstruction of Commonwealth public officials 317
149.1..... Obstruction of Commonwealth public officials............................... 317
Part 7.20—Miscellaneous 319
Division 261—Miscellaneous 319
261.1..... Saving of other laws....................................................................... 319
261.2..... Contempt of court........................................................................... 319
261.3..... Ancillary offences........................................................................... 319
Chapter 8—Offences against humanity and related offences 320
Division 268—Genocide, crimes against humanity, war crimes and crimes against the administration of the justice of the International Criminal Court 320
Subdivision A—Introductory 320
268.1..... Purpose of Division........................................................................ 320
268.2..... Outline of offences.......................................................................... 320
Subdivision B—Genocide 321
268.3..... Genocide by killing......................................................................... 321
268.4..... Genocide by causing serious bodily or mental harm....................... 321
268.5..... Genocide by deliberately inflicting conditions of life calculated to bring about physical destruction 321
268.6..... Genocide by imposing measures intended to prevent births............ 322
268.7..... Genocide by forcibly transferring children...................................... 322
Subdivision C—Crimes against humanity 323
268.8..... Crime against humanity—murder................................................... 323
268.9..... Crime against humanity—extermination......................................... 323
268.10... Crime against humanity—enslavement........................................... 324
268.11... Crime against humanity—deportation or forcible transfer of population 324
268.12... Crime against humanity—imprisonment or other severe deprivation of physical liberty 325
268.13... Crime against humanity—torture.................................................... 325
268.14... Crime against humanity—rape........................................................ 326
268.15... Crime against humanity—sexual slavery........................................ 327
268.16... Crime against humanity—enforced prostitution.............................. 328
268.17... Crime against humanity—forced pregnancy................................... 329
268.18... Crime against humanity—enforced sterilisation.............................. 330
268.19... Crime against humanity—sexual violence....................................... 330
268.20... Crime against humanity—persecution............................................. 332
268.21... Crime against humanity—enforced disappearance of persons........ 332
268.22... Crime against humanity—apartheid................................................ 334
268.23... Crime against humanity—other inhumane act................................. 334
Subdivision D—War crimes that are grave breaches of the Geneva Conventions and of Protocol I to the Geneva Conventions 335
268.24... War crime—wilful killing............................................................... 335
268.25... War crime—torture......................................................................... 335
268.26... War crime—inhumane treatment..................................................... 336
268.27... War crime—biological experiments................................................ 336
268.28... War crime—wilfully causing great suffering.................................. 337
268.29... War crime—destruction and appropriation of property................... 337
268.30... War crime—compelling service in hostile forces............................ 338
268.31... War crime—denying a fair trial....................................................... 338
268.32... War crime—unlawful deportation or transfer.................................. 339
268.33... War crime—unlawful confinement................................................. 339
268.34... War crime—taking hostages........................................................... 340
Subdivision E—Other serious war crimes that are committed in the course of an international armed conflict 340
268.35... War crime—attacking civilians........................................................ 340
268.36... War crime—attacking civilian objects............................................. 341
268.37... War crime—attacking personnel or objects involved in a humanitarian assistance or peacekeeping mission 341
268.38... War crime—excessive incidental death, injury or damage............... 342
268.39... War crime—attacking undefended places........................................ 343
268.40... War crime—killing or injuring a person who is hors de combat.... 343
268.41... War crime—improper use of a flag of truce.................................... 344
268.42... War crime—improper use of a flag, insignia or uniform of the adverse party 344
268.43... War crime—improper use of a flag, insignia or uniform of the United Nations 344
268.44... War crime—improper use of the distinctive emblems of the Geneva Conventions 345
268.45... War crime—transfer of population.................................................. 346
268.46... War crime—attacking protected objects.......................................... 346
268.47... War crime—mutilation.................................................................... 347
268.48... War crime—medical or scientific experiments................................ 348
268.49... War crime—treacherously killing or injuring.................................. 348
268.50... War crime—denying quarter........................................................... 349
268.51... War crime—destroying or seizing the enemy’s property................ 350
268.52... War crime—depriving nationals of the adverse power of rights or actions 350
268.53... War crime—compelling participation in military operations............ 351
268.54... War crime—pillaging...................................................................... 351
268.55... War crime—employing poison or poisoned weapons..................... 351
268.56... War crime—employing prohibited gases, liquids, materials or devices 352
268.57... War crime—employing prohibited bullets....................................... 352
268.58... War crime—outrages upon personal dignity................................... 352
268.59... War crime—rape............................................................................. 353
268.60... War crime—sexual slavery............................................................. 354
268.61... War crime—enforced prostitution................................................... 355
268.62... War crime—forced pregnancy........................................................ 356
268.63... War crime—enforced sterilisation................................................... 357
268.64... War crime—sexual violence............................................................ 357
268.65... War crime—using protected persons as shields.............................. 358
268.66... War crime—attacking persons or objects using the distinctive emblems of the Geneva Conventions 359
268.67... War crime—starvation as a method of warfare............................... 360
268.68... War crime—using, conscripting or enlisting children..................... 360
Subdivision F—War crimes that are serious violations of article 3 common to the Geneva Conventions and are committed in the course of an armed conflict that is not an international armed conflict 362
268.69... Definition of religious personnel..................................................... 362
268.70... War crime—murder........................................................................ 362
268.71... War crime—mutilation.................................................................... 362
268.72... War crime—cruel treatment............................................................. 364
268.73... War crime—torture......................................................................... 364
268.74... War crime—outrages upon personal dignity................................... 365
268.75... War crime—taking hostages........................................................... 366
268.76... War crime—sentencing or execution without due process.............. 367
Subdivision G—War crimes that are other serious violations of the laws and customs applicable in an armed conflict that is not an international armed conflict 369
268.77... War crime—attacking civilians........................................................ 369
268.78... War crime—attacking persons or objects using the distinctive emblems of the Geneva Conventions 369
268.79... War crime—attacking personnel or objects involved in a humanitarian assistance or peacekeeping mission 370
268.80... War crime—attacking protected objects.......................................... 371
268.81... War crime—pillaging...................................................................... 371
268.82... War crime—rape............................................................................. 372
268.83... War crime—sexual slavery............................................................. 374
268.84... War crime—enforced prostitution................................................... 374
268.85... War crime—forced pregnancy........................................................ 375
268.86... War crime—enforced sterilisation................................................... 376
268.87... War crime—sexual violence............................................................ 376
268.88... War crime—using, conscripting or enlisting children..................... 378
268.89... War crime—displacing civilians...................................................... 379
268.90... War crime—treacherously killing or injuring.................................. 380
268.91... War crime—denying quarter........................................................... 381
268.92... War crime—mutilation.................................................................... 381
268.93... War crime—medical or scientific experiments................................ 382
268.94... War crime—destroying or seizing an adversary’s property............ 383
Subdivision H—War crimes that are grave breaches of Protocol I to the Geneva Conventions 383
268.95... War crime—medical procedure....................................................... 383
268.96... War crime—removal of blood, tissue or organs for transplantation 384
268.97... War crime—attack against works or installations containing dangerous forces resulting in excessive loss of life or injury to civilians....................................................................................... 385
268.98... War crime—attacking undefended places or demilitarized zones.... 385
268.99... War crime—unjustifiable delay in the repatriation of prisoners of war or civilians 386
268.100. War crime—apartheid..................................................................... 386
268.101. War crime—attacking protected objects.......................................... 387
Subdivision J—Crimes against the administration of the justice of the International Criminal Court 387
268.102. Perjury............................................................................................ 387
268.103. Falsifying evidence......................................................................... 388
268.104. Destroying or concealing evidence.................................................. 388
268.105. Deceiving witnesses........................................................................ 389
268.106. Corrupting witnesses or interpreters............................................... 389
268.107. Threatening witnesses or interpreters.............................................. 390
268.108. Preventing witnesses or interpreters................................................ 390
268.109. Preventing production of things in evidence................................... 391
268.110. Reprisals against witnesses............................................................. 391
268.111. Reprisals against officials of the International Criminal Court........ 392
268.112. Perverting the course of justice....................................................... 392
268.113. Receipt of a corrupting benefit by an official of the International Criminal Court 393
268.114. Subdivision not to apply to certain conduct..................................... 393
Subdivision K—Miscellaneous 393
268.115. Responsibility of commanders and other superiors......................... 393
268.116. Defence of superior orders.............................................................. 394
268.117. Geographical jurisdiction................................................................ 395
268.118. Double jeopardy.............................................................................. 395
268.119. Offences related to exercise of jurisdiction of International Criminal Court 395
268.120. Saving of other laws....................................................................... 396
268.121. Bringing proceedings under this Division....................................... 396
268.122. Attorney‑General’s decisions in relation to consents to be final...... 396
268.123. Legal representation........................................................................ 397
268.124. Proof of application of Geneva Conventions or Protocol I to the Geneva Conventions 397
Division 270—Slavery and slavery‑like conditions 398
Subdivision A—Preliminary 398
270.1A.. Definitions for Division 270........................................................... 398
Subdivision B—Slavery 399
270.1..... Definition of slavery....................................................................... 399
270.2..... Slavery is unlawful......................................................................... 399
270.3..... Slavery offences.............................................................................. 399
Subdivision C—Slavery‑like conditions 400
270.4..... Definition of servitude.................................................................... 400
270.5..... Servitude offences........................................................................... 401
270.6..... Definition of forced labour............................................................. 402
270.6A.. Forced labour offences.................................................................... 403
270.7..... Deceptive recruiting for labour or services...................................... 403
270.7A.. Definition of forced marriage......................................................... 404
270.7B.. Forced marriage offences................................................................ 405
270.8..... Slavery‑like offences—aggravated offences................................... 406
270.9..... Slavery‑like offences—jurisdictional requirement........................... 406
270.10... Slavery‑like offences—relevant evidence........................................ 406
Subdivision D—Offences against Division 270: general 407
270.11... Offences against Division 270—no defence of victim consent or acquiescence 407
270.12... Offences against Division 270—other laws not excluded............... 407
270.13... Offences against Division 270—double jeopardy........................... 408
Division 271—Trafficking in persons and debt bondage 409
Subdivision A—Definitions 409
271.1..... Definitions...................................................................................... 409
271.1A.. Definition of exploitation................................................................ 409
Subdivision B—Offences relating to trafficking in persons 410
271.2..... Offence of trafficking in persons.................................................... 410
271.3..... Trafficking in persons—aggravated offence................................... 413
271.4..... Offence of trafficking in children.................................................... 414
271.5..... Offence of domestic trafficking in persons..................................... 414
271.6..... Domestic trafficking in persons—aggravated offence..................... 416
271.7..... Offence of domestic trafficking in children..................................... 417
Subdivision BA—Organ trafficking 417
271.7A.. Removal of organs contrary to this Subdivision............................. 417
271.7B.. Offence of organ trafficking—entry into and exit from Australia... 418
271.7C.. Organ trafficking—aggravated offence........................................... 418
271.7D.. Offence of domestic organ trafficking............................................. 420
271.7E... Domestic organ trafficking—aggravated offence............................ 420
Subdivision BB—Harbouring a victim 421
271.7F... Harbouring a victim........................................................................ 421
271.7G.. Harbouring a victim—aggravated offence....................................... 422
Subdivision C—Offences relating to debt bondage 422
271.8..... Offence of debt bondage................................................................. 422
271.9..... Debt bondage—aggravated offence................................................ 422
Subdivision D—Offences against Division 271: general 423
271.10... Jurisdictional requirements—offences other than domestic trafficking in persons or organs 423
271.11... Jurisdictional requirements—offences of domestic trafficking in persons or organs 423
271.11A Offences against Division 271—relevant evidence......................... 424
271.11B Offences against Division 271—no defence of victim consent or acquiescence 425
271.12... Offences against Division 271—other laws not excluded............... 425
271.13... Double jeopardy.............................................................................. 426
Division 272—Child sex offences outside Australia 427
Subdivision A—Preliminary 427
272.1..... Definitions...................................................................................... 427
272.2..... When conduct causes a person to engage in sexual intercourse or other sexual activity 427
272.3..... Meaning of position of trust or authority........................................ 427
272.4..... Meaning of sexual intercourse........................................................ 428
272.5..... Meaning of offence against this Division and extension of criminal responsibility 429
272.6..... Who can be prosecuted for an offence committed outside Australia 430
272.7..... Saving of other laws....................................................................... 430
Subdivision B—Sexual offences against children outside Australia 430
272.8..... Sexual intercourse with child outside Australia............................... 430
272.9..... Sexual activity (other than sexual intercourse) with child outside Australia 431
272.10... Aggravated offence—child with mental impairment or under care, supervision or authority of defendant 432
272.11... Persistent sexual abuse of child outside Australia........................... 433
272.12... Sexual intercourse with young person outside Australia—defendant in position of trust or authority 436
272.13... Sexual activity (other than sexual intercourse) with young person outside Australia—defendant in position of trust or authority.......................................................................................... 437
272.14... Procuring child to engage in sexual activity outside Australia......... 438
272.15... “Grooming” child to engage in sexual activity outside Australia..... 439
272.16... Defence based on belief about age.................................................. 440
272.17... Defence based on valid and genuine marriage................................. 441
Subdivision C—Offences of benefiting from, encouraging or preparing for sexual offences against children outside Australia 442
272.18... Benefiting from offence against this Division................................. 442
272.19... Encouraging offence against this Division...................................... 442
272.20... Preparing for or planning offence against this Division.................. 443
Subdivision E—Other rules about conduct of trials 444
272.27... Evidence relating to a person’s age................................................. 444
272.28... Alternative verdicts......................................................................... 444
272.29... Double jeopardy.............................................................................. 445
272.30... Sentencing....................................................................................... 445
272.31... Consent to commencement of proceedings where defendant under 18 446
Division 273—Offences involving child pornography material or child abuse material outside Australia 447
Subdivision A—Preliminary 447
273.1..... Definitions...................................................................................... 447
273.2..... Who can be prosecuted for an offence committed outside Australia 448
273.2A.. Consent to commencement of proceedings where defendant under 18 448
273.3..... Double jeopardy.............................................................................. 448
273.4..... Saving of other laws....................................................................... 448
Subdivision B—Offences committed overseas involving child pornography material or child abuse material 449
273.5..... Possessing, controlling, producing, distributing or obtaining child pornography material outside Australia 449
273.6..... Possessing, controlling, producing, distributing or obtaining child abuse material outside Australia 449
273.7..... Aggravated offence—offence involving conduct on 3 or more occasions and 2 or more people 450
273.8..... Alternative verdict if aggravated offence not proven....................... 451
Subdivision C—Defences 451
273.9..... Defences to offences against this Division...................................... 451
Division 274—Torture 454
274.1..... Definitions...................................................................................... 454
274.2..... Torture............................................................................................ 454
274.3..... Prosecutions.................................................................................... 455
274.4..... No defence of exceptional circumstances or superior orders........... 456
274.5..... Jurisdiction of State/Territory courts preserved............................... 456
274.6..... Concurrent operation intended........................................................ 456
274.7..... Double jeopardy.............................................................................. 457
Division 279—Video link evidence 458
279.1..... Proceedings to which this Division applies..................................... 458
279.2..... When court may take evidence by video link.................................. 458
279.3..... Technical requirements for video link............................................. 458
279.4..... Application of laws about witnesses............................................... 459
279.5..... Administration of oaths and affirmations........................................ 459
279.6..... Expenses......................................................................................... 459
279.7..... Other laws about foreign evidence not affected............................... 460
Chapter 9—Dangers to the community 461
Part 9.1—Serious drug offences 461
Division 300—Preliminary 461
300.1..... Purpose........................................................................................... 461
300.2..... Definitions...................................................................................... 461
300.3..... Geographical jurisdiction................................................................ 464
300.4..... Concurrent operation intended........................................................ 464
300.5..... Particular identity of drugs, plants and precursors.......................... 465
Division 301—Serious drugs and precursors 466
Subdivision A—Serious drugs and precursors: definitions 466
301.1..... Meaning of controlled drug............................................................ 466
301.2..... Meaning of controlled plant............................................................ 466
301.3..... Meaning of controlled precursor.................................................... 467
301.4..... Meaning of border controlled drug................................................ 467
301.5..... Meaning of border controlled plant................................................ 468
301.6..... Meaning of border controlled precursor........................................ 468
301.7..... Serious drugs—conditions for listing by regulation........................ 468
301.8..... Serious drug precursors—conditions for listing by regulation........ 469
301.9..... Meaning of drug analogue............................................................. 469
Subdivision B—Serious drugs and precursors: commercial, marketable and trafficable quantities 470
301.10... Meaning of commercial quantity.................................................... 470
301.11... Meaning of marketable quantity..................................................... 471
301.12... Meaning of trafficable quantity....................................................... 472
Subdivision C—Serious drugs and precursors: emergency determinations 473
301.13... Emergency determinations—serious drugs..................................... 473
301.14... Emergency determinations—serious drug precursors..................... 474
301.15... Emergency determinations—commercial, marketable and trafficable quantities 474
301.16... Emergency determinations—effectiveness...................................... 475
301.17... Emergency determinations—publication......................................... 475
Division 302—Trafficking controlled drugs 476
302.1..... Meaning of traffics.......................................................................... 476
302.2..... Trafficking commercial quantities of controlled drugs.................... 476
302.3..... Trafficking marketable quantities of controlled drugs..................... 477
302.4..... Trafficking controlled drugs............................................................ 477
302.5..... Presumption where trafficable quantities are involved.................... 477
302.6..... Purchase of controlled drugs is not an ancillary offence................. 478
Division 303—Commercial cultivation of controlled plants 479
303.1..... Meanings of cultivate and cultivates a plant.................................... 479
303.2..... Meaning of product of a plant......................................................... 479
303.3..... Meaning of cultivates a plant for a commercial purpose................ 479
303.4..... Cultivating commercial quantities of controlled plants.................... 479
303.5..... Cultivating marketable quantities of controlled plants..................... 480
303.6..... Cultivating controlled plants............................................................ 480
303.7..... Presumption where trafficable quantities are involved.................... 480
Division 304—Selling controlled plants 482
304.1..... Selling commercial quantities of controlled plants........................... 482
304.2..... Selling marketable quantities of controlled plants............................ 482
304.3..... Selling controlled plants.................................................................. 482
Division 305—Commercial manufacture of controlled drugs 484
305.1..... Meanings of manufacture and manufactures a substance.............. 484
305.2..... Meaning of manufactures a substance for a commercial purpose. 484
305.3..... Manufacturing commercial quantities of controlled drugs............... 484
305.4..... Manufacturing marketable quantities of controlled drugs................ 485
305.5..... Manufacturing controlled drugs...................................................... 485
305.6..... Presumption where trafficable quantities are involved.................... 486
Division 306—Pre‑trafficking controlled precursors 487
306.1..... Meaning of pre‑traffics................................................................... 487
306.2..... Pre‑trafficking commercial quantities of controlled precursors....... 487
306.3..... Pre‑trafficking marketable quantities of controlled precursors........ 488
306.4..... Pre‑trafficking controlled precursors............................................... 488
306.5..... Presumption for pre‑trafficking controlled precursors—sale.......... 489
306.6..... Presumptions for pre‑trafficking controlled precursors—manufacture for drug manufacture 489
306.7..... Presumptions for pre‑trafficking controlled precursors—manufacture for sale 490
306.8..... Presumptions for pre‑trafficking controlled precursors—possession 491
Division 307—Import‑export offences 492
Subdivision A—Importing and exporting border controlled drugs or border controlled plants 492
