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.
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.
(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.
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.
(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.
(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.
(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.
(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.
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.
(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.
(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.
(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.
(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.
(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.
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.
(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.
(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.
(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.
(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 2003or 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.
(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.
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.
(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.
(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.
(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).
(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.
(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.
(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.
(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.
(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.
(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.
(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
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.
(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 1914enables a fine to be imposed for offences that only
specify imprisonment as a penalty.
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.
(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.
(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.
(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.
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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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 .
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)).
"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.
(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;
(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.
(1) A person does not commit an offence against section 70.2 in the
cases set out in the following table:
Defence of lawful conduct
Item
In a case where the person's conduct occurred in relation to this
kind of foreign public official...
and if it were assumed that the
person's conduct had occurred wholly...
this written law requires or
permits the provision of the benefit ...
1
an employee or official
of a foreign government body
in the place where the central administration
of the body is located
a written law in force in that place
2
an
individual who performs work for a foreign government body under a contract
in the place where the central administration of the body is located
a
written law in force in that place
3
an individual who holds or
performs the duties of an appointment, office or position under a law of a
foreign country or of part of a foreign country
in the foreign country or
in the part of the foreign country, as the case may be
a written law in
force in the foreign country or in the part of the foreign country, as the
case may be
4
an individual who holds or performs the duties of an
appointment, office or position created by custom or convention of a foreign
country or of part of a foreign country
in the foreign country or in the
part of the foreign country, as the case may be
a written law in force in
the foreign country or in the part of the foreign country, as the case may be
5
an individual who is otherwise in the service of a foreign government
body (including service as a member of a military force or police force)
in the place where the central administration of the body is located
a
written law in force in that place
6
a member of the executive,
judiciary or magistracy of a foreign country or of part of a foreign country
in the foreign country or in the part of the foreign country, as the case may
be
a written law in force in the foreign country or in the part of the
foreign country, as the case may be
7
an employee of a public
international organisation
in the place where the headquarters of the
organisation is located
a written law in force in that place
8
an individual who performs work for a public international organisation under
a contract
in the place where the headquarters of the organisation is
located
a written law in force in that place
9
an individual who
holds or performs the duties of a public office or position in a public
international organisation
in the place where the headquarters of the
organisation is located
a written law in force in that place
10
an individual who is otherwise in the service of a public international
organisation
in the place where the headquarters of the organisation is
located
a written law in force in that place
11
a member or
officer of the legislature of a foreign country or of part of a foreign
country
in the foreign country or in the part of the foreign country, as
the case may be
a written law in force in the foreign country or in the
part of the foreign country, as the case may be
Note: A defendant bears
an evidential burden in relation to the matter in subsection (1). See
subsection 13.3(3).
(2) A person does not commit an offence against section 70.2 if:
(a) the person's conduct occurred in relation to a foreign public
official covered by paragraph (l) of the definition of foreign public
official in section 70.1 (which deals with intermediaries of foreign
public officials covered by other paragraphs of that definition); and
(b) assuming that the first-mentioned person's conduct had occurred
instead in relation to:
(i) the other foreign public official of whom the first-mentioned
foreign public official was an authorised intermediary; or
(ii) the other foreign public official in relation to whom the
first-mentioned foreign public official held himself or herself out to be an
authorised intermediary;
subsection (1) would have applied in relation to the first-mentioned
person.
Note: A
defendant bears an evidential burden in relation to the matter in
subsection (2). See subsection 13.3(3).
(3) To avoid doubt, if:
(a) a person's conduct occurred in relation to a foreign public official
covered by 2 or more paragraphs of the definition of foreign public official
in section 70.1; and
(b) at least one of the corresponding items in subsection (1) is
applicable to the conduct of the first-mentioned person;
subsection (1)
applies to the conduct of the first-mentioned person.
