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......................................................... 81
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........................................... 87
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.............................................................. 178
100.3..................... Constitutional basis for the operation of this Part........... 179
100.4..................... Application of provisions............................................... 181
100.5..................... Application of Acts Interpretation Act 1901................... 183
100.6..................... Concurrent operation intended........................................ 183
100.7..................... Regulations may modify operation of this Part to deal with interaction between this Part and State and Territory laws................................................................. 184
100.8..................... Approval for changes to or affecting this Part................ 185
Division 101—Terrorism 186
101.1..................... Terrorist acts................................................................... 186
101.2..................... Providing or receiving training connected with terrorist acts 186
101.4..................... Possessing things connected with terrorist acts.............. 187
101.5..................... Collecting or making documents likely to facilitate terrorist acts 188
101.6..................... Other acts done in preparation for, or planning, terrorist acts.. 189
Division 102—Terrorist organisations 191
Subdivision A—Definitions 191
102.1..................... Definitions...................................................................... 191
102.1AA............... Including or removing names of prescribed terrorist organisations 194
102.1A.................. Reviews by Parliamentary Joint Committee on Intelligence and Security 195
Subdivision B—Offences 197
102.2..................... Directing the activities of a terrorist organisation............ 197
102.3..................... Membership of a terrorist organisation........................... 198
102.4..................... Recruiting for a terrorist organisation............................. 198
102.5..................... Training involving a terrorist organisation...................... 198
102.6..................... Getting funds to, from or for a terrorist organisation...... 199
102.7..................... Providing support to a terrorist organisation................... 200
102.8..................... Associating with terrorist organisations.......................... 201
Subdivision C—General provisions relating to offences 204
102.9..................... Extended geographical jurisdiction for offences............. 204
102.10................... Alternative verdicts......................................................... 204
Division 103—Financing terrorism 205
103.1..................... Financing terrorism......................................................... 205
103.2..................... Financing a terrorist........................................................ 205
103.3..................... Extended geographical jurisdiction for offences............. 206
Division 104—Control orders 207
Subdivision A—Objects of this Division 207
104.1..................... Objects of this Division.................................................. 207
Subdivision B—Making an interim control order 207
104.2..................... AFP Minister’s consent to request an interim control order 207
104.3..................... Requesting the court to make an interim control order.... 209
104.4..................... Making an interim control order..................................... 210
104.5..................... Terms of an interim control order................................... 212
104.5A.................. Obligations relating to monitoring devices...................... 217
Subdivision C—Making an urgent interim control order 219
104.6..................... Requesting an urgent interim control order by electronic means 219
104.7..................... Making an urgent interim control order by electronic means 220
104.8..................... Requesting an urgent interim control order in person..... 221
104.9..................... Making an urgent interim control order in person........... 222
104.10................... Obtaining the AFP Minister’s consent within 8 hours... 222
104.11................... Court to assume that exercise of power not authorised by urgent interim control order 223
Subdivision CA—Varying an interim control order 223
104.11A................ Varying an interim control order..................................... 223
Subdivision D—Confirming an interim control order 224
104.12................... Service, explanation and notification of an interim control order 224
104.12A................ Election to confirm control order.................................... 226
104.13................... Lawyer may request a copy of an interim control order.. 228
104.14................... Confirming an interim control order............................... 228
104.15................... Effect of confirmation process on interim control orders 230
104.16................... Terms of a confirmed control order................................ 232
104.17................... Service of a declaration, or a revocation, variation or confirmation of a control order 232
104.17A................ Cessation of a control order if post‑sentence order made 233
Subdivision E—Rights in respect of a control order 234
104.18................... Application by the person for a revocation or variation of a control order 234
104.19................... Application by the AFP Commissioner for a revocation or variation of a control order 235
104.20................... Revocation or variation of a control order....................... 236
104.21................... Lawyer may request a copy of a control order................ 237
104.22................... Treatment of photographs and impressions of fingerprints 237
Subdivision F—Adding obligations, prohibitions or restrictions to a control order 238
104.23................... Application by the AFP Commissioner for addition of obligations, prohibitions or restrictions 238
104.24................... Varying a control order................................................... 241
104.25................... Terms of a varied control order....................................... 242
104.26................... Service and explanation of a varied control order........... 242
Subdivision G—Offences relating to control orders 244
104.27................... Offence for contravening a control order........................ 244
104.27A................ Offence relating to monitoring devices........................... 244
Subdivision H—Special rules for young people (14 to 17) 245
104.28................... Special rules for young people........................................ 245