307.1..... Importing and exporting commercial quantities of border controlled drugs or border controlled plants 492
307.2..... Importing and exporting marketable quantities of border controlled drugs or border controlled plants 492
307.3..... Importing and exporting border controlled drugs or border controlled plants 493
307.4..... Importing and exporting border controlled drugs or border controlled plants—no defence relating to lack of commercial intent............................................................................................... 493
Subdivision B—Possessing unlawfully imported border controlled drugs or border controlled plants 494
307.5..... Possessing commercial quantities of unlawfully imported border controlled drugs or border controlled plants 494
307.6..... Possessing marketable quantities of unlawfully imported border controlled drugs or border controlled plants 494
307.7..... Possessing unlawfully imported border controlled drugs or border controlled plants 495
Subdivision C—Possessing border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported 495
307.8..... Possessing commercial quantities of border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported................................................................ 495
307.9..... Possessing marketable quantities of border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported................................................................ 496
307.10... Possessing border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported........................................................................................................ 497
Subdivision D—Importing and exporting border controlled precursors 497
307.11... Importing and exporting commercial quantities of border controlled precursors 497
307.12... Importing and exporting marketable quantities of border controlled precursors 498
307.13... Importing and exporting border controlled precursors.................... 499
307.14... Presumptions for importing and exporting border controlled precursors 499
Division 308—Possession offences 501
308.1..... Possessing controlled drugs............................................................ 501
308.2..... Possessing controlled precursors.................................................... 502
308.3..... Possessing plant material, equipment or instructions for commercial cultivation of controlled plants 502
308.4..... Possessing substance, equipment or instructions for commercial manufacture of controlled drugs 503
Division 309—Drug offences involving children 504
309.1..... Children not criminally responsible for offences against this Division 504
309.2..... Supplying controlled drugs to children........................................... 504
309.3..... Supplying marketable quantities of controlled drugs to children for trafficking 504
309.4..... Supplying controlled drugs to children for trafficking.................... 505
309.5..... Presumption where trafficable quantities are involved.................... 505
309.6..... Meaning of procures an individual to traffic.................................. 505
309.7..... Procuring children for trafficking marketable quantities of controlled drugs 506
309.8..... Procuring children for trafficking controlled drugs......................... 506
309.9..... Meaning of procures an individual to pre‑traffic............................ 507
309.10... Procuring children for pre‑trafficking marketable quantities of controlled precursors 507
309.11... Procuring children for pre‑trafficking controlled precursors........... 507
309.12... Procuring children for importing or exporting marketable quantities of border controlled drugs or border controlled plants............................................................................................... 508
309.13... Procuring children for importing or exporting border controlled drugs or border controlled plants 508
309.14... Procuring children for importing or exporting marketable quantities of border controlled precursors 509
309.15... Procuring children for importing or exporting border controlled precursors 510
Division 310—Harm and danger to children under 14 from serious drug offences 512
310.1..... Children not criminally responsible for offences against this Division 512
310.2..... Danger from exposure to unlawful manufacturing.......................... 512
310.3..... Harm from exposure to unlawful manufacturing............................ 513
310.4..... Aggravated offences—manufacturing controlled drugs and controlled precursors 514
Division 311—Combining quantities of drugs, plants or precursors 516
Subdivision A—Combining different parcels on the same occasion 516
311.1..... Combining different parcels on the same occasion.......................... 516
Subdivision B—Combining parcels from organised commercial activities 517
311.2..... Business of trafficking controlled drugs......................................... 517
311.3..... Business of pre‑trafficking by selling controlled precursors........... 518
311.4..... Business of importing or exporting border controlled drugs or border controlled plants 519
311.5..... Business of importing or exporting border controlled precursors... 519
311.6..... Business of supplying controlled drugs to children........................ 520
311.7..... General rules—combining parcels from organised commercial activities 521
Subdivision C—Combining parcels from multiple offences 521
311.8..... Multiple offences—trafficking controlled drugs............................. 521
311.9..... Multiple offences—cultivating controlled plants............................. 522
311.10... Multiple offences—selling controlled plants................................... 522
311.11... Multiple offences—manufacturing controlled drugs....................... 523
311.12... Multiple offences—pre‑trafficking controlled precursors............... 523
311.13... Multiple offences—importing or exporting border controlled drugs or border controlled plants 523
311.14... Multiple offences—possessing unlawfully imported border controlled drugs or border controlled plants 524
311.15... Multiple offences—possessing border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported........................................................................ 524
311.16... Multiple offences—importing or exporting border controlled precursors 525
311.17... Multiple offences—supplying controlled drugs to children for trafficking 525
311.18... Multiple offences—procuring children for trafficking controlled drugs 526
311.19... Multiple offences—procuring children for pre‑trafficking controlled precursors 526
311.20... Multiple offences—procuring children for importing or exporting border controlled drugs or border controlled plants........................................................................................................ 527
311.21... Multiple offences—procuring children for importing or exporting border controlled precursors 527
311.22... General rules—combining parcels from multiple offences.............. 528
Division 312—Working out quantities of drugs, plants or precursors 529
312.1..... Working out quantities of drugs and precursors in mixtures........... 529
312.2..... Working out quantities where different kinds of drugs, plants or precursors are involved 529
Division 313—Defences and alternative verdicts 532
313.1..... Defence—conduct justified or excused by or under a law of a State or Territory 532
313.2..... Defence—reasonable belief that conduct is justified or excused by or under a law 532
313.3..... Alternative verdict—offence not proved......................................... 532
313.4..... Alternative verdict—mistake as to quantity of drug, plant or precursor 533
313.5..... Alternative verdict—mistake as to identity of drug, plant or precursor 534
Part 9.4—Dangerous weapons 535
Division 360—Cross‑border firearms trafficking 535
360.1..... Disposal and acquisition of a firearm.............................................. 535
360.2..... Cross‑border offence of disposal or acquisition of a firearm.......... 535
360.3..... Taking or sending a firearm across borders.................................... 536
360.4..... Concurrent operation intended........................................................ 537
Part 9.5—Identity crime 538
Division 370—Preliminary 538
370.1..... Definitions...................................................................................... 538
370.2..... Definition of foreign indictable offence........................................... 539
370.3..... Concurrent operation intended........................................................ 539
Division 372—Identity fraud offences 540
372.1..... Dealing in identification information............................................... 540
372.1A.. Dealing in identification information that involves use of a carriage service 541
372.2..... Possession of identification information......................................... 543
372.3..... Possession of equipment used to make identification documentation 543
372.4..... Extended geographical jurisdiction—category A............................ 544
372.5..... Alternative verdict........................................................................... 544
372.6..... Attempt........................................................................................... 544
Division 375—Victims’ certificates 545
375.1..... Certificate may be issued by magistrate in relation to victim of identity crime 545
375.2..... Content of certificate....................................................................... 545
375.3..... Relation to civil and criminal proceedings....................................... 546
375.4..... Power conferred on magistrate personally...................................... 546
Division 376—False identity and air travel 547
376.1..... Definitions for Division 376........................................................... 547
376.2..... False identification information—at constitutional airports............. 547
376.3..... False identification information—air passenger tickets obtained using a carriage service 548
376.4..... False identification information—air passenger tickets for constitutional flights 549
376.5..... False identification information—extended jurisdiction (Category D) 550
Part 9.6—Contamination of goods 551
380.1..... Definitions...................................................................................... 551
380.2..... Contaminating goods...................................................................... 551
380.3..... Threatening to contaminate goods................................................... 553
380.4..... Making false statements about contamination of goods.................. 555
380.5..... Extended geographical jurisdiction—category D............................ 557
Part 9.9—Criminal associations and organisations 558
Division 390—Criminal associations and organisations 558
Subdivision A—Definitions 558
390.1..... Definitions...................................................................................... 558
390.2..... State offences that have a federal aspect.......................................... 560
Subdivision B—Offences 562
390.3..... Associating in support of serious organised criminal activity......... 562
390.4..... Supporting a criminal organisation.................................................. 565
390.5..... Committing an offence for the benefit of, or at the direction of, a criminal organisation 565
390.6..... Directing activities of a criminal organisation.................................. 568
390.7..... Extended geographical jurisdiction—category C............................. 569
Chapter 10—National infrastructure 570
Part 10.2—Money laundering 570
Division 400—Money laundering 570
400.1..... Definitions...................................................................................... 570
400.2..... Definition of deals with money or other property........................... 572
400.2A.. Application of offences relating to possible instruments of crime... 572
400.3..... Dealing in proceeds of crime etc.—money or property worth $1,000,000 or more 573
400.4..... Dealing in proceeds of crime etc.—money or property worth $100,000 or more 575
400.5..... Dealing in proceeds of crime etc.—money or property worth $50,000 or more 576
400.6..... Dealing in proceeds of crime etc.—money or property worth $10,000 or more 577
400.7..... Dealing in proceeds of crime etc.—money or property worth $1,000 or more 579
400.8..... Dealing in proceeds of crime etc.—money or property of any value 580
400.9..... Dealing with property reasonably suspected of being proceeds of crime etc. 581
400.10... Mistake of fact as to the value of money or property...................... 583
400.11... Proof of certain matters relating to kinds of offences not required.. 584
400.12... Combining several contraventions in a single charge...................... 584
400.13... Proof of other offences is not required............................................ 584
400.14... Alternative verdicts......................................................................... 585
400.15... Geographical jurisdiction................................................................ 585
400.16... Saving of other laws....................................................................... 588
Part 10.5—Postal services 589
Division 470—Preliminary 589
470.1..... Definitions...................................................................................... 589
470.2..... Dishonesty...................................................................................... 591
470.3..... Determination of dishonesty to be a matter for the trier of fact........ 591
470.4..... Meaning of expressions used in Subdivisions B and C of Division 471 591
Division 471—Postal offences 593
Subdivision A—General postal offences 593
471.1..... Theft of mail‑receptacles, articles or postal messages...................... 593
471.2..... Receiving stolen mail‑receptacles, articles or postal messages........ 594
471.3..... Taking or concealing of mail‑receptacles, articles or postal messages 596
471.4..... Dishonest removal of postage stamps or postmarks....................... 596
471.5..... Dishonest use of previously used, defaced or obliterated stamps.... 596
471.6..... Damaging or destroying mail‑receptacles, articles or postal messages 597
471.7..... Tampering with mail‑receptacles..................................................... 597
471.8..... Dishonestly obtaining delivery of articles....................................... 598
471.9..... Geographical jurisdiction................................................................ 598
471.10... Hoaxes—explosives and dangerous substances............................. 598
471.11... Using a postal or similar service to make a threat............................ 599
471.12... Using a postal or similar service to menace, harass or cause offence 600
471.13... Causing a dangerous article to be carried by a postal or similar service 600
471.14... Geographical jurisdiction................................................................ 601
471.15... Causing an explosive, or a dangerous or harmful substance, to be carried by post 601
Subdivision B—Offences relating to use of postal or similar service for child pornography material or child abuse material 602
471.16... Using a postal or similar service for child pornography material.... 602
471.17... Possessing, controlling, producing, supplying or obtaining child pornography material for use through a postal or similar service............................................................................................. 602
471.18... Defences in respect of child pornography material.......................... 603
471.19... Using a postal or similar service for child abuse material................ 604
471.20... Possessing, controlling, producing, supplying or obtaining child abuse material for use through a postal or similar service............................................................................................. 604
471.21... Defences in respect of child abuse material..................................... 605
471.22... Aggravated offence—offence involving conduct on 3 or more occasions and 2 or more people 606
471.23... Alternative verdict if aggravated offence not proven....................... 607
Subdivision C—Offences relating to use of postal or similar service involving sexual activity with person under 16 607
471.24... Using a postal or similar service to procure persons under 16........ 607
471.25... Using a postal or similar service to “groom” persons under 16...... 608
471.26... Using a postal or similar service to send indecent material to person under 16 610
471.27... Age‑related provisions relating to offences against this Subdivision 610
471.28... Other provisions relating to offences against this Subdivision........ 612
471.29... Defences to offences against this Subdivision................................ 612
Subdivision D—Miscellaneous 613
471.30... Geographical jurisdiction................................................................ 613
471.31... Definition of carry by post does not apply...................................... 613
Division 472—Miscellaneous 614
472.1..... Saving of other laws....................................................................... 614
472.2..... Interpretation of other laws............................................................. 614
Part 10.6—Telecommunications Services 615
Division 473—Preliminary 615
473.1..... Definitions...................................................................................... 615
473.2..... Possession or control of data or material in the form of data........... 622
473.3..... Producing, supplying or obtaining data or material in the form of data 622
473.4..... Determining whether material is offensive...................................... 623
473.5..... Use of a carriage service................................................................. 623
Division 474—Telecommunications offences 624
Subdivision A—Dishonesty with respect to carriage services 624
474.1..... Dishonesty...................................................................................... 624
474.2..... General dishonesty with respect to a carriage service provider....... 624
Subdivision B—Interference with telecommunications 625
474.3..... Person acting for a carrier or carriage service provider................... 625
474.4..... Interception devices......................................................................... 625
474.5..... Wrongful delivery of communications............................................ 626
474.6..... Interference with facilities............................................................... 627
474.7..... Modification etc. of a telecommunications device identifier............ 628
474.8..... Possession or control of data or a device with intent to modify a telecommunications device identifier 629
474.9..... Producing, supplying or obtaining data or a device with intent to modify a telecommunications device identifier 630
474.10... Copying subscription‑specific secure data...................................... 631
474.11... Possession or control of data or a device with intent to copy an account identifier 633
474.12... Producing, supplying or obtaining data or a device with intent to copy an account identifier 634
Subdivision C—General offences relating to use of telecommunications 635
474.14... Using a telecommunications network with intention to commit a serious offence 635
474.15... Using a carriage service to make a threat......................................... 636
474.16... Using a carriage service for a hoax threat........................................ 637
474.17... Using a carriage service to menace, harass or cause offence........... 637
474.18... Improper use of emergency call service.......................................... 638
Subdivision D—Offences relating to use of carriage service for child pornography material or child abuse material 639
474.19... Using a carriage service for child pornography material................. 639
474.20... Possessing, controlling, producing, supplying or obtaining child pornography material for use through a carriage service........................................................................................................ 639
474.21... Defences in respect of child pornography material.......................... 640
474.22... Using a carriage service for child abuse material............................. 642
474.23... Possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service........................................................................................................ 642
474.24... Defences in respect of child abuse material..................................... 643
474.24A Aggravated offence—offence involving conduct on 3 or more occasions and 2 or more people 645
474.24B Alternative verdict if aggravated offence not proven....................... 646
474.24C Consent to commencement of proceedings where defendant under 18 646
Subdivision E—Offence relating to obligations of internet service providers and internet content hosts 646
474.25... Obligations of internet service providers and internet content hosts 646
Subdivision F—Offences relating to use of carriage service involving sexual activity with person under 16 647
474.25A Using a carriage service for sexual activity with person under 16 years of age 647
474.25B Aggravated offence—child with mental impairment or under care, supervision or authority of defendant 648
474.26... Using a carriage service to procure persons under 16 years of age. 649
474.27... Using a carriage service to “groom” persons under 16 years of age 650
474.27A Using a carriage service to transmit indecent communication to person under 16 years of age 651
474.28... Provisions relating to offences against this Subdivision................. 652
474.29... Defences to offences against this Subdivision................................ 654
Subdivision G—Offences relating to use of carriage service for suicide related material 656
474.29A Using a carriage service for suicide related material........................ 656
474.29B Possessing, controlling, producing, supplying or obtaining suicide related material for use through a carriage service........................................................................................................ 658
Division 475—Miscellaneous 659
475.1A.. Defences for NRS employees and emergency call persons............. 659
475.1B.. Provisions relating to element of offence that particular conduct was engaged in using a carriage service 659
475.1..... Saving of other laws....................................................................... 660
475.2..... Geographical jurisdiction................................................................ 660
Part 10.7—Computer offences 661
Division 476—Preliminary 661
476.1..... Definitions...................................................................................... 661
476.2..... Meaning of unauthorised access, modification or impairment....... 662
476.3..... Geographical jurisdiction................................................................ 663
476.4..... Saving of other laws....................................................................... 663
476.5..... Liability for certain acts................................................................... 663
Division 477—Serious computer offences 666
477.1..... Unauthorised access, modification or impairment with intent to commit a serious offence 666
477.2..... Unauthorised modification of data to cause impairment.................. 667
477.3..... Unauthorised impairment of electronic communication................... 667
Division 478—Other computer offences 669
478.1..... Unauthorised access to, or modification of, restricted data.............. 669
478.2..... Unauthorised impairment of data held on a computer disk etc........ 669
478.3..... Possession or control of data with intent to commit a computer offence 669
478.4..... Producing, supplying or obtaining data with intent to commit a computer offence 670
Part 10.8—Financial information offences 672
480.1..... Definitions...................................................................................... 672
480.2..... Dishonesty...................................................................................... 673
480.3..... Constitutional application of this Part.............................................. 673
480.4..... Dishonestly obtaining or dealing in personal financial information. 673
480.5..... Possession or control of thing with intent to dishonestly obtain or deal in personal financial information 673
480.6..... Importation of thing with intent to dishonestly obtain or deal in personal financial information 674
Dictionary 675
Endnotes 690
Endnote 1—Legislation history 690
Endnote 2—Amendment history 705
Endnote 3—Uncommenced amendments [none] 751
Endnote 4—Misdescribed amendments [none] 752
Schedule—The Criminal Code
Section 3
Chapter 1—Codification
Division 1
1.1 Codification
The only offences against laws of the Commonwealth are those offences created by, or under the authority of, this Code or any other Act.
Note: Under subsection 38(1) of the Acts Interpretation Act 1901, Act means an Act passed by the Parliament of the Commonwealth.
Chapter 2—General principles of criminal responsibility
Part 2.1—Purpose and application
Division 2
2.1 Purpose
The purpose of this Chapter is to codify the general principles of criminal responsibility under laws of the Commonwealth. It contains all the general principles of criminal responsibility that apply to any offence, irrespective of how the offence is created.
2.2 Application
(1) This Chapter applies to all offences against this Code.
(2) Subject to section 2.3, this Chapter applies on and after 15 December 2001 to all other offences.
(3) Section 11.6 applies to all offences.
2.3 Application of provisions relating to intoxication
Subsections 4.2(6) and (7) and Division 8 apply to all offences. For the purpose of interpreting those provisions in connection with an offence, the other provisions of this Chapter may be considered, whether or not those other provisions apply to the offence concerned.
Part 2.2—The elements of an offence
Division 3—General
3.1 Elements
(1) An offence consists of physical elements and fault elements.
(2) However, the law that creates the offence may provide that there is no fault element for one or more physical elements.
(3) The law that creates the offence may provide different fault elements for different physical elements.
3.2 Establishing guilt in respect of offences
In order for a person to be found guilty of committing an offence the following must be proved:
(a) the existence of such physical elements as are, under the law creating the offence, relevant to establishing guilt;
(b) in respect of each such physical element for which a fault element is required, one of the fault elements for the physical element.
Note 1: See Part 2.6 on proof of criminal responsibility.
Note 2: See Part 2.7 on geographical jurisdiction.
Division 4—Physical elements
4.1 Physical elements
(1) A physical element of an offence may be:
(a) conduct; or
(b) a result of conduct; or
(c) a circumstance in which conduct, or a result of conduct, occurs.
(2) In this Code:
conduct means an act, an omission to perform an act or a state of affairs.
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
4.2 Voluntariness
(1) Conduct can only be a physical element if it is voluntary.
(2) Conduct is only voluntary if it is a product of the will of the person whose conduct it is.
(3) The following are examples of conduct that is not voluntary:
(a) a spasm, convulsion or other unwilled bodily movement;
(b) an act performed during sleep or unconsciousness;
(c) an act performed during impaired consciousness depriving the person of the will to act.
(4) An omission to perform an act is only voluntary if the act omitted is one which the person is capable of performing.
(5) If the conduct constituting an offence consists only of a state of affairs, the state of affairs is only voluntary if it is one over which the person is capable of exercising control.
(6) Evidence of self‑induced intoxication cannot be considered in determining whether conduct is voluntary.
(7) Intoxication is self‑induced unless it came about:
(a) involuntarily; or
(b) as a result of fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force.
4.3 Omissions
An omission to perform an act can only be a physical element if:
(a) the law creating the offence makes it so; or
(b) the law creating the offence impliedly provides that the offence is committed by an omission to perform an act that there is a duty to perform by a law of the Commonwealth, a State or a Territory, or at common law.
Division 5—Fault elements
5.1 Fault elements
(1) A fault element for a particular physical element may be intention, knowledge, recklessness or negligence.
(2) Subsection (1) does not prevent a law that creates a particular offence from specifying other fault elements for a physical element of that offence.
5.2 Intention
(1) A person has intention with respect to conduct if he or she means to engage in that conduct.