(1) A person does not commit an offence against section 70.2 if:
(a) the value of the benefit was of a minor nature; and
(b) the person's conduct was engaged in for the sole or dominant purpose
of expediting or securing the performance of a routine government action of a
minor nature; and
(c) as soon as practicable after the conduct occurred, the person made a
record of the conduct that complies with subsection (3); and
(d) any of the following subparagraphs applies:
(i) the person has retained that record at all relevant times;
(ii) that record has been lost or destroyed because of the actions of
another person over whom the first-mentioned person had no control, or because
of a non-human act or event over which the first-mentioned person had no
control, and the first-mentioned person could not reasonably be expected to
have guarded against the bringing about of that loss or that destruction;
(iii) a prosecution for the offence is instituted more than 7 years
after the conduct occurred.
Note: A defendant bears
an evidential burden in relation to the matter in subsection (1). See
subsection 13.3(3).
Routine government action
(2) For the purposes of this section, a routine government action is an
action of a foreign public official that:
(a) is ordinarily and commonly performed by the official; and
(b) is covered by any of the following subparagraphs:
(i) granting a permit, licence or other official document that qualifies
a person to do business in a foreign country or in a part of a foreign
country;
(ii) processing government papers such as a visa or work permit;
(iii) providing police protection or mail collection or delivery;
(iv) scheduling inspections associated with contract performance or
related to the transit of goods;
(v) providing telecommunications services, power or water;
(vi) loading and unloading cargo;
(vii) protecting perishable products, or commodities, from
deterioration;
(viii) any other action of a similar nature; and
(c) does not involve a decision about:
(i) whether to award new business; or
(ii) whether to continue existing business with a particular person; or
(iii) the terms of new business or existing business; and
(d) does not involve encouraging a decision about:
(i) whether to award new business; or
(ii) whether to continue existing business with a particular person; or
(iii) the terms of new business or existing business.
Content of
records
(3) A record of particular conduct engaged in by a person complies with
this subsection if the record sets out:
(a) the value of the benefit concerned; and
(b) the date on which the conduct occurred; and
(c) the identity of the foreign public official in relation to whom the
conduct occurred; and
(d) if that foreign public official is not the other person mentioned in
paragraph 70.2(1)(a)--the identity of that other person; and
(e) particulars of the routine government action that was sought to be
expedited or secured by the conduct; and
(f) the person's signature or some other means of verifying the person's
identity.
(1) A person does not commit an offence against section 70.2
unless:
(a) the conduct constituting the alleged offence occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an Australian
ship; or
(b) the conduct constituting the alleged offence occurs wholly outside
Australia and:
(i) at the time of the alleged offence, the person is an Australian
citizen; or
(ii) at the time of the alleged offence, the person is a resident of
Australia; or
(iii) at the time of the alleged offence, the person is a body corporate
incorporated by or under a law of the Commonwealth or of a State or Territory.
Note: The expression
offence against section 70.2 is given an extended meaning by
subsections 11.2(1), 11.2A(1) and 11.6(2).
(2) Proceedings for an offence against section 70.2 must not be
commenced without the Attorney-General's written consent if:
(a) the conduct constituting the alleged offence occurs wholly outside
Australia; and
(b) at the time of the alleged offence, the person alleged to have
committed the offence is:
(i) a resident of Australia; and
(ii) not an Australian citizen.
(3) However, a person may be arrested for, charged with, or remanded in
custody or released on bail in connection with an offence against
section 70.2 before the necessary consent has been given.
The purpose of this Division is to protect United Nations and associated
personnel and give effect to the Convention on the Safety of United Nations
and Associated Personnel.
(a) the person's conduct causes the death of another person; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not
a UN enforcement action; and
(d) the first-mentioned person intends to cause, or is reckless as to
causing, the death of the UN or associated person or any other person by the
conduct.
Penalty: Imprisonment for life.
Note: Section 71.23
defines UN enforcement action , UN operation and UN or associated person .
(2) Strict liability applies to paragraphs (1)(b) and (c).
(a) the person's conduct causes the death of another person; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not
a UN enforcement action; and
(d) the first-mentioned person intends to cause, or is reckless as to
causing, serious harm to the UN or associated person or any other person by
the conduct.
Penalty: Imprisonment for 25 years.
Note: Section 71.23
defines UN enforcement action , UN operation and UN or associated person .
(2) Strict liability applies to paragraphs (1)(b) and (c).
(2) Strict liability applies to paragraphs (1)(b) and (c).