Subdivision I—Miscellaneous 246
104.28A................ Interlocutory proceedings............................................... 246
104.28AA............. Costs in control order proceedings................................. 246
104.28B................. Giving documents to persons detained in custody.......... 247
104.28C................. Sharing information relating to electronic monitoring..... 247
104.28D................ Arrangements for electronic monitoring and other functions and powers 248
104.29................... Reporting requirements................................................... 248
104.30................... Requirement to notify AFP Minister of declarations, revocations or variations 250
104.31................... Queensland public interest monitor functions and powers not affected 250
104.32................... Sunset provision............................................................. 250
Division 105—Preventative detention orders 251
Subdivision A—Preliminary 251
105.1..................... Object............................................................................. 251
105.2..................... Issuing authorities for continued preventative detention orders 251
105.3..................... Police officer detaining person under a preventative detention order 252
Subdivision B—Preventative detention orders 252
105.4..................... Basis for applying for, and making, preventative detention orders 252
105.5..................... No preventative detention order in relation to person under 16 years of age 254
105.5A.................. Special assistance for person with inadequate knowledge of English language or disability 255
105.6..................... Restrictions on multiple preventative detention orders.... 255
105.7..................... Application for initial preventative detention order......... 257
105.8..................... Senior AFP member may make initial preventative detention order 260
105.9..................... Duration of initial preventative detention order............... 262
105.10................... Extension of initial preventative detention order............. 263
105.10A................ Notice of application for continued preventative detention order 264
105.11................... Application for continued preventative detention order... 264
105.12................... Judge, AAT member or retired judge may make continued preventative detention order 266
105.13................... Duration of continued preventative detention order........ 268
105.14................... Extension of continued preventative detention order....... 269
105.14A................ Basis for applying for, and making, prohibited contact order.. 270
105.15................... Prohibited contact order (person in relation to whom preventative detention order is being sought) 271
105.16................... Prohibited contact order (person in relation to whom preventative detention order is already in force) 273
105.17................... Revocation of preventative detention order or prohibited contact order 275
105.18................... Status of person making continued preventative detention order 277
Subdivision C—Carrying out preventative detention orders 278
105.19................... Power to detain person under preventative detention order 278
105.20................... Endorsement of order with date and time person taken into custody 280
105.21................... Requirement to provide name etc.................................... 280
105.22................... Power to enter premises.................................................. 281
105.23................... Power to conduct a frisk search...................................... 282
105.24................... Power to conduct an ordinary search.............................. 282
105.25................... Warrant under Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 282
105.26................... Release of person from preventative detention................ 283
105.27................... Arrangement for detainee to be held in State or Territory prison or remand centre 285
Subdivision D—Informing person detained about preventative detention order 286
105.28................... Effect of initial preventative detention order to be explained to person detained 286
105.29................... Effect of continued preventative detention order to be explained to person detained 288
105.30................... Person being detained to be informed of extension of preventative detention order 289
105.31................... Compliance with obligations to inform........................... 290
105.32................... Copy of preventative detention order.............................. 290
Subdivision E—Treatment of person detained 292
105.33................... Humane treatment of person being detained................... 292
105.33A................ Detention of persons under 18........................................ 292
105.34................... Restriction on contact with other people......................... 293
105.35................... Contacting family members etc....................................... 293
105.36................... Contacting Ombudsman etc............................................ 295
105.37................... Contacting lawyer........................................................... 295
105.38................... Monitoring contact under section 105.35 or 105.37....... 298
105.39................... Special contact rules for person under 18 or incapable of managing own affairs 298
105.40................... Entitlement to contact subject to prohibited contact order 300
105.41................... Disclosure offences........................................................ 301
105.42................... Questioning of person prohibited while person is detained 306
105.43................... Taking fingerprints, recordings, samples of handwriting or photographs 308
105.44................... Use of identification material.......................................... 310
105.45................... Offences of contravening safeguards.............................. 311
Subdivision F—Miscellaneous 311
105.46................... Nature of functions of Judge of the Federal Circuit and Family Court of Australia (Division 2) 311
105.47................... Annual report.................................................................. 312
105.48................... Certain functions and powers not affected...................... 313
105.49................... Queensland public interest monitor functions and powers not affected 313
105.50................... Law relating to legal professional privilege not affected. 313
105.51................... Legal proceedings in relation to preventative detention orders 313
105.52................... Review by State and Territory courts.............................. 315
105.53................... Sunset provision............................................................. 317
Division 105A—Post‑sentence orders 318
