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 4
Chapter 1—Codification 4
Division 1 4
1.1......................... Codification........................................................................ 4
Chapter 2—General principles of criminal responsibility 5
Part 2.1—Purpose and application 5
Division 2 5
2.1......................... Purpose............................................................................... 5
2.2......................... Application......................................................................... 5
2.3......................... Application of provisions relating to intoxication............... 5
Part 2.2—The elements of an offence 6
Division 3—General 6
3.1......................... Elements............................................................................. 6
3.2......................... Establishing guilt in respect of offences.............................. 6
Division 4—Physical elements 7
4.1......................... Physical elements................................................................ 7
4.2......................... Voluntariness...................................................................... 7
4.3......................... Omissions........................................................................... 8
Division 5—Fault elements 9
5.1......................... Fault elements..................................................................... 9
5.2......................... Intention.............................................................................. 9
5.3......................... Knowledge.......................................................................... 9
5.4......................... Recklessness....................................................................... 9
5.5......................... Negligence........................................................................ 10
5.6......................... Offences that do not specify fault elements....................... 10
Division 6—Cases where fault elements are not required 11
6.1......................... Strict liability..................................................................... 11
6.2......................... Absolute liability............................................................... 11
Part 2.3—Circumstances in which there is no criminal responsibility 12
Division 7—Circumstances involving lack of capacity 12
7.1......................... Children under 10............................................................. 12
7.2......................... Children over 10 but under 14.......................................... 12
7.3......................... Mental impairment............................................................ 12
Division 8—Intoxication 14
8.1......................... Definition—self‑induced intoxication............................... 14
8.2......................... Intoxication (offences involving basic intent)................... 14
8.3......................... Intoxication (negligence as fault element)......................... 15
8.4......................... Intoxication (relevance to defences).................................. 15
8.5......................... Involuntary intoxication.................................................... 16
Division 9—Circumstances involving mistake or ignorance 17
9.1......................... Mistake or ignorance of fact (fault elements other than negligence) 17
9.2......................... Mistake of fact (strict liability).......................................... 17
9.3......................... Mistake or ignorance of statute law.................................. 18
9.4......................... Mistake or ignorance of subordinate legislation................ 18
9.5......................... Claim of right.................................................................... 19
Division 10—Circumstances involving external factors 20
10.1....................... Intervening conduct or event............................................. 20
10.2....................... Duress.............................................................................. 20
10.3....................... Sudden or extraordinary emergency................................. 20
10.4....................... Self‑defence...................................................................... 21
10.5....................... Lawful authority............................................................... 22
Part 2.4—Extensions of criminal responsibility 23
Division 11 23
11.1....................... Attempt............................................................................. 23
11.2....................... Complicity and common purpose..................................... 24
11.2A.................... Joint commission.............................................................. 25
11.3....................... Commission by proxy...................................................... 27
11.4....................... Incitement......................................................................... 27
11.5....................... Conspiracy........................................................................ 29
11.6....................... References in Acts to offences.......................................... 30
Part 2.5—Corporate criminal responsibility 32
Division 12 32
12.1....................... General principles............................................................. 32
12.2....................... Physical elements.............................................................. 32
12.3....................... Fault elements other than negligence................................. 32
12.4....................... Negligence........................................................................ 34
12.5....................... Mistake of fact (strict liability).......................................... 34
12.6....................... Intervening conduct or event............................................. 35
Part 2.6—Proof of criminal responsibility 36
Division 13 36
13.1....................... Legal burden of proof—prosecution................................. 36
13.2....................... Standard of proof—prosecution....................................... 36
13.3....................... Evidential burden of proof—defence................................ 36
13.4....................... Legal burden of proof—defence....................................... 37
13.5....................... Standard of proof—defence.............................................. 37
13.6....................... Use of averments.............................................................. 37
Part 2.7—Geographical jurisdiction 39
Division 14—Standard geographical jurisdiction 39
14.1....................... Standard geographical jurisdiction.................................... 39
Division 15—Extended geographical jurisdiction 42
15.1....................... Extended geographical jurisdiction—category A.............. 42
15.2....................... Extended geographical jurisdiction—category B.............. 44
15.3....................... Extended geographical jurisdiction—category C.............. 47
15.4....................... Extended geographical jurisdiction—category D.............. 49
Division 16—Miscellaneous 50
16.1....................... Attorney‑General’s consent required for prosecution if alleged conduct occurs wholly in a foreign country in certain circumstances........................................................ 50
16.2....................... When conduct taken to occur partly in Australia............... 50
16.3....................... Meaning of Australia........................................................ 51
16.4....................... Result of conduct.............................................................. 51
Chapter 4—The integrity and security of the international community and foreign governments 52
Division 70—Bribery of foreign public officials 52
70.1....................... Definitions........................................................................ 52
70.2....................... Bribing a foreign public official........................................ 55
70.3....................... Defence—conduct lawful in foreign public official’s country 58
70.4....................... Defence—facilitation payments........................................ 61
70.5....................... Territorial and nationality requirements............................. 63
70.6....................... Saving of other laws......................................................... 64
Division 71—Offences against United Nations and associated personnel 65
71.1....................... Purpose............................................................................. 65
71.2....................... Murder of a UN or associated person............................... 65
71.3....................... Manslaughter of a UN or associated person..................... 65
71.4....................... Intentionally causing serious harm to a UN or associated person 66
71.5....................... Recklessly causing serious harm to a UN or associated person 66
71.6....................... Intentionally causing harm to a UN or associated person. 67
71.7....................... Recklessly causing harm to a UN or associated person.... 67
71.8....................... Unlawful sexual penetration............................................. 68
71.9....................... Kidnapping a UN or associated person............................. 69
71.10..................... Unlawful detention of UN or associated person............... 70
71.11..................... Intentionally causing damage to UN or associated person’s property etc. 70
71.12..................... Threatening to commit other offences............................... 71
71.13..................... Aggravated offences......................................................... 72
71.14..................... Defence—activities involving serious harm...................... 72
71.15..................... Defence—medical or hygienic procedures........................ 73
71.16..................... Jurisdictional requirement................................................. 73
71.17..................... Exclusion of this Division if State/Territory laws provide for corresponding offences 74
71.18..................... Double jeopardy............................................................... 74
71.19..................... Saving of other laws......................................................... 74
71.20..................... Bringing proceedings under this Division........................ 75
71.21..................... Ministerial certificates relating to proceedings.................. 75
71.22..................... Jurisdiction of State courts preserved............................... 75
71.23..................... Definitions........................................................................ 76
Division 72—Explosives and lethal devices 78
Subdivision A—International terrorist activities using explosive or lethal devices 78
72.1....................... Purpose............................................................................. 78
72.2....................... ADF members not liable for prosecution.......................... 78
72.3....................... Offences........................................................................... 78
72.4....................... Jurisdictional requirement................................................. 79
72.5....................... Saving of other laws......................................................... 80
72.6....................... Double jeopardy and foreign offences.............................. 81
72.7....................... Bringing proceedings under this Subdivision................... 81
72.8....................... Ministerial certificates relating to proceedings.................. 81
72.9....................... Jurisdiction of State courts preserved............................... 82
72.10..................... Definitions........................................................................ 82
Subdivision B—Plastic explosives 83
72.11..................... Purpose............................................................................. 83
72.12..................... Trafficking in unmarked plastic explosives etc................. 83
72.13..................... Importing or exporting unmarked plastic explosives etc... 83
72.14..................... Manufacturing unmarked plastic explosives etc................ 84
72.15..................... Possessing unmarked plastic explosives etc..................... 84
72.16..................... Defences........................................................................... 85
72.17..................... Packaging requirements for plastic explosives.................. 86
72.18..................... Authorisation for research etc........................................... 86
72.19..................... Authorisation for defence and police purposes—15 year limit 88
72.22..................... Authorisation for overseas defence purposes—7 day limit 89
72.23..................... Authorisation for overseas Australian Federal Police purposes—7 day limit 90
72.24..................... Forfeited plastic explosives............................................... 90
72.25..................... Surrendered plastic explosives.......................................... 91
72.26..................... Destruction of plastic explosives obtained overseas for defence purposes 92
72.27..................... Destruction of plastic explosives obtained overseas for Australian Federal Police purposes 92
72.28..................... Delegation by AFP Minister............................................. 92
72.29..................... Delegation by Minister for Defence.................................. 92
72.30..................... Review by Administrative Appeals Tribunal of authorisation decisions 93
72.31..................... Geographical jurisdiction.................................................. 94
72.32..................... Saving of other laws......................................................... 94
72.33..................... Marking requirements....................................................... 94
72.34..................... Detection agents and minimum manufacture concentrations 95
72.35..................... Presumption as to concentration of detection agent........... 95
72.36..................... Definitions........................................................................ 96
Subdivision C—Cluster munitions and explosive bomblets 99
72.37..................... Purpose............................................................................. 99
72.38..................... Offences relating to cluster munitions............................... 99
72.39..................... Defence—acquisition or retention authorised by Defence Minister 100
72.40..................... Defence—transfer for destruction etc............................. 101
72.41..................... Defence—acts by Australians in military cooperation with countries not party to Convention on Cluster Munitions....................................................................... 102
72.42..................... Defence—acts by military personnel of countries not party to Convention on Cluster Munitions 103
72.43..................... Forfeiture of cluster munition......................................... 104
72.44..................... Application of this Subdivision to explosive bomblets... 104
72.45..................... Definitions...................................................................... 104
Division 73—People smuggling and related offences 106
Subdivision A—People smuggling offences 106
73.1....................... Offence of people smuggling.......................................... 106
73.2....................... Aggravated offence of people smuggling (danger of death or serious harm etc.) 106
73.3....................... Aggravated offence of people smuggling (at least 5 people) 107
73.3A.................... Supporting the offence of people smuggling.................. 108
73.4....................... Jurisdictional requirement............................................... 108
73.5....................... Attorney‑General’s consent required.............................. 109
Subdivision B—Document offences related to people smuggling and unlawful entry into foreign countries 109
73.6....................... Meaning of travel or identity document.......................... 109
73.7....................... Meaning of false travel or identity document.................. 109
73.8....................... Making, providing or possessing a false travel or identity document 110
73.9....................... Providing or possessing a travel or identity document issued or altered dishonestly or as a result of threats........................................................................................ 111
73.10..................... Providing or possessing a travel or identity document to be used by a person who is not the rightful user........................................................................................ 112
73.11..................... Taking possession of or destroying another person’s travel or identity document 112
73.12..................... Jurisdictional requirement............................................... 113
Chapter 5—The security of the Commonwealth 114
Part 5.1—Treason and related offences 114
Division 80—Treason, urging violence and advocating terrorism or genocide 114
Subdivision A—Preliminary 114
80.1A.................... Definitions...................................................................... 114
80.1AAA.............. Expressions also used in the Australian Security Intelligence Organisation Act 1979 114
Subdivision B—Treason 114
80.1....................... Treason........................................................................... 114
80.1AA................. Treason—assisting enemy to engage in armed conflict... 115
80.1AB.................. Proclamation of enemy engaged in armed conflict.......... 117
80.1AC.................. Treachery........................................................................ 117
Subdivision C—Urging violence and advocating terrorism or genocide 117
80.2....................... Urging violence against the Constitution etc................... 117
80.2A.................... Urging violence against groups...................................... 119
80.2B..................... Urging violence against members of groups................... 120
80.2C..................... Advocating terrorism...................................................... 121
80.2D.................... Advocating genocide...................................................... 123
Subdivision D—Common provisions 124
80.3....................... Defence for acts done in good faith................................ 124
80.4....................... Extended geographical jurisdiction for offences............. 126
80.6....................... Division not intended to exclude State or Territory law.. 126
Division 82—Sabotage 127
Subdivision A—Preliminary 127
82.1....................... Definitions...................................................................... 127
82.2....................... Public infrastructure........................................................ 128
82.2A.................... Expressions also used in the Australian Security Intelligence Organisation Act 1979 129
Subdivision B—Offences 129
82.3....................... Offence of sabotage involving foreign principal with intention as to national security 129
82.4....................... Offence of sabotage involving foreign principal reckless as to national security 130
82.5....................... Offence of sabotage with intention as to national security 131
82.6....................... Offence of sabotage reckless as to national security....... 131
82.7....................... Offence of introducing vulnerability with intention as to national security 132
82.8....................... Offence of introducing vulnerability reckless as to national security 132
82.9....................... Preparing for or planning sabotage offence.................... 133
82.10..................... Defences......................................................................... 134
82.11..................... Geographical jurisdiction................................................ 134