(3) In this section:
"sexually penetrate" means:
(a) penetrate (to any extent) the genitalia or anus of a person by any
part of the body of another person or by any object manipulated by that other
person; or
(b) penetrate (to any extent) the mouth of a person by the penis of
another person; or
(c) continue to sexually penetrate as defined in paragraph (a) or
(b).
(4) In this section, being reckless as to a lack of consent to sexual
penetration includes not giving any thought to whether or not the person is
consenting to sexual penetration.
(5) In this section, the genitalia or others parts of the body of a
person include surgically constructed genitalia or other parts of the body of
the person.
(2) Strict liability applies to paragraphs (1)(b) and (c).
(3) In this section, serious offence means an offence under a law of the
Commonwealth, a State or Territory or a foreign law the maximum penalty for
which is death, or imprisonment for not less than 12 months.
(a) threatens to commit an offence (the threatened offence ) under any
of sections 71.2 to 71.11; and
(b) intends to compel any other person to do or omit to do an act by
making the threat.
Penalty:
(a) if the threatened offence is the offence under section 71.2
(murder of a UN or associated person)--imprisonment for 10 years; or
(b) if the threatened offence is the offence under section 71.3,
71.4, 71.5, 71.8 or 71.9 (manslaughter of, causing serious harm to,
kidnapping, or sexually penetrating, a UN or associated person)--imprisonment
for 7 years; or
(c) if the threatened offence is the offence under section 71.6 or
71.11 (causing harm to, or damaging the property etc. of, a UN or associated
person)--imprisonment for 5 years; or
(d) if the threatened offence is the offence under section 71.7 or
71.10 (recklessly causing harm to, or unlawful detention of, a UN or
associated person)--imprisonment for 3 years.
Note: Section 71.23
defines UN or associated person .
(1) For the purposes of this Division, an offence against
section 71.4, 71.5, 71.6, 71.7, 71.8, 71.9 or 71.10 is an aggravated
offence if:
(a) the offence was committed during the deliberate and systematic
infliction of severe pain over a period of time; or
(b) the offence was committed by the use or threatened use of an
offensive weapon; or
(c) the offence was committed against a person in an abuse of authority.
(2) If the prosecution intends to prove an aggravated offence, the
charge must allege the relevant aggravated offence.
(3) In order to prove an aggravated offence, the prosecution must prove
that the defendant intended to commit, or was reckless as to committing, the
matters referred to in paragraph (1)(a), (b) or (c).
(4) In this section:
"offensive weapon" includes:
(a) an article made or adapted for use for causing injury to, or
incapacitating, a person; or
(b) an article where the person who has the article intends, or
threatens to use, the article to cause injury to, or to incapacitate, another
person.
A person is not criminally responsible for an offence against
section 71.4 or 71.5 if the conduct causing serious harm to another
person is engaged in by the first-mentioned person:
(a) for the purpose of benefiting the other person or in pursuance of a
socially acceptable function or activity; and
(b) having regard to the purpose, function or activity, the conduct was
reasonable.
Note 1: If a person causes
less than serious harm to another person, the prosecution is obliged to prove
that the harm was caused without the consent of the person harmed (see for
example section 71.6).
Note 2: A
defendant bears an evidential burden in relation to the matter in this
section, see subsection 13.3(3).
A person is not criminally responsible for an offence against
section 71.8 in respect of any sexual penetration carried out in the
course of a procedure in good faith for medical or hygienic purposes.
Note: A defendant bears
an evidential burden in relation to the matter in this section, see
subsection 13.3(3).
A person commits an offence under this Division only if:
(a) the conduct constituting the alleged offence occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an Australian
ship; or
(b) the conduct constituting the alleged offence occurs wholly outside
Australia and:
(i) at the time of the alleged offence, the person is an Australian
citizen; or
(ii) at the time of the alleged offence, the person is a body corporate
incorporated by or under a law of the Commonwealth or of a State or Territory;
or
(iii) at the time of the alleged offence, the person is a stateless
person whose habitual residence is in Australia; or
(iv) the conduct is subject to the jurisdiction of another State Party
to the Convention established in accordance with paragraph 1 or 2 of
article 10 and the person enters Australia; or
(c) the alleged offence is committed against an Australian citizen; or
(d) by engaging in the conduct constituting the alleged offence, the
person intends to compel a legislative, executive or judicial institution of
the Commonwealth, a State or a Territory to do or omit to do an act.