Subdivision A—Object and definitions 318
105A.1.................. Object............................................................................. 318
105A.2.................. Definitions...................................................................... 318
105A.2A............... Persons who have escaped from custody....................... 320
Subdivision B—Post‑sentence orders 320
105A.3.................. Who a post‑sentence order may apply to and effect of post‑sentence orders 320
105A.3A............... Preconditions for post‑sentence orders........................... 322
105A.4.................. Treatment of a terrorist offender in a prison under a continuing detention order 325
Subdivision C—Making post‑sentence orders 326
105A.5.................. Applying for a post‑sentence order................................. 326
105A.6.................. Appointment of and assessment by relevant expert........ 328
105A.6A............... Determining an application for a post‑sentence order..... 330
105A.6B................ Matters a Court must have regard to in making a post‑sentence order 331
105A.7.................. Making a continuing detention order.............................. 332
105A.7A............... Making an extended supervision order........................... 334
105A.7B................ Conditions of extended supervision orders and interim supervision orders 336
105A.7C................ Conditions where exemptions may be granted................ 342
105A.7D............... Treatment of photographs and impressions of fingerprints 343
105A.7E................ Obligations relating to monitoring devices...................... 343
105A.7F................ Copy of an extended supervision order etc. must be given to terrorist offender’s lawyer 346
Subdivision CA—Making interim post‑sentence orders 346
105A.9.................. Interim detention orders.................................................. 346
105A.9A............... Interim supervision orders.............................................. 348
Subdivision CB—Varying an extended supervision order or interim supervision order 351
105A.9B................ Application for variations of extended supervision orders and interim supervision orders 351
105A.9C................ Varying an extended supervision order or interim supervision order (other than by consent) 353
105A.9D............... Varying extended supervision order or interim supervision order by consent 354
105A.9E................ Terms of a varied extended supervision order or interim supervision order 355
Subdivision D—Review of post‑sentence order 356
105A.10................ Periodic review of post‑sentence order........................... 356
105A.11................ Review of post‑sentence order on application................. 357
105A.12................ Process for reviewing a post‑sentence order................... 358
105A.12A............. Varying post‑sentence orders after review...................... 360
Subdivision E—Provisions relating to post‑sentence order proceedings 362
105A.13................ Civil evidence and procedure rules in relation to post‑sentence order proceedings 362
105A.14................ Adducing evidence and making submissions................. 362
105A.14A............. Giving copies of applications etc. to terrorist offenders.. 362
105A.14B.............. Information excluded from application or material—national security information 363
105A.14C.............. Information excluded from application or material—public interest immunity 365
105A.14D............. Information excluded from application and material—terrorism material 365
105A.15................ Giving documents to terrorist offenders who are in custody 366
105A.15A............. When a terrorist offender is unable to engage a legal representative 367
105A.16................ Reasons for decisions..................................................... 367
105A.17................ Right of appeal................................................................ 368
105A.18................ Consequences of sentences ending or orders ceasing to be in force 368
105A.18AA.......... Persons in non‑prison custody taken to be in the community 370
Subdivision EA—Offences relating to extended supervision orders and interim supervision orders 370
105A.18A............. Offence for contravening an extended supervision order or an interim supervision order 370
105A.18B.............. Offence relating to monitoring devices........................... 372
Subdivision F—Miscellaneous 373
105A.18C.............. Effect of prison detention on post‑sentence order........... 373
105A.18D............. AFP Minister may direct terrorist offenders to be assessed 373
105A.19................ Sharing information........................................................ 376
105A.19A............. Sharing information relating to supervision orders......... 377
105A.20................ Delegation by the AFP Minister..................................... 377
105A.21................ Arrangement with States and Territories......................... 377
105A.21A............. Arrangements by Australian Federal Police Commissioner for functions and powers relating to supervision orders.............................................................................. 378
105A.22................ Annual report.................................................................. 378
105A.23................ Warning about post‑sentence orders when sentencing for certain offences 379
105A.24................ Effect of continuing detention orders on bail or parole laws 380
105A.25................ Sunset provision............................................................. 380
Division 106—Transitional provisions 381
106.1..................... Saving—regulations originally made for the purposes of paragraph (c) of the definition of terrorist organisation................................................................... 381
106.2..................... Saving—regulations made for the purposes of paragraph (a) of the definition of terrorist organisation........................................................................................ 381
106.3..................... Application provision..................................................... 382
106.4..................... Saving—Judges of the Federal Circuit Court................. 382
106.5..................... Application provisions for certain amendments in the Counter‑Terrorism Legislation Amendment (Foreign Fighters) Act 2014.......................................................... 383
106.6..................... Application provisions for certain amendments in the Counter‑Terrorism Legislation Amendment Act (No. 1) 2014................................................................................ 384
106.7..................... Application provision for certain amendments in the Counter‑Terrorism Legislation Amendment Act (No. 1) 2016................................................................................ 385