82.12..................... Alternative verdicts......................................................... 134
82.13..................... Consent of Attorney‑General required for prosecutions. 135
Division 83—Other threats to security 137
83.1A.................... Expressions also used in the Australian Security Intelligence Organisation Act 1979 137
83.1....................... Advocating mutiny......................................................... 137
83.2....................... Assisting prisoners of war to escape.............................. 138
83.3....................... Military‑style training involving foreign government principal etc. 139
83.4....................... Interference with political rights and duties..................... 140
83.5....................... Consent of Attorney‑General required for prosecutions. 141
Part 5.2—Espionage and related offences 142
Division 90—Preliminary 142
90.1....................... Definitions...................................................................... 142
90.2....................... Definition of foreign principal........................................ 144
90.3....................... Definition of foreign government principal.................... 144
90.4....................... Definition of national security........................................ 145
90.5....................... Definition of security classification................................ 145
90.6....................... Expressions also used in the Australian Security Intelligence Organisation Act 1979 146
Division 91—Espionage 148
Subdivision A—Espionage 148
91.1....................... Espionage—dealing with information etc. concerning national security which is or will be communicated or made available to foreign principal.................................. 148
91.2....................... Espionage—dealing with information etc. which is or will be communicated or made available to foreign principal.......................................................................... 149
91.3....................... Espionage—security classified information etc............... 150
91.4....................... Defences......................................................................... 151
91.5....................... Matters affecting sentencing for offence against subsection 91.1(1) 152
91.6....................... Aggravated espionage offence........................................ 152
91.7....................... Geographical jurisdiction................................................ 153
Subdivision B—Espionage on behalf of foreign principal 153
91.8....................... Espionage on behalf of foreign principal........................ 153
91.9....................... Defences......................................................................... 155
91.10..................... Geographical jurisdiction................................................ 156
Subdivision C—Espionage‑related offences 156
91.11..................... Offence of soliciting or procuring an espionage offence or making it easier to do so 156
91.12..................... Offence of preparing for an espionage offence............... 157
91.13..................... Defences......................................................................... 158
91.14..................... Geographical jurisdiction................................................ 158
Division 92—Foreign interference 159
Subdivision A—Preliminary 159
92.1....................... Definitions...................................................................... 159
Subdivision B—Foreign interference 159
92.2....................... Offence of intentional foreign interference...................... 159
92.3....................... Offence of reckless foreign interference......................... 161
92.4....................... Offence of preparing for a foreign interference offence.. 162
92.5....................... Defence........................................................................... 163
92.6....................... Geographical jurisdiction................................................ 163
Subdivision C—Foreign interference involving foreign intelligence agencies 163
92.7....................... Knowingly supporting foreign intelligence agency......... 163
92.8....................... Recklessly supporting foreign intelligence agency.......... 164
92.9....................... Knowingly funding or being funded by foreign intelligence agency 164
92.10..................... Recklessly funding or being funded by foreign intelligence agency 165
92.11..................... Defence........................................................................... 165
Division 92A—Theft of trade secrets involving foreign government principal 166
92A.1.................... Theft of trade secrets involving foreign government principal 166
92A.2.................... Geographical jurisdiction................................................ 167
Division 93—Prosecutions and hearings 168
93.1....................... Consent of Attorney‑General required for prosecutions. 168
93.2....................... Hearing in camera etc...................................................... 169
93.4....................... Fault elements for attempted espionage offences............ 169
93.5....................... Alternative verdicts......................................................... 170
Division 94—Forfeiture 171
94.1....................... Forfeiture of articles etc.................................................. 171
Part 5.3—Terrorism 172
Division 100—Preliminary 172
100.1..................... Definitions...................................................................... 172
100.2..................... Referring States.............................................................. 177
100.3..................... Constitutional basis for the operation of this Part........... 178
100.4..................... Application of provisions............................................... 179
100.5..................... Application of Acts Interpretation Act 1901................... 181
100.6..................... Concurrent operation intended........................................ 182
100.7..................... Regulations may modify operation of this Part to deal with interaction between this Part and State and Territory laws................................................................. 182
100.8..................... Approval for changes to or affecting this Part................ 183
Division 101—Terrorism 184
101.1..................... Terrorist acts................................................................... 184
101.2..................... Providing or receiving training connected with terrorist acts 184
101.4..................... Possessing things connected with terrorist acts.............. 185
101.5..................... Collecting or making documents likely to facilitate terrorist acts 186
101.6..................... Other acts done in preparation for, or planning, terrorist acts.. 187
Division 102—Terrorist organisations 189
Subdivision A—Definitions 189
102.1..................... Definitions...................................................................... 189
102.1AA............... Including or removing names of prescribed terrorist organisations 192
102.1A.................. Reviews by Parliamentary Joint Committee on Intelligence and Security 193
Subdivision B—Offences 195
102.2..................... Directing the activities of a terrorist organisation............ 195
102.3..................... Membership of a terrorist organisation........................... 195
102.4..................... Recruiting for a terrorist organisation............................. 196
102.5..................... Training involving a terrorist organisation...................... 196
102.6..................... Getting funds to, from or for a terrorist organisation...... 197
102.7..................... Providing support to a terrorist organisation................... 198
102.8..................... Associating with terrorist organisations.......................... 199
Subdivision C—General provisions relating to offences 201
102.9..................... Extended geographical jurisdiction for offences............. 201
102.10................... Alternative verdicts......................................................... 202
Division 103—Financing terrorism 203
103.1..................... Financing terrorism......................................................... 203
103.2..................... Financing a terrorist........................................................ 203
103.3..................... Extended geographical jurisdiction for offences............. 204
Division 104—Control orders 205
Subdivision A—Objects of this Division 205
104.1..................... Objects of this Division.................................................. 205
Subdivision B—Making an interim control order 205
104.2..................... AFP Minister’s consent to request an interim control order 205
104.3..................... Requesting the court to make an interim control order.... 207
104.4..................... Making an interim control order..................................... 208
104.5..................... Terms of an interim control order................................... 210
Subdivision C—Making an urgent interim control order 214
104.6..................... Requesting an urgent interim control order by electronic means 214
104.7..................... Making an urgent interim control order by electronic means 215
104.8..................... Requesting an urgent interim control order in person..... 216
104.9..................... Making an urgent interim control order in person........... 217
104.10................... Obtaining the AFP Minister’s consent within 8 hours... 217
104.11................... Court to assume that exercise of power not authorised by urgent interim control order 218
Subdivision CA—Varying an interim control order 218
104.11A................ Varying an interim control order..................................... 218
Subdivision D—Confirming an interim control order 219
104.12................... Service, explanation and notification of an interim control order 219
104.12A................ Election to confirm control order.................................... 221
104.13................... Lawyer may request a copy of an interim control order.. 223
104.14................... Confirming an interim control order............................... 223
104.15................... When a declaration, or a revocation, variation or confirmation of a control order, is in force 225
104.16................... Terms of a confirmed control order................................ 226
104.17................... Service of a declaration, or a revocation, variation or confirmation of a control order 226
Subdivision E—Rights in respect of a control order 228
104.18................... Application by the person for a revocation or variation of a control order 228
104.19................... Application by the AFP Commissioner for a revocation or variation of a control order 229
104.20................... Revocation or variation of a control order....................... 230
104.21................... Lawyer may request a copy of a control order................ 231
104.22................... Treatment of photographs and impressions of fingerprints 231
Subdivision F—Adding obligations, prohibitions or restrictions to a control order 232
104.23................... Application by the AFP Commissioner for addition of obligations, prohibitions or restrictions 232
104.24................... Varying a control order................................................... 235
104.25................... Terms of a varied control order....................................... 236
104.26................... Service and explanation of a varied control order........... 236
Subdivision G—Offences relating to control orders 238
104.27................... Offence for contravening a control order........................ 238
104.27A................ Offence relating to tracking devices................................ 238
Subdivision H—Special rules for young people (14 to 17) 239
104.28................... Special rules for young people........................................ 239
Subdivision I—Miscellaneous 240
104.28A................ Interlocutory proceedings............................................... 240
104.28AA............. Costs in control order proceedings................................. 240
104.28B................. Giving documents to persons detained in custody.......... 240
104.29................... Reporting requirements................................................... 241
104.30................... Requirement to notify AFP Minister of declarations, revocations or variations 242
104.31................... Queensland public interest monitor functions and powers not affected 243
104.32................... Sunset provision............................................................. 243
Division 105—Preventative detention orders 244
Subdivision A—Preliminary 244
105.1..................... Object............................................................................. 244
105.2..................... Issuing authorities for continued preventative detention orders 244
105.3..................... Police officer detaining person under a preventative detention order 245
Subdivision B—Preventative detention orders 245
105.4..................... Basis for applying for, and making, preventative detention orders 245
105.5..................... No preventative detention order in relation to person under 16 years of age 247
105.5A.................. Special assistance for person with inadequate knowledge of English language or disability 248
105.6..................... Restrictions on multiple preventative detention orders.... 248
105.7..................... Application for initial preventative detention order......... 250
105.8..................... Senior AFP member may make initial preventative detention order 252
105.9..................... Duration of initial preventative detention order............... 255
105.10................... Extension of initial preventative detention order............. 256
105.10A................ Notice of application for continued preventative detention order 256
105.11................... Application for continued preventative detention order... 257
105.12................... Judge, AAT member or retired judge may make continued preventative detention order 258
105.13................... Duration of continued preventative detention order........ 260
105.14................... Extension of continued preventative detention order....... 261
105.14A................ Basis for applying for, and making, prohibited contact order.. 262
105.15................... Prohibited contact order (person in relation to whom preventative detention order is being sought) 263
105.16................... Prohibited contact order (person in relation to whom preventative detention order is already in force) 265
105.17................... Revocation of preventative detention order or prohibited contact order 267
105.18................... Status of person making continued preventative detention order 269
Subdivision C—Carrying out preventative detention orders 270
105.19................... Power to detain person under preventative detention order 270
105.20................... Endorsement of order with date and time person taken into custody 272
105.21................... Requirement to provide name etc.................................... 272
105.22................... Power to enter premises.................................................. 273
105.23................... Power to conduct a frisk search...................................... 274
105.24................... Power to conduct an ordinary search.............................. 274
105.25................... Warrant under Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 275
105.26................... Release of person from preventative detention................ 275
105.27................... Arrangement for detainee to be held in State or Territory prison or remand centre 277
Subdivision D—Informing person detained about preventative detention order 278
105.28................... Effect of initial preventative detention order to be explained to person detained 278
105.29................... Effect of continued preventative detention order to be explained to person detained 280
105.30................... Person being detained to be informed of extension of preventative detention order 282
105.31................... Compliance with obligations to inform........................... 282
105.32................... Copy of preventative detention order.............................. 283
Subdivision E—Treatment of person detained 284
105.33................... Humane treatment of person being detained................... 284
105.33A................ Detention of persons under 18........................................ 285
105.34................... Restriction on contact with other people......................... 285
105.35................... Contacting family members etc....................................... 286
105.36................... Contacting Ombudsman etc............................................ 287
105.37................... Contacting lawyer........................................................... 288
105.38................... Monitoring contact under section 105.35 or 105.37....... 290
105.39................... Special contact rules for person under 18 or incapable of managing own affairs 291
105.40................... Entitlement to contact subject to prohibited contact order 293
105.41................... Disclosure offences........................................................ 293
105.42................... Questioning of person prohibited while person is detained 299
105.43................... Taking fingerprints, recordings, samples of handwriting or photographs 300
105.44................... Use of identification material.......................................... 303
105.45................... Offences of contravening safeguards.............................. 303
Subdivision F—Miscellaneous 304
105.46................... Nature of functions of Federal Circuit Court Judge........ 304
105.47................... Annual report.................................................................. 304
105.48................... Certain functions and powers not affected...................... 305
105.49................... Queensland public interest monitor functions and powers not affected 305
105.50................... Law relating to legal professional privilege not affected. 305
105.51................... Legal proceedings in relation to preventative detention orders 306
105.52................... Review by State and Territory courts.............................. 307
105.53................... Sunset provision............................................................. 309
Division 105A—Continuing detention orders 310
Subdivision A—Object and definitions 310
105A.1.................. Object............................................................................. 310
105A.2.................. Definitions...................................................................... 310
105A.2A............... Persons who have escaped from custody....................... 311
Subdivision B—Continuing detention orders 311
105A.3.................. Who a continuing detention order may apply to and effect of an order 311
105A.4.................. Treatment of a terrorist offender in a prison under a continuing detention order 313
Subdivision C—Making a continuing detention order 314
105A.5.................. Applying for a continuing detention order...................... 314
105A.6.................. Appointment of and assessment by relevant expert........ 317
105A.7.................. Making a continuing detention order.............................. 319
105A.8.................. Matters a Court must have regard to in making a continuing detention order 320
105A.9.................. Interim detention orders.................................................. 321
Subdivision D—Review of continuing detention order 322
105A.10................ Periodic review of continuing detention order................ 322
105A.11................ Review of continuing detention order on application...... 323
105A.12................ Process for reviewing a continuing detention order........ 324