(2) A person has intention with respect to a circumstance if he or she believes that it exists or will exist.
(3) A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.
5.3 Knowledge
A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.
5.4 Recklessness
(1) A person is reckless with respect to a circumstance if:
(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and
(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
(2) A person is reckless with respect to a result if:
(a) he or she is aware of a substantial risk that the result will occur; and
(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
(3) The question whether taking a risk is unjustifiable is one of fact.
(4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.
5.5 Negligence
A person is negligent with respect to a physical element of an offence if his or her conduct involves:
(a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and
(b) such a high risk that the physical element exists or will exist;
that the conduct merits criminal punishment for the offence.
5.6 Offences that do not specify fault elements
(1) If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element.
(2) If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.
Note: Under subsection 5.4(4), recklessness can be established by proving intention, knowledge or recklessness.
Division 6—Cases where fault elements are not required
6.1 Strict liability
(1) If a law that creates an offence provides that the offence is an offence of strict liability:
(a) there are no fault elements for any of the physical elements of the offence; and
(b) the defence of mistake of fact under section 9.2 is available.
(2) If a law that creates an offence provides that strict liability applies to a particular physical element of the offence:
(a) there are no fault elements for that physical element; and
(b) the defence of mistake of fact under section 9.2 is available in relation to that physical element.
(3) The existence of strict liability does not make any other defence unavailable.
6.2 Absolute liability
(1) If a law that creates an offence provides that the offence is an offence of absolute liability:
(a) there are no fault elements for any of the physical elements of the offence; and
(b) the defence of mistake of fact under section 9.2 is unavailable.
(2) If a law that creates an offence provides that absolute liability applies to a particular physical element of the offence:
(a) there are no fault elements for that physical element; and
(b) the defence of mistake of fact under section 9.2 is unavailable in relation to that physical element.
(3) The existence of absolute liability does not make any other defence unavailable.
Part 2.3—Circumstances in which there is no criminal responsibility
Note: This Part sets out defences that are generally available. Defences that apply to a more limited class of offences are dealt with elsewhere in this Code and in other laws.
Division 7—Circumstances involving lack of capacity
7.1 Children under 10
A child under 10 years old is not criminally responsible for an offence.
7.2 Children over 10 but under 14
(1) A child aged 10 years or more but under 14 years old can only be criminally responsible for an offence if the child knows that his or her conduct is wrong.
(2) The question whether a child knows that his or her conduct is wrong is one of fact. The burden of proving this is on the prosecution.
7.3 Mental impairment
(1) A person is not criminally responsible for an offence if, at the time of carrying out the conduct constituting the offence, the person was suffering from a mental impairment that had the effect that:
(a) the person did not know the nature and quality of the conduct; or
(b) the person did not know that the conduct was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong); or
(c) the person was unable to control the conduct.
(2) The question whether the person was suffering from a mental impairment is one of fact.
(3) A person is presumed not to have been suffering from such a mental impairment. The presumption is only displaced if it is proved on the balance of probabilities (by the prosecution or the defence) that the person was suffering from such a mental impairment.
(4) The prosecution can only rely on this section if the court gives leave.
(5) The tribunal of fact must return a special verdict that a person is not guilty of an offence because of mental impairment if and only if it is satisfied that the person is not criminally responsible for the offence only because of a mental impairment.
(6) A person cannot rely on a mental impairment to deny voluntariness or the existence of a fault element but may rely on this section to deny criminal responsibility.
(7) If the tribunal of fact is satisfied that a person carried out conduct as a result of a delusion caused by a mental impairment, the delusion cannot otherwise be relied on as a defence.
(8) In this Code:
mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.
(9) The reference in subsection (8) to mental illness is a reference to an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary external stimuli. However, such a condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.
Division 8—Intoxication
8.1 Definition—self‑induced intoxication
For the purposes of this Division, intoxication is self‑induced unless it came about:
(a) involuntarily; or
(b) as a result of fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force.
8.2 Intoxication (offences involving basic intent)
(1) Evidence of self‑induced intoxication cannot be considered in determining whether a fault element of basic intent existed.
(2) A fault element of basic intent is a fault element of intention for a physical element that consists only of conduct.
Note: A fault element of intention with respect to a circumstance or with respect to a result is not a fault element of basic intent.
(3) This section does not prevent evidence of self‑induced intoxication being taken into consideration in determining whether conduct was accidental.
(4) This section does not prevent evidence of self‑induced intoxication being taken into consideration in determining whether a person had a mistaken belief about facts if the person had considered whether or not the facts existed.
(5) A person may be regarded as having considered whether or not facts existed if:
(a) he or she had considered, on a previous occasion, whether those facts existed in circumstances surrounding that occasion; and
(b) he or she honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.
8.3 Intoxication (negligence as fault element)
(1) If negligence is a fault element for a particular physical element of an offence, in determining whether that fault element existed in relation to a person who is intoxicated, regard must be had to the standard of a reasonable person who is not intoxicated.
(2) However, if intoxication is not self‑induced, regard must be had to the standard of a reasonable person intoxicated to the same extent as the person concerned.
8.4 Intoxication (relevance to defences)
(1) If any part of a defence is based on actual knowledge or belief, evidence of intoxication may be considered in determining whether that knowledge or belief existed.
(2) If any part of a defence is based on reasonable belief, in determining whether that reasonable belief existed, regard must be had to the standard of a reasonable person who is not intoxicated.
(3) If a person’s intoxication is not self‑induced, in determining whether any part of a defence based on reasonable belief exists, regard must be had to the standard of a reasonable person intoxicated to the same extent as the person concerned.
(4) If, in relation to an offence:
(a) each physical element has a fault element of basic intent; and
(b) any part of a defence is based on actual knowledge or belief;
evidence of self‑induced intoxication cannot be considered in determining whether that knowledge or belief existed.
(5) A fault element of basic intent is a fault element of intention for a physical element that consists only of conduct.
Note: A fault element of intention with respect to a circumstance or with respect to a result is not a fault element of basic intent.
8.5 Involuntary intoxication
A person is not criminally responsible for an offence if the person’s conduct constituting the offence was as a result of intoxication that was not self‑induced.
Division 9—Circumstances involving mistake or ignorance
9.1 Mistake or ignorance of fact (fault elements other than negligence)
(1) A person is not criminally responsible for an offence that has a physical element for which there is a fault element other than negligence if:
(a) at the time of the conduct constituting the physical element, the person is under a mistaken belief about, or is ignorant of, facts; and
(b) the existence of that mistaken belief or ignorance negates any fault element applying to that physical element.
(2) In determining whether a person was under a mistaken belief about, or was ignorant of, facts, the tribunal of fact may consider whether the mistaken belief or ignorance was reasonable in the circumstances.
9.2 Mistake of fact (strict liability)
(1) A person is not criminally responsible for an offence that has a physical element for which there is no fault element if:
(a) at or before the time of the conduct constituting the physical element, the person considered whether or not facts existed, and is under a mistaken but reasonable belief about those facts; and
(b) had those facts existed, the conduct would not have constituted an offence.
(2) A person may be regarded as having considered whether or not facts existed if:
(a) he or she had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and
(b) he or she honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.
Note: Section 6.2 prevents this section applying in situations of absolute liability.
9.3 Mistake or ignorance of statute law
(1) A person can be criminally responsible for an offence even if, at the time of the conduct constituting the offence, he or she is mistaken about, or ignorant of, the existence or content of an Act that directly or indirectly creates the offence or directly or indirectly affects the scope or operation of the offence.
(2) Subsection (1) does not apply, and the person is not criminally responsible for the offence in those circumstances, if the Act is expressly to the contrary effect.
9.4 Mistake or ignorance of subordinate legislation
(1) A person can be criminally responsible for an offence even if, at the time of the conduct constituting the offence, he or she is mistaken about, or ignorant of, the existence or content of the subordinate legislation that directly or indirectly creates the offence or directly or indirectly affects the scope or operation of the offence.
(2) Subsection (1) does not apply, and the person is not criminally responsible for the offence in those circumstances, if:
(a) the subordinate legislation is expressly to the contrary effect; or
(c) at the time of the conduct, the subordinate legislation:
(i) has not been made available to the public (by means of the Register under the Legislative Instruments Act 2003 or otherwise); and
(ii) has not otherwise been made available to persons likely to be affected by it in such a way that the person would have become aware of its contents by exercising due diligence.
(3) In this section:
available includes available by sale.
subordinate legislation means an instrument of a legislative character made directly or indirectly under an Act, or in force directly or indirectly under an Act.
9.5 Claim of right
(1) A person is not criminally responsible for an offence that has a physical element relating to property if:
(a) at the time of the conduct constituting the offence, the person is under a mistaken belief about a proprietary or possessory right; and
(b) the existence of that right would negate a fault element for any physical element of the offence.
(2) A person is not criminally responsible for any other offence arising necessarily out of the exercise of the proprietary or possessory right that he or she mistakenly believes to exist.
(3) This section does not negate criminal responsibility for an offence relating to the use of force against a person.
Division 10—Circumstances involving external factors
10.1 Intervening conduct or event
A person is not criminally responsible for an offence that has a physical element to which absolute liability or strict liability applies if:
(a) the physical element is brought about by another person over whom the person has no control or by a non‑human act or event over which the person has no control; and
(b) the person could not reasonably be expected to guard against the bringing about of that physical element.
10.2 Duress
(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence under duress.
(2) A person carries out conduct under duress if and only if he or she reasonably believes that:
(a) a threat has been made that will be carried out unless an offence is committed; and
(b) there is no reasonable way that the threat can be rendered ineffective; and
(c) the conduct is a reasonable response to the threat.
(3) This section does not apply if the threat is made by or on behalf of a person with whom the person under duress is voluntarily associating for the purpose of carrying out conduct of the kind actually carried out.
10.3 Sudden or extraordinary emergency
(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency.
(2) This section applies if and only if the person carrying out the conduct reasonably believes that:
(a) circumstances of sudden or extraordinary emergency exist; and
(b) committing the offence is the only reasonable way to deal with the emergency; and
(c) the conduct is a reasonable response to the emergency.
10.4 Self‑defence
(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in self‑defence.
(2) A person carries out conduct in self‑defence if and only if he or she believes the conduct is necessary:
(a) to defend himself or herself or another person; or
(b) to prevent or terminate the unlawful imprisonment of himself or herself or another person; or
(c) to protect property from unlawful appropriation, destruction, damage or interference; or
(d) to prevent criminal trespass to any land or premises; or
(e) to remove from any land or premises a person who is committing criminal trespass;
and the conduct is a reasonable response in the circumstances as he or she perceives them.
(3) This section does not apply if the person uses force that involves the intentional infliction of death or really serious injury:
(a) to protect property; or
(b) to prevent criminal trespass; or
(c) to remove a person who is committing criminal trespass.
(4) This section does not apply if:
(a) the person is responding to lawful conduct; and
(b) he or she knew that the conduct was lawful.
However, conduct is not lawful merely because the person carrying it out is not criminally responsible for it.
10.5 Lawful authority
A person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by or under a law.
Part 2.4—Extensions of criminal responsibility
Division 11
11.1 Attempt
(1) A person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.
(2) For the person to be guilty, the person’s conduct must be more than merely preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact.
(3) For the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted.
Note: Under section 3.2, only one of the fault elements of intention or knowledge would need to be established in respect of each physical element of the offence attempted.
(3A) Subsection (3) has effect subject to subsection (6A).
(4) A person may be found guilty even if:
(a) committing the offence attempted is impossible; or
(b) the person actually committed the offence attempted.
(5) A person who is found guilty of attempting to commit an offence cannot be subsequently charged with the completed offence.
(6) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of attempting to commit that offence.
(6A) Any special liability provisions that apply to an offence apply also to the offence of attempting to commit that offence.
(7) It is not an offence to attempt to commit an offence against section 11.2 (complicity and common purpose), section 11.2A (joint commission), section 11.3 (commission by proxy), section 11.5 (conspiracy to commit an offence) or section 135.4 (conspiracy to defraud).
11.2 Complicity and common purpose
(1) A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly.
(2) For the person to be guilty:
(a) the person’s conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person; and
(b) the offence must have been committed by the other person.
(3) For the person to be guilty, the person must have intended that:
(a) his or her conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed; or
(b) his or her conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed.
(3A) Subsection (3) has effect subject to subsection (6).
(4) A person cannot be found guilty of aiding, abetting, counselling or procuring the commission of an offence if, before the offence was committed, the person:
(a) terminated his or her involvement; and
(b) took all reasonable steps to prevent the commission of the offence.
(5) A person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the other person has not been prosecuted or has not been found guilty.
(6) Any special liability provisions that apply to an offence apply also for the purposes of determining whether a person is guilty of that offence because of the operation of subsection (1).
(7) If the trier of fact is satisfied beyond reasonable doubt that a person either:
(a) is guilty of a particular offence otherwise than because of the operation of subsection (1); or
(b) is guilty of that offence because of the operation of subsection (1);
but is not able to determine which, the trier of fact may nonetheless find the person guilty of that offence.
11.2A Joint commission
Joint commission
(1) If:
(a) a person and at least one other party enter into an agreement to commit an offence; and
(b) either:
(i) an offence is committed in accordance with the agreement (within the meaning of subsection (2)); or
(ii) an offence is committed in the course of carrying out the agreement (within the meaning of subsection (3));
the person is taken to have committed the joint offence referred to in whichever of subsection (2) or (3) applies and is punishable accordingly.
Offence committed in accordance with the agreement
(2) An offence is committed in accordance with the agreement if:
(a) the conduct of one or more parties in accordance with the agreement makes up the physical elements consisting of conduct of an offence (the joint offence) of the same type as the offence agreed to; and
(b) to the extent that a physical element of the joint offence consists of a result of conduct—that result arises from the conduct engaged in; and
(c) to the extent that a physical element of the joint offence consists of a circumstance—the conduct engaged in, or a result of the conduct engaged in, occurs in that circumstance.
Offence committed in the course of carrying out the agreement
(3) An offence is committed in the course of carrying out the agreement if the person is reckless about the commission of an offence (the joint offence) that another party in fact commits in the course of carrying out the agreement.
Intention to commit an offence
(4) For a person to be guilty of an offence because of the operation of this section, the person and at least one other party to the agreement must have intended that an offence would be committed under the agreement.
Agreement may be non‑verbal etc.
(5) The agreement:
(a) may consist of a non‑verbal understanding; and
(b) may be entered into before, or at the same time as, the conduct constituting any of the physical elements of the joint offence was engaged in.
Termination of involvement etc.
(6) A person cannot be found guilty of an offence because of the operation of this section if, before the conduct constituting any of the physical elements of the joint offence concerned was engaged in, the person:
(a) terminated his or her involvement; and
(b) took all reasonable steps to prevent that conduct from being engaged in.
Person may be found guilty even if another party not prosecuted etc.
(7) A person may be found guilty of an offence because of the operation of this section even if:
(a) another party to the agreement has not been prosecuted or has not been found guilty; or
(b) the person was not present when any of the conduct constituting the physical elements of the joint offence was engaged in.
Special liability provisions apply
(8) Any special liability provisions that apply to the joint offence apply also for the purposes of determining whether a person is guilty of that offence because of the operation of this section.
11.3 Commission by proxy
A person who:
(a) has, in relation to each physical element of an offence, a fault element applicable to that physical element; and
(b) procures conduct of another person that (whether or not together with conduct of the procurer) would have constituted an offence on the part of the procurer if the procurer had engaged in it;
is taken to have committed that offence and is punishable accordingly.
11.4 Incitement
(1) A person who urges the commission of an offence is guilty of the offence of incitement.
(2) For the person to be guilty, the person must intend that the offence incited be committed.
(2A) Subsection (2) has effect subject to subsection (4A).
(3) A person may be found guilty even if committing the offence incited is impossible.
(4) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of incitement in respect of that offence.
(4A) Any special liability provisions that apply to an offence apply also to the offence of incitement in respect of that offence.
(5) It is not an offence to incite the commission of an offence against section 11.1 (attempt), this section or section 11.5 (conspiracy).
Penalty:
(a) if the offence incited is punishable by life imprisonment—imprisonment for 10 years; or
(b) if the offence incited is punishable by imprisonment for 14 years or more, but is not punishable by life imprisonment—imprisonment for 7 years; or
(c) if the offence incited is punishable by imprisonment for 10 years or more, but is not punishable by imprisonment for 14 years or more—imprisonment for 5 years; or
(d) if the offence is otherwise punishable by imprisonment—imprisonment for 3 years or for the maximum term of imprisonment for the offence incited, whichever is the lesser; or
(e) if the offence incited is not punishable by imprisonment—the number of penalty units equal to the maximum number of penalty units applicable to the offence incited.
Note: Under section 4D of the Crimes Act 1914, these penalties are only maximum penalties. Subsection 4B(2) of that Act allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment. If a body corporate is convicted of the offence, subsection 4B(3) of that Act allows a court to impose a fine of an amount not greater than 5 times the maximum fine that the court could impose on an individual convicted of the same offence. Penalty units are defined in section 4AA of that Act.
11.5 Conspiracy
(1) A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed.
Note: Penalty units are defined in section 4AA of the Crimes Act 1914.
(2) For the person to be guilty:
(a) the person must have entered into an agreement with one or more other persons; and
(b) the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and
(c) the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.
(2A) Subsection (2) has effect subject to subsection (7A).
(3) A person may be found guilty of conspiracy to commit an offence even if:
(a) committing the offence is impossible; or
(b) the only other party to the agreement is a body corporate; or
(c) each other party to the agreement is at least one of the following:
(i) a person who is not criminally responsible;
(ii) a person for whose benefit or protection the offence exists; or
(d) subject to paragraph (4)(a), all other parties to the agreement have been acquitted of the conspiracy.
(4) A person cannot be found guilty of conspiracy to commit an offence if:
(a) all other parties to the agreement have been acquitted of the conspiracy and a finding of guilt would be inconsistent with their acquittal; or
(b) he or she is a person for whose benefit or protection the offence exists.
(5) A person cannot be found guilty of conspiracy to commit an offence if, before the commission of an overt act pursuant to the agreement, the person:
(a) withdrew from the agreement; and
(b) took all reasonable steps to prevent the commission of the offence.
(6) A court may dismiss a charge of conspiracy if it thinks that the interests of justice require it to do so.
(7) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of conspiracy to commit that offence.
(7A) Any special liability provisions that apply to an offence apply also to the offence of conspiracy to commit that offence.
(8) Proceedings for an offence of conspiracy must not be commenced without the consent of the Director of Public Prosecutions. However, a person may be arrested for, charged with, or remanded in custody or on bail in connection with, an offence of conspiracy before the necessary consent has been given.
11.6 References in Acts to offences
(1) A reference in a law of the Commonwealth to an offence against a law of the Commonwealth (including this Code) includes a reference to an offence against section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) of this Code that relates to such an offence.
(2) A reference in a law of the Commonwealth (including this Code) to a particular offence includes a reference to an offence against section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) of this Code that relates to that particular offence.
(3) Subsection (1) or (2) does not apply if a law of the Commonwealth is expressly or impliedly to the contrary effect.
(4) In particular, an express reference in a law of the Commonwealth to:
(a) an offence against, under or created by the Crimes Act 1914; or
(b) an offence against, under or created by a particular provision of the Crimes Act 1914; or
(c) an offence arising out of the first‑mentioned law or another law of the Commonwealth; or
(d) an offence arising out of a particular provision; or
(e) an offence against, under or created by the Taxation Administration Act 1953;
does not mean that the first‑mentioned law is impliedly to the contrary effect.
Note: Sections 11.2 (complicity and common purpose), 11.2A (joint commission), and 11.3 (commission by proxy) of this Code operate as extensions of principal offences and are therefore not referred to in this section.
Part 2.5—Corporate criminal responsibility
Division 12
12.1 General principles
(1) This Code applies to bodies corporate in the same way as it applies to individuals. It so applies with such modifications as are set out in this Part, and with such other modifications as are made necessary by the fact that criminal liability is being imposed on bodies corporate rather than individuals.
(2) A body corporate may be found guilty of any offence, including one punishable by imprisonment.
Note: Section 4B of the Crimes Act 1914 enables a fine to be imposed for offences that only specify imprisonment as a penalty.