(1) A State or Territory court does not have jurisdiction to determine a
charge of an offence under this Division if the conduct constituting the
offence also constitutes an offence (the State offence ) against the law of
that State or Territory.
(2) If:
(a) a prosecution is brought against a person under this Division; and
(b) a court finds that there is a corresponding State offence;
then
this section does not prevent the person from being prosecuted for the State
offence.
If a person has been convicted or acquitted of an offence in respect of
conduct under the law of a foreign country, the person cannot be convicted of
an offence under this Division in respect of that conduct.
(1) Proceedings for an offence under this Division must not be commenced
without the Attorney-General's written consent.
(2) However, a person may be arrested, charged, remanded in custody, or
released on bail, in connection with an offence under this Division before the
necessary consent has been given.
For the purposes of section 38 of the Judiciary Act 1903, a matter
arising under this Act, including a question of interpretation of the
Convention, is taken not to be a matter arising directly under a treaty.
(a) persons assigned by a government, or an intergovernmental
organisation, with the agreement of the competent organ of the United Nations;
or
(b) persons engaged by the Secretary-General of the United Nations, a
specialised agency or the International Atomic Energy Agency; or
(c) persons deployed by a humanitarian non-governmental organisation or
agency under an agreement with the Secretary-General of the United Nations, a
specialised agency or the International Atomic Energy Agency;
to carry out
activities in support of the fulfilment of the mandate of a UN operation.
"Convention" means the Convention on the Safety of United Nations and
Associated Personnel, done at New York on 9 December 1994.
Note: The text of the
Convention is set out in Australian Treaty Series 1995 No. 1. In 2000
this was available in the Australian Treaties Library of the Department of
Foreign Affairs and Trade, accessible through that Department's website.
"Immigration Minister" means
the Minister administering the Migration Act 1958.
"UN enforcement action"
means a UN operation:
(a) that is authorised by the Security Council as an enforcement action
under Chapter VII of the Charter of the United Nations; and
(b) in which any of the UN or associated personnel are engaged as
combatants against organised armed forces; and
(c) to which the law of international armed conflict applies.
"UN
operation" means an operation established by the competent organ of the United
Nations in accordance with the Charter of the United Nations and conducted
under United Nations authority and control if:
(a) the operation is for the purpose of maintaining or restoring
international peace and security; or
(b) the Security Council or the General Assembly has declared, for the
purposes of the Convention, that there exists an exceptional risk to the
safety of the personnel engaged in the operation.
"UN or associated person"
means a person who is a member of any UN personnel or associated personnel.
"UN personnel" means:
(a) persons engaged or deployed by the Secretary-General of the United
Nations as members of the military, police or civilian components of a UN
operation; or
(b) any other officials or experts on mission of the United Nations, its
specialised agencies or the International Atomic Energy Agency who are present
in an official capacity in the area where a UN operation is being conducted.
(2) In this Division, a person's conduct causes death or harm if it
substantially contributes to the death or harm.
The purpose of this Subdivision is to create offences relating to
international terrorist activities using explosive or lethal devices and give
effect to the International Convention for the Suppression of Terrorist
Bombings, done at New York on 15 December 1997.
Note: The text of the
Convention is available in the Australian Treaties Library of the Department
of Foreign Affairs and Trade, accessible through that Department's website.
Nothing in this Subdivision makes a member of the Australian Defence Force
acting in connection with the defence or security of Australia liable to be
prosecuted for an offence.
(a) the person intentionally delivers, places, discharges or detonates a
device; and
(b) the device is an explosive or other lethal device and the person is
reckless as to that fact; and
(c) the device is delivered, placed, discharged, or detonated, to, in,
into or against:
(i) a place of public use; or
(ii) a government facility; or
(iii) a public transportation system; or
(iv) an infrastructure facility; and
(d) the person intends to cause death or serious harm.
Penalty:
Imprisonment for life.