Subdivision E—Provisions relating to continuing detention order proceedings 326
105A.13................ Civil evidence and procedure rules in relation to continuing detention order proceedings 326
105A.14................ Adducing evidence and making submissions................. 326
105A.15................ Giving terrorist offenders documents............................. 326
105A.15A............. When a terrorist offender is unable to engage a legal representative 327
105A.16................ Reasons for decisions..................................................... 327
105A.17................ Right of appeal................................................................ 328
105A.18................ Consequences of release of terrorist offender................. 329
Subdivision F—Miscellaneous 331
105A.19................ Sharing information........................................................ 331
105A.20................ Delegation by the AFP Minister..................................... 332
105A.21................ Arrangement with States and Territories......................... 332
105A.22................ Annual report.................................................................. 332
105A.23................ Warning about continuing detention orders when sentencing for certain offences 333
105A.24................ Effect of continuing detention orders on bail or parole laws 333
105A.25................ Sunset provision............................................................. 334
Division 106—Transitional provisions 335
106.1..................... Saving—regulations originally made for the purposes of paragraph (c) of the definition of terrorist organisation................................................................... 335
106.2..................... Saving—regulations made for the purposes of paragraph (a) of the definition of terrorist organisation........................................................................................ 335
106.3..................... Application provision..................................................... 336
106.4..................... Saving—Federal Magistrates.......................................... 336
106.5..................... Application provisions for certain amendments in the Counter‑Terrorism Legislation Amendment (Foreign Fighters) Act 2014.......................................................... 336
106.6..................... Application provisions for certain amendments in the Counter‑Terrorism Legislation Amendment Act (No. 1) 2014................................................................................ 338
106.7..................... Application provision for certain amendments in the Counter‑Terrorism Legislation Amendment Act (No. 1) 2016................................................................................ 339
106.8..................... Application provision for amendments in the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016................................................................................ 340
106.9..................... Application—Counter‑Terrorism Legislation Amendment Act (No. 1) 2018 341
106.10................... Application—Counter‑Terrorism Legislation Amendment (2019 Measures No. 1) Act 2019 342
Part 5.4—Harming Australians 344
Division 115—Harming Australians 344
115.1..................... Murder of an Australian citizen or a resident of Australia 344
115.2..................... Manslaughter of an Australian citizen or a resident of Australia 345
115.3..................... Intentionally causing serious harm to an Australian citizen or a resident of Australia 346
115.4..................... Recklessly causing serious harm to an Australian citizen or a resident of Australia 346
115.5..................... Saving of other laws....................................................... 347
115.6..................... Bringing proceedings under this Division...................... 347
115.7..................... Ministerial certificates relating to proceedings................ 347
115.8..................... Geographical jurisdiction................................................ 347
115.9..................... Meaning of causes death or harm................................... 348
Part 5.5—Foreign incursions and recruitment 349
Division 117—Preliminary 349
117.1..................... Definitions...................................................................... 349
117.2..................... Extended geographical jurisdiction—category D............ 351
Division 119—Foreign incursions and recruitment 352
119.1..................... Incursions into foreign countries with the intention of engaging in hostile activities 352
119.2..................... Entering, or remaining in, declared areas........................ 353
119.3..................... Declaration of areas for the purposes of section 119.2... 355
119.4..................... Preparations for incursions into foreign countries for purpose of engaging in hostile activities 357
119.5..................... Allowing use of buildings, vessels and aircraft to commit offences 361
119.6..................... Recruiting persons to join organisations engaged in hostile activities against foreign governments 362
119.7..................... Recruiting persons to serve in or with an armed force in a foreign country 363
119.8..................... Declaration in relation to specified armed forces............. 365
119.9..................... Exception—conduct for defence or international relations of Australia 366
119.10................... Mode of trial................................................................... 366
119.11................... Consent of Attorney‑General required for prosecutions. 366
119.12................... Declarations for the purposes of proceedings................. 367
Part 5.6—Secrecy of information 368
Division 121—Preliminary 368
121.1..................... Definitions...................................................................... 368
121.2..................... Definition of proper place of custody............................. 371
Division 122—Secrecy of information 372
122.1..................... Communication and other dealings with inherently harmful information by current and former Commonwealth officers etc...................................................................... 372
122.2..................... Conduct by current and former Commonwealth officers etc. causing harm to Australia’s interests 374
122.3..................... Aggravated offence......................................................... 376
122.4..................... Unauthorised disclosure of information by current and former Commonwealth officers etc. 377
122.4A.................. Communicating and dealing with information by non‑Commonwealth officers etc. 377
122.5..................... Defences......................................................................... 379
Division 123—Miscellaneous 387
123.1..................... Injunctions...................................................................... 387
123.2..................... Forfeiture of articles etc.................................................. 387
123.3..................... Extended geographical jurisdiction—category D............ 388
123.4..................... Effect of this Part on other rights, privileges, immunities or defences 388
123.5..................... Requirements before proceedings can be initiated........... 388
Chapter 7—The proper administration of Government 389
Part 7.1—Preliminary 389
Division 130—Preliminary 389
130.1..................... Definitions...................................................................... 389
130.2..................... When property belongs to a person................................ 390
130.3..................... Dishonesty...................................................................... 391
130.4..................... Determination of dishonesty to be a matter for the trier of fact 391
Part 7.2—Theft and other property offences 392
Division 131—Theft 392
131.1..................... Theft............................................................................... 392
131.2..................... Special rules about the meaning of dishonesty................ 392
131.3..................... Appropriation of property............................................... 393
131.4..................... Theft of land or things forming part of land.................... 393
131.5..................... Trust property................................................................. 393
131.6..................... Obligation to deal with property in a particular way....... 394
131.7..................... Property obtained because of fundamental mistake......... 394
131.8..................... Property of a corporation sole......................................... 395
131.9..................... Property belonging to 2 or more persons........................ 395
131.10................... Intention of permanently depriving a person of property 395
131.11................... General deficiency.......................................................... 396
Division 132—Other property offences 397
132.1..................... Receiving........................................................................ 397
132.2..................... Robbery.......................................................................... 400
132.3..................... Aggravated robbery........................................................ 401
132.4..................... Burglary.......................................................................... 402
132.5..................... Aggravated burglary....................................................... 404
132.6..................... Making off without payment.......................................... 405
132.7..................... Going equipped for theft or a property offence............... 406
132.8..................... Dishonest taking or retention of property....................... 407
132.8A.................. Damaging Commonwealth property............................... 408
132.9..................... Geographical jurisdiction................................................ 409
Part 7.3—Fraudulent conduct 410
Division 133—Preliminary 410
133.1..................... Definitions...................................................................... 410
Division 134—Obtaining property or a financial advantage by deception 411
134.1..................... Obtaining property by deception..................................... 411
134.2..................... Obtaining a financial advantage by deception................. 414
134.3..................... Geographical jurisdiction................................................ 414
Division 135—Other offences involving fraudulent conduct 415
135.1..................... General dishonesty......................................................... 415
135.2..................... Obtaining financial advantage......................................... 416
135.4..................... Conspiracy to defraud..................................................... 417
135.5..................... Geographical jurisdiction................................................ 420
Part 7.4—False or misleading statements 421
Division 136—False or misleading statements in applications 421
136.1..................... False or misleading statements in applications................ 421
Division 137—False or misleading information or documents 424
137.1..................... False or misleading information...................................... 424
137.1A.................. Aggravated offence for giving false or misleading information 425
137.2..................... False or misleading documents....................................... 426
137.3..................... Geographical jurisdiction................................................ 427
Part 7.5—Unwarranted demands 428
Division 138—Preliminary 428
138.1..................... Unwarranted demand with menaces............................... 428
138.2..................... Menaces.......................................................................... 428
Division 139—Unwarranted demands 430
139.1..................... Unwarranted demands of a Commonwealth public official 430
139.2..................... Unwarranted demands made by a Commonwealth public official 430
139.3..................... Geographical jurisdiction................................................ 431
Part 7.6—Bribery and related offences 432
Division 140—Preliminary 432
140.1..................... Definition........................................................................ 432
140.2..................... Obtaining........................................................................ 432
Division 141—Bribery 433
141.1..................... Bribery of a Commonwealth public official.................... 433
Division 142—Offences relating to bribery 436
142.1..................... Corrupting benefits given to, or received by, a Commonwealth public official 436
142.2..................... Abuse of public office.................................................... 437
142.3..................... Geographical jurisdiction................................................ 438
Part 7.7—Forgery and related offences 439
Division 143—Preliminary 439
143.1..................... Definitions...................................................................... 439
143.2..................... False documents............................................................. 440
143.3..................... False Commonwealth documents................................... 441
143.4..................... Inducing acceptance of false documents......................... 442
Division 144—Forgery 443
144.1..................... Forgery........................................................................... 443
Division 145—Offences relating to forgery 445
145.1..................... Using forged document.................................................. 445
145.2..................... Possession of forged document...................................... 446
145.3..................... Possession, making or adaptation of devices etc. for making forgeries 448
145.4..................... Falsification of documents etc......................................... 450
145.5..................... Giving information derived from false or misleading documents 451
145.6..................... Geographical jurisdiction................................................ 452
Part 7.8—Causing harm to or obstructing Commonwealth public officials and impersonating Commonwealth public officials or bodies 453
Division 146—Preliminary 453
146.1..................... Definitions...................................................................... 453
146.2..................... Causing harm.................................................................. 454
Division 147—Causing harm to Commonwealth public officials 455
147.1..................... Causing harm to a Commonwealth public official etc..... 455
147.2..................... Threatening to cause harm to a Commonwealth public official etc. 457
147.3..................... Geographical jurisdiction................................................ 459
Division 148—Impersonation of Commonwealth public officials 460
148.1..................... Impersonation of an official by a non‑official................. 460
148.2..................... Impersonation of an official by another official.............. 461
148.3..................... Geographical jurisdiction................................................ 462
Division 149—Obstruction of Commonwealth public officials 463
149.1..................... Obstruction of Commonwealth public officials.............. 463
Division 150—False representations in relation to a Commonwealth body 465
Subdivision A—Offences 465
150.1..................... False representations in relation to a Commonwealth body 465
Subdivision B—Injunctions 467
150.5..................... Injunctions...................................................................... 467
Part 7.20—Miscellaneous 468
Division 261—Miscellaneous 468
261.1..................... Saving of other laws....................................................... 468
261.2..................... Contempt of court........................................................... 468
261.3..................... Ancillary offences........................................................... 468
Schedule—The Criminal Code
Section 3
Chapter 1—Codification
Division 1
1.1 Codification
The only offences against laws of the Commonwealth are those offences created by, or under the authority of, this Code or any other Act.
Note: Under subsection 38(1) of the Acts Interpretation Act 1901, Act means an Act passed by the Parliament of the Commonwealth.
Chapter 2—General principles of criminal responsibility
Part 2.1—Purpose and application
Division 2
2.1 Purpose
The purpose of this Chapter is to codify the general principles of criminal responsibility under laws of the Commonwealth. It contains all the general principles of criminal responsibility that apply to any offence, irrespective of how the offence is created.
2.2 Application
(1) This Chapter applies to all offences against this Code.
(2) Subject to section 2.3, this Chapter applies on and after 15 December 2001 to all other offences.
(3) Section 11.6 applies to all offences.
2.3 Application of provisions relating to intoxication
Subsections 4.2(6) and (7) and Division 8 apply to all offences. For the purpose of interpreting those provisions in connection with an offence, the other provisions of this Chapter may be considered, whether or not those other provisions apply to the offence concerned.
Part 2.2—The elements of an offence
Division 3—General
3.1 Elements
(1) An offence consists of physical elements and fault elements.
(2) However, the law that creates the offence may provide that there is no fault element for one or more physical elements.
(3) The law that creates the offence may provide different fault elements for different physical elements.
3.2 Establishing guilt in respect of offences
In order for a person to be found guilty of committing an offence the following must be proved:
(a) the existence of such physical elements as are, under the law creating the offence, relevant to establishing guilt;
(b) in respect of each such physical element for which a fault element is required, one of the fault elements for the physical element.
Note 1: See Part 2.6 on proof of criminal responsibility.
Note 2: See Part 2.7 on geographical jurisdiction.
Division 4—Physical elements
4.1 Physical elements
(1) A physical element of an offence may be:
(a) conduct; or
(b) a result of conduct; or
(c) a circumstance in which conduct, or a result of conduct, occurs.
(2) In this Code:
conduct means an act, an omission to perform an act or a state of affairs.
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
4.2 Voluntariness
(1) Conduct can only be a physical element if it is voluntary.
(2) Conduct is only voluntary if it is a product of the will of the person whose conduct it is.
(3) The following are examples of conduct that is not voluntary:
(a) a spasm, convulsion or other unwilled bodily movement;
(b) an act performed during sleep or unconsciousness;
(c) an act performed during impaired consciousness depriving the person of the will to act.
(4) An omission to perform an act is only voluntary if the act omitted is one which the person is capable of performing.
(5) If the conduct constituting an offence consists only of a state of affairs, the state of affairs is only voluntary if it is one over which the person is capable of exercising control.
(6) Evidence of self‑induced intoxication cannot be considered in determining whether conduct is voluntary.
(7) Intoxication is self‑induced unless it came about:
(a) involuntarily; or
(b) as a result of fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force.
4.3 Omissions
An omission to perform an act can only be a physical element if:
(a) the law creating the offence makes it so; or
(b) the law creating the offence impliedly provides that the offence is committed by an omission to perform an act that there is a duty to perform by a law of the Commonwealth, a State or a Territory, or at common law.
Division 5—Fault elements
5.1 Fault elements
(1) A fault element for a particular physical element may be intention, knowledge, recklessness or negligence.