12.2 Physical elements
If a physical element of an offence is committed by an employee, agent or officer of a body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, the physical element must also be attributed to the body corporate.
12.3 Fault elements other than negligence
(1) If intention, knowledge or recklessness is a fault element in relation to a physical element of an offence, that fault element must be attributed to a body corporate that expressly, tacitly or impliedly authorised or permitted the commission of the offence.
(2) The means by which such an authorisation or permission may be established include:
(a) proving that the body corporate’s board of directors intentionally, knowingly or recklessly carried out the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence; or
(b) proving that a high managerial agent of the body corporate intentionally, knowingly or recklessly engaged in the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence; or
(c) proving that a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to non‑compliance with the relevant provision; or
(d) proving that the body corporate failed to create and maintain a corporate culture that required compliance with the relevant provision.
(3) Paragraph (2)(b) does not apply if the body corporate proves that it exercised due diligence to prevent the conduct, or the authorisation or permission.
(4) Factors relevant to the application of paragraph (2)(c) or (d) include:
(a) whether authority to commit an offence of the same or a similar character had been given by a high managerial agent of the body corporate; and
(b) whether the employee, agent or officer of the body corporate who committed the offence believed on reasonable grounds, or entertained a reasonable expectation, that a high managerial agent of the body corporate would have authorised or permitted the commission of the offence.
(5) If recklessness is not a fault element in relation to a physical element of an offence, subsection (2) does not enable the fault element to be proved by proving that the board of directors, or a high managerial agent, of the body corporate recklessly engaged in the conduct or recklessly authorised or permitted the commission of the offence.
(6) In this section:
board of directors means the body (by whatever name called) exercising the executive authority of the body corporate.
corporate culture means an attitude, policy, rule, course of conduct or practice existing within the body corporate generally or in the part of the body corporate in which the relevant activities takes place.
high managerial agent means an employee, agent or officer of the body corporate with duties of such responsibility that his or her conduct may fairly be assumed to represent the body corporate’s policy.
12.4 Negligence
(1) The test of negligence for a body corporate is that set out in section 5.5.
(2) If:
(a) negligence is a fault element in relation to a physical element of an offence; and
(b) no individual employee, agent or officer of the body corporate has that fault element;
that fault element may exist on the part of the body corporate if the body corporate’s conduct is negligent when viewed as a whole (that is, by aggregating the conduct of any number of its employees, agents or officers).
(3) Negligence may be evidenced by the fact that the prohibited conduct was substantially attributable to:
(a) inadequate corporate management, control or supervision of the conduct of one or more of its employees, agents or officers; or
(b) failure to provide adequate systems for conveying relevant information to relevant persons in the body corporate.
12.5 Mistake of fact (strict liability)
(1) A body corporate can only rely on section 9.2 (mistake of fact (strict liability)) in respect of conduct that would, apart from this section, constitute an offence on its part if:
(a) the employee, agent or officer of the body corporate who carried out the conduct was under a mistaken but reasonable belief about facts that, had they existed, would have meant that the conduct would not have constituted an offence; and
(b) the body corporate proves that it exercised due diligence to prevent the conduct.
(2) A failure to exercise due diligence may be evidenced by the fact that the prohibited conduct was substantially attributable to:
(a) inadequate corporate management, control or supervision of the conduct of one or more of its employees, agents or officers; or
(b) failure to provide adequate systems for conveying relevant information to relevant persons in the body corporate.
12.6 Intervening conduct or event
A body corporate cannot rely on section 10.1 (intervening conduct or event) in respect of a physical element of an offence brought about by another person if the other person is an employee, agent or officer of the body corporate.
Part 2.6—Proof of criminal responsibility
Division 13
13.1 Legal burden of proof—prosecution
(1) The prosecution bears a legal burden of proving every element of an offence relevant to the guilt of the person charged.
Note: See section 3.2 on what elements are relevant to a person’s guilt.
(2) The prosecution also bears a legal burden of disproving any matter in relation to which the defendant has discharged an evidential burden of proof imposed on the defendant.
(3) In this Code:
legal burden, in relation to a matter, means the burden of proving the existence of the matter.
13.2 Standard of proof—prosecution
(1) A legal burden of proof on the prosecution must be discharged beyond reasonable doubt.
(2) Subsection (1) does not apply if the law creating the offence specifies a different standard of proof.
13.3 Evidential burden of proof—defence
(1) Subject to section 13.4, a burden of proof that a law imposes on a defendant is an evidential burden only.
(2) A defendant who wishes to deny criminal responsibility by relying on a provision of Part 2.3 (other than section 7.3) bears an evidential burden in relation to that matter.
(3) A defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter. The exception, exemption, excuse, qualification or justification need not accompany the description of the offence.
(4) The defendant no longer bears the evidential burden in relation to a matter if evidence sufficient to discharge the burden is adduced by the prosecution or by the court.
(5) The question whether an evidential burden has been discharged is one of law.
(6) In this Code:
evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
13.4 Legal burden of proof—defence
A burden of proof that a law imposes on the defendant is a legal burden if and only if the law expressly:
(a) specifies that the burden of proof in relation to the matter in question is a legal burden; or
(b) requires the defendant to prove the matter; or
(c) creates a presumption that the matter exists unless the contrary is proved.
13.5 Standard of proof—defence
A legal burden of proof on the defendant must be discharged on the balance of probabilities.
13.6 Use of averments
A law that allows the prosecution to make an averment is taken not to allow the prosecution:
(a) to aver any fault element of an offence; or
(b) to make an averment in prosecuting for an offence that is directly punishable by imprisonment.
Part 2.7—Geographical jurisdiction
Division 14—Standard geographical jurisdiction
14.1 Standard geographical jurisdiction
(1) This section may apply to a particular offence in either of the following ways:
(a) unless the contrary intention appears, this section applies to the following offences:
(i) a primary offence, where the provision creating the offence commences at or after the commencement of this section;
(ii) an ancillary offence, to the extent to which it relates to a primary offence covered by subparagraph (i);
(b) if a law of the Commonwealth provides that this section applies to a particular offence—this section applies to that offence.
Note: In the case of paragraph (b), the expression offence is given an extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(1).
(2) If this section applies to a particular offence, a person does not commit the offence unless:
(a) the conduct constituting the alleged offence occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an Australian ship; or
(b) the conduct constituting the alleged offence occurs wholly outside Australia and a result of the conduct occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an Australian ship; or
(c) all of the following conditions are satisfied:
(i) the alleged offence is an ancillary offence;
(ii) the conduct constituting the alleged offence occurs wholly outside Australia;
(iii) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship.
Defence—primary offence
(3) If this section applies to a particular offence, a person is not guilty of the offence if:
(aa) the alleged offence is a primary offence; and
(a) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(b) there is not in force in:
(i) the foreign country where the conduct constituting the alleged offence occurs; or
(ii) the part of the foreign country where the conduct constituting the alleged offence occurs;
a law of that foreign country, or a law of that part of that foreign country, that creates an offence that corresponds to the first‑mentioned offence.
Note: A defendant bears an evidential burden in relation to the matters in subsection (3). See subsection 13.3(3).
(4) For the purposes of the application of subsection 13.3(3) to an offence, subsection (3) of this section is taken to be an exception provided by the law creating the offence.
Defence—ancillary offence
(5) If this section applies to a particular offence, a person is not guilty of the offence if:
(a) the alleged offence is an ancillary offence; and
(b) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(c) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(d) there is not in force in:
(i) the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur; or
(ii) the part of the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur;
a law of that foreign country, or a law of that part of that foreign country, that creates an offence that corresponds to the primary offence.
Note: A defendant bears an evidential burden in relation to the matters in subsection (5). See subsection 13.3(3).
(6) For the purposes of the application of subsection 13.3(3) to an offence, subsection (5) of this section is taken to be an exception provided by the law creating the offence.
Division 15—Extended geographical jurisdiction
15.1 Extended geographical jurisdiction—category A
(1) If a law of the Commonwealth provides that this section applies to a particular offence, a person does not commit the offence unless:
(a) the conduct constituting the alleged offence occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an Australian ship; or
(b) the conduct constituting the alleged offence occurs wholly outside Australia and a result of the conduct occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an Australian ship; or
(c) the conduct constituting the alleged offence occurs wholly outside Australia and:
(i) at the time of the alleged offence, the person is an Australian citizen; or
(ii) at the time of the alleged offence, the person is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or
(d) all of the following conditions are satisfied:
(i) the alleged offence is an ancillary offence;
(ii) the conduct constituting the alleged offence occurs wholly outside Australia;
(iii) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship.
Note: The expression offence is given an extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(1).
Defence—primary offence
(2) If a law of the Commonwealth provides that this section applies to a particular offence, a person is not guilty of the offence if:
(aa) the alleged offence is a primary offence; and
(a) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(b) the person is neither:
(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and
(c) there is not in force in:
(i) the foreign country where the conduct constituting the alleged offence occurs; or
(ii) the part of the foreign country where the conduct constituting the alleged offence occurs;
a law of that foreign country, or a law of that part of that foreign country, that creates an offence that corresponds to the first‑mentioned offence.
Note: A defendant bears an evidential burden in relation to the matters in subsection (2). See subsection 13.3(3).
(3) For the purposes of the application of subsection 13.3(3) to an offence, subsection (2) of this section is taken to be an exception provided by the law creating the offence.
Defence—ancillary offence
(4) If a law of the Commonwealth provides that this section applies to a particular offence, a person is not guilty of the offence if:
(a) the alleged offence is an ancillary offence; and
(b) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(c) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(d) the person is neither:
(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and
(e) there is not in force in:
(i) the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur; or
(ii) the part of the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur;
a law of that foreign country, or a law of that part of that foreign country, that creates an offence that corresponds to the primary offence.
Note: A defendant bears an evidential burden in relation to the matters in subsection (4). See subsection 13.3(3).
(5) For the purposes of the application of subsection 13.3(3) to an offence, subsection (4) of this section is taken to be an exception provided by the law creating the offence.
15.2 Extended geographical jurisdiction—category B
(1) If a law of the Commonwealth provides that this section applies to a particular offence, a person does not commit the offence unless:
(a) the conduct constituting the alleged offence occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an Australian ship; or
(b) the conduct constituting the alleged offence occurs wholly outside Australia and a result of the conduct occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an Australian ship; or
(c) the conduct constituting the alleged offence occurs wholly outside Australia and:
(i) at the time of the alleged offence, the person is an Australian citizen; or
(ii) at the time of the alleged offence, the person is a resident of Australia; or
(iii) at the time of the alleged offence, the person is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or
(d) all of the following conditions are satisfied:
(i) the alleged offence is an ancillary offence;
(ii) the conduct constituting the alleged offence occurs wholly outside Australia;
(iii) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship.
Note: The expression offence is given an extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(1).
Defence—primary offence
(2) If a law of the Commonwealth provides that this section applies to a particular offence, a person is not guilty of the offence if:
(aa) the alleged offence is a primary offence; and
(a) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(b) the person is neither:
(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and
(c) there is not in force in:
(i) the foreign country where the conduct constituting the alleged offence occurs; or
(ii) the part of the foreign country where the conduct constituting the alleged offence occurs;
a law of that foreign country, or a law of that part of that foreign country, that creates an offence that corresponds to the first‑mentioned offence.
Note: A defendant bears an evidential burden in relation to the matters in subsection (2). See subsection 13.3(3).
(3) For the purposes of the application of subsection 13.3(3) to an offence, subsection (2) of this section is taken to be an exception provided by the law creating the offence.
Defence—ancillary offence
(4) If a law of the Commonwealth provides that this section applies to a particular offence, a person is not guilty of the offence if:
(a) the alleged offence is an ancillary offence; and
(b) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(c) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(d) the person is neither:
(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and
(e) there is not in force in:
(i) the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur; or
(ii) the part of the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur;
a law of that foreign country, or a law of that part of that foreign country, that creates an offence that corresponds to the primary offence.
Note: A defendant bears an evidential burden in relation to the matters in subsection (4). See subsection 13.3(3).
(5) For the purposes of the application of subsection 13.3(3) to an offence, subsection (4) of this section is taken to be an exception provided by the law creating the offence.
15.3 Extended geographical jurisdiction—category C
(1) If a law of the Commonwealth provides that this section applies to a particular offence, the offence applies:
(a) whether or not the conduct constituting the alleged offence occurs in Australia; and
(b) whether or not a result of the conduct constituting the alleged offence occurs in Australia.
Note: The expression offence is given an extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(1).
Defence—primary offence
(2) If a law of the Commonwealth provides that this section applies to a particular offence, a person is not guilty of the offence if:
(aa) the alleged offence is a primary offence; and
(a) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(b) the person is neither:
(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and
(c) there is not in force in:
(i) the foreign country where the conduct constituting the alleged offence occurs; or
(ii) the part of the foreign country where the conduct constituting the alleged offence occurs;
a law of that foreign country, or that part of that foreign country, that creates an offence that corresponds to the first‑mentioned offence.
Note: A defendant bears an evidential burden in relation to the matters in subsection (2). See subsection 13.3(3).
(3) For the purposes of the application of subsection 13.3(3) to an offence, subsection (2) of this section is taken to be an exception provided by the law creating the offence.
Defence—ancillary offence
(4) If a law of the Commonwealth provides that this section applies to a particular offence, a person is not guilty of the offence if:
(a) the alleged offence is an ancillary offence; and
(b) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(c) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(d) the person is neither:
(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and
(e) there is not in force in:
(i) the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur; or
(ii) the part of the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur;
a law of that foreign country, or a law of that part of that foreign country, that creates an offence that corresponds to the primary offence.
Note: A defendant bears an evidential burden in relation to the matters in subsection (4). See subsection 13.3(3).
(5) For the purposes of the application of subsection 13.3(3) to an offence, subsection (4) of this section is taken to be an exception provided by the law creating the offence.
15.4 Extended geographical jurisdiction—category D
If a law of the Commonwealth provides that this section applies to a particular offence, the offence applies:
(a) whether or not the conduct constituting the alleged offence occurs in Australia; and
(b) whether or not a result of the conduct constituting the alleged offence occurs in Australia.
Note: The expression offence is given an extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(1).
Division 16—Miscellaneous
16.1 Attorney‑General’s consent required for prosecution if alleged conduct occurs wholly in a foreign country in certain circumstances
(1) Proceedings for an offence must not be commenced without the Attorney‑General’s written consent if:
(a) section 14.1, 15.1, 15.2, 15.3 or 15.4 applies to the offence; and
(b) the conduct constituting the alleged offence occurs wholly in a foreign country; and
(c) at the time of the alleged offence, the person alleged to have committed the offence is neither:
(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.
(2) However, a person may be arrested for, charged with, or remanded in custody or released on bail in connection with an offence before the necessary consent has been given.
16.2 When conduct taken to occur partly in Australia
Sending things
(1) For the purposes of this Part, if a person sends a thing, or causes a thing to be sent:
(a) from a point outside Australia to a point in Australia; or
(b) from a point in Australia to a point outside Australia;
that conduct is taken to have occurred partly in Australia.
Sending electronic communications
(2) For the purposes of this Part, if a person sends, or causes to be sent, an electronic communication:
(a) from a point outside Australia to a point in Australia; or
(b) from a point in Australia to a point outside Australia;
that conduct is taken to have occurred partly in Australia.
Point
(3) For the purposes of this section, point includes a mobile or potentially mobile point, whether on land, underground, in the atmosphere, underwater, at sea or anywhere else.
16.3 Meaning of Australia
(1) For the purposes of the application of this Part to a particular primary offence, Australia has the same meaning it would have if it were used in a geographical sense in the provision creating the primary offence.
(2) For the purposes of the application of this Part to a particular ancillary offence, Australia has the same meaning it would have if it were used in a geographical sense in the provision creating the primary offence to which the ancillary offence relates.
(3) For the purposes of this Part, if a provision creating an offence extends to an external Territory, it is to be assumed that if the expression Australia were used in a geographical sense in that provision, that expression would include that external Territory.
(4) This section does not affect the meaning of the expressions Australian aircraft, Australian citizen or Australian ship.
16.4 Result of conduct
A reference in this Part to a result of conduct constituting an offence is a reference to a result that is a physical element of the offence (within the meaning of subsection 4.1(1)).
Chapter 4—The integrity and security of the international community and foreign governments
Division 70—Bribery of foreign public officials
70.1 Definitions
In this Division:
benefit includes any advantage and is not limited to property.
business advantage means an advantage in the conduct of business.
control, in relation to a company, body or association, includes control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights.
duty, in relation to a foreign public official, means any authority, duty, function or power that:
(a) is conferred on the official; or
(b) that the official holds himself or herself out as having.
foreign government body means:
(a) the government of a foreign country or of part of a foreign country; or
(b) an authority of the government of a foreign country; or
(c) an authority of the government of part of a foreign country; or
(d) a foreign local government body or foreign regional government body; or
(e) a foreign public enterprise.
foreign public enterprise means a company or any other body or association where:
(a) in the case of a company—one of the following applies:
(i) the government of a foreign country or of part of a foreign country holds more than 50% of the issued share capital of the company;
(ii) the government of a foreign country or of part of a foreign country holds more than 50% of the voting power in the company;
(iii) the government of a foreign country or of part of a foreign country is in a position to appoint more than 50% of the company’s board of directors;
(iv) the directors (however described) of the company are accustomed or under an obligation (whether formal or informal) to act in accordance with the directions, instructions or wishes of the government of a foreign country or of part of a foreign country;
(v) the government of a foreign country or of part of a foreign country is in a position to exercise control over the company; and
(b) in the case of any other body or association—either of the following applies:
(i) the members of the executive committee (however described) of the body or association are accustomed or under an obligation (whether formal or informal) to act in accordance with the directions, instructions or wishes of the government of a foreign country or of part of a foreign country;
(ii) the government of a foreign country or of part of a foreign country is in a position to exercise control over the body or association; and
(c) the company, body or association:
(i) enjoys special legal rights or a special legal status under a law of a foreign country or of part of a foreign country; or
(ii) enjoys special benefits or privileges under a law of a foreign country or of part of a foreign country;
because of the relationship of the company, body or association with the government of the foreign country or of the part of the foreign country, as the case may be.
foreign public official means:
(a) an employee or official of a foreign government body; or
(b) an individual who performs work for a foreign government body under a contract; or
(c) an individual who holds or performs the duties of an appointment, office or position under a law of a foreign country or of part of a foreign country; or
(d) an individual who holds or performs the duties of an appointment, office or position created by custom or convention of a foreign country or of part of a foreign country; or
(e) an individual who is otherwise in the service of a foreign government body (including service as a member of a military force or police force); or
(f) a member of the executive, judiciary or magistracy of a foreign country or of part of a foreign country; or
(g) an employee of a public international organisation; or
(h) an individual who performs work for a public international organisation under a contract; or
(i) an individual who holds or performs the duties of an office or position in a public international organisation; or
(j) an individual who is otherwise in the service of a public international organisation; or
(k) a member or officer of the legislature of a foreign country or of part of a foreign country; or
(l) an individual who:
(i) is an authorised intermediary of a foreign public official covered by any of the above paragraphs; or
(ii) holds himself or herself out to be the authorised intermediary of a foreign public official covered by any of the above paragraphs.
public international organisation means:
(a) an organisation:
(i) of which 2 or more countries, or the governments of 2 or more countries, are members; or
(ii) that is constituted by persons representing 2 or more countries, or representing the governments of 2 or more countries; or
(b) an organisation established by, or a group of organisations constituted by:
(i) organisations of which 2 or more countries, or the governments of 2 or more countries, are members; or
(ii) organisations that are constituted by the representatives of 2 or more countries, or the governments of 2 or more countries; or
(c) an organisation that is:
(i) an organ of, or office within, an organisation described in paragraph (a) or (b); or
(ii) a commission, council or other body established by an organisation so described or such an organ; or
(iii) a committee, or subcommittee of a committee, of an organisation described in paragraph (a) or (b), or of such an organ, council or body.
share includes stock.