(2) A person commits an offence if:
(a) the person intentionally delivers, places, discharges or detonates a
device; and
(b) the device is an explosive or other lethal device and the person is
reckless as to that fact; and
(c) the device is delivered, placed, discharged, or detonated, to, in,
into or against:
(i) a place of public use; or
(ii) a government facility; or
(iii) a public transportation system; or
(iv) an infrastructure facility; and
(d) the person intends to cause extensive destruction to the place,
facility or system; and
(e) the person is reckless as to whether that intended destruction
results or is likely to result in major economic loss.
Penalty:
Imprisonment for life.
(3) Strict liability applies to paragraphs (1)(c) and (2)(c).
Note: A court that is
sentencing a person who has been convicted of an offence against this section
must warn the person about continuing detention orders (see
section 105A.23).
(1) A person commits an offence under this Subdivision only if one or
more of the following paragraphs applies and the circumstances relating to the
alleged offence are not exclusively internal (see subsection (2)):
(a) the conduct constituting the alleged offence occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian ship or an Australian
aircraft;
(b) at the time of the alleged offence, the person is an Australian
citizen;
(c) at the time of the alleged offence, the person is a stateless person
whose habitual residence is in Australia;
(d) the conduct is subject to the jurisdiction of another State Party to
the Convention established in accordance with paragraph 1 or 2 of Article
6 of the Convention and the person is in Australia;
(e) the alleged offence is committed against a government facility of
the Commonwealth, or of a State or Territory, that is located outside
Australia;
(f) the alleged offence is committed against:
(i) an Australian citizen; or
(ii) a body corporate incorporated by or under a law of the Commonwealth
or of a State or Territory;
(g) by engaging in the conduct constituting the alleged offence, the
person intends to compel a legislative, executive or judicial institution of
the Commonwealth, a State or a Territory to do or omit to do an act.
(2) The circumstances relating to the alleged offence are exclusively
internal if:
(a) the conduct constituting the alleged offence occurs wholly within
Australia; and
(b) the alleged offender is an Australian citizen; and
(c) all of the persons against whom the offence is committed are
Australian citizens or bodies corporate incorporated by or under a law of the
Commonwealth or of a State or Territory; and
(d) the alleged offender is in Australia; and
(e) no other State Party to the Convention has a basis under
paragraph 1 or 2 of Article 6 of the Convention for exercising
jurisdiction in relation to the conduct.
If a person has been convicted or acquitted of an offence in respect of
conduct under the law of a foreign country, the person cannot be convicted of
an offence under this Subdivision in respect of that conduct.
(1) Proceedings for an offence under this Subdivision must not be
commenced without the Attorney-General's written consent.
(2) However, a person may be arrested, charged, remanded in custody, or
released on bail, in connection with an offence under this Subdivision before
the necessary consent has been given.
(3) In determining whether to bring proceedings for an offence under
this Subdivision, the Attorney-General must have regard to the terms of the
Convention, including paragraph 2 of Article 19.
(4) In determining whether to bring proceedings for an offence under
this Subdivision, the Attorney-General must also have regard to:
(a) whether the conduct constituting the offence also gives rise to an
offence under a law of a State or Territory; and
(b) whether a prosecution relating to the conduct under the State or
Territory law has been or will be commenced.
For the purposes of section 38 of the Judiciary Act 1903, a matter
arising under this Subdivision, including a question of interpretation of the
Convention, is taken not to be a matter arising directly under a treaty.
The purpose of this Subdivision is to create offences relating to plastic
explosives and give effect to the Convention on the Marking of Plastic
Explosives.
Note: The
Convention requires the introduction of detection agents into plastic
explosives so as to render the explosives detectable by vapour detection
means. This is known as the marking of the explosives.
(a) a person is charged with an offence against section 72.12,
72.13, 72.14 or 72.15; and
(b) the prosecution alleges that the plastic explosive breached a
particular marking requirement;
it is a defence if the defendant proves that
he or she had no reasonable grounds for suspecting that the plastic explosive
breached that marking requirement.
Note
1: A defendant bears a legal burden in
relation to the matter in subsection (1) (see section 13.4).
Note
2: For the marking requirements, see
section 72.33.