(2) Subsection (1) does not prevent a law that creates a particular offence from specifying other fault elements for a physical element of that offence.
5.2 Intention
(1) A person has intention with respect to conduct if he or she means to engage in that conduct.
(2) A person has intention with respect to a circumstance if he or she believes that it exists or will exist.
(3) A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.
5.3 Knowledge
A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.
5.4 Recklessness
(1) A person is reckless with respect to a circumstance if:
(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and
(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
(2) A person is reckless with respect to a result if:
(a) he or she is aware of a substantial risk that the result will occur; and
(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
(3) The question whether taking a risk is unjustifiable is one of fact.
(4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.
5.5 Negligence
A person is negligent with respect to a physical element of an offence if his or her conduct involves:
(a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and
(b) such a high risk that the physical element exists or will exist;
that the conduct merits criminal punishment for the offence.
5.6 Offences that do not specify fault elements
(1) If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element.
(2) If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.
Note: Under subsection 5.4(4), recklessness can be established by proving intention, knowledge or recklessness.
Division 6—Cases where fault elements are not required
6.1 Strict liability
(1) If a law that creates an offence provides that the offence is an offence of strict liability:
(a) there are no fault elements for any of the physical elements of the offence; and
(b) the defence of mistake of fact under section 9.2 is available.
(2) If a law that creates an offence provides that strict liability applies to a particular physical element of the offence:
(a) there are no fault elements for that physical element; and
(b) the defence of mistake of fact under section 9.2 is available in relation to that physical element.
(3) The existence of strict liability does not make any other defence unavailable.
6.2 Absolute liability
(1) If a law that creates an offence provides that the offence is an offence of absolute liability:
(a) there are no fault elements for any of the physical elements of the offence; and
(b) the defence of mistake of fact under section 9.2 is unavailable.
(2) If a law that creates an offence provides that absolute liability applies to a particular physical element of the offence:
(a) there are no fault elements for that physical element; and
(b) the defence of mistake of fact under section 9.2 is unavailable in relation to that physical element.
(3) The existence of absolute liability does not make any other defence unavailable.
Part 2.3—Circumstances in which there is no criminal responsibility
Note: This Part sets out defences that are generally available. Defences that apply to a more limited class of offences are dealt with elsewhere in this Code and in other laws.
Division 7—Circumstances involving lack of capacity
7.1 Children under 10
A child under 10 years old is not criminally responsible for an offence.
7.2 Children over 10 but under 14
(1) A child aged 10 years or more but under 14 years old can only be criminally responsible for an offence if the child knows that his or her conduct is wrong.
(2) The question whether a child knows that his or her conduct is wrong is one of fact. The burden of proving this is on the prosecution.
7.3 Mental impairment
(1) A person is not criminally responsible for an offence if, at the time of carrying out the conduct constituting the offence, the person was suffering from a mental impairment that had the effect that:
(a) the person did not know the nature and quality of the conduct; or
(b) the person did not know that the conduct was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong); or
(c) the person was unable to control the conduct.
(2) The question whether the person was suffering from a mental impairment is one of fact.
(3) A person is presumed not to have been suffering from such a mental impairment. The presumption is only displaced if it is proved on the balance of probabilities (by the prosecution or the defence) that the person was suffering from such a mental impairment.
(4) The prosecution can only rely on this section if the court gives leave.
(5) The tribunal of fact must return a special verdict that a person is not guilty of an offence because of mental impairment if and only if it is satisfied that the person is not criminally responsible for the offence only because of a mental impairment.
(6) A person cannot rely on a mental impairment to deny voluntariness or the existence of a fault element but may rely on this section to deny criminal responsibility.
(7) If the tribunal of fact is satisfied that a person carried out conduct as a result of a delusion caused by a mental impairment, the delusion cannot otherwise be relied on as a defence.
(8) In this Code:
mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.
(9) The reference in subsection (8) to mental illness is a reference to an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary external stimuli. However, such a condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.
Division 8—Intoxication
8.1 Definition—self‑induced intoxication
For the purposes of this Division, intoxication is self‑induced unless it came about:
(a) involuntarily; or
(b) as a result of fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force.
8.2 Intoxication (offences involving basic intent)
(1) Evidence of self‑induced intoxication cannot be considered in determining whether a fault element of basic intent existed.
(2) A fault element of basic intent is a fault element of intention for a physical element that consists only of conduct.
Note: A fault element of intention with respect to a circumstance or with respect to a result is not a fault element of basic intent.
(3) This section does not prevent evidence of self‑induced intoxication being taken into consideration in determining whether conduct was accidental.
(4) This section does not prevent evidence of self‑induced intoxication being taken into consideration in determining whether a person had a mistaken belief about facts if the person had considered whether or not the facts existed.
(5) A person may be regarded as having considered whether or not facts existed if:
(a) he or she had considered, on a previous occasion, whether those facts existed in circumstances surrounding that occasion; and
(b) he or she honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.
8.3 Intoxication (negligence as fault element)
(1) If negligence is a fault element for a particular physical element of an offence, in determining whether that fault element existed in relation to a person who is intoxicated, regard must be had to the standard of a reasonable person who is not intoxicated.
(2) However, if intoxication is not self‑induced, regard must be had to the standard of a reasonable person intoxicated to the same extent as the person concerned.
8.4 Intoxication (relevance to defences)
(1) If any part of a defence is based on actual knowledge or belief, evidence of intoxication may be considered in determining whether that knowledge or belief existed.
(2) If any part of a defence is based on reasonable belief, in determining whether that reasonable belief existed, regard must be had to the standard of a reasonable person who is not intoxicated.
(3) If a person’s intoxication is not self‑induced, in determining whether any part of a defence based on reasonable belief exists, regard must be had to the standard of a reasonable person intoxicated to the same extent as the person concerned.
(4) If, in relation to an offence:
(a) each physical element has a fault element of basic intent; and
(b) any part of a defence is based on actual knowledge or belief;
evidence of self‑induced intoxication cannot be considered in determining whether that knowledge or belief existed.
(5) A fault element of basic intent is a fault element of intention for a physical element that consists only of conduct.
Note: A fault element of intention with respect to a circumstance or with respect to a result is not a fault element of basic intent.
8.5 Involuntary intoxication
A person is not criminally responsible for an offence if the person’s conduct constituting the offence was as a result of intoxication that was not self‑induced.
Division 9—Circumstances involving mistake or ignorance
9.1 Mistake or ignorance of fact (fault elements other than negligence)
(1) A person is not criminally responsible for an offence that has a physical element for which there is a fault element other than negligence if:
(a) at the time of the conduct constituting the physical element, the person is under a mistaken belief about, or is ignorant of, facts; and
(b) the existence of that mistaken belief or ignorance negates any fault element applying to that physical element.
(2) In determining whether a person was under a mistaken belief about, or was ignorant of, facts, the tribunal of fact may consider whether the mistaken belief or ignorance was reasonable in the circumstances.
9.2 Mistake of fact (strict liability)
(1) A person is not criminally responsible for an offence that has a physical element for which there is no fault element if:
(a) at or before the time of the conduct constituting the physical element, the person considered whether or not facts existed, and is under a mistaken but reasonable belief about those facts; and
(b) had those facts existed, the conduct would not have constituted an offence.
(2) A person may be regarded as having considered whether or not facts existed if:
(a) he or she had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and
(b) he or she honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.
Note: Section 6.2 prevents this section applying in situations of absolute liability.
9.3 Mistake or ignorance of statute law
(1) A person can be criminally responsible for an offence even if, at the time of the conduct constituting the offence, he or she is mistaken about, or ignorant of, the existence or content of an Act that directly or indirectly creates the offence or directly or indirectly affects the scope or operation of the offence.
(2) Subsection (1) does not apply, and the person is not criminally responsible for the offence in those circumstances, if the Act is expressly to the contrary effect.
9.4 Mistake or ignorance of subordinate legislation
(1) A person can be criminally responsible for an offence even if, at the time of the conduct constituting the offence, he or she is mistaken about, or ignorant of, the existence or content of the subordinate legislation that directly or indirectly creates the offence or directly or indirectly affects the scope or operation of the offence.
(2) Subsection (1) does not apply, and the person is not criminally responsible for the offence in those circumstances, if:
(a) the subordinate legislation is expressly to the contrary effect; or
(c) at the time of the conduct, the subordinate legislation:
(i) has not been made available to the public (by means of the Register under the Legislation Act 2003 or otherwise); and
(ii) has not otherwise been made available to persons likely to be affected by it in such a way that the person would have become aware of its contents by exercising due diligence.
(3) In this section:
available includes available by sale.
subordinate legislation means an instrument of a legislative character made directly or indirectly under an Act, or in force directly or indirectly under an Act.
9.5 Claim of right
(1) A person is not criminally responsible for an offence that has a physical element relating to property if:
(a) at the time of the conduct constituting the offence, the person is under a mistaken belief about a proprietary or possessory right; and
(b) the existence of that right would negate a fault element for any physical element of the offence.
(2) A person is not criminally responsible for any other offence arising necessarily out of the exercise of the proprietary or possessory right that he or she mistakenly believes to exist.
(3) This section does not negate criminal responsibility for an offence relating to the use of force against a person.
Division 10—Circumstances involving external factors
10.1 Intervening conduct or event
A person is not criminally responsible for an offence that has a physical element to which absolute liability or strict liability applies if:
(a) the physical element is brought about by another person over whom the person has no control or by a non‑human act or event over which the person has no control; and
(b) the person could not reasonably be expected to guard against the bringing about of that physical element.
10.2 Duress
(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence under duress.
(2) A person carries out conduct under duress if and only if he or she reasonably believes that:
(a) a threat has been made that will be carried out unless an offence is committed; and
(b) there is no reasonable way that the threat can be rendered ineffective; and
(c) the conduct is a reasonable response to the threat.
(3) This section does not apply if the threat is made by or on behalf of a person with whom the person under duress is voluntarily associating for the purpose of carrying out conduct of the kind actually carried out.
10.3 Sudden or extraordinary emergency
(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency.
(2) This section applies if and only if the person carrying out the conduct reasonably believes that:
(a) circumstances of sudden or extraordinary emergency exist; and
(b) committing the offence is the only reasonable way to deal with the emergency; and
(c) the conduct is a reasonable response to the emergency.
10.4 Self‑defence
(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in self‑defence.
(2) A person carries out conduct in self‑defence if and only if he or she believes the conduct is necessary:
(a) to defend himself or herself or another person; or
(b) to prevent or terminate the unlawful imprisonment of himself or herself or another person; or
(c) to protect property from unlawful appropriation, destruction, damage or interference; or
(d) to prevent criminal trespass to any land or premises; or
(e) to remove from any land or premises a person who is committing criminal trespass;
and the conduct is a reasonable response in the circumstances as he or she perceives them.
(3) This section does not apply if the person uses force that involves the intentional infliction of death or really serious injury:
(a) to protect property; or
(b) to prevent criminal trespass; or
(c) to remove a person who is committing criminal trespass.
(4) This section does not apply if:
(a) the person is responding to lawful conduct; and
(b) he or she knew that the conduct was lawful.
However, conduct is not lawful merely because the person carrying it out is not criminally responsible for it.
10.5 Lawful authority
A person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by or under a law.
Part 2.4—Extensions of criminal responsibility
Division 11
11.1 Attempt
(1) A person who attempts to commit an offence commits the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.
(2) For the person to be guilty, the person’s conduct must be more than merely preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact.
(3) For the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted.
Note: Under section 3.2, only one of the fault elements of intention or knowledge would need to be established in respect of each physical element of the offence attempted.
(3A) Subsection (3) has effect subject to subsection (6A).
(4) A person may be found guilty even if:
(a) committing the offence attempted is impossible; or
(b) the person actually committed the offence attempted.
(5) A person who is found guilty of attempting to commit an offence cannot be subsequently charged with the completed offence.
(6) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of attempting to commit that offence.
(6A) Any special liability provisions that apply to an offence apply also to the offence of attempting to commit that offence.
(7) It is not an offence to attempt to commit an offence against section 11.2 (complicity and common purpose), section 11.2A (joint commission), section 11.3 (commission by proxy), section 11.5 (conspiracy to commit an offence) or section 135.4 (conspiracy to defraud).
11.2 Complicity and common purpose
(1) A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly.
(2) For the person to be guilty:
(a) the person’s conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person; and
(b) the offence must have been committed by the other person.
(3) For the person to be guilty, the person must have intended that:
(a) his or her conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed; or
(b) his or her conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed.
(3A) Subsection (3) has effect subject to subsection (6).
(4) A person cannot be found guilty of aiding, abetting, counselling or procuring the commission of an offence if, before the offence was committed, the person:
(a) terminated his or her involvement; and
(b) took all reasonable steps to prevent the commission of the offence.
(5) A person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the other person has not been prosecuted or has not been found guilty.
(6) Any special liability provisions that apply to an offence apply also for the purposes of determining whether a person is guilty of that offence because of the operation of subsection (1).