70.2 Bribing a foreign public official
(1) A person is guilty of an offence if:
(a) the person:
(i) provides a benefit to another person; or
(ii) causes a benefit to be provided to another person; or
(iii) offers to provide, or promises to provide, a benefit to another person; or
(iv) causes an offer of the provision of a benefit, or a promise of the provision of a benefit, to be made to another person; and
(b) the benefit is not legitimately due to the other person; and
(c) the first‑mentioned person does so with the intention of influencing a foreign public official (who may be the other person) in the exercise of the official’s duties as a foreign public official in order to:
(i) obtain or retain business; or
(ii) obtain or retain a business advantage that is not legitimately due to the recipient, or intended recipient, of the business advantage (who may be the first‑mentioned person).
Note: For defences see sections 70.3 and 70.4.
(1A) In a prosecution for an offence under subsection (1), it is not necessary to prove that business, or a business advantage, was actually obtained or retained.
Benefit that is not legitimately due
(2) For the purposes of this section, in working out if a benefit is not legitimately due to a person in a particular situation, disregard the following:
(a) the fact that the benefit may be, or be perceived to be, customary, necessary or required in the situation;
(b) the value of the benefit;
(c) any official tolerance of the benefit.
Business advantage that is not legitimately due
(3) For the purposes of this section, in working out if a business advantage is not legitimately due to a person in a particular situation, disregard the following:
(a) the fact that the business advantage may be customary, or perceived to be customary, in the situation;
(b) the value of the business advantage;
(c) any official tolerance of the business advantage.
Penalty for individual
(4) An offence against subsection (1) committed by an individual is punishable on conviction by imprisonment for not more than 10 years, a fine not more than 10,000 penalty units, or both.
Penalty for body corporate
(5) An offence against subsection (1) committed by a body corporate is punishable on conviction by a fine not more than the greatest of the following:
(a) 100,000 penalty units;
(b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the conduct constituting the offence—3 times the value of that benefit;
(c) if the court cannot determine the value of that benefit—10% of the annual turnover of the body corporate during the period (the turnover period) of 12 months ending at the end of the month in which the conduct constituting the offence occurred.
(6) For the purposes of this section, the annual turnover of a body corporate, during the turnover period, is the sum of the values of all the supplies that the body corporate, and any body corporate related to the body corporate, have made, or are likely to make, during that period, other than the following supplies:
(a) supplies made from any of those bodies corporate to any other of those bodies corporate;
(b) supplies that are input taxed;
(c) supplies that are not for consideration (and are not taxable supplies under section 72‑5 of the A New Tax System (Goods and Services Tax) Act 1999);
(d) supplies that are not made in connection with an enterprise that the body corporate carries on.
(7) Expressions used in subsection (6) that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning in that subsection as they have in that Act.
(8) The question whether 2 bodies corporate are related to each other is to be determined for the purposes of this section in the same way as for the purposes of the Corporations Act 2001.
70.3 Defence—conduct lawful in foreign public official’s country
(1) A person is not guilty of an offence against section 70.2 in the cases set out in the following table:
| Defence of lawful conduct |
| Item | In a case where the person’s conduct occurred in relation to this kind of foreign public official... | and if it were assumed that the person’s conduct had occurred wholly... | this written law requires or permits the provision of the benefit ... |
| 1 | an employee or official of a foreign government body | in the place where the central administration of the body is located | a written law in force in that place |
| 2 | an individual who performs work for a foreign government body under a contract | in the place where the central administration of the body is located | a written law in force in that place |
| 3 | an individual who holds or performs the duties of an appointment, office or position under a law of a foreign country or of part of a foreign country | in the foreign country or in the part of the foreign country, as the case may be | a written law in force in the foreign country or in the part of the foreign country, as the case may be |
| 4 | an individual who holds or performs the duties of an appointment, office or position created by custom or convention of a foreign country or of part of a foreign country | in the foreign country or in the part of the foreign country, as the case may be | a written law in force in the foreign country or in the part of the foreign country, as the case may be |
| 5 | an individual who is otherwise in the service of a foreign government body (including service as a member of a military force or police force) | in the place where the central administration of the body is located | a written law in force in that place |
| 6 | a member of the executive, judiciary or magistracy of a foreign country or of part of a foreign country | in the foreign country or in the part of the foreign country, as the case may be | a written law in force in the foreign country or in the part of the foreign country, as the case may be |
| 7 | an employee of a public international organisation | in the place where the headquarters of the organisation is located | a written law in force in that place |
| 8 | an individual who performs work for a public international organisation under a contract | in the place where the headquarters of the organisation is located | a written law in force in that place |
| 9 | an individual who holds or performs the duties of a public office or position in a public international organisation | in the place where the headquarters of the organisation is located | a written law in force in that place |
| 10 | an individual who is otherwise in the service of a public international organisation | in the place where the headquarters of the organisation is located | a written law in force in that place |
| 11 | a member or officer of the legislature of a foreign country or of part of a foreign country | in the foreign country or in the part of the foreign country, as the case may be | a written law in force in the foreign country or in the part of the foreign country, as the case may be |
Note: A defendant bears an evidential burden in relation to the matter in subsection (1). See subsection 13.3(3).
(2) A person is not guilty of an offence against section 70.2 if:
(a) the person’s conduct occurred in relation to a foreign public official covered by paragraph (l) of the definition of foreign public official in section 70.1 (which deals with intermediaries of foreign public officials covered by other paragraphs of that definition); and
(b) assuming that the first‑mentioned person’s conduct had occurred instead in relation to:
(i) the other foreign public official of whom the first‑mentioned foreign public official was an authorised intermediary; or
(ii) the other foreign public official in relation to whom the first‑mentioned foreign public official held himself or herself out to be an authorised intermediary;
subsection (1) would have applied in relation to the first‑mentioned person.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2). See subsection 13.3(3).
(3) To avoid doubt, if:
(a) a person’s conduct occurred in relation to a foreign public official covered by 2 or more paragraphs of the definition of foreign public official in section 70.1; and
(b) at least one of the corresponding items in subsection (1) is applicable to the conduct of the first‑mentioned person;
subsection (1) applies to the conduct of the first‑mentioned person.
70.4 Defence—facilitation payments
(1) A person is not guilty of an offence against section 70.2 if:
(a) the value of the benefit was of a minor nature; and
(b) the person’s conduct was engaged in for the sole or dominant purpose of expediting or securing the performance of a routine government action of a minor nature; and
(c) as soon as practicable after the conduct occurred, the person made a record of the conduct that complies with subsection (3); and
(d) any of the following subparagraphs applies:
(i) the person has retained that record at all relevant times;
(ii) that record has been lost or destroyed because of the actions of another person over whom the first‑mentioned person had no control, or because of a non‑human act or event over which the first‑mentioned person had no control, and the first‑mentioned person could not reasonably be expected to have guarded against the bringing about of that loss or that destruction;
(iii) a prosecution for the offence is instituted more than 7 years after the conduct occurred.
Note: A defendant bears an evidential burden in relation to the matter in subsection (1). See subsection 13.3(3).
Routine government action
(2) For the purposes of this section, a routine government action is an action of a foreign public official that:
(a) is ordinarily and commonly performed by the official; and
(b) is covered by any of the following subparagraphs:
(i) granting a permit, licence or other official document that qualifies a person to do business in a foreign country or in a part of a foreign country;
(ii) processing government papers such as a visa or work permit;
(iii) providing police protection or mail collection or delivery;
(iv) scheduling inspections associated with contract performance or related to the transit of goods;
(v) providing telecommunications services, power or water;
(vi) loading and unloading cargo;
(vii) protecting perishable products, or commodities, from deterioration;
(viii) any other action of a similar nature; and
(c) does not involve a decision about:
(i) whether to award new business; or
(ii) whether to continue existing business with a particular person; or
(iii) the terms of new business or existing business; and
(d) does not involve encouraging a decision about:
(i) whether to award new business; or
(ii) whether to continue existing business with a particular person; or
(iii) the terms of new business or existing business.
Content of records
(3) A record of particular conduct engaged in by a person complies with this subsection if the record sets out:
(a) the value of the benefit concerned; and
(b) the date on which the conduct occurred; and
(c) the identity of the foreign public official in relation to whom the conduct occurred; and
(d) if that foreign public official is not the other person mentioned in paragraph 70.2(1)(a)—the identity of that other person; and
(e) particulars of the routine government action that was sought to be expedited or secured by the conduct; and
(f) the person’s signature or some other means of verifying the person’s identity.
70.5 Territorial and nationality requirements
(1) A person does not commit an offence against section 70.2 unless:
(a) the conduct constituting the alleged offence occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an Australian ship; or
(b) the conduct constituting the alleged offence occurs wholly outside Australia and:
(i) at the time of the alleged offence, the person is an Australian citizen; or
(ii) at the time of the alleged offence, the person is a resident of Australia; or
(iii) at the time of the alleged offence, the person is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.
Note: The expression offence against section 70.2 is given an extended meaning by subsections 11.2(1), 11.2A(1) and 11.6(2).
(2) Proceedings for an offence against section 70.2 must not be commenced without the Attorney‑General’s written consent if:
(a) the conduct constituting the alleged offence occurs wholly outside Australia; and
(b) at the time of the alleged offence, the person alleged to have committed the offence is:
(i) a resident of Australia; and
(ii) not an Australian citizen.
(3) However, a person may be arrested for, charged with, or remanded in custody or released on bail in connection with an offence against section 70.2 before the necessary consent has been given.
70.6 Saving of other laws
This Division is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory.
Division 71—Offences against United Nations and associated personnel
71.1 Purpose
The purpose of this Division is to protect United Nations and associated personnel and give effect to the Convention on the Safety of United Nations and Associated Personnel.
71.2 Murder of a UN or associated person
(1) A person is guilty of an offence if:
(a) the person’s conduct causes the death of another person; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person intends to cause, or is reckless as to causing, the death of the UN or associated person or any other person by the conduct.
Maximum penalty: Imprisonment for life.
Note: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
(2) Strict liability applies to paragraphs (1)(b) and (c).
71.3 Manslaughter of a UN or associated person
(1) A person is guilty of an offence if:
(a) the person’s conduct causes the death of another person; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person intends to cause, or is reckless as to causing, serious harm to the UN or associated person or any other person by the conduct.
Maximum penalty: Imprisonment for 25 years.
Note: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
(2) Strict liability applies to paragraphs (1)(b) and (c).
71.4 Intentionally causing serious harm to a UN or associated person
(1) A person is guilty of an offence if:
(a) the person’s conduct causes serious harm to another person; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person intends to cause serious harm to the UN or associated person or any other person by the conduct.
Maximum penalty: Imprisonment for 20 years.
Maximum penalty (aggravated offence): Imprisonment for 25 years.
Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
71.5 Recklessly causing serious harm to a UN or associated person
(1) A person is guilty of an offence if:
(a) the person’s conduct causes serious harm to another person; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person is reckless as to causing serious harm to the UN or associated person or any other person by the conduct.
Maximum penalty: Imprisonment for 15 years.
Maximum penalty (aggravated offence): Imprisonment for 19 years.
Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
71.6 Intentionally causing harm to a UN or associated person
(1) A person is guilty of an offence if:
(a) the person’s conduct causes harm to another person without the consent of that person; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person intends to cause harm to the UN or associated person or any other person by the conduct.
Maximum penalty: Imprisonment for 10 years.
Maximum penalty (aggravated offence): Imprisonment for 13 years.
Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
71.7 Recklessly causing harm to a UN or associated person
(1) A person is guilty of an offence if:
(a) the person’s conduct causes harm to another person without the consent of that person; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person is reckless as to causing harm to the UN or associated person or any other person by the conduct.
Maximum penalty: Imprisonment for 7 years.
Maximum penalty (aggravated offence): Imprisonment for 9 years.
Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
71.8 Unlawful sexual penetration
(1) A person is guilty of an offence if:
(a) the person sexually penetrates another person without the consent of that person; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person knows about, or is reckless as to, the lack of consent.
Maximum penalty: Imprisonment for 15 years.
Maximum penalty (aggravated offence): Imprisonment for 20 years.
Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
(3) In this section:
sexually penetrate means:
(a) penetrate (to any extent) the genitalia or anus of a person by any part of the body of another person or by any object manipulated by that other person; or
(b) penetrate (to any extent) the mouth of a person by the penis of another person; or
(c) continue to sexually penetrate as defined in paragraph (a) or (b).
(4) In this section, being reckless as to a lack of consent to sexual penetration includes not giving any thought to whether or not the person is consenting to sexual penetration.
(5) In this section, the genitalia or others parts of the body of a person include surgically constructed genitalia or other parts of the body of the person.
71.9 Kidnapping a UN or associated person
(1) A person is guilty of an offence if:
(a) the person takes or detains another person without his or her consent; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person takes or detains the UN or associated person with the intention of:
(i) holding him or her to ransom or as a hostage; or
(ii) taking or sending him or her out of the country; or
(iii) committing a serious offence against him or her or another person.
Maximum penalty: Imprisonment for 15 years.
Maximum penalty (aggravated offence): Imprisonment for 19 years.
Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
(3) In this section, serious offence means an offence under a law of the Commonwealth, a State or Territory or a foreign law the maximum penalty for which is death, or imprisonment for not less than 12 months.
71.10 Unlawful detention of UN or associated person
(1) A person is guilty of an offence if:
(a) the person takes or detains another person without that other person’s consent; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a UN enforcement action.
Maximum penalty: Imprisonment for 5 years.
Maximum penalty (aggravated offence): Imprisonment for 6 years.
Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
71.11 Intentionally causing damage to UN or associated person’s property etc.
(1) A person is guilty of an offence if:
(a) the person’s conduct causes damage to official premises, private accommodation or a means of transportation (the property); and
(b) the property is occupied or used by a UN or associated person; and
(c) the conduct gives rise to a danger of serious harm to a person; and
(d) that person is the UN or associated person referred to in paragraph (b); and
(e) the UN or associated person is engaged in a UN operation that is not a UN enforcement action; and
(f) the first‑mentioned person intends to cause the damage to the property; and
(g) the first‑mentioned person is reckless as to the danger to the person referred to in paragraph (c).
Maximum penalty: Imprisonment for 10 years.
Note: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
(2) Strict liability applies to paragraphs (1)(b), (d) and (e).
71.12 Threatening to commit other offences
A person is guilty of an offence if the person:
(a) threatens to commit an offence (the threatened offence) under any of sections 71.2 to 71.11; and
(b) intends to compel any other person to do or omit to do an act by making the threat.
Maximum penalty:
(a) if the threatened offence is the offence under section 71.2 (murder of a UN or associated person)—imprisonment for 10 years; or
(b) if the threatened offence is the offence under section 71.3, 71.4, 71.5, 71.8 or 71.9 (manslaughter of, causing serious harm to, kidnapping, or sexually penetrating, a UN or associated person)—imprisonment for 7 years; or
(c) if the threatened offence is the offence under section 71.6 or 71.11 (causing harm to, or damaging the property etc. of, a UN or associated person)—imprisonment for 5 years; or
(d) if the threatened offence is the offence under section 71.7 or 71.10 (recklessly causing harm to, or unlawful detention of, a UN or associated person)—imprisonment for 3 years.
Note: Section 71.23 defines UN or associated person.
71.13 Aggravated offences
(1) For the purposes of this Division, an offence against section 71.4, 71.5, 71.6, 71.7, 71.8, 71.9 or 71.10 is an aggravated offence if:
(a) the offence was committed during the deliberate and systematic infliction of severe pain over a period of time; or
(b) the offence was committed by the use or threatened use of an offensive weapon; or
(c) the offence was committed against a person in an abuse of authority.
(2) If the prosecution intends to prove an aggravated offence, the charge must allege the relevant aggravated offence.
(3) In order to prove an aggravated offence, the prosecution must prove that the defendant intended to commit, or was reckless as to committing, the matters referred to in paragraph (1)(a), (b) or (c).
(4) In this section:
offensive weapon includes:
(a) an article made or adapted for use for causing injury to, or incapacitating, a person; or
(b) an article where the person who has the article intends, or threatens to use, the article to cause injury to, or to incapacitate, another person.
71.14 Defence—activities involving serious harm
A person is not criminally responsible for an offence against section 71.4 or 71.5 if the conduct causing serious harm to another person is engaged in by the first‑mentioned person:
(a) for the purpose of benefiting the other person or in pursuance of a socially acceptable function or activity; and
(b) having regard to the purpose, function or activity, the conduct was reasonable.
Note 1: If a person causes less than serious harm to another person, the prosecution is obliged to prove that the harm was caused without the consent of the person harmed (see for example section 71.6).
Note 2: A defendant bears an evidential burden in relation to the matter in this section, see subsection 13.3(3).
71.15 Defence—medical or hygienic procedures
A person is not criminally responsible for an offence against section 71.8 in respect of any sexual penetration carried out in the course of a procedure in good faith for medical or hygienic purposes.
Note: A defendant bears an evidential burden in relation to the matter in this section, see subsection 13.3(3).
71.16 Jurisdictional requirement
A person commits an offence under this Division only if:
(a) the conduct constituting the alleged offence occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an Australian ship; or
(b) the conduct constituting the alleged offence occurs wholly outside Australia and:
(i) at the time of the alleged offence, the person is an Australian citizen; or
(ii) at the time of the alleged offence, the person is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or
(iii) at the time of the alleged offence, the person is a stateless person whose habitual residence is in Australia; or
(iv) the conduct is subject to the jurisdiction of another State Party to the Convention established in accordance with paragraph 1 or 2 of article 10 and the person enters Australia; or
(c) the alleged offence is committed against an Australian citizen; or
(d) by engaging in the conduct constituting the alleged offence, the person intends to compel a legislative, executive or judicial institution of the Commonwealth, a State or a Territory to do or omit to do an act.
71.17 Exclusion of this Division if State/Territory laws provide for corresponding offences
(1) A State or Territory court does not have jurisdiction to determine a charge of an offence under this Division if the conduct constituting the offence also constitutes an offence (the State offence) against the law of that State or Territory.
(2) If:
(a) a prosecution is brought against a person under this Division; and
(b) a court finds that there is a corresponding State offence;
then this section does not prevent the person from being prosecuted for the State offence.
71.18 Double jeopardy
If a person has been convicted or acquitted of an offence in respect of conduct under the law of a foreign country, the person cannot be convicted of an offence under this Division in respect of that conduct.
71.19 Saving of other laws
This Division is not intended to exclude or limit the operation of any other law of the Commonwealth or of a State or Territory.
71.20 Bringing proceedings under this Division
(1) Proceedings for an offence under this Division must not be commenced without the Attorney‑General’s written consent.
(2) However, a person may be arrested, charged, remanded in custody, or released on bail, in connection with an offence under this Division before the necessary consent has been given.
71.21 Ministerial certificates relating to proceedings
(1) The Foreign Affairs Minister may issue a certificate stating any of the following matters:
(a) the Convention entered into force for Australia on a specified day;
(b) the Convention remains in force for Australia or any other State Party on a specified day;
(c) a matter relevant to the establishment of jurisdiction by a State Party under paragraph 1 or 2 of article 10 of the Convention;
(d) a matter relevant to whether a person is or was a UN or associated person;
(e) a matter relevant to whether an operation is or was a UN operation.
(2) The Immigration Minister may issue a certificate stating that:
(a) a person is or was an Australian citizen at a particular time; or
(b) a person is or was a stateless person whose habitual residence is or was in Australia.
(3) In any proceedings, a certificate under this section is prima facie evidence of the matters in the certificate.
71.22 Jurisdiction of State courts preserved
For the purposes of section 38 of the Judiciary Act 1903, a matter arising under this Act, including a question of interpretation of the Convention, is taken not to be a matter arising directly under a treaty.
71.23 Definitions
(1) In this Division:
associated personnel means:
(a) persons assigned by a government, or an intergovernmental organisation, with the agreement of the competent organ of the United Nations; or
(b) persons engaged by the Secretary‑General of the United Nations, a specialised agency or the International Atomic Energy Agency; or
(c) persons deployed by a humanitarian non‑governmental organisation or agency under an agreement with the Secretary‑General of the United Nations, a specialised agency or the International Atomic Energy Agency;
to carry out activities in support of the fulfilment of the mandate of a UN operation.
Convention means the Convention on the Safety of United Nations and Associated Personnel, done at New York on 9 December 1994.