(2) If:
(a) a person is charged with an offence against section 72.12,
72.13 or 72.15; and
(b) the prosecution alleges that the plastic explosive breached the
second marking requirement;
it is a defence if the defendant proves that, at
the time of the alleged offence:
(c) the plastic explosive contained a detection agent; and
(d) the concentration of the detection agent in the plastic explosive
was not less than the minimum manufacture concentration for the detection
agent; and
(e) the detection agent was homogenously distributed throughout the
plastic explosive.
Note 1: A defendant
bears a legal burden in relation to the matter in subsection (2) (see
section 13.4).
Note 2: For the
marking requirements, see section 72.33.
Note
3: For minimum manufacture concentration ,
see section 72.34.
(c) within 24 hours after the manufacture of the plastic explosive, the
person does not cause the plastic explosive to be contained, enclosed or
packaged in a wrapper with:
(i) the expression "PLASTIC EXPLOSIVE" (in upper-case lettering); and
(ii) the date of manufacture of the plastic explosive; and
(iii) if the plastic explosive is of a prescribed type--that type; and
(iv) if the plastic explosive contains a detection agent for the purpose
of meeting the first marking requirement--the name of the detection agent; and
(v) if the plastic explosive contains a detection agent for the purpose
of meeting the first marking requirement--the concentration of the detection
agent in the plastic explosive at the time of manufacture, expressed as a
percentage by mass;
legibly displayed on the outer surface of the wrapper.
Penalty:
Imprisonment for 2 years.
(2) The fault element for paragraphs (1)(b) and (c) is
recklessness.
(1) A responsible Minister may, by writing, authorise:
(a) the trafficking in; or
(b) the import, export, manufacture or possession of;
an unmarked
plastic explosive.
(2) A responsible Minister must not give an authorisation under
subsection (1) in relation to an unmarked plastic explosive unless the
responsible Minister is satisfied that:
(a) the plastic explosive is for use exclusively for one or more of the
following:
(i) research, development or testing of new or modified explosives;
(ii) development or testing of explosives detection equipment;
(iii) training in explosives detection;
(iv) forensic science; or
(b) both:
(i) the plastic explosive is an integral part of an explosive device
that was manufactured exclusively for defence purposes; and
(ii) the explosive device is for use exclusively for defence purposes;
or
(c) the plastic explosive will, within 3 years after the commencement of
this section, become an integral part of an explosive device manufactured
exclusively for defence purposes.
(3) An authorisation under subsection (1) must specify the grounds
on which it was given.
Conditions and restrictions
(4) An authorisation under subsection (1) is subject to such
conditions and restrictions as are specified in the authorisation.
(5) A responsible Minister must not give an authorisation under
subsection (1) in relation to an unmarked plastic explosive on grounds
covered by paragraph (2)(a) unless the authorisation is subject to a
condition imposing a limit as to the quantity of the plastic explosive.
Criteria
(6) In exercising a power conferred by this section in relation to:
(a) the trafficking in; or
(b) the import, export, manufacture or possession of;
an unmarked
plastic explosive, a responsible Minister must have regard to:
(c) the Convention on the Marking of Plastic Explosives; and
(d) whether the trafficking, import, export, manufacture or possession
is reasonable; and
(e) such other matters (if any) as the responsible Minister considers
relevant.
(1) A responsible Minister may, by writing, authorise:
(a) the trafficking in; or
(b) the import, export or possession of;
an unmarked plastic explosive
that was manufactured before the commencement of this section.
(2) A responsible Minister must not give an authorisation under
subsection (1) in relation to an unmarked plastic explosive unless the
responsible Minister is satisfied that the plastic explosive is exclusively
for use in connection with:
(a) the operation of the Australian Defence Force; or
(1) A member of the Australian Defence Force is authorised to possess,
import or traffic in an unmarked plastic explosive if:
(a) the plastic explosive was obtained in the course of the operation
outside Australia of the Australian Defence Force; and
(b) the member believes on reasonable grounds that there is insufficient
time to obtain an authorisation under this Subdivision because of:
(i) an emergency; or
(ii) any other sudden or unexpected circumstances.
(2) An authorisation under subsection (1) ceases to have effect at
the end of the seventh day after the day on which the plastic explosive was
obtained.