(7) If the trier of fact is satisfied beyond reasonable doubt that a person either:
(a) is guilty of a particular offence otherwise than because of the operation of subsection (1); or
(b) is guilty of that offence because of the operation of subsection (1);
but is not able to determine which, the trier of fact may nonetheless find the person guilty of that offence.
11.2A Joint commission
Joint commission
(1) If:
(a) a person and at least one other party enter into an agreement to commit an offence; and
(b) either:
(i) an offence is committed in accordance with the agreement (within the meaning of subsection (2)); or
(ii) an offence is committed in the course of carrying out the agreement (within the meaning of subsection (3));
the person is taken to have committed the joint offence referred to in whichever of subsection (2) or (3) applies and is punishable accordingly.
Offence committed in accordance with the agreement
(2) An offence is committed in accordance with the agreement if:
(a) the conduct of one or more parties in accordance with the agreement makes up the physical elements consisting of conduct of an offence (the joint offence) of the same type as the offence agreed to; and
(b) to the extent that a physical element of the joint offence consists of a result of conduct—that result arises from the conduct engaged in; and
(c) to the extent that a physical element of the joint offence consists of a circumstance—the conduct engaged in, or a result of the conduct engaged in, occurs in that circumstance.
Offence committed in the course of carrying out the agreement
(3) An offence is committed in the course of carrying out the agreement if the person is reckless about the commission of an offence (the joint offence) that another party in fact commits in the course of carrying out the agreement.
Intention to commit an offence
(4) For a person to be guilty of an offence because of the operation of this section, the person and at least one other party to the agreement must have intended that an offence would be committed under the agreement.
Agreement may be non‑verbal etc.
(5) The agreement:
(a) may consist of a non‑verbal understanding; and
(b) may be entered into before, or at the same time as, the conduct constituting any of the physical elements of the joint offence was engaged in.
Termination of involvement etc.
(6) A person cannot be found guilty of an offence because of the operation of this section if, before the conduct constituting any of the physical elements of the joint offence concerned was engaged in, the person:
(a) terminated his or her involvement; and
(b) took all reasonable steps to prevent that conduct from being engaged in.
Person may be found guilty even if another party not prosecuted etc.
(7) A person may be found guilty of an offence because of the operation of this section even if:
(a) another party to the agreement has not been prosecuted or has not been found guilty; or
(b) the person was not present when any of the conduct constituting the physical elements of the joint offence was engaged in.
Special liability provisions apply
(8) Any special liability provisions that apply to the joint offence apply also for the purposes of determining whether a person is guilty of that offence because of the operation of this section.
11.3 Commission by proxy
A person who:
(a) has, in relation to each physical element of an offence, a fault element applicable to that physical element; and
(b) procures conduct of another person that (whether or not together with conduct of the procurer) would have constituted an offence on the part of the procurer if the procurer had engaged in it;
is taken to have committed that offence and is punishable accordingly.
11.4 Incitement
(1) A person who urges the commission of an offence commits the offence of incitement.
(2) For the person to be guilty, the person must intend that the offence incited be committed.
(2A) Subsection (2) has effect subject to subsection (4A).
(3) A person may be found guilty even if committing the offence incited is impossible.
(4) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of incitement in respect of that offence.
(4A) Any special liability provisions that apply to an offence apply also to the offence of incitement in respect of that offence.
(5) It is not an offence to incite the commission of an offence against section 11.1 (attempt), this section or section 11.5 (conspiracy).
Penalty:
(a) if the offence incited is punishable by life imprisonment—imprisonment for 10 years; or
(b) if the offence incited is punishable by imprisonment for 14 years or more, but is not punishable by life imprisonment—imprisonment for 7 years; or
(c) if the offence incited is punishable by imprisonment for 10 years or more, but is not punishable by imprisonment for 14 years or more—imprisonment for 5 years; or
(d) if the offence is otherwise punishable by imprisonment—imprisonment for 3 years or for the maximum term of imprisonment for the offence incited, whichever is the lesser; or
(e) if the offence incited is not punishable by imprisonment—the number of penalty units equal to the maximum number of penalty units applicable to the offence incited.
Note: Under section 4D of the Crimes Act 1914, these penalties are only maximum penalties. Subsection 4B(2) of that Act allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment. If a body corporate is convicted of the offence, subsection 4B(3) of that Act allows a court to impose a fine of an amount not greater than 5 times the maximum fine that the court could impose on an individual convicted of the same offence. Penalty units are defined in section 4AA of that Act.
11.5 Conspiracy
(1) A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, commits the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed.
Note: Penalty units are defined in section 4AA of the Crimes Act 1914.
(2) For the person to be guilty:
(a) the person must have entered into an agreement with one or more other persons; and
(b) the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and
(c) the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.
(2A) Subsection (2) has effect subject to subsection (7A).
(3) A person may be found guilty of conspiracy to commit an offence even if:
(a) committing the offence is impossible; or
(b) the only other party to the agreement is a body corporate; or
(c) each other party to the agreement is at least one of the following:
(i) a person who is not criminally responsible;
(ii) a person for whose benefit or protection the offence exists; or
(d) subject to paragraph (4)(a), all other parties to the agreement have been acquitted of the conspiracy.
(4) A person cannot be found guilty of conspiracy to commit an offence if:
(a) all other parties to the agreement have been acquitted of the conspiracy and a finding of guilt would be inconsistent with their acquittal; or
(b) he or she is a person for whose benefit or protection the offence exists.
(5) A person cannot be found guilty of conspiracy to commit an offence if, before the commission of an overt act pursuant to the agreement, the person:
(a) withdrew from the agreement; and
(b) took all reasonable steps to prevent the commission of the offence.
(6) A court may dismiss a charge of conspiracy if it thinks that the interests of justice require it to do so.
(7) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of conspiracy to commit that offence.
(7A) Any special liability provisions that apply to an offence apply also to the offence of conspiracy to commit that offence.
(8) Proceedings for an offence of conspiracy must not be commenced without the consent of the Director of Public Prosecutions. However, a person may be arrested for, charged with, or remanded in custody or on bail in connection with, an offence of conspiracy before the necessary consent has been given.
11.6 References in Acts to offences
(1) A reference in a law of the Commonwealth to an offence against a law of the Commonwealth (including this Code) includes a reference to an offence against section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) of this Code that relates to such an offence.
(2) A reference in a law of the Commonwealth (including this Code) to a particular offence includes a reference to an offence against section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) of this Code that relates to that particular offence.
(3) Subsection (1) or (2) does not apply if a law of the Commonwealth is expressly or impliedly to the contrary effect.
(4) In particular, an express reference in a law of the Commonwealth to:
(a) an offence against, under or created by the Crimes Act 1914; or
(b) an offence against, under or created by a particular provision of the Crimes Act 1914; or
(c) an offence arising out of the first‑mentioned law or another law of the Commonwealth; or
(d) an offence arising out of a particular provision; or
(e) an offence against, under or created by the Taxation Administration Act 1953;
does not mean that the first‑mentioned law is impliedly to the contrary effect.
Note: Sections 11.2 (complicity and common purpose), 11.2A (joint commission), and 11.3 (commission by proxy) of this Code operate as extensions of principal offences and are therefore not referred to in this section.
Part 2.5—Corporate criminal responsibility
Division 12
12.1 General principles
(1) This Code applies to bodies corporate in the same way as it applies to individuals. It so applies with such modifications as are set out in this Part, and with such other modifications as are made necessary by the fact that criminal liability is being imposed on bodies corporate rather than individuals.
(2) A body corporate may be found guilty of any offence, including one punishable by imprisonment.
Note: Section 4B of the Crimes Act 1914 enables a fine to be imposed for offences that only specify imprisonment as a penalty.
12.2 Physical elements
If a physical element of an offence is committed by an employee, agent or officer of a body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, the physical element must also be attributed to the body corporate.
12.3 Fault elements other than negligence
(1) If intention, knowledge or recklessness is a fault element in relation to a physical element of an offence, that fault element must be attributed to a body corporate that expressly, tacitly or impliedly authorised or permitted the commission of the offence.
(2) The means by which such an authorisation or permission may be established include:
(a) proving that the body corporate’s board of directors intentionally, knowingly or recklessly carried out the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence; or
(b) proving that a high managerial agent of the body corporate intentionally, knowingly or recklessly engaged in the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence; or
(c) proving that a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to non‑compliance with the relevant provision; or
(d) proving that the body corporate failed to create and maintain a corporate culture that required compliance with the relevant provision.
(3) Paragraph (2)(b) does not apply if the body corporate proves that it exercised due diligence to prevent the conduct, or the authorisation or permission.
(4) Factors relevant to the application of paragraph (2)(c) or (d) include:
(a) whether authority to commit an offence of the same or a similar character had been given by a high managerial agent of the body corporate; and
(b) whether the employee, agent or officer of the body corporate who committed the offence believed on reasonable grounds, or entertained a reasonable expectation, that a high managerial agent of the body corporate would have authorised or permitted the commission of the offence.
(5) If recklessness is not a fault element in relation to a physical element of an offence, subsection (2) does not enable the fault element to be proved by proving that the board of directors, or a high managerial agent, of the body corporate recklessly engaged in the conduct or recklessly authorised or permitted the commission of the offence.
(6) In this section:
board of directors means the body (by whatever name called) exercising the executive authority of the body corporate.
corporate culture means an attitude, policy, rule, course of conduct or practice existing within the body corporate generally or in the part of the body corporate in which the relevant activities takes place.
high managerial agent means an employee, agent or officer of the body corporate with duties of such responsibility that his or her conduct may fairly be assumed to represent the body corporate’s policy.
12.4 Negligence
(1) The test of negligence for a body corporate is that set out in section 5.5.
(2) If:
(a) negligence is a fault element in relation to a physical element of an offence; and
(b) no individual employee, agent or officer of the body corporate has that fault element;
that fault element may exist on the part of the body corporate if the body corporate’s conduct is negligent when viewed as a whole (that is, by aggregating the conduct of any number of its employees, agents or officers).
(3) Negligence may be evidenced by the fact that the prohibited conduct was substantially attributable to:
(a) inadequate corporate management, control or supervision of the conduct of one or more of its employees, agents or officers; or
(b) failure to provide adequate systems for conveying relevant information to relevant persons in the body corporate.
12.5 Mistake of fact (strict liability)
(1) A body corporate can only rely on section 9.2 (mistake of fact (strict liability)) in respect of conduct that would, apart from this section, constitute an offence on its part if:
(a) the employee, agent or officer of the body corporate who carried out the conduct was under a mistaken but reasonable belief about facts that, had they existed, would have meant that the conduct would not have constituted an offence; and
(b) the body corporate proves that it exercised due diligence to prevent the conduct.
(2) A failure to exercise due diligence may be evidenced by the fact that the prohibited conduct was substantially attributable to:
(a) inadequate corporate management, control or supervision of the conduct of one or more of its employees, agents or officers; or
(b) failure to provide adequate systems for conveying relevant information to relevant persons in the body corporate.
12.6 Intervening conduct or event
A body corporate cannot rely on section 10.1 (intervening conduct or event) in respect of a physical element of an offence brought about by another person if the other person is an employee, agent or officer of the body corporate.
Part 2.6—Proof of criminal responsibility
Division 13
13.1 Legal burden of proof—prosecution
(1) The prosecution bears a legal burden of proving every element of an offence relevant to the guilt of the person charged.
Note: See section 3.2 on what elements are relevant to a person’s guilt.
(2) The prosecution also bears a legal burden of disproving any matter in relation to which the defendant has discharged an evidential burden of proof imposed on the defendant.
(3) In this Code:
legal burden, in relation to a matter, means the burden of proving the existence of the matter.
13.2 Standard of proof—prosecution
(1) A legal burden of proof on the prosecution must be discharged beyond reasonable doubt.
(2) Subsection (1) does not apply if the law creating the offence specifies a different standard of proof.
13.3 Evidential burden of proof—defence
(1) Subject to section 13.4, a burden of proof that a law imposes on a defendant is an evidential burden only.
(2) A defendant who wishes to deny criminal responsibility by relying on a provision of Part 2.3 (other than section 7.3) bears an evidential burden in relation to that matter.
(3) A defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter. The exception, exemption, excuse, qualification or justification need not accompany the description of the offence.
(4) The defendant no longer bears the evidential burden in relation to a matter if evidence sufficient to discharge the burden is adduced by the prosecution or by the court.
(5) The question whether an evidential burden has been discharged is one of law.
(6) In this Code:
evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
13.4 Legal burden of proof—defence
A burden of proof that a law imposes on the defendant is a legal burden if and only if the law expressly:
(a) specifies that the burden of proof in relation to the matter in question is a legal burden; or
(b) requires the defendant to prove the matter; or
(c) creates a presumption that the matter exists unless the contrary is proved.
13.5 Standard of proof—defence
A legal burden of proof on the defendant must be discharged on the balance of probabilities.
13.6 Use of averments
A law that allows the prosecution to make an averment is taken not to allow the prosecution:
(a) to aver any fault element of an offence; or
(b) to make an averment in prosecuting for an offence that is directly punishable by imprisonment.