Note: The text of the Convention is set out in Australian Treaty Series 1995 No. 1. In 2000 this was available in the Australian Treaties Library of the Department of Foreign Affairs and Trade, accessible through that Department’s website.
Foreign Affairs Minister means the Minister administering the Diplomatic Privileges and Immunities Act 1967.
Immigration Minister means the Minister administering the Migration Act 1958.
UN enforcement action means a UN operation:
(a) that is authorised by the Security Council as an enforcement action under Chapter VII of the Charter of the United Nations; and
(b) in which any of the UN or associated personnel are engaged as combatants against organised armed forces; and
(c) to which the law of international armed conflict applies.
UN operation means an operation established by the competent organ of the United Nations in accordance with the Charter of the United Nations and conducted under United Nations authority and control if:
(a) the operation is for the purpose of maintaining or restoring international peace and security; or
(b) the Security Council or the General Assembly has declared, for the purposes of the Convention, that there exists an exceptional risk to the safety of the personnel engaged in the operation.
UN or associated person means a person who is a member of any UN personnel or associated personnel.
UN personnel means:
(a) persons engaged or deployed by the Secretary‑General of the United Nations as members of the military, police or civilian components of a UN operation; or
(b) any other officials or experts on mission of the United Nations, its specialised agencies or the International Atomic Energy Agency who are present in an official capacity in the area where a UN operation is being conducted.
(2) In this Division, a person’s conduct causes death or harm if it substantially contributes to the death or harm.
Division 72—Explosives and lethal devices
Subdivision A—International terrorist activities using explosive or lethal devices
72.1 Purpose
The purpose of this Subdivision is to create offences relating to international terrorist activities using explosive or lethal devices and give effect to the International Convention for the Suppression of Terrorist Bombings, done at New York on 15 December 1997.
Note: The text of the Convention is available in the Australian Treaties Library of the Department of Foreign Affairs and Trade, accessible through that Department’s website.
72.2 ADF members not liable for prosecution
Nothing in this Subdivision makes a member of the Australian Defence Force acting in connection with the defence or security of Australia liable to be prosecuted for an offence.
72.3 Offences
(1) A person commits an offence if:
(a) the person intentionally delivers, places, discharges or detonates a device; and
(b) the device is an explosive or other lethal device and the person is reckless as to that fact; and
(c) the device is delivered, placed, discharged, or detonated, to, in, into or against:
(i) a place of public use; or
(ii) a government facility; or
(iii) a public transportation system; or
(iv) an infrastructure facility; and
(d) the person intends to cause death or serious harm.
Penalty: Imprisonment for life.
(2) A person commits an offence if:
(a) the person intentionally delivers, places, discharges or detonates a device; and
(b) the device is an explosive or other lethal device and the person is reckless as to that fact; and
(c) the device is delivered, placed, discharged, or detonated, to, in, into or against:
(i) a place of public use; or
(ii) a government facility; or
(iii) a public transportation system; or
(iv) an infrastructure facility; and
(d) the person intends to cause extensive destruction to the place, facility or system; and
(e) the person is reckless as to whether that intended destruction results or is likely to result in major economic loss.
Penalty: Imprisonment for life.
(3) Strict liability applies to paragraphs (1)(c) and (2)(c).
72.4 Jurisdictional requirement
(1) A person commits an offence under this Subdivision only if one or more of the following paragraphs applies and the circumstances relating to the alleged offence are not exclusively internal (see subsection (2)):
(a) the conduct constituting the alleged offence occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian ship or an Australian aircraft;
(b) at the time of the alleged offence, the person is an Australian citizen;
(c) at the time of the alleged offence, the person is a stateless person whose habitual residence is in Australia;
(d) the conduct is subject to the jurisdiction of another State Party to the Convention established in accordance with paragraph 1 or 2 of Article 6 of the Convention and the person is in Australia;
(e) the alleged offence is committed against a government facility of the Commonwealth, or of a State or Territory, that is located outside Australia;
(f) the alleged offence is committed against:
(i) an Australian citizen; or
(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory;
(g) by engaging in the conduct constituting the alleged offence, the person intends to compel a legislative, executive or judicial institution of the Commonwealth, a State or a Territory to do or omit to do an act.
(2) The circumstances relating to the alleged offence are exclusively internal if:
(a) the conduct constituting the alleged offence occurs wholly within Australia; and
(b) the alleged offender is an Australian citizen; and
(c) all of the persons against whom the offence is committed are Australian citizens or bodies corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and
(d) the alleged offender is in Australia; and
(e) no other State Party to the Convention has a basis under paragraph 1 or 2 of Article 6 of the Convention for exercising jurisdiction in relation to the conduct.
72.5 Saving of other laws
This Subdivision is not intended to exclude or limit the operation of any other law of the Commonwealth or of a State or Territory.
72.6 Double jeopardy and foreign offences
If a person has been convicted or acquitted of an offence in respect of conduct under the law of a foreign country, the person cannot be convicted of an offence under this Subdivision in respect of that conduct.
72.7 Bringing proceedings under this Subdivision
(1) Proceedings for an offence under this Subdivision must not be commenced without the Attorney‑General’s written consent.
(2) However, a person may be arrested, charged, remanded in custody, or released on bail, in connection with an offence under this Subdivision before the necessary consent has been given.
(3) In determining whether to bring proceedings for an offence under this Subdivision, the Attorney‑General must have regard to the terms of the Convention, including paragraph 2 of Article 19.
(4) In determining whether to bring proceedings for an offence under this Subdivision, the Attorney‑General must also have regard to:
(a) whether the conduct constituting the offence also gives rise to an offence under a law of a State or Territory; and
(b) whether a prosecution relating to the conduct under the State or Territory law has been or will be commenced.
72.8 Ministerial certificates relating to proceedings
(1) The Minister administering the Charter of the United Nations Act 1945 may issue a certificate stating any of the following matters:
(a) that the Convention entered into force for Australia on a specified day;
(b) that the Convention remains in force for Australia or any other State Party on a specified day;
(c) a matter relevant to the establishment of jurisdiction by a State Party under paragraph 1 or 2 of Article 6 of the Convention.
(2) The Minister administering the Australian Citizenship Act 2007 may issue a certificate stating that:
(a) a person is or was an Australian citizen at a particular time; or
(b) a person is or was a stateless person whose habitual residence is or was in Australia at a particular time.
(3) In any proceedings, a certificate under this section is prima facie evidence of the matters in the certificate.
72.9 Jurisdiction of State courts preserved
For the purposes of section 38 of the Judiciary Act 1903, a matter arising under this Subdivision, including a question of interpretation of the Convention, is taken not to be a matter arising directly under a treaty.
72.10 Definitions
In this Subdivision:
Convention means the Convention referred to in section 72.1.
explosive or other lethal device has the same meaning as in the Convention.
government facility has the same meaning as State or government facility has in the Convention.
infrastructure facility has the same meaning as in the Convention.
place of public use has the same meaning as in the Convention.
public transportation system has the same meaning as in the Convention.
Subdivision B—Plastic explosives
72.11 Purpose
The purpose of this Subdivision is to create offences relating to plastic explosives and give effect to the Convention on the Marking of Plastic Explosives.
Note: The Convention requires the introduction of detection agents into plastic explosives so as to render the explosives detectable by vapour detection means. This is known as the marking of the explosives.
72.12 Trafficking in unmarked plastic explosives etc.
(1) A person commits an offence if:
(a) the person traffics in a substance; and
(b) the substance is a plastic explosive; and
(c) the plastic explosive breaches a marking requirement; and
(d) the trafficking is not authorised under section 72.18, 72.19, 72.20, 72.21, 72.22 or 72.23.
Penalty: Imprisonment for 10 years.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Strict liability applies to paragraphs (1)(c) and (d).
Note 1: For the marking requirements, see section 72.33.
Note 2: For defences, see section 72.16.
72.13 Importing or exporting unmarked plastic explosives etc.
(1) A person commits an offence if:
(a) the person imports or exports a substance; and
(b) the substance is a plastic explosive; and
(c) the plastic explosive breaches a marking requirement; and
(d) the import or export is not authorised under section 72.18, 72.19, 72.20, 72.22 or 72.23.
Penalty: Imprisonment for 10 years.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Strict liability applies to paragraphs (1)(c) and (d).
Note 1: For the marking requirements, see section 72.33.
Note 2: For defences, see section 72.16.
72.14 Manufacturing unmarked plastic explosives etc.
(1) A person commits an offence if:
(a) the person:
(i) engages in the manufacture of a substance; or
(ii) exercises control or direction over the manufacture of a substance; and
(b) the substance is a plastic explosive; and
(c) the plastic explosive breaches the first marking requirement; and
(d) the manufacture is not authorised under section 72.18 or 72.21.
Penalty: Imprisonment for 10 years.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Strict liability applies to paragraphs (1)(c) and (d).
Note 1: For the marking requirements, see section 72.33.
Note 2: For defences, see section 72.16.
72.15 Possessing unmarked plastic explosives etc.
(1) A person commits an offence if:
(a) the person possesses a substance; and
(b) the substance is a plastic explosive; and
(c) the plastic explosive breaches a marking requirement; and
(d) the possession is not authorised under section 72.18, 72.19, 72.20, 72.21, 72.22 or 72.23.
Penalty: Imprisonment for 2 years.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Strict liability applies to paragraphs (1)(c) and (d).
Note 1: For the marking requirements, see section 72.33.
Note 2: For defences, see section 72.16.
72.16 Defences
(1) If:
(a) a person is charged with an offence against section 72.12, 72.13, 72.14 or 72.15; and
(b) the prosecution alleges that the plastic explosive breached a particular marking requirement;
it is a defence if the defendant proves that he or she had no reasonable grounds for suspecting that the plastic explosive breached that marking requirement.
Note 1: A defendant bears a legal burden in relation to the matter in subsection (1) (see section 13.4).
Note 2: For the marking requirements, see section 72.33.
(2) If:
(a) a person is charged with an offence against section 72.12, 72.13 or 72.15; and
(b) the prosecution alleges that the plastic explosive breached the second marking requirement;
it is a defence if the defendant proves that, at the time of the alleged offence:
(c) the plastic explosive contained a detection agent; and
(d) the concentration of the detection agent in the plastic explosive was not less than the minimum manufacture concentration for the detection agent; and
(e) the detection agent was homogenously distributed throughout the plastic explosive.
Note 1: A defendant bears a legal burden in relation to the matter in subsection (2) (see section 13.4).
Note 2: For the marking requirements, see section 72.33.
Note 3: For minimum manufacture concentration, see section 72.34.
72.17 Packaging requirements for plastic explosives
(1) A person commits an offence if:
(a) the person manufactures a substance; and
(b) the substance is a plastic explosive; and
(c) within 24 hours after the manufacture of the plastic explosive, the person does not cause the plastic explosive to be contained, enclosed or packaged in a wrapper with:
(i) the expression “PLASTIC EXPLOSIVE” (in upper‑case lettering); and
(ii) the date of manufacture of the plastic explosive; and
(iii) if the plastic explosive is of a prescribed type—that type; and
(iv) if the plastic explosive contains a detection agent for the purpose of meeting the first marking requirement—the name of the detection agent; and
(v) if the plastic explosive contains a detection agent for the purpose of meeting the first marking requirement—the concentration of the detection agent in the plastic explosive at the time of manufacture, expressed as a percentage by mass;
legibly displayed on the outer surface of the wrapper.
Penalty: Imprisonment for 2 years.
(2) The fault element for paragraphs (1)(b) and (c) is recklessness.
72.18 Authorisation for research etc.
Authorisation
(1) A responsible Minister may, by writing, authorise:
(a) the trafficking in; or
(b) the import, export, manufacture or possession of;
an unmarked plastic explosive.
(2) A responsible Minister must not give an authorisation under subsection (1) in relation to an unmarked plastic explosive unless the responsible Minister is satisfied that:
(a) the plastic explosive is for use exclusively for one or more of the following:
(i) research, development or testing of new or modified explosives;
(ii) development or testing of explosives detection equipment;
(iii) training in explosives detection;
(iv) forensic science; or
(b) both:
(i) the plastic explosive is an integral part of an explosive device that was manufactured exclusively for defence purposes; and
(ii) the explosive device is for use exclusively for defence purposes; or
(c) the plastic explosive will, within 3 years after the commencement of this section, become an integral part of an explosive device manufactured exclusively for defence purposes.
(3) An authorisation under subsection (1) must specify the grounds on which it was given.
Conditions and restrictions
(4) An authorisation under subsection (1) is subject to such conditions and restrictions as are specified in the authorisation.
(5) A responsible Minister must not give an authorisation under subsection (1) in relation to an unmarked plastic explosive on grounds covered by paragraph (2)(a) unless the authorisation is subject to a condition imposing a limit as to the quantity of the plastic explosive.
Criteria
(6) In exercising a power conferred by this section in relation to:
(a) the trafficking in; or
(b) the import, export, manufacture or possession of;
an unmarked plastic explosive, a responsible Minister must have regard to:
(c) the Convention on the Marking of Plastic Explosives; and
(d) whether the trafficking, import, export, manufacture or possession is reasonable; and
(e) such other matters (if any) as the responsible Minister considers relevant.
72.19 Authorisation for defence and police purposes—15 year limit
Authorisation
(1) A responsible Minister may, by writing, authorise:
(a) the trafficking in; or
(b) the import, export or possession of;
an unmarked plastic explosive that was:
(c) manufactured before the commencement of this section; or
(d) manufactured after the commencement of this section in accordance with an authorisation given under subsection 72.21(2).
(2) A responsible Minister must not give an authorisation under subsection (1) in relation to an unmarked plastic explosive unless the responsible Minister is satisfied that the plastic explosive is exclusively for use in connection with:
(a) the operation of the Australian Defence Force; or
(b) the operation in Australia of a visiting force (within the meaning of the Defence (Visiting Forces) Act 1963); or
(c) the operation of:
(i) the Australian Federal Police; or
(ii) the police force or police service of a State or Territory.
Conditions and restrictions
(3) An authorisation under subsection (1) is subject to such conditions and restrictions as are specified in the authorisation.
Criteria
(4) In exercising a power conferred by this section in relation to:
(a) the trafficking in; or
(b) the import, export or possession of;
an unmarked plastic explosive, a responsible Minister must have regard to:
(c) the Convention on the Marking of Plastic Explosives; and
(d) whether the trafficking, import, export or possession is reasonable; and
(e) such other matters (if any) as the responsible Minister considers relevant.
Sunset
(5) This section ceases to have effect at the end of 15 years after its commencement.
72.20 Authorisation for existing stocks—3 year limit
Authorisation
(1) A responsible Minister may, by writing, authorise:
(a) the trafficking in; or
(b) the import, export or possession of;
an unmarked plastic explosive that was manufactured before the commencement of this section.
Conditions and restrictions
(2) An authorisation under subsection (1) is subject to such conditions and restrictions as are specified in the authorisation.
(3) A responsible Minister must not give an authorisation under subsection (1) in relation to an unmarked plastic explosive unless the authorisation is subject to a condition that, within 3 years after the commencement of this section:
(a) the plastic explosive will not exist; or
(b) the plastic explosive will be made permanently ineffective.
Criteria
(4) In exercising a power conferred by this section in relation to:
(a) the trafficking in; or
(b) the import, export or possession of;
an unmarked plastic explosive, a responsible Minister must have regard to:
(c) the Convention on the Marking of Plastic Explosives; and
(d) whether the trafficking, import, export or possession is reasonable; and
(e) such other matters (if any) as the responsible Minister considers relevant.
72.21 Authorisation of manufacturers—6 month transitional period
Object
(1) The object of this section is to allow manufacturers a 6 month transitional period for compliance with sections 72.12, 72.14 and 72.15.
Authorisation
(2) A responsible Minister may, by writing, authorise:
(a) the manufacture of an unmarked plastic explosive after the commencement of this section; or
(b) the trafficking in an unmarked plastic explosive manufactured after the commencement of this section; or
(c) the possession of an unmarked plastic explosive manufactured after the commencement of this section.
(3) A responsible Minister must not give an authorisation under subsection (2) in relation to an unmarked plastic explosive unless the responsible Minister is satisfied that the plastic explosive is exclusively for use in connection with:
(a) the operation of the Australian Defence Force; or
(b) the operation in Australia of a visiting force (within the meaning of the Defence (Visiting Forces) Act 1963); or
(c) the operation of:
(i) the Australian Federal Police; or
(ii) the police force or police service of a State or Territory.
Conditions and restrictions
(4) An authorisation under subsection (2) is subject to such conditions and restrictions as are specified in the authorisation.
Sunset
(5) This section ceases to have effect at the end of 6 months after its commencement.
72.22 Authorisation for overseas defence purposes—7 day limit
(1) A member of the Australian Defence Force is authorised to possess, import or traffic in an unmarked plastic explosive if:
(a) the plastic explosive was obtained in the course of the operation outside Australia of the Australian Defence Force; and
(b) the member believes on reasonable grounds that there is insufficient time to obtain an authorisation under this Subdivision because of:
(i) an emergency; or
(ii) any other sudden or unexpected circumstances.
(2) An authorisation under subsection (1) ceases to have effect at the end of the seventh day after the day on which the plastic explosive was obtained.
72.23 Authorisation for overseas Australian Federal Police purposes—7 day limit
(1) A member of the Australian Federal Police is authorised to possess, import or traffic in an unmarked plastic explosive if:
(a) the plastic explosive was obtained in the course of the operation outside Australia of the Australian Federal Police; and
(b) the member believes on reasonable grounds that there is insufficient time to obtain an authorisation under this Subdivision because of:
(i) an emergency; or
(ii) any other sudden or unexpected circumstances.
(2) An authorisation under subsection (1) ceases to have effect at the end of the seventh day after the day on which the plastic explosive was obtained.
72.24 Forfeited plastic explosives
(1) If a court:
(a) convicts a person of an offence against this Subdivision in relation to a plastic explosive; or
(b) makes an order under section 19B of the Crimes Act 1914 in respect of a person charged with an offence against this Subdivision in relation to a plastic explosive;
the court may order the forfeiture to the Commonwealth of the plastic explosive.
(2) A plastic explosive forfeited to the Commonwealth under subsection (1) becomes the property of the Commonwealth.
(3) A plastic explosive forfeited to the Commonwealth under subsection (1) is to be dealt with in such manner as a responsible Minister directs.
(4) Without limiting subsection (3), a responsible Minister may direct that a plastic explosive forfeited to the Commonwealth under subsection (1) be:
(a) destroyed; or
(b) used exclusively for one or more of the purposes covered by paragraph 72.18(2)(a).
Note 1: See also section 10.5 (lawful authority).
Note 2: See also section 229 of the Customs Act 1901 (forfeiture of goods that have been unlawfully imported or exported).
72.25 Surrendered plastic explosives
(1) A person may surrender a plastic explosive to the Commonwealth at a place, and in a manner, prescribed for the purposes of this subsection.
(2) A plastic explosive surrendered to the Commonwealth under subsection (1) becomes the property of the Commonwealth.
(3) A plastic explosive surrendered to the Commonwealth under subsection (1) is to be dealt with in such manner as a responsible Minister directs.
(4) Without limiting subsection (3), a responsible Minister may direct that a plastic explosive surrendered to the Commonwealth under subsection (1) be:
(a) destroyed; or
(b) used exclusively for one or more of the purposes covered by paragraph 72.18(2)(a).
Note: See also section 10.5 (lawful authority).
72.26 Destruction of plastic explosives obtained overseas for defence purposes
A member of the Australian Defence Force may destroy an unmarked plastic explosive if the plastic explosive was obtained in the course of the operation outside Australia of the Australian Defence Force.
72.27 Destruction of plastic explosives obtained overseas for Australian Federal Police purposes
A member of the Australian Federal Police may destroy an unmarked plastic explosive if the plastic explosive was obtained in the course of the operation outside Australia of the Australian Federal Police.
72.28 Delegation by Minister
(1) The Minister may, by writing, delegate to:
(a) the Secretary of the Department; or
(b) an SES employee, or an acting SES employee, in the Department, where the employee occupies or acts in a position with a classification of Senior Executive Band 3;
all or any of the Minister’s powers under sections 72.18, 72.19, 72.20, 72.21, 72.24 and 72.25.