(1) A member of the Australian Federal Police is authorised to possess,
import or traffic in an unmarked plastic explosive if:
(a) the plastic explosive was obtained in the course of the operation
outside Australia of the Australian Federal Police; and
(b) the member believes on reasonable grounds that there is insufficient
time to obtain an authorisation under this Subdivision because of:
(i) an emergency; or
(ii) any other sudden or unexpected circumstances.
(2) An authorisation under subsection (1) ceases to have effect at
the end of the seventh day after the day on which the plastic explosive was
obtained.
(a) convicts a person of an offence against this Subdivision in relation
to a plastic explosive; or
(b) makes an order under section 19B of the Crimes Act 1914in
respect of a person charged with an offence against this Subdivision in
relation to a plastic explosive;
the court may order the forfeiture to the
Commonwealth of the plastic explosive.
(2) A plastic explosive forfeited to the Commonwealth under
subsection (1) becomes the property of the Commonwealth.
(3) A plastic explosive forfeited to the Commonwealth under
subsection (1) is to be dealt with in such manner as a responsible
Minister directs.
(4) Without limiting subsection (3), a responsible Minister may
direct that a plastic explosive forfeited to the Commonwealth under
subsection (1) be:
(a) destroyed; or
(b) used exclusively for one or more of the purposes covered by
paragraph 72.18(2)(a).
Note 1: See
also section 10.5 (lawful authority).
Note
2: See also section 229 of the
Customs Act 1901(forfeiture of goods that have been unlawfully imported or
exported).
(1) A person may surrender a plastic explosive to the Commonwealth at a
place, and in a manner, prescribed for the purposes of this subsection.
(2) A plastic explosive surrendered to the Commonwealth under
subsection (1) becomes the property of the Commonwealth.
(3) A plastic explosive surrendered to the Commonwealth under
subsection (1) is to be dealt with in such manner as a responsible
Minister directs.
(4) Without limiting subsection (3), a responsible Minister may
direct that a plastic explosive surrendered to the Commonwealth under
subsection (1) be:
(a) destroyed; or
(b) used exclusively for one or more of the purposes covered by
paragraph 72.18(2)(a).
A member of the Australian Defence Force may destroy an unmarked plastic
explosive if the plastic explosive was obtained in the course of the operation
outside Australia of the Australian Defence Force.
A member of the Australian Federal Police may destroy an unmarked plastic
explosive if the plastic explosive was obtained in the course of the operation
outside Australia of the Australian Federal Police.
(1) The AFP Minister may, by writing, delegate to:
(a) the Secretary of the Department administered by that Minister; or
(b) an SES employee, or an acting SES employee, in that Department,
where the employee occupies or acts in a position with a classification of
Senior Executive Band 3;
all or any of the AFP Minister's powers under
sections 72.18, 72.19, 72.24 and 72.25.
(2) A delegate is, in the exercise of a power delegated under
subsection (1), subject to the written directions of the AFP Minister.
(1) The Minister for Defence may, by writing, delegate to:
(a) an SES employee, or an acting SES employee, in the Department of
Defence, where the employee occupies or acts in a position with a
classification of Senior Executive Band 3; or
(b) an officer of the Australian Navy who holds the rank of Vice-Admiral
or a higher rank; or
(c) an officer of the Australian Army who holds the rank of
Lieutenant-General or a higher rank; or
(d) an officer of the Australian Air Force who holds the rank of Air
Marshal or a higher rank; or
(e) an officer of the Australian Defence Force who is on deployment as
the Commander of an Australian Task Force, contingent or force element that is
operating outside Australia;
all or any of the powers of the Minister for
Defence under sections 72.18, 72.19, 72.24 and 72.25.
(2) A delegate must not exercise a power delegated under
subsection (1) unless the exercise of the power relates to:
(a) the operation of the Australian Defence Force; or
(1) An application may be made to the Administrative Appeals Tribunal
for review of a decision refusing to give an authorisation under
subsection 72.18(1) or 72.19(1).
(2) An application may be made to the Administrative Appeals Tribunal
for review of a decision to specify a condition or restriction in an
authorisation under subsection 72.18(1) or 72.19(1), but such an
application may only be made by a person to whom the authorisation applies.