106.8..................... Application provision for amendments in the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016................................................................................ 387
106.9..................... Application—Counter‑Terrorism Legislation Amendment Act (No. 1) 2018 388
106.10................... Application—Counter‑Terrorism Legislation Amendment (2019 Measures No. 1) Act 2019 389
106.11................... Application provision for certain amendments in the Counter‑Terrorism Legislation Amendment (High Risk Terrorist Offenders) Act 2021........................................ 390
Part 5.4—Harming Australians 393
Division 115—Harming Australians 393
115.1..................... Murder of an Australian citizen or a resident of Australia 393
115.2..................... Manslaughter of an Australian citizen or a resident of Australia 394
115.3..................... Intentionally causing serious harm to an Australian citizen or a resident of Australia 395
115.4..................... Recklessly causing serious harm to an Australian citizen or a resident of Australia 395
115.5..................... Saving of other laws....................................................... 396
115.6..................... Bringing proceedings under this Division...................... 396
115.7..................... Ministerial certificates relating to proceedings................ 396
115.8..................... Geographical jurisdiction................................................ 396
115.9..................... Meaning of causes death or harm................................... 397
Part 5.5—Foreign incursions and recruitment 398
Division 117—Preliminary 398
117.1..................... Definitions...................................................................... 398
117.2..................... Extended geographical jurisdiction—category D............ 400
Division 119—Foreign incursions and recruitment 401
119.1..................... Incursions into foreign countries with the intention of engaging in hostile activities 401
119.2..................... Entering, or remaining in, declared areas........................ 402
119.3..................... Declaration of areas for the purposes of section 119.2... 404
119.4..................... Preparations for incursions into foreign countries for purpose of engaging in hostile activities 406
119.5..................... Allowing use of buildings, vessels and aircraft to commit offences 410
119.6..................... Recruiting persons to join organisations engaged in hostile activities against foreign governments 411
119.7..................... Recruiting persons to serve in or with an armed force in a foreign country 412
119.8..................... Declaration in relation to specified armed forces............. 414
119.9..................... Exception—conduct for defence or international relations of Australia 415
119.10................... Mode of trial................................................................... 415
119.11................... Consent of Attorney‑General required for prosecutions. 415
119.12................... Declarations for the purposes of proceedings................. 416
Part 5.6—Secrecy of information 417
Division 121—Preliminary 417
121.1..................... Definitions...................................................................... 417
121.2..................... Definition of proper place of custody............................. 420
Division 122—Secrecy of information 421
122.1..................... Communication and other dealings with inherently harmful information by current and former Commonwealth officers etc...................................................................... 421
122.2..................... Conduct by current and former Commonwealth officers etc. causing harm to Australia’s interests 423
122.3..................... Aggravated offence......................................................... 425
122.4..................... Unauthorised disclosure of information by current and former Commonwealth officers etc. 426
122.4A.................. Communicating and dealing with information by non‑Commonwealth officers etc. 426
122.5..................... Defences......................................................................... 428
Division 123—Miscellaneous 436
123.1..................... Injunctions...................................................................... 436
123.2..................... Forfeiture of articles etc.................................................. 436
123.3..................... Extended geographical jurisdiction—category D............ 437
123.4..................... Effect of this Part on other rights, privileges, immunities or defences 437
123.5..................... Requirements before proceedings can be initiated........... 437
Chapter 7—The proper administration of Government 438
Part 7.1—Preliminary 438
Division 130—Preliminary 438
130.1..................... Definitions...................................................................... 438
130.2..................... When property belongs to a person................................ 439
130.3..................... Dishonesty...................................................................... 440
130.4..................... Determination of dishonesty to be a matter for the trier of fact 440
Part 7.2—Theft and other property offences 441
Division 131—Theft 441
131.1..................... Theft............................................................................... 441
131.2..................... Special rules about the meaning of dishonesty................ 441
131.3..................... Appropriation of property............................................... 442
131.4..................... Theft of land or things forming part of land.................... 442
131.5..................... Trust property................................................................. 442
131.6..................... Obligation to deal with property in a particular way....... 443
131.7..................... Property obtained because of fundamental mistake......... 443
131.8..................... Property of a corporation sole......................................... 444
131.9..................... Property belonging to 2 or more persons........................ 444
131.10................... Intention of permanently depriving a person of property 444
131.11................... General deficiency.......................................................... 445
Division 132—Other property offences 446
132.1..................... Receiving........................................................................ 446
132.2..................... Robbery.......................................................................... 449
132.3..................... Aggravated robbery........................................................ 450