(2) A delegate is, in the exercise of a power delegated under subsection (1), subject to the written directions of the Minister.
72.29 Delegation by Minister for Defence
(1) The Minister for Defence may, by writing, delegate to:
(a) an SES employee, or an acting SES employee, in the Department of Defence, where the employee occupies or acts in a position with a classification of Senior Executive Band 3; or
(b) an officer of the Australian Navy who holds the rank of Vice‑Admiral or a higher rank; or
(c) an officer of the Australian Army who holds the rank of Lieutenant‑General or a higher rank; or
(d) an officer of the Australian Air Force who holds the rank of Air Marshal or a higher rank; or
(e) an officer of the Australian Defence Force who is on deployment as the Commander of an Australian Task Force, contingent or force element that is operating outside Australia;
all or any of the powers of the Minister for Defence under sections 72.18, 72.19, 72.20, 72.21, 72.24 and 72.25.
(2) A delegate must not exercise a power delegated under subsection (1) unless the exercise of the power relates to:
(a) the operation of the Australian Defence Force; or
(b) the operation in Australia of a visiting force (within the meaning of the Defence (Visiting Forces) Act 1963); or
(c) the operation outside Australia of a person who, under a contract, performs services for the Australian Defence Force.
(3) A delegate is, in the exercise of a power delegated under subsection (1), subject to the written directions of the Minister for Defence.
72.30 Review by Administrative Appeals Tribunal of authorisation decisions
(1) An application may be made to the Administrative Appeals Tribunal for review of a decision refusing to give an authorisation under subsection 72.18(1), 72.19(1), 72.20(1) or 72.21(2).
(2) An application may be made to the Administrative Appeals Tribunal for review of a decision to specify a condition or restriction in an authorisation under subsection 72.18(1), 72.19(1), 72.20(1) or 72.21(2), but such an application may only be made by a person to whom the authorisation applies.
72.31 Geographical jurisdiction
Section 15.2 (extended geographical jurisdiction—category B) applies to each offence against this Subdivision.
72.32 Saving of other laws
This Subdivision is not intended to exclude or limit the operation of any other law of the Commonwealth or of a State or Territory.
72.33 Marking requirements
(1) This section sets out the 2 marking requirements for a plastic explosive.
Concentration of detection agent at time of manufacture
(2) The first marking requirement is that, at the time of the manufacture of the plastic explosive, all of the following conditions were satisfied:
(a) the plastic explosive contained a detection agent;
(b) the concentration of the detection agent in the plastic explosive was not less than the minimum manufacture concentration for the detection agent;
(c) the detection agent was homogenously distributed throughout the plastic explosive.
Note: For minimum manufacture concentration, see section 72.34.
Freshness
(3) The second marking requirement is that less than 10 years have elapsed since the manufacture of the plastic explosive.
Interpretation
(4) In determining whether a plastic explosive manufactured before the commencement of this section breached the first marking requirement, assume that this section and sections 72.34 and 72.36 had been in force at the time of manufacture.
72.34 Detection agents and minimum manufacture concentrations
For the purposes of this Subdivision, the following table defines:
(a) detection agent; and
(b) the minimum manufacture concentration for each detection agent.
| Detection agents and minimum manufacture concentrations |
| Item | Detection agent | Minimum manufacture concentration |
| 1 | Ethylene glycol dinitrate (EGDN) (molecular formula: C2H4(NO3)2) (molecular weight: 152) | 0.2% by mass |
| 2 | 2,3‑Dimethyl‑2,3‑dinitrobutane (DMNB) (molecular formula: C6H12(NO2)2) (molecular weight: 176) | 1% by mass |
| 3 | para‑Mononitrotoluene (p‑MNT) (molecular formula: C7H7NO2) (molecular weight: 137) | 0.5% by mass |
| 4 | a substance prescribed for the purposes of this table item | the concentration prescribed for the purposes of this table item in relation to the substance |
72.35 Presumption as to concentration of detection agent
(1) This section applies in relation to a prosecution for an offence against this Subdivision.
(2) If no detection agent can be detected in a sample of a plastic explosive when tested using:
(a) a method generally accepted in the scientific community as a reliable means of measuring the concentration of detection agents in plastic explosives; or
(b) a method prescribed for the purposes of this paragraph;
it is presumed, unless the contrary is proved, that the plastic explosive breaches the first marking requirement.
Note: A defendant bears a legal burden in relation to proving the contrary (see section 13.4).
72.36 Definitions
In this Subdivision:
Convention on the Marking of Plastic Explosives means:
(a) the Convention on the Marking of Plastic Explosives for the Purpose of Detection, done at Montreal on 1 March 1991; or
(b) if:
(i) the Convention is amended; and
(ii) the amendment binds Australia;
the Convention as so amended.
Note: In 2006, the text of the Convention was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
Department of Defence means the Department that deals with matters relating to defence.
detection agent has the meaning given by section 72.34.
explosive device includes the following:
(a) a bomb;
(b) a grenade;
(c) a mine;
(d) a missile;
(e) a perforator;
(f) a projectile;
(g) a rocket;
(h) a shaped charge;
(i) a shell.
export includes take from Australia.
first marking requirement has the meaning given by subsection 72.33(2).
high explosive means an explosive with a velocity of detonation that is greater than the velocity of sound in the explosive (typically greater than 340 metres per second), and includes the following:
(a) cyclotetramethylenetetranitramine (HMX);
(b) pentaerythritol tetranitrate (PETN);
(c) cyclotrimethylenetrinitramine (RDX).
import includes bring into Australia.
manufacture a substance means any process by which a substance is produced, and includes the following:
(a) the process of transforming a substance into a different substance;
(b) the reprocessing of a substance.
marking requirement has the meaning given by section 72.33.
minimum manufacture concentration has the meaning given by section 72.34.
Minister for Defence means the Minister administering the Defence Act 1903.
plastic explosive means an explosive product (including an explosive product in flexible or elastic sheet form) that is:
(a) formulated with:
(i) one or more high explosives which in their pure form have a vapour pressure less than 10¯4 Pa at a temperature of 25°C; and
(ii) a binder material; and
(b) as a mixture, malleable or flexible at normal room temperature.
possess a substance includes the following:
(a) receive or obtain possession of the substance;
(b) have control over the disposition of the substance (whether or not the substance is in the custody of the person);
(c) have joint possession of the substance.
responsible Minister means:
(a) the Minister; or
(b) the Minister for Defence.
second marking requirement has the meaning given by subsection 72.33(3).
traffic in a substance means:
(a) transfer the substance; or
(b) offer the substance for sale; or
(c) invite the making of offers to buy the substance; or
(d) prepare the substance for transfer with the intention of transferring any of it or believing that another person intends to transfer any of it; or
(e) transport or deliver the substance with the intention of transferring any of it or believing that another person intends to transfer any of it; or
(f) guard or conceal the substance with the intention of transferring any of it or the intention of assisting another person to transfer any of it; or
(g) possess the substance with the intention of transferring any of it.
For the purposes of paragraph (d), preparing a substance for transfer includes packaging the substance or separating the substance into discrete units.
transfer means transfer ownership or possession.
unmarked plastic explosive means a plastic explosive that breaches a marking requirement.
wrapper, in relation to a plastic explosive, means a wrapper the inner surface of which is in contact with the plastic explosive.
Subdivision C—Cluster munitions and explosive bomblets
72.37 Purpose
The purpose of this Subdivision is to create offences relating to cluster munitions and explosive bomblets and give effect to the Convention on Cluster Munitions.
72.38 Offences relating to cluster munitions
Doing acts with a cluster munition
(1) A person commits an offence if the person does any of the following with a cluster munition:
(a) uses it;
(b) develops, produces or otherwise acquires it;
(c) stockpiles or retains it;
(d) transfers it to anyone.
Penalty: Imprisonment for 10 years.
Promoting acts with a cluster munition
(2) A person (the first person) commits an offence if:
(a) the first person assists, encourages or induces another person to do any of the following acts with a cluster munition:
(i) use it;
(ii) develop, produce or otherwise acquire it;
(iii) stockpile or retain it;
(iv) transfer it to anyone; and
(b) the other person does the act; and
(c) the first person intends that the act be done.
Penalty: Imprisonment for 10 years.
Geographical jurisdiction
(3) Section 15.2 (extended geographical jurisdiction—category B) applies to an offence against this section.
Relationship with other provisions
(4) Division 11 does not apply in relation to an offence against subsection (2).
Note 1: Later sections of this Subdivision set out defences.
Note 2: This section relates to Articles 1 and 9 of the Convention on Cluster Munitions.
72.39 Defence—acquisition or retention authorised by Defence Minister
(1) Section 72.38 does not apply to the acquisition or retention of a cluster munition authorised under subsection (2).
Note: A defendant bears an evidential burden in relation to the matter in subsection (1): see subsection 13.3(3).
(2) The Minister administering the Explosives Act 1961 may authorise, in writing, specified members of the Australian Defence Force or other specified Commonwealth public officials to acquire or retain specified cluster munitions for one or more of the following purposes:
(a) the development of, and training in, cluster munition and explosive submunition detection, clearance or destruction techniques;
(b) the development of cluster munition counter‑measures;
(c) the destruction of the munitions.
Note 1: For specification by class see the Acts Interpretation Act 1901.
Note 2: This section relates to paragraphs 6 and 7 of Article 3 of the Convention on Cluster Munitions.
(3) The regulations may prescribe requirements relating to authorisations under subsection (2).
(4) An authorisation made under subsection (2) is not a legislative instrument.
(5) The Minister described in subsection (2) may delegate his or her power under that subsection to:
(a) the Secretary of the Department administered by that Minister; or
(b) an SES employee in that Department.
Note: For the definition of SES employee see the Acts Interpretation Act 1901.
72.40 Defence—transfer for destruction etc.
Transfer to foreign party to Convention on Cluster Munitions
(1) Section 72.38 does not apply to the transfer of a cluster munition to a party to the Convention on Cluster Munitions for one or more of the following purposes:
(a) the development of, and training in, cluster munition and explosive submunition detection, clearance or destruction techniques;
(b) the development of cluster munition counter‑measures;
(c) the destruction of the munition.
Note 1: A defendant bears an evidential burden in relation to the matter in subsection (1): see subsection 13.3(3).
Note 2: This subsection relates to paragraph 7 of Article 3 of the Convention on Cluster Munitions.
Intended transfer to Australian Defence Force
(2) Subsections (3) and (4) have effect if:
(a) a person has a cluster munition; and
(b) the person gives notice to a police officer or member of the Australian Defence Force that the person wishes to transfer the munition to a member of the Australian Defence Force or other Commonwealth public official; and
(c) the person gives notice without delay after the first time the person has the cluster munition after the commencement of this subsection.
(3) Subsection 72.38(1) does not apply to the person stockpiling or retaining the cluster munition at any time before the person transfers it to a member of the Australian Defence Force or other Commonwealth public official.
(4) Subsection 72.38(1) does not apply to the person transferring the cluster munition to a member of the Australian Defence Force or other Commonwealth public official.
Note: A defendant bears an evidential burden in relation to the matters in subsection (2) and whichever of subsections (3) and (4) is relevant: see subsection 13.3(3).
72.41 Defence—acts by Australians in military cooperation with countries not party to Convention on Cluster Munitions
A person who is an Australian citizen, is a member of the Australian Defence Force or is performing services under a Commonwealth contract does not commit an offence against section 72.38 by doing an act if:
(a) the act is done in the course of military cooperation or operations with a foreign country that is not a party to the Convention on Cluster Munitions; and
(b) the act is not connected with the Commonwealth:
(i) using a cluster munition; or
(ii) developing, producing or otherwise acquiring a cluster munition; or
(iii) stockpiling or retaining a cluster munition; or
(iv) transferring a cluster munition; and
(c) the act does not consist of expressly requesting the use of a cluster munition in a case where the choice of munitions used is within the Commonwealth’s exclusive control.
Note 1: A defendant bears an evidential burden in relation to the matter in this section: see subsection 13.3(3).
Note 2: The expression offence against section 72.38 is given an extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(2).
Note 3: This section relates to paragraphs 3 and 4 of Article 21 of the Convention on Cluster Munitions.
72.42 Defence—acts by military personnel of countries not party to Convention on Cluster Munitions
(1) Section 72.38 does not apply to the stockpiling, retention or transfer of a cluster munition that:
(a) is done by:
(i) a member of the armed forces of a foreign country that is not a party to the Convention on Cluster Munitions; or
(ii) a person who is connected with such forces as described in subsection (2) and is neither an Australian citizen nor a resident of Australia; and
(b) is done in connection with the use by those forces of any of the following in Australia in the course of military cooperation or operations with the Australian Defence Force:
(i) a base;
(ii) an aircraft of any part of those forces or an aircraft being commanded or piloted by a member of those forces in the course of his or her duties as such a member;
(iii) a ship of any part of those forces or a ship being operated or commanded by a member of those forces in the course of his or her duties as such a member.
Note: A defendant bears an evidential burden in relation to the matter in this section: see subsection 13.3(3).
(2) This subsection covers a person with any of the following connections with the armed forces of a foreign country that is not a party to the Convention on Cluster Munitions:
(a) the person is employed by, or in the service of, any of those forces;
(b) the person is serving with an organisation accompanying any of those forces;
(c) the person is attached to or accompanying those forces and is subject to the law of that country governing any of the armed forces of that country.
72.43 Forfeiture of cluster munition
(1) This section applies if a court:
(a) convicts someone of an offence against subsection 72.38(1); or
(b) makes an order under section 19B of the Crimes Act 1914 relating to an offence against subsection 72.38(1).
Note: The expression offence against subsection 72.38(1) is given an extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(2).
(2) The court may order forfeiture to the Commonwealth of any cluster munition involved in the offence.
(3) A cluster munition ordered to be forfeited to the Commonwealth becomes the Commonwealth’s property.
72.44 Application of this Subdivision to explosive bomblets
This Subdivision applies in relation to explosive bomblets in the same way as it applies in relation to cluster munitions.
72.45 Definitions
In this Subdivision:
cluster munition has the meaning given by paragraph 2 of Article 2 of the Convention on Cluster Munitions.
Convention on Cluster Munitions means the Convention on Cluster Munitions done at Dublin on 30 May 2008.
Note: In 2012, the text of the Convention was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
explosive bomblet has the meaning given by paragraph 13 of Article 2 of the Convention on Cluster Munitions.
explosive submunition has the meaning given by paragraph 3 of Article 2 of the Convention on Cluster Munitions.
police officer means:
(a) a member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979); or
(b) a special member of the Australian Federal Police (within the meaning of that Act); or
(c) a member (however described) of a police force of a State or Territory.
transfer has the meaning given by paragraph 8 of Article 2 of the Convention on Cluster Munitions.
Note: Imports and exports are some examples of transfers.
Division 73—People smuggling and related offences
Subdivision A—People smuggling offences
73.1 Offence of people smuggling
(1) A person (the first person) is guilty of an offence if:
(a) the first person organises or facilitates the entry of another person (the other person) into a foreign country (whether or not via Australia); and
(b) the entry of the other person into the foreign country does not comply with the requirements under that country’s law for entry into the country; and
(c) the other person is not a citizen or permanent resident of the foreign country.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
(2) Absolute liability applies to the paragraph (1)(c) element of the offence.
(3) For the purposes of this Code, an offence against subsection (1) is to be known as the offence of people smuggling.
73.2 Aggravated offence of people smuggling (danger of death or serious harm etc.)
(1) A person (the first person) commits an offence against this section if the first person commits the offence of people smuggling (the underlying offence) in relation to another person (the victim) and either or both of the following apply:
(b) in committing the underlying offence, the first person subjects the victim to cruel, inhuman or degrading treatment;
(c) in committing the underlying offence:
(i) the first person’s conduct gives rise to a danger of death or serious harm to the victim; and
(ii) the first person is reckless as to the danger of death or serious harm to the victim that arises from the conduct.
Penalty: Imprisonment for 20 years or 2,000 penalty units, or both.
(2) There is no fault element for the physical element of conduct described in subsection (1), that the first person commits the underlying offence, other than the fault elements (however described), if any, for the underlying offence.
(2A) To avoid doubt, the first person may be convicted of an offence against this section even if the first person has not been convicted of the underlying offence.
73.3 Aggravated offence of people smuggling (at least 5 people)
(1) A person (the first person) is guilty of an offence if:
(a) the first person organises or facilitates the entry of a group of at least 5 persons (the other persons) into a foreign country (whether or not via Australia); and
(b) the entry of at least 5 of the other persons into the foreign country does not comply with the requirements under that country’s law for entry into that country; and
(c) at least 5 of the other persons whose entry into the foreign country is covered by paragraph (b) are not citizens or permanent residents of the foreign country.
Penalty: Imprisonment for 20 years or 2,000 penalty units, or both.
(2) Absolute liability applies to the paragraph (1)(c) element of the offence.
(3) If, on a trial for an offence against subsection (1), the trier of fact is not satisfied that the defendant is guilty of that offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence against subsection 73.1(1), the trier of fact may find the defendant not guilty of an offence against subsection (1) but guilty of an offence against subsection 73.1(1), so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
73.3A Supporting the offence of people smuggling
(1) A person (the first person) commits an offence if:
(a) the first person provides material support or resources to another person or an organisation (the receiver); and
(b) the support or resources aids the receiver, or a person or organisation other than the receiver, to engage in conduct constituting the offence of people smuggling.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
(2) Subsection (1) does not apply if the conduct constituting the offence of people smuggling relates, or would relate, to:
(a) the first person; or
(b) a group of persons that includes the first person.
(3) To avoid doubt, the first person commits an offence against subsection (1) even if the offence of people smuggling is not committed.
73.4 Jurisdictional requirement
A person commits an offence against this Subdivision only if:
(a) both:
(i) the person is an Australian citizen or a resident of Australia; and
(ii) the conduct constituting the alleged offence occurs wholly outside Australia; or
(b) both:
(i) the conduct constituting the alleged offence occurs wholly or partly in Australia; and
(ii) a result of the conduct occurs, or is intended by the person to occur, outside Australia.
73.5 Attorney‑General’s consent required
(1) Proceedings for an offence against this Subdivision must not be commenced without the Attorney‑General’s written consent.
(2) However, a person may be arrested, charged, remanded in custody or released on bail in connection with an offence against this Subdivision before the necessary consent has been given.
Subdivision B—Document offences related to people smuggling and unlawful entry into foreign countries
73.6 Meaning of travel or identity document
(1) For the purposes of this Subdivision, a document is a travel or identity document if it is:
(a) a travel document; or
(b) an identity document.
73.7 Meaning of false travel or identity document
(1) For the purposes of this Subdivision, a travel or identity document is a false travel or identity document if, and only if:
(a) the document, or any part of the document:
(i) purports to have been made in the form in which it is made by a person who did not make it in that form; or
(ii) purports to have been made in the form in which it is made on the authority of a person who did not authorise its making in that form; or
(b) the document, or any part of the document:
(i) purports to have been made in the terms in which it is made by a person who did not make it in those terms; or
(ii) purports to have been made in the terms in which it is made on the authority of a person who did not authorise its making in those terms; or
(c) the document, or any part of the document:
(i) purports to have been altered in any respect by a person who did not alter it in that respect; or
(ii) purports to have been altered in any respect on the authority of a person who did not authorise its alteration in that respect; or
(d) the document, or any part of the document:
(i) purports to have been made or altered by a person who did not exist; or
(ii) purports to have been made or altered on the authority of a person who did not exist; or
(e) the document, or any part of the document, purports to have been made or altered on a date on which, at a time at which, at a place at which, or otherwise in circumstances in which, it was not made or altered.
(2) For the purposes of this Subdivision, a person is taken to make a false travel or identity document if the person alters a document so as to make it a false travel or identity document (whether or not it was already a false travel or identity document before the alteration).
(3) This section has effect as if a document that purports to be a true copy of another document were the original document.