Part 2.7—Geographical jurisdiction
Division 14—Standard geographical jurisdiction
14.1 Standard geographical jurisdiction
(1) This section may apply to a particular offence in either of the following ways:
(a) unless the contrary intention appears, this section applies to the following offences:
(i) a primary offence, where the provision creating the offence commences at or after the commencement of this section;
(ii) an ancillary offence, to the extent to which it relates to a primary offence covered by subparagraph (i);
(b) if a law of the Commonwealth provides that this section applies to a particular offence—this section applies to that offence.
Note: In the case of paragraph (b), the expression offence is given an extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(1).
(2) If this section applies to a particular offence, a person does not commit the offence unless:
(a) the conduct constituting the alleged offence occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an Australian ship; or
(b) the conduct constituting the alleged offence occurs wholly outside Australia and a result of the conduct occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an Australian ship; or
(c) all of the following conditions are satisfied:
(i) the alleged offence is an ancillary offence;
(ii) the conduct constituting the alleged offence occurs wholly outside Australia;
(iii) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship.
Defence—primary offence
(3) If this section applies to a particular offence, a person does not commit the offence if:
(aa) the alleged offence is a primary offence; and
(a) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(b) there is not in force in:
(i) the foreign country where the conduct constituting the alleged offence occurs; or
(ii) the part of the foreign country where the conduct constituting the alleged offence occurs;
a law of that foreign country, or a law of that part of that foreign country, that creates an offence that corresponds to the first‑mentioned offence.
Note: A defendant bears an evidential burden in relation to the matters in subsection (3). See subsection 13.3(3).
(4) For the purposes of the application of subsection 13.3(3) to an offence, subsection (3) of this section is taken to be an exception provided by the law creating the offence.
Defence—ancillary offence
(5) If this section applies to a particular offence, a person does not commit the offence if:
(a) the alleged offence is an ancillary offence; and
(b) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(c) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(d) there is not in force in:
(i) the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur; or
(ii) the part of the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur;
a law of that foreign country, or a law of that part of that foreign country, that creates an offence that corresponds to the primary offence.
Note: A defendant bears an evidential burden in relation to the matters in subsection (5). See subsection 13.3(3).
(6) For the purposes of the application of subsection 13.3(3) to an offence, subsection (5) of this section is taken to be an exception provided by the law creating the offence.
Division 15—Extended geographical jurisdiction
15.1 Extended geographical jurisdiction—category A
(1) If a law of the Commonwealth provides that this section applies to a particular offence, a person does not commit the offence unless:
(a) the conduct constituting the alleged offence occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an Australian ship; or
(b) the conduct constituting the alleged offence occurs wholly outside Australia and a result of the conduct occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an Australian ship; or
(c) the conduct constituting the alleged offence occurs wholly outside Australia and:
(i) at the time of the alleged offence, the person is an Australian citizen; or
(ii) at the time of the alleged offence, the person is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or
(d) all of the following conditions are satisfied:
(i) the alleged offence is an ancillary offence;
(ii) the conduct constituting the alleged offence occurs wholly outside Australia;
(iii) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship.
Note: The expression offence is given an extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(1).
Defence—primary offence
(2) If a law of the Commonwealth provides that this section applies to a particular offence, a person does not commit the offence if:
(aa) the alleged offence is a primary offence; and
(a) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(b) the person is neither:
(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and
(c) there is not in force in:
(i) the foreign country where the conduct constituting the alleged offence occurs; or
(ii) the part of the foreign country where the conduct constituting the alleged offence occurs;
a law of that foreign country, or a law of that part of that foreign country, that creates an offence that corresponds to the first‑mentioned offence.
Note: A defendant bears an evidential burden in relation to the matters in subsection (2). See subsection 13.3(3).
(3) For the purposes of the application of subsection 13.3(3) to an offence, subsection (2) of this section is taken to be an exception provided by the law creating the offence.
Defence—ancillary offence
(4) If a law of the Commonwealth provides that this section applies to a particular offence, a person does not commit the offence if:
(a) the alleged offence is an ancillary offence; and
(b) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(c) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(d) the person is neither:
(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and
(e) there is not in force in:
(i) the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur; or
(ii) the part of the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur;
a law of that foreign country, or a law of that part of that foreign country, that creates an offence that corresponds to the primary offence.
Note: A defendant bears an evidential burden in relation to the matters in subsection (4). See subsection 13.3(3).
(5) For the purposes of the application of subsection 13.3(3) to an offence, subsection (4) of this section is taken to be an exception provided by the law creating the offence.
15.2 Extended geographical jurisdiction—category B
(1) If a law of the Commonwealth provides that this section applies to a particular offence, a person does not commit the offence unless:
(a) the conduct constituting the alleged offence occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an Australian ship; or
(b) the conduct constituting the alleged offence occurs wholly outside Australia and a result of the conduct occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an Australian ship; or
(c) the conduct constituting the alleged offence occurs wholly outside Australia and:
(i) at the time of the alleged offence, the person is an Australian citizen; or
(ii) at the time of the alleged offence, the person is a resident of Australia; or
(iii) at the time of the alleged offence, the person is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or
(d) all of the following conditions are satisfied:
(i) the alleged offence is an ancillary offence;
(ii) the conduct constituting the alleged offence occurs wholly outside Australia;
(iii) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship.
Note: The expression offence is given an extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(1).
Defence—primary offence
(2) If a law of the Commonwealth provides that this section applies to a particular offence, a person does not commit the offence if:
(aa) the alleged offence is a primary offence; and
(a) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(b) the person is neither:
(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and
(c) there is not in force in:
(i) the foreign country where the conduct constituting the alleged offence occurs; or
(ii) the part of the foreign country where the conduct constituting the alleged offence occurs;
a law of that foreign country, or a law of that part of that foreign country, that creates an offence that corresponds to the first‑mentioned offence.
Note: A defendant bears an evidential burden in relation to the matters in subsection (2). See subsection 13.3(3).
(3) For the purposes of the application of subsection 13.3(3) to an offence, subsection (2) of this section is taken to be an exception provided by the law creating the offence.
Defence—ancillary offence
(4) If a law of the Commonwealth provides that this section applies to a particular offence, a person does not commit the offence if:
(a) the alleged offence is an ancillary offence; and
(b) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(c) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(d) the person is neither:
(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and
(e) there is not in force in:
(i) the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur; or
(ii) the part of the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur;
a law of that foreign country, or a law of that part of that foreign country, that creates an offence that corresponds to the primary offence.
Note: A defendant bears an evidential burden in relation to the matters in subsection (4). See subsection 13.3(3).
(5) For the purposes of the application of subsection 13.3(3) to an offence, subsection (4) of this section is taken to be an exception provided by the law creating the offence.
15.3 Extended geographical jurisdiction—category C
(1) If a law of the Commonwealth provides that this section applies to a particular offence, the offence applies:
(a) whether or not the conduct constituting the alleged offence occurs in Australia; and
(b) whether or not a result of the conduct constituting the alleged offence occurs in Australia.
Note: The expression offence is given an extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(1).
Defence—primary offence
(2) If a law of the Commonwealth provides that this section applies to a particular offence, a person is not guilty of the offence if:
(aa) the alleged offence is a primary offence; and
(a) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(b) the person is neither:
(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and
(c) there is not in force in:
(i) the foreign country where the conduct constituting the alleged offence occurs; or
(ii) the part of the foreign country where the conduct constituting the alleged offence occurs;
a law of that foreign country, or that part of that foreign country, that creates an offence that corresponds to the first‑mentioned offence.
Note: A defendant bears an evidential burden in relation to the matters in subsection (2). See subsection 13.3(3).
(3) For the purposes of the application of subsection 13.3(3) to an offence, subsection (2) of this section is taken to be an exception provided by the law creating the offence.
Defence—ancillary offence
(4) If a law of the Commonwealth provides that this section applies to a particular offence, a person is not guilty of the offence if:
(a) the alleged offence is an ancillary offence; and
(b) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(c) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(d) the person is neither:
(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and
(e) there is not in force in:
(i) the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur; or
(ii) the part of the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur;
a law of that foreign country, or a law of that part of that foreign country, that creates an offence that corresponds to the primary offence.
Note: A defendant bears an evidential burden in relation to the matters in subsection (4). See subsection 13.3(3).
(5) For the purposes of the application of subsection 13.3(3) to an offence, subsection (4) of this section is taken to be an exception provided by the law creating the offence.
15.4 Extended geographical jurisdiction—category D
If a law of the Commonwealth provides that this section applies to a particular offence, the offence applies:
(a) whether or not the conduct constituting the alleged offence occurs in Australia; and
(b) whether or not a result of the conduct constituting the alleged offence occurs in Australia.
Note: The expression offence is given an extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(1).
Division 16—Miscellaneous
16.1 Attorney‑General’s consent required for prosecution if alleged conduct occurs wholly in a foreign country in certain circumstances
(1) Proceedings for an offence must not be commenced without the Attorney‑General’s written consent if:
(a) section 14.1, 15.1, 15.2, 15.3 or 15.4 applies to the offence; and
(b) the conduct constituting the alleged offence occurs wholly in a foreign country; and
(c) at the time of the alleged offence, the person alleged to have committed the offence is neither:
(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.
(2) However, a person may be arrested for, charged with, or remanded in custody or released on bail in connection with an offence before the necessary consent has been given.
16.2 When conduct taken to occur partly in Australia
Sending things
(1) For the purposes of this Part, if a person sends a thing, or causes a thing to be sent:
(a) from a point outside Australia to a point in Australia; or
(b) from a point in Australia to a point outside Australia;
that conduct is taken to have occurred partly in Australia.
Sending electronic communications
(2) For the purposes of this Part, if a person sends, or causes to be sent, an electronic communication:
(a) from a point outside Australia to a point in Australia; or
(b) from a point in Australia to a point outside Australia;
that conduct is taken to have occurred partly in Australia.
Point
(3) For the purposes of this section, point includes a mobile or potentially mobile point, whether on land, underground, in the atmosphere, underwater, at sea or anywhere else.
16.3 Meaning of Australia
(1) For the purposes of the application of this Part to a particular primary offence, Australia has the same meaning it would have if it were used in a geographical sense in the provision creating the primary offence.
(2) For the purposes of the application of this Part to a particular ancillary offence, Australia has the same meaning it would have if it were used in a geographical sense in the provision creating the primary offence to which the ancillary offence relates.
(3) For the purposes of this Part, if a provision creating an offence extends to an external Territory, it is to be assumed that if the expression Australia were used in a geographical sense in that provision, that expression would include that external Territory.
(4) This section does not affect the meaning of the expressions Australian aircraft, Australian citizen or Australian ship.
16.4 Result of conduct
A reference in this Part to a result of conduct constituting an offence is a reference to a result that is a physical element of the offence (within the meaning of subsection 4.1(1)).
Chapter 4—The integrity and security of the international community and foreign governments
Division 70—Bribery of foreign public officials
70.1 Definitions
In this Division:
benefit includes any advantage and is not limited to property.
business advantage means an advantage in the conduct of business.
control, in relation to a company, body or association, includes control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights.
duty, in relation to a foreign public official, means any authority, duty, function or power that:
(a) is conferred on the official; or
(b) that the official holds himself or herself out as having.
foreign government body means:
(a) the government of a foreign country or of part of a foreign country; or
(b) an authority of the government of a foreign country; or
(c) an authority of the government of part of a foreign country; or
(d) a foreign local government body or foreign regional government body; or
(e) a foreign public enterprise.
foreign public enterprise means a company or any other body or association where:
(a) in the case of a company—one of the following applies:
(i) the government of a foreign country or of part of a foreign country holds more than 50% of the issued share capital of the company;
(ii) the government of a foreign country or of part of a foreign country holds more than 50% of the voting power in the company;
(iii) the government of a foreign country or of part of a foreign country is in a position to appoint more than 50% of the company’s board of directors;
(iv) the directors (however described) of the company are accustomed or under an obligation (whether formal or informal) to act in accordance with the directions, instructions or wishes of the government of a foreign country or of part of a foreign country;
(v) the government of a foreign country or of part of a foreign country is in a position to exercise control over the company; and
(b) in the case of any other body or association—either of the following applies:
(i) the members of the executive committee (however described) of the body or association are accustomed or under an obligation (whether formal or informal) to act in accordance with the directions, instructions or wishes of the government of a foreign country or of part of a foreign country;
(ii) the government of a foreign country or of part of a foreign country is in a position to exercise control over the body or association; and
(c) the company, body or association:
(i) enjoys special legal rights or a special legal status under a law of a foreign country or of part of a foreign country; or
(ii) enjoys special benefits or privileges under a law of a foreign country or of part of a foreign country;
because of the relationship of the company, body or association with the government of the foreign country or of the part of the foreign country, as the case may be.
foreign public official means:
(a) an employee or official of a foreign government body; or
(b) an individual who performs work for a foreign government body under a contract; or
(c) an individual who holds or performs the duties of an appointment, office or position under a law of a foreign country or of part of a foreign country; or
(d) an individual who holds or performs the duties of an appointment, office or position created by custom or convention of a foreign country or of part of a foreign country; or
(e) an individual who is otherwise in the service of a foreign government body (including service as a member of a military force or police force); or
(f) a member of the executive, judiciary or magistracy of a foreign country or of part of a foreign country; or
(g) an employee of a public international organisation; or
(h) an individual who performs work for a public international organisation under a contract; or
(i) an individual who holds or performs the duties of an office or position in a public international organisation; or
(j) an individual who is otherwise in the service of a public international organisation; or
(k) a member or officer of the legislature of a foreign country or of part of a foreign country; or
(l) an individual who:
(i) is an authorised intermediary of a foreign public official covered by any of the above paragraphs; or
(ii) holds himself or herself out to be the authorised intermediary of a foreign public official covered by any of the above paragraphs.
public international organisation means:
(a) an organisation:
(i) of which 2 or more countries, or the governments of 2 or more countries, are members; or
(ii) that is constituted by persons representing 2 or more countries, or representing the governments of 2 or more countries; or
(b) an organisation established by, or a group of organisations constituted by:
(i) organisations of which 2 or more countries, or the governments of 2 or more countries, are members; or
(ii) organisations that are constituted by the representatives of 2 or more countries, or the governments of 2 or more countries; or
(c) an organisation that is:
(i) an organ of, or office within, an organisation described in paragraph (a) or (b); or
(ii) a commission, council or other body established by an organisation so described or such an organ; or
(iii) a committee, or subcommittee of a committee, of an organisation described in paragraph (a) or (b), or of such an organ, council or body.
share includes stock.