132.4..................... Burglary.......................................................................... 451
132.5..................... Aggravated burglary....................................................... 453
132.6..................... Making off without payment.......................................... 454
132.7..................... Going equipped for theft or a property offence............... 455
132.8..................... Dishonest taking or retention of property....................... 456
132.8A.................. Damaging Commonwealth property............................... 457
132.9..................... Geographical jurisdiction................................................ 458
Part 7.3—Fraudulent conduct 459
Division 133—Preliminary 459
133.1..................... Definitions...................................................................... 459
Division 134—Obtaining property or a financial advantage by deception 460
134.1..................... Obtaining property by deception..................................... 460
134.2..................... Obtaining a financial advantage by deception................. 463
134.3..................... Geographical jurisdiction................................................ 463
Division 135—Other offences involving fraudulent conduct 464
135.1..................... General dishonesty......................................................... 464
135.2..................... Obtaining financial advantage......................................... 465
135.4..................... Conspiracy to defraud..................................................... 466
135.5..................... Geographical jurisdiction................................................ 469
Part 7.4—False or misleading statements 470
Division 136—False or misleading statements in applications 470
136.1..................... False or misleading statements in applications................ 470
Division 137—False or misleading information or documents 473
137.1..................... False or misleading information...................................... 473
137.1A.................. Aggravated offence for giving false or misleading information 474
137.2..................... False or misleading documents....................................... 475
137.3..................... Geographical jurisdiction................................................ 476
Part 7.5—Unwarranted demands 477
Division 138—Preliminary 477
138.1..................... Unwarranted demand with menaces............................... 477
138.2..................... Menaces.......................................................................... 477
Division 139—Unwarranted demands 479
139.1..................... Unwarranted demands of a Commonwealth public official 479
139.2..................... Unwarranted demands made by a Commonwealth public official 479
139.3..................... Geographical jurisdiction................................................ 480
Part 7.6—Bribery and related offences 481
Division 140—Preliminary 481
140.1..................... Definition........................................................................ 481
140.2..................... Obtaining........................................................................ 481
Division 141—Bribery 482
141.1..................... Bribery of a Commonwealth public official.................... 482
Division 142—Offences relating to bribery 485
142.1..................... Corrupting benefits given to, or received by, a Commonwealth public official 485
142.2..................... Abuse of public office.................................................... 486
142.3..................... Geographical jurisdiction................................................ 487
Part 7.7—Forgery and related offences 488
Division 143—Preliminary 488
143.1..................... Definitions...................................................................... 488
143.2..................... False documents............................................................. 489
143.3..................... False Commonwealth documents................................... 490
143.4..................... Inducing acceptance of false documents......................... 491
Division 144—Forgery 492
144.1..................... Forgery........................................................................... 492
Division 145—Offences relating to forgery 494
145.1..................... Using forged document.................................................. 494
145.2..................... Possession of forged document...................................... 495
145.3..................... Possession, making or adaptation of devices etc. for making forgeries 497
145.4..................... Falsification of documents etc......................................... 499
145.5..................... Giving information derived from false or misleading documents 500
145.6..................... Geographical jurisdiction................................................ 501
Part 7.8—Causing harm to or obstructing Commonwealth public officials and impersonating Commonwealth public officials or bodies 502
Division 146—Preliminary 502
146.1..................... Definitions...................................................................... 502
146.2..................... Causing harm.................................................................. 503
Division 147—Causing harm to Commonwealth public officials 504
147.1..................... Causing harm to a Commonwealth public official etc..... 504
147.2..................... Threatening to cause harm to a Commonwealth public official etc. 506
147.3..................... Geographical jurisdiction................................................ 508
Division 148—Impersonation of Commonwealth public officials 509
148.1..................... Impersonation of an official by a non‑official................. 509
148.2..................... Impersonation of an official by another official.............. 510
148.3..................... Geographical jurisdiction................................................ 512
Division 149—Obstruction of Commonwealth public officials 513
149.1..................... Obstruction of Commonwealth public officials.............. 513
Division 150—False representations in relation to a Commonwealth body 515
Subdivision A—Offences 515
150.1..................... False representations in relation to a Commonwealth body 515
Subdivision B—Injunctions 517
150.5..................... Injunctions...................................................................... 517
Part 7.20—Miscellaneous 518
Division 261—Miscellaneous 518
261.1..................... Saving of other laws....................................................... 518
261.2..................... Contempt of court........................................................... 518
261.3..................... Ancillary offences........................................................... 518
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 |