73.8 Making, providing or possessing a false travel or identity document
A person (the first person) is guilty of an offence if:
(a) the first person makes, provides or possesses a false travel or identity document; and
(b) the first person intends that the document will be used to facilitate the entry of another person (the other person) into a foreign country, where the entry of the other person into the foreign country would not comply with the requirements under that country’s law for entry into the country; and
(c) the first person made, provided or possessed the document:
(i) having obtained (whether directly or indirectly) a benefit to do so; or
(ii) with the intention of obtaining (whether directly or indirectly) a benefit.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
73.9 Providing or possessing a travel or identity document issued or altered dishonestly or as a result of threats
(1) A person (the first person) is guilty of an offence if:
(a) the first person provides or possesses a travel or identity document; and
(b) the first person knows that:
(i) the issue of the travel or identity document; or
(ii) an alteration of the travel or identity document;
has been obtained dishonestly or by threats; and
(c) the first person intends that the document will be used to facilitate the entry of another person (the other person) into a foreign country, where the entry of the other person into the foreign country would not comply with the requirements under that country’s law for entry into the country; and
(d) the first person provided or possessed the document:
(i) having obtained (whether directly or indirectly) a benefit to do so; or
(ii) with the intention of obtaining (whether directly or indirectly) a benefit.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
(2) For the purposes of subsection (1), a threat may be:
(a) express or implied; or
(b) conditional or unconditional.
(3) For the purposes of subsection (1), dishonest means:
(a) dishonest according to the standards of ordinary people; and
(b) known by the defendant to be dishonest according to the standards of ordinary people.
(4) In a prosecution for an offence against this section, the determination of dishonesty is a matter for the trier of fact.
73.10 Providing or possessing a travel or identity document to be used by a person who is not the rightful user
A person (the first person) is guilty of an offence if:
(a) the first person provides or possesses a travel or identity document; and
(b) the first person intends that the document will be used to facilitate the entry of another person (the other person) into a foreign country, where the entry of the other person into the foreign country would not comply with the requirements under that country’s law for entry into the country; and
(c) the first person knows that the other person is not the person to whom the document applies; and
(d) the first person provided or possessed the document:
(i) having obtained (whether directly or indirectly) a benefit to do so; or
(ii) with the intention of obtaining (whether directly or indirectly) a benefit.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
73.11 Taking possession of or destroying another person’s travel or identity document
A person (the first person) is guilty of an offence if:
(a) the first person takes possession of, or destroys, a travel or identity document that applies to another person (the other person); and
(b) the first person does so intending to conceal the other person’s identity or nationality; and
(c) at the time of doing so, the first person intends to organise or facilitate the entry of the other person into a foreign country:
(i) having obtained, or with the intention of obtaining, whether directly or indirectly, a benefit to organise or facilitate that entry; and
(ii) where the entry of the other person into the foreign country would not comply with the requirements under that country’s law for entry into the country.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
73.12 Jurisdictional requirement
Section 15.2 (extended geographical jurisdiction—category B) applies to an offence against this Subdivision.
Chapter 5—The security of the Commonwealth
Part 5.1—Treason and urging violence
Division 80—Treason and urging violence
Subdivision A—Preliminary
80.1A Definition of organisation
In this Division:
organisation means:
(a) a body corporate; or
(b) an unincorporated body;
whether or not the body is based outside Australia, consists of persons who are not Australian citizens, or is part of a larger organisation.
Subdivision B—Treason
80.1 Treason
(1) A person commits an offence if the person:
(a) causes the death of the Sovereign, the heir apparent of the Sovereign, the consort of the Sovereign, the Governor‑General or the Prime Minister; or
(b) causes harm to the Sovereign, the Governor‑General or the Prime Minister resulting in the death of the Sovereign, the Governor‑General or the Prime Minister; or
(c) causes harm to the Sovereign, the Governor‑General or the Prime Minister, or imprisons or restrains the Sovereign, the Governor‑General or the Prime Minister; or
(d) levies war, or does any act preparatory to levying war, against the Commonwealth; or
(g) instigates a person who is not an Australian citizen to make an armed invasion of the Commonwealth or a Territory of the Commonwealth.
Penalty: Imprisonment for life.
(2) A person commits an offence if the person:
(a) receives or assists another person who, to his or her knowledge, has committed an offence against this Subdivision (other than this subsection) with the intention of allowing him or her to escape punishment or apprehension; or
(b) knowing that another person intends to commit an offence against this Subdivision (other than this subsection), does not inform a constable of it within a reasonable time or use other reasonable endeavours to prevent the commission of the offence.
Penalty: Imprisonment for life.
(8) In this section:
constable means a member or special member of the Australian Federal Police or a member of the police force or police service of a State or Territory.
80.1AA Treason—materially assisting enemies etc.
Assisting enemies at war with the Commonwealth
(1) A person commits an offence if:
(a) the Commonwealth is at war with an enemy (whether or not the existence of a state of war has been declared); and
(b) the enemy is specified, by Proclamation made for the purpose of this paragraph, to be an enemy at war with the Commonwealth; and
(c) the person engages in conduct; and
(d) the person intends that the conduct will materially assist the enemy to engage in war with the Commonwealth; and
(e) the conduct assists the enemy to engage in war with the Commonwealth; and
(f) when the person engages in the conduct, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) has voluntarily put himself or herself under the protection of the Commonwealth; or
(iv) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.
Penalty: Imprisonment for life.
Note: If a body corporate is convicted of an offence against subsection (1), subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 10,000 penalty units.
(2) Despite subsection 12(2) of the Legislative Instruments Act 2003, a Proclamation made for the purpose of paragraph (1)(b) of this section may be expressed to take effect from a day:
(a) before the day on which the Proclamation is registered under the Legislative Instruments Act 2003; but
(b) not before the day on which the Proclamation is made.
(3) The fault element for paragraph (1)(f) is intention.
Note: For intention, see subsection 5.2(2).
Assisting countries etc. engaged in armed hostilities against the ADF
(4) A person commits an offence if:
(a) a country or organisation is engaged in armed hostilities against the Australian Defence Force; and
(b) the person engages in conduct; and
(c) the person intends that the conduct will materially assist the country or organisation to engage in armed hostilities against the Australian Defence Force; and
(d) the conduct assists the country or organisation to engage in armed hostilities against the Australian Defence Force; and
(e) when the person engages in the conduct, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) has voluntarily put himself or herself under the protection of the Commonwealth; or
(iv) is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.
Penalty: Imprisonment for life.
Note: If a body corporate is convicted of an offence against subsection (4), subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 10,000 penalty units.
(5) The fault element for paragraph (4)(e) is intention.
Note: For intention, see subsection 5.2(2).
Humanitarian aid
(6) Subsections (1) and (4) do not apply to engagement in conduct by way of, or for the purposes of, the provision of aid of a humanitarian nature.
Note 1: A defendant bears an evidential burden in relation to the matter in subsection (6). See subsection 13.3(3).
Note 2: There is a defence in section 80.3 for acts done in good faith.
Subdivision C—Urging violence
80.2 Urging violence against the Constitution etc.
Urging the overthrow of the Constitution or Government by force or violence
(1) A person (the first person) commits an offence if:
(a) the first person intentionally urges another person to overthrow by force or violence:
(i) the Constitution; or
(ii) the Government of the Commonwealth, of a State or of a Territory; or
(iii) the lawful authority of the Government of the Commonwealth; and
(b) the first person does so intending that force or violence will occur.
Penalty: Imprisonment for 7 years.
Note: For intention, see section 5.2.
(2) Recklessness applies to the element of the offence under subsection (1) that it is:
(a) the Constitution; or
(b) the Government of the Commonwealth, a State or a Territory; or
(c) the lawful authority of the Government of the Commonwealth;
that the first person urges the other person to overthrow.
Urging interference in Parliamentary elections or constitutional referenda by force or violence
(3) A person (the first person) commits an offence if:
(a) the first person intentionally urges another person to interfere, by force or violence, with lawful processes for:
(i) an election of a member or members of a House of the Parliament; or
(ii) a referendum; and
(b) the first person does so intending that force or violence will occur.
Penalty: Imprisonment for 7 years.
Note: For intention, see section 5.2.
(4) Recklessness applies to the element of the offence under subsection (3) that it is lawful processes for an election of a member or members of a House of the Parliament, or for a referendum, that the first person urges the other person to interfere with.
Note: There is a defence in section 80.3 for acts done in good faith.
80.2A Urging violence against groups
Offences
(1) A person (the first person) commits an offence if:
(a) the first person intentionally urges another person, or a group, to use force or violence against a group (the targeted group); and
(b) the first person does so intending that force or violence will occur; and
(c) the targeted group is distinguished by race, religion, nationality, national or ethnic origin or political opinion; and
(d) the use of the force or violence would threaten the peace, order and good government of the Commonwealth.
Penalty: Imprisonment for 7 years.
Note: For intention, see section 5.2.
(2) A person (the first person) commits an offence if:
(a) the first person intentionally urges another person, or a group, to use force or violence against a group (the targeted group); and
(b) the first person does so intending that force or violence will occur; and
(c) the targeted group is distinguished by race, religion, nationality, national or ethnic origin or political opinion.
Penalty: Imprisonment for 5 years.
Note: For intention, see section 5.2.
(3) The fault element for paragraphs (1)(c) and (2)(c) is recklessness.
Note: For recklessness, see section 5.4.
Alternative verdict
(4) Subsection (5) applies if, in a prosecution for an offence (the prosecuted offence) against subsection (1), the trier of fact:
(a) is not satisfied that the defendant is guilty of the offence; but
(b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence (the alternative offence) against subsection (2).
(5) The trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
Note: There is a defence in section 80.3 for acts done in good faith.
80.2B Urging violence against members of groups
Offences
(1) A person (the first person) commits an offence if:
(a) the first person intentionally urges another person, or a group, to use force or violence against a person (the targeted person); and
(b) the first person does so intending that force or violence will occur; and
(c) the first person does so because of his or her belief that the targeted person is a member of a group (the targeted group); and
(d) the targeted group is distinguished by race, religion, nationality, national or ethnic origin or political opinion; and
(e) the use of the force or violence would threaten the peace, order and good government of the Commonwealth.
Penalty: Imprisonment for 7 years.
Note: For intention, see section 5.2.
(2) A person (the first person) commits an offence if:
(a) the first person intentionally urges another person, or a group, to use force or violence against a person (the targeted person); and
(b) the first person does so intending that force or violence will occur; and
(c) the first person does so because of his or her belief that the targeted person is a member of a group (the targeted group); and
(d) the targeted group is distinguished by race, religion, nationality, national or ethnic origin or political opinion.
Penalty: Imprisonment for 5 years.
Note: For intention, see section 5.2.
(3) For the purposes of paragraphs (1)(c) and (2)(c), it is immaterial whether the targeted person actually is a member of the targeted group.
(4) The fault element for paragraphs (1)(d) and (2)(d) is recklessness.
Note: For recklessness, see section 5.4.
Alternative verdict
(5) Subsection (6) applies if, in a prosecution for an offence (the prosecuted offence) against subsection (1), the trier of fact:
(a) is not satisfied that the defendant is guilty of the offence; but
(b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence (the alternative offence) against subsection (2).
(6) The trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
Note: There is a defence in section 80.3 for acts done in good faith.
Subdivision D—Common provisions
80.3 Defence for acts done in good faith
(1) Subdivisions B and C do not apply to a person who:
(a) tries in good faith to show that any of the following persons are mistaken in any of his or her counsels, policies or actions:
(i) the Sovereign;
(ii) the Governor‑General;
(iii) the Governor of a State;
(iv) the Administrator of a Territory;
(v) an adviser of any of the above;
(vi) a person responsible for the government of another country; or
(b) points out in good faith errors or defects in the following, with a view to reforming those errors or defects:
(i) the Government of the Commonwealth, a State or a Territory;
(ii) the Constitution;
(iii) legislation of the Commonwealth, a State, a Territory or another country;
(iv) the administration of justice of or in the Commonwealth, a State, a Territory or another country; or
(c) urges in good faith another person to attempt to lawfully procure a change to any matter established by law, policy or practice in the Commonwealth, a State, a Territory or another country; or
(d) points out in good faith any matters that are producing, or have a tendency to produce, feelings of ill‑will or hostility between different groups, in order to bring about the removal of those matters; or
(e) does anything in good faith in connection with an industrial dispute or an industrial matter; or
(f) publishes in good faith a report or commentary about a matter of public interest.
Note: A defendant bears an evidential burden in relation to the matter in subsection (1). See subsection 13.3(3).
(2) In considering a defence under subsection (1), the Court may have regard to any relevant matter, including whether the acts were done:
(a) for a purpose intended to be prejudicial to the safety or defence of the Commonwealth; or
(b) with the intention of assisting an enemy:
(i) at war with the Commonwealth; and
(ii) specified by Proclamation made for the purpose of paragraph 80.1AA(1)(b) to be an enemy at war with the Commonwealth; or
(c) with the intention of assisting another country, or an organisation, that is engaged in armed hostilities against the Australian Defence Force; or
(d) with the intention of assisting a proclaimed enemy of a proclaimed country (within the meaning of subsection 24AA(4) of the Crimes Act 1914); or
(e) with the intention of assisting persons specified in paragraphs 24AA(2)(a) and (b) of the Crimes Act 1914; or
(f) with the intention of causing violence or creating public disorder or a public disturbance.
(3) Without limiting subsection (2), in considering a defence under subsection (1) in respect of an offence against Subdivision C, the Court may have regard to any relevant matter, including whether the acts were done:
(a) in the development, performance, exhibition or distribution of an artistic work; or
(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
(c) in the dissemination of news or current affairs.
80.4 Extended geographical jurisdiction for offences
(1) Subject to subsection (2), section 15.4 (extended geographical jurisdiction—category D) applies to an offence against this Division.
(2) Section 15.2 (extended geographical jurisdiction—category B) applies to an offence against subsection 80.2A(2) or 80.2B(2).
80.6 Division not intended to exclude State or Territory law
It is the intention of the Parliament that this Division is not to apply to the exclusion of a law of a State or a Territory to the extent that the law is capable of operating concurrently with this Division.
Part 5.2—Offences relating to espionage and similar activities
Division 90—Preliminary
90.1 Definitions
(1) In this Part:
article includes any thing, substance or material.
information means information of any kind, whether true or false and whether in a material form or not, and includes:
(a) an opinion; and
(b) a report of a conversation.
intelligence or security agency has the meaning given by section 85ZL of the Crimes Act 1914.
record, in relation to information, means a record of information in any form, including but not limited to, a document, paper, database, software system or other article or system containing information or from which information can be derived.
security or defence of a country includes the operations, capabilities and technologies of, and methods and sources used by, the country’s intelligence or security agencies.
sketch includes a representation of a place or thing.
the Commonwealth includes the Territories.
(2) In this Part, unless the contrary intention appears:
(a) expressions referring to obtaining, recording, using, having in possession, communicating or retaining include obtaining, recording, using, having in possession, communicating or retaining in whole or in part, and whether the thing or information itself, or only the substance, effect or description of the thing or information, is obtained, recorded, used, possessed, communicated or retained; and
(b) a reference to a sketch, document or article or to information is to be read as including a reference to a copy of, a part of or a copy of a part of a sketch, document or article or information.
(3) For the purposes of this Part, a place that is occupied by, or a thing that is under the control of, the Commonwealth is taken to belong to the Commonwealth.
(4) This Part applies to and in relation to a document or article regardless of who made it and what information it contains.
Division 91—Offences relating to espionage and similar activities
91.1 Espionage and similar activities
(1) A person commits an offence if:
(a) the person communicates, or makes available:
(i) information concerning the Commonwealth’s security or defence; or
(ii) information concerning the security or defence of another country, being information that the person acquired (whether directly or indirectly) from the Commonwealth; and
(b) the person does so intending to prejudice the Commonwealth’s security or defence; and
(c) the person’s act results in, or is likely to result in, the information being communicated or made available to another country or a foreign organisation, or to a person acting on behalf of such a country or organisation.
Penalty: Imprisonment for 25 years.
(2) A person commits an offence if:
(a) the person communicates, or makes available:
(i) information concerning the Commonwealth’s security or defence; or
(ii) information concerning the security or defence of another country, being information that the person acquired (whether directly or indirectly) from the Commonwealth; and
(b) the person does so:
(i) without lawful authority; and
(ii) intending to give an advantage to another country’s security or defence; and
(c) the person’s act results in, or is likely to result in, the information being communicated or made available to another country or a foreign organisation, or to a person acting on behalf of such a country or organisation.
Penalty: Imprisonment for 25 years.
(3) A person commits an offence if:
(a) the person makes, obtains or copies a record (in any form) of:
(i) information concerning the Commonwealth’s security or defence; or
(ii) information concerning the security or defence of another country, being information that the person acquired (whether directly or indirectly) from the Commonwealth; and
(b) the person does so:
(i) intending that the record will, or may, be delivered to another country or a foreign organisation, or to a person acting on behalf of such a country or organisation; and
(ii) intending to prejudice the Commonwealth’s security or defence.
Penalty: Imprisonment for 25 years.
(4) A person commits an offence if:
(a) the person makes, obtains or copies a record (in any form) of:
(i) information concerning the Commonwealth’s security or defence; or
(ii) information concerning the security or defence of another country, being information that the person acquired (whether directly or indirectly) from the Commonwealth; and
(b) the person does so:
(i) without lawful authority; and
(ii) intending that the record will, or may, be delivered to another country or a foreign organisation, or to a person acting on behalf of such a country or organisation; and
(iii) intending to give an advantage to another country’s security or defence.
Penalty: Imprisonment for 25 years.
(5) For the purposes of subparagraphs (3)(b)(i) and (4)(b)(ii), the person concerned does not need to have a particular country, foreign organisation or person in mind at the time when the person makes, obtains or copies the record.
(6) A person charged with an offence under this section may only be remanded on bail by a judge of the Supreme Court of a State or Territory. This subsection has effect despite anything in section 93.1.
Note: Section 93.1 deals with how a prosecution is instituted.
(7) Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to offences under this section.
91.2 Defence—information lawfully available
(1) It is a defence to a prosecution of an offence against subsection 91.1(1) or (2) that the information the person communicates or makes available is information that has already been communicated or made available to the public with the authority of the Commonwealth.
(2) It is a defence to a prosecution of an offence against subsection 91.1(3) or (4) that the record of information the person makes, obtains or copies is a record of information that has already been communicated or made available to the public with the authority of the Commonwealth.
Note: A defendant bears an evidential burden in relation to the matters in subsections (1) and (2). See subsection 13.3(3).
Division 93—Prosecutions and hearings
93.1 Institution of prosecution
(1) A prosecution under this Part may be instituted only by, or with the consent of, the Attorney‑General or a person acting under the Attorney‑General’s direction.
(2) However:
(a) a person charged with an offence against this Part may be arrested, or a warrant for his or her arrest may be issued and executed; and
(b) such a person may be remanded in custody or on bail;
even if the consent of the Attorney‑General or a person acting under his or her direction has not been obtained, but no further proceedings are to be taken until that consent has been obtained.
(3) Nothing in this section prevents the discharging of the accused if proceedings are not continued within a reasonable time.
93.2 Hearing in camera etc.
(1) This section applies to a hearing of an application or other proceedings before a federal court, a court exercising federal jurisdiction or a court of a Territory, whether under this Act or otherwise.
(2) At any time before or during the hearing, the judge or magistrate, or other person presiding or competent to preside over the proceedings, may, if satisfied that it is in the interest of the security or defence of the Commonwealth:
(a) order that some or all of the members of the public be excluded during the whole or a part of the hearing; or
(b) order that no report of the whole or a specified part of, or relating to, the application or proceedings be published; or
(c) make such order and give such directions as he or she thinks necessary for ensuring that no person, without the approval of the court, has access (whether before, during or after the hearing) to any affidavit, exhibit, information or other document used in the application or the proceedings that is on the file in the court or in the records of the court.
(3) A person commits an offence if the person contravenes an order made or direction given under this section.
Penalty: Imprisonment for 5 years.
Division 94—Forfeiture
94.1 Forfeiture of articles etc.
A sketch, article, record or document which is made, obtained, recorded, retained, forged, possessed or otherwise dealt with in contravention of this Part is forfeited to the Commonwealth.
Part 5.3—Terrorism
Division 100—Preliminary
100.1 Definitions
(1) In this Part:
AFP member means:
(a) a member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979); or