70.2 Bribing a foreign public official
(1) A person commits an offence if:
(a) the person:
(i) provides a benefit to another person; or
(ii) causes a benefit to be provided to another person; or
(iii) offers to provide, or promises to provide, a benefit to another person; or
(iv) causes an offer of the provision of a benefit, or a promise of the provision of a benefit, to be made to another person; and
(b) the benefit is not legitimately due to the other person; and
(c) the first‑mentioned person does so with the intention of influencing a foreign public official (who may be the other person) in the exercise of the official’s duties as a foreign public official in order to:
(i) obtain or retain business; or
(ii) obtain or retain a business advantage that is not legitimately due to the recipient, or intended recipient, of the business advantage (who may be the first‑mentioned person).
Note: For defences see sections 70.3 and 70.4.
(1A) For the purposes of paragraph (1)(c):
(a) the first‑mentioned person does not need to intend to influence a particular foreign public official; and
(b) business, or a business advantage, does not need to be actually obtained or retained.
Benefit that is not legitimately due
(2) For the purposes of this section, in working out if a benefit is not legitimately due to a person in a particular situation, disregard the following:
(a) the fact that the benefit may be, or be perceived to be, customary, necessary or required in the situation;
(b) the value of the benefit;
(c) any official tolerance of the benefit.
Business advantage that is not legitimately due
(3) For the purposes of this section, in working out if a business advantage is not legitimately due to a person in a particular situation, disregard the following:
(a) the fact that the business advantage may be customary, or perceived to be customary, in the situation;
(b) the value of the business advantage;
(c) any official tolerance of the business advantage.
Penalty for individual
(4) An offence against subsection (1) committed by an individual is punishable on conviction by imprisonment for not more than 10 years, a fine not more than 10,000 penalty units, or both.
Penalty for body corporate
(5) An offence against subsection (1) committed by a body corporate is punishable on conviction by a fine not more than the greatest of the following:
(a) 100,000 penalty units;
(b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the conduct constituting the offence—3 times the value of that benefit;
(c) if the court cannot determine the value of that benefit—10% of the annual turnover of the body corporate during the period (the turnover period) of 12 months ending at the end of the month in which the conduct constituting the offence occurred.
(6) For the purposes of this section, the annual turnover of a body corporate, during the turnover period, is the sum of the values of all the supplies that the body corporate, and any body corporate related to the body corporate, have made, or are likely to make, during that period, other than the following supplies:
(a) supplies made from any of those bodies corporate to any other of those bodies corporate;
(b) supplies that are input taxed;
(c) supplies that are not for consideration (and are not taxable supplies under section 72‑5 of the A New Tax System (Goods and Services Tax) Act 1999);
(d) supplies that are not made in connection with an enterprise that the body corporate carries on.
(7) Expressions used in subsection (6) that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning in that subsection as they have in that Act.
(8) The question whether 2 bodies corporate are related to each other is to be determined for the purposes of this section in the same way as for the purposes of the Corporations Act 2001.
70.3 Defence—conduct lawful in foreign public official’s country
(1) A person does not commit an offence against section 70.2 in the cases set out in the following table:
| Defence of lawful conduct |
| Item | In a case where the person’s conduct occurred in relation to this kind of foreign public official... | and if it were assumed that the person’s conduct had occurred wholly... | this written law requires or permits the provision of the benefit ... |
| 1 | an employee or official of a foreign government body | in the place where the central administration of the body is located | a written law in force in that place |
| 2 | an individual who performs work for a foreign government body under a contract | in the place where the central administration of the body is located | a written law in force in that place |
| 3 | an individual who holds or performs the duties of an appointment, office or position under a law of a foreign country or of part of a foreign country | in the foreign country or in the part of the foreign country, as the case may be | a written law in force in the foreign country or in the part of the foreign country, as the case may be |
| 4 | an individual who holds or performs the duties of an appointment, office or position created by custom or convention of a foreign country or of part of a foreign country | in the foreign country or in the part of the foreign country, as the case may be | a written law in force in the foreign country or in the part of the foreign country, as the case may be |
| 5 | an individual who is otherwise in the service of a foreign government body (including service as a member of a military force or police force) | in the place where the central administration of the body is located | a written law in force in that place |
| 6 | a member of the executive, judiciary or magistracy of a foreign country or of part of a foreign country | in the foreign country or in the part of the foreign country, as the case may be | a written law in force in the foreign country or in the part of the foreign country, as the case may be |
| 7 | an employee of a public international organisation | in the place where the headquarters of the organisation is located | a written law in force in that place |
| 8 | an individual who performs work for a public international organisation under a contract | in the place where the headquarters of the organisation is located | a written law in force in that place |
| 9 | an individual who holds or performs the duties of a public office or position in a public international organisation | in the place where the headquarters of the organisation is located | a written law in force in that place |
| 10 | an individual who is otherwise in the service of a public international organisation | in the place where the headquarters of the organisation is located | a written law in force in that place |
| 11 | a member or officer of the legislature of a foreign country or of part of a foreign country | in the foreign country or in the part of the foreign country, as the case may be | a written law in force in the foreign country or in the part of the foreign country, as the case may be |
Note: A defendant bears an evidential burden in relation to the matter in subsection (1). See subsection 13.3(3).
(2) A person does not commit an offence against section 70.2 if:
(a) the person’s conduct occurred in relation to a foreign public official covered by paragraph (l) of the definition of foreign public official in section 70.1 (which deals with intermediaries of foreign public officials covered by other paragraphs of that definition); and
(b) assuming that the first‑mentioned person’s conduct had occurred instead in relation to:
(i) the other foreign public official of whom the first‑mentioned foreign public official was an authorised intermediary; or
(ii) the other foreign public official in relation to whom the first‑mentioned foreign public official held himself or herself out to be an authorised intermediary;
subsection (1) would have applied in relation to the first‑mentioned person.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2). See subsection 13.3(3).
(3) To avoid doubt, if:
(a) a person’s conduct occurred in relation to a foreign public official covered by 2 or more paragraphs of the definition of foreign public official in section 70.1; and
(b) at least one of the corresponding items in subsection (1) is applicable to the conduct of the first‑mentioned person;
subsection (1) applies to the conduct of the first‑mentioned person.
70.4 Defence—facilitation payments
(1) A person does not commit an offence against section 70.2 if:
(a) the value of the benefit was of a minor nature; and
(b) the person’s conduct was engaged in for the sole or dominant purpose of expediting or securing the performance of a routine government action of a minor nature; and
(c) as soon as practicable after the conduct occurred, the person made a record of the conduct that complies with subsection (3); and
(d) any of the following subparagraphs applies:
(i) the person has retained that record at all relevant times;
(ii) that record has been lost or destroyed because of the actions of another person over whom the first‑mentioned person had no control, or because of a non‑human act or event over which the first‑mentioned person had no control, and the first‑mentioned person could not reasonably be expected to have guarded against the bringing about of that loss or that destruction;
(iii) a prosecution for the offence is instituted more than 7 years after the conduct occurred.
Note: A defendant bears an evidential burden in relation to the matter in subsection (1). See subsection 13.3(3).
Routine government action
(2) For the purposes of this section, a routine government action is an action of a foreign public official that:
(a) is ordinarily and commonly performed by the official; and
(b) is covered by any of the following subparagraphs:
(i) granting a permit, licence or other official document that qualifies a person to do business in a foreign country or in a part of a foreign country;
(ii) processing government papers such as a visa or work permit;
(iii) providing police protection or mail collection or delivery;
(iv) scheduling inspections associated with contract performance or related to the transit of goods;
(v) providing telecommunications services, power or water;
(vi) loading and unloading cargo;
(vii) protecting perishable products, or commodities, from deterioration;
(viii) any other action of a similar nature; and
(c) does not involve a decision about:
(i) whether to award new business; or
(ii) whether to continue existing business with a particular person; or
(iii) the terms of new business or existing business; and
(d) does not involve encouraging a decision about:
(i) whether to award new business; or
(ii) whether to continue existing business with a particular person; or
(iii) the terms of new business or existing business.
Content of records
(3) A record of particular conduct engaged in by a person complies with this subsection if the record sets out:
(a) the value of the benefit concerned; and
(b) the date on which the conduct occurred; and
(c) the identity of the foreign public official in relation to whom the conduct occurred; and
(d) if that foreign public official is not the other person mentioned in paragraph 70.2(1)(a)—the identity of that other person; and
(e) particulars of the routine government action that was sought to be expedited or secured by the conduct; and
(f) the person’s signature or some other means of verifying the person’s identity.
70.5 Territorial and nationality requirements
(1) A person does not commit an offence against section 70.2 unless:
(a) the conduct constituting the alleged offence occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an Australian ship; or
(b) the conduct constituting the alleged offence occurs wholly outside Australia and:
(i) at the time of the alleged offence, the person is an Australian citizen; or
(ii) at the time of the alleged offence, the person is a resident of Australia; or
(iii) at the time of the alleged offence, the person is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.
Note: The expression offence against section 70.2 is given an extended meaning by subsections 11.2(1), 11.2A(1) and 11.6(2).
(2) Proceedings for an offence against section 70.2 must not be commenced without the Attorney‑General’s written consent if:
(a) the conduct constituting the alleged offence occurs wholly outside Australia; and
(b) at the time of the alleged offence, the person alleged to have committed the offence is:
(i) a resident of Australia; and
(ii) not an Australian citizen.
(3) However, a person may be arrested for, charged with, or remanded in custody or released on bail in connection with an offence against section 70.2 before the necessary consent has been given.
70.6 Saving of other laws
This Division is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory.
Division 71—Offences against United Nations and associated personnel
71.1 Purpose
The purpose of this Division is to protect United Nations and associated personnel and give effect to the Convention on the Safety of United Nations and Associated Personnel.
71.2 Murder of a UN or associated person
(1) A person commits an offence if:
(a) the person’s conduct causes the death of another person; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person intends to cause, or is reckless as to causing, the death of the UN or associated person or any other person by the conduct.
Penalty: Imprisonment for life.
Note: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
(2) Strict liability applies to paragraphs (1)(b) and (c).
71.3 Manslaughter of a UN or associated person
(1) A person commits an offence if:
(a) the person’s conduct causes the death of another person; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person intends to cause, or is reckless as to causing, serious harm to the UN or associated person or any other person by the conduct.
Penalty: Imprisonment for 25 years.
Note: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
(2) Strict liability applies to paragraphs (1)(b) and (c).
71.4 Intentionally causing serious harm to a UN or associated person
(1) A person commits an offence if:
(a) the person’s conduct causes serious harm to another person; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person intends to cause serious harm to the UN or associated person or any other person by the conduct.
Penalty: Imprisonment for 20 years.
Penalty (aggravated offence): Imprisonment for 25 years.
Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
71.5 Recklessly causing serious harm to a UN or associated person
(1) A person commits an offence if:
(a) the person’s conduct causes serious harm to another person; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person is reckless as to causing serious harm to the UN or associated person or any other person by the conduct.
Penalty: Imprisonment for 15 years.
Penalty (aggravated offence): Imprisonment for 19 years.
Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
71.6 Intentionally causing harm to a UN or associated person
(1) A person commits an offence if:
(a) the person’s conduct causes harm to another person without the consent of that person; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person intends to cause harm to the UN or associated person or any other person by the conduct.
Penalty: Imprisonment for 10 years.
Penalty (aggravated offence): Imprisonment for 13 years.
Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
71.7 Recklessly causing harm to a UN or associated person
(1) A person commits an offence if:
(a) the person’s conduct causes harm to another person without the consent of that person; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person is reckless as to causing harm to the UN or associated person or any other person by the conduct.
Penalty: Imprisonment for 7 years.
Penalty (aggravated offence): Imprisonment for 9 years.
Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
71.8 Unlawful sexual penetration
(1) A person commits an offence if:
(a) the person sexually penetrates another person without the consent of that person; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person knows about, or is reckless as to, the lack of consent.
Penalty: Imprisonment for 15 years.
Penalty (aggravated offence): Imprisonment for 20 years.
Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
(3) In this section:
sexually penetrate means:
(a) penetrate (to any extent) the genitalia or anus of a person by any part of the body of another person or by any object manipulated by that other person; or
(b) penetrate (to any extent) the mouth of a person by the penis of another person; or
(c) continue to sexually penetrate as defined in paragraph (a) or (b).
(4) In this section, being reckless as to a lack of consent to sexual penetration includes not giving any thought to whether or not the person is consenting to sexual penetration.
(5) In this section, the genitalia or others parts of the body of a person include surgically constructed genitalia or other parts of the body of the person.
71.9 Kidnapping a UN or associated person
(1) A person commits an offence if:
(a) the person takes or detains another person without his or her consent; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person takes or detains the UN or associated person with the intention of:
(i) holding him or her to ransom or as a hostage; or
(ii) taking or sending him or her out of the country; or
(iii) committing a serious offence against him or her or another person.
Penalty: Imprisonment for 15 years.
Penalty (aggravated offence): Imprisonment for 19 years.
Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
(3) In this section, serious offence means an offence under a law of the Commonwealth, a State or Territory or a foreign law the maximum penalty for which is death, or imprisonment for not less than 12 months.
71.10 Unlawful detention of UN or associated person
(1) A person commits an offence if:
(a) the person takes or detains another person without that other person’s consent; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a UN enforcement action.
Penalty: Imprisonment for 5 years.
Penalty (aggravated offence): Imprisonment for 6 years.
Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
71.11 Intentionally causing damage to UN or associated person’s property etc.
(1) A person commits an offence if:
(a) the person’s conduct causes damage to official premises, private accommodation or a means of transportation (the property); and
(b) the property is occupied or used by a UN or associated person; and
(c) the conduct gives rise to a danger of serious harm to a person; and
(d) that person is the UN or associated person referred to in paragraph (b); and
(e) the UN or associated person is engaged in a UN operation that is not a UN enforcement action; and
(f) the first‑mentioned person intends to cause the damage to the property; and
(g) the first‑mentioned person is reckless as to the danger to the person referred to in paragraph (c).
Penalty: Imprisonment for 10 years.
Note: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
(2) Strict liability applies to paragraphs (1)(b), (d) and (e).
71.12 Threatening to commit other offences
A person commits an offence if the person:
(a) threatens to commit an offence (the threatened offence) under any of sections 71.2 to 71.11; and
(b) intends to compel any other person to do or omit to do an act by making the threat.
Penalty:
(a) if the threatened offence is the offence under section 71.2 (murder of a UN or associated person)—imprisonment for 10 years; or
(b) if the threatened offence is the offence under section 71.3, 71.4, 71.5, 71.8 or 71.9 (manslaughter of, causing serious harm to, kidnapping, or sexually penetrating, a UN or associated person)—imprisonment for 7 years; or
(c) if the threatened offence is the offence under section 71.6 or 71.11 (causing harm to, or damaging the property etc. of, a UN or associated person)—imprisonment for 5 years; or
(d) if the threatened offence is the offence under section 71.7 or 71.10 (recklessly causing harm to, or unlawful detention of, a UN or associated person)—imprisonment for 3 years.
Note: Section 71.23 defines UN or associated person.
71.13 Aggravated offences
(1) For the purposes of this Division, an offence against section 71.4, 71.5, 71.6, 71.7, 71.8, 71.9 or 71.10 is an aggravated offence if:
(a) the offence was committed during the deliberate and systematic infliction of severe pain over a period of time; or
(b) the offence was committed by the use or threatened use of an offensive weapon; or
(c) the offence was committed against a person in an abuse of authority.
(2) If the prosecution intends to prove an aggravated offence, the charge must allege the relevant aggravated offence.
(3) In order to prove an aggravated offence, the prosecution must prove that the defendant intended to commit, or was reckless as to committing, the matters referred to in paragraph (1)(a), (b) or (c).
(4) In this section:
offensive weapon includes:
(a) an article made or adapted for use for causing injury to, or incapacitating, a person; or
(b) an article where the person who has the article intends, or threatens to use, the article to cause injury to, or to incapacitate, another person.
71.14 Defence—activities involving serious harm
A person is not criminally responsible for an offence against section 71.4 or 71.5 if the conduct causing serious harm to another person is engaged in by the first‑mentioned person:
(a) for the purpose of benefiting the other person or in pursuance of a socially acceptable function or activity; and
(b) having regard to the purpose, function or activity, the conduct was reasonable.
Note 1: If a person causes less than serious harm to another person, the prosecution is obliged to prove that the harm was caused without the consent of the person harmed (see for example section 71.6).
Note 2: A defendant bears an evidential burden in relation to the matter in this section, see subsection 13.3(3).
71.15 Defence—medical or hygienic procedures
A person is not criminally responsible for an offence against section 71.8 in respect of any sexual penetration carried out in the course of a procedure in good faith for medical or hygienic purposes.
Note: A defendant bears an evidential burden in relation to the matter in this section, see subsection 13.3(3).
71.16 Jurisdictional requirement
A person commits an offence under this Division only if:
(a) the conduct constituting the alleged offence occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an Australian ship; or
(b) the conduct constituting the alleged offence occurs wholly outside Australia and:
(i) at the time of the alleged offence, the person is an Australian citizen; or
(ii) at the time of the alleged offence, the person is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or
(iii) at the time of the alleged offence, the person is a stateless person whose habitual residence is in Australia; or
(iv) the conduct is subject to the jurisdiction of another State Party to the Convention established in accordance with paragraph 1 or 2 of article 10 and the person enters Australia; or
(c) the alleged offence is committed against an Australian citizen; or
(d) by engaging in the conduct constituting the alleged offence, the person intends to compel a legislative, executive or judicial institution of the Commonwealth, a State or a Territory to do or omit to do an act.
71.17 Exclusion of this Division if State/Territory laws provide for corresponding offences
(1) A State or Territory court does not have jurisdiction to determine a charge of an offence under this Division if the conduct constituting the offence also constitutes an offence (the State offence) against the law of that State or Territory.
(2) If:
(a) a prosecution is brought against a person under this Division; and
(b) a court finds that there is a corresponding State offence;
then this section does not prevent the person from being prosecuted for the State offence.
71.18 Double jeopardy
If a person has been convicted or acquitted of an offence in respect of conduct under the law of a foreign country, the person cannot be convicted of an offence under this Division in respect of that conduct.
71.19 Saving of other laws
This Division is not intended to exclude or limit the operation of any other law of the Commonwealth or of a State or Territory.
71.20 Bringing proceedings under this Division
(1) Proceedings for an offence under this Division must not be commenced without the Attorney‑General’s written consent.
(2) However, a person may be arrested, charged, remanded in custody, or released on bail, in connection with an offence under this Division before the necessary consent has been given.
71.21 Ministerial certificates relating to proceedings
(1) The Foreign Affairs Minister may issue a certificate stating any of the following matters:
(a) the Convention entered into force for Australia on a specified day;
(b) the Convention remains in force for Australia or any other State Party on a specified day;
(c) a matter relevant to the establishment of jurisdiction by a State Party under paragraph 1 or 2 of article 10 of the Convention;
(d) a matter relevant to whether a person is or was a UN or associated person;
(e) a matter relevant to whether an operation is or was a UN operation.
(2) The Immigration Minister may issue a certificate stating that:
(a) a person is or was an Australian citizen at a particular time; or
(b) a person is or was a stateless person whose habitual residence is or was in Australia.
(3) In any proceedings, a certificate under this section is prima facie evidence of the matters in the certificate.
71.22 Jurisdiction of State courts preserved
For the purposes of section 38 of the Judiciary Act 1903, a matter arising under this Act, including a question of interpretation of the Convention, is taken not to be a matter arising directly under a treaty.
71.23 Definitions
(1) In this Division:
associated personnel means:
(a) persons assigned by a government, or an intergovernmental organisation, with the agreement of the competent organ of the United Nations; or
(b) persons engaged by the Secretary‑General of the United Nations, a specialised agency or the International Atomic Energy Agency; or
(c) persons deployed by a humanitarian non‑governmental organisation or agency under an agreement with the Secretary‑General of the United Nations, a specialised agency or the International Atomic Energy Agency;
to carry out activities in support of the fulfilment of the mandate of a UN operation.
Convention means the Convention on the Safety of United Nations and Associated Personnel, done at New York on 9 December 1994.
Note: The text of the Convention is set out in Australian Treaty Series 1995 No. 1. In 2000 this was available in the Australian Treaties Library of the Department of Foreign Affairs and Trade, accessible through that Department’s website.
Foreign Affairs Minister means the Minister administering the Diplomatic Privileges and Immunities Act 1967.
Immigration Minister means the Minister administering the Migration Act 1958.
UN enforcement action means a UN operation:
(a) that is authorised by the Security Council as an enforcement action under Chapter VII of the Charter of the United Nations; and
(b) in which any of the UN or associated personnel are engaged as combatants against organised armed forces; and
(c) to which the law of international armed conflict applies.
UN operation means an operation established by the competent organ of the United Nations in accordance with the Charter of the United Nations and conducted under United Nations authority and control if:
(a) the operation is for the purpose of maintaining or restoring international peace and security; or
(b) the Security Council or the General Assembly has declared, for the purposes of the Convention, that there exists an exceptional risk to the safety of the personnel engaged in the operation.
UN or associated person means a person who is a member of any UN personnel or associated personnel.
UN personnel means:
(a) persons engaged or deployed by the Secretary‑General of the United Nations as members of the military, police or civilian components of a UN operation; or
(b) any other officials or experts on mission of the United Nations, its specialised agencies or the International Atomic Energy Agency who are present in an official capacity in the area where a UN operation is being conducted.
(2) In this Division, a person’s conduct causes death or harm if it substantially contributes to the death or harm.
Division 72—Explosives and lethal devices
Subdivision A—International terrorist activities using explosive or lethal devices
72.1 Purpose
The purpose of this Subdivision is to create offences relating to international terrorist activities using explosive or lethal devices and give effect to the International Convention for the Suppression of Terrorist Bombings, done at New York on 15 December 1997.
Note: The text of the Convention is available in the Australian Treaties Library of the Department of Foreign Affairs and Trade, accessible through that Department’s website.
72.2 ADF members not liable for prosecution
Nothing in this Subdivision makes a member of the Australian Defence Force acting in connection with the defence or security of Australia liable to be prosecuted for an offence.
72.3 Offences
(1) A person commits an offence if:
(a) the person intentionally delivers, places, discharges or detonates a device; and
(b) the device is an explosive or other lethal device and the person is reckless as to that fact; and
(c) the device is delivered, placed, discharged, or detonated, to, in, into or against:
(i) a place of public use; or
(ii) a government facility; or
(iii) a public transportation system; or
(iv) an infrastructure facility; and
(d) the person intends to cause death or serious harm.
Penalty: Imprisonment for life.
(2) A person commits an offence if:
(a) the person intentionally delivers, places, discharges or detonates a device; and
(b) the device is an explosive or other lethal device and the person is reckless as to that fact; and
(c) the device is delivered, placed, discharged, or detonated, to, in, into or against:
(i) a place of public use; or
(ii) a government facility; or
(iii) a public transportation system; or
(iv) an infrastructure facility; and
(d) the person intends to cause extensive destruction to the place, facility or system; and
(e) the person is reckless as to whether that intended destruction results or is likely to result in major economic loss.
Penalty: Imprisonment for life.
(3) Strict liability applies to paragraphs (1)(c) and (2)(c).
Note: A court that is sentencing a person who has been convicted of an offence against this section must warn the person about continuing detention orders (see section 105A.23).
72.4 Jurisdictional requirement
(1) A person commits an offence under this Subdivision only if one or more of the following paragraphs applies and the circumstances relating to the alleged offence are not exclusively internal (see subsection (2)):
(a) the conduct constituting the alleged offence occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian ship or an Australian aircraft;
(b) at the time of the alleged offence, the person is an Australian citizen;
(c) at the time of the alleged offence, the person is a stateless person whose habitual residence is in Australia;
(d) the conduct is subject to the jurisdiction of another State Party to the Convention established in accordance with paragraph 1 or 2 of Article 6 of the Convention and the person is in Australia;
(e) the alleged offence is committed against a government facility of the Commonwealth, or of a State or Territory, that is located outside Australia;
(f) the alleged offence is committed against:
(i) an Australian citizen; or
(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory;
(g) by engaging in the conduct constituting the alleged offence, the person intends to compel a legislative, executive or judicial institution of the Commonwealth, a State or a Territory to do or omit to do an act.
(2) The circumstances relating to the alleged offence are exclusively internal if:
(a) the conduct constituting the alleged offence occurs wholly within Australia; and
(b)