(1) This section sets out the 2 marking requirements for a plastic
explosive.
Concentration of detection agent at time of manufacture
(2) The first marking requirement is that, at the time of the
manufacture of the plastic explosive, all of the following conditions were
satisfied:
(a) the plastic explosive contained a detection agent;
(b) the concentration of the detection agent in the plastic explosive
was not less than the minimum manufacture concentration for the detection
agent;
(c) the detection agent was homogenously distributed throughout the
plastic explosive.
Note: For minimum
manufacture concentration , see section 72.34.
Freshness
(3) The second marking requirement is that less than 10 years have
elapsed since the manufacture of the plastic explosive.
Interpretation
(4) In determining whether a plastic explosive manufactured before the
commencement of this section breached the first marking requirement, assume
that this section and sections 72.34 and 72.36 had been in force at the
time of manufacture.
(1) This section applies in relation to a prosecution for an offence
against this Subdivision.
(2) If no detection agent can be detected in a sample of a plastic
explosive when tested using:
(a) a method generally accepted in the scientific community as a
reliable means of measuring the concentration of detection agents in plastic
explosives; or
(b) a method prescribed for the purposes of this paragraph;
it is
presumed, unless the contrary is proved, that the plastic explosive breaches
the first marking requirement.
Note: A defendant bears
a legal burden in relation to proving the contrary (see section 13.4).
"Convention on the Marking of Plastic
Explosives" means:
(a) the Convention on the Marking of Plastic Explosives for the Purpose
of Detection, done at Montreal on 1 March 1991; or
(b) if:
(i) the Convention is amended; and
(ii) the amendment binds Australia;
the Convention as so amended.
Note: In 2006, the text
of the Convention was accessible through the Australian Treaties Library on
the AustLII website (www.austlii.edu.au).
"Department of Defence" means the
Department that deals with matters relating to defence.
"detection agent"
has the meaning given by section 72.34.
"explosive device" includes the
following:
(a) a bomb;
(b) a grenade;
(c) a mine;
(d) a missile;
(e) a perforator;
(f) a projectile;
(g) a rocket;
(h) a shaped charge;
(i) a shell.
"export" includes take from Australia.
"first marking
requirement" has the meaning given by subsection 72.33(2).
"high
explosive" means an explosive with a velocity of detonation that is greater
than the velocity of sound in the explosive (typically greater than 340 metres
per second), and includes the following:
(a) cyclotetramethylenetetranitramine (HMX);
(b) pentaerythritol tetranitrate (PETN);
(c) cyclotrimethylenetrinitramine (RDX).
"import" includes bring into
Australia.
"manufacture a substance" means any process by which a substance
is produced, and includes the following:
(a) the process of transforming a substance into a different substance;
(b) the reprocessing of a substance.
"marking requirement" has the
meaning given by section 72.33.
"minimum manufacture concentration" has
the meaning given by section 72.34.
"Minister for Defence" means the
Minister administering the Defence Act 1903.
"plastic explosive" means an
explosive product (including an explosive product in flexible or elastic sheet
form) that is:
(a) formulated with:
(i) one or more high explosives which in their pure form have a vapour
pressure less than 10¯ 4 Pa at a temperature of 25°C; and
(ii) a binder material; and
(b) as a mixture, malleable or flexible at normal room temperature.
"possess" a substance includes the following:
(a) receive or obtain possession of the substance;
(b) have control over the disposition of the substance (whether or not
the substance is in the custody of the person);
(c) have joint possession of the substance.
"responsible Minister"
means:
(a) the AFP Minister; or
(b) the Minister for Defence.
"second marking requirement" has the
meaning given by subsection 72.33(3).
"traffic" in a substance means:
(a) transfer the substance; or
(b) offer the substance for sale; or
(c) invite the making of offers to buy the substance; or
(d) prepare the substance for transfer with the intention of
transferring any of it or believing that another person intends to transfer
any of it; or
(e) transport or deliver the substance with the intention of
transferring any of it or believing that another person intends to transfer
any of it; or
(f) guard or conceal the substance with the intention of transferring
any of it or the intention of assisting another person to transfer any of it;
or
(g) possess the substance with the intention of transferring any of it.
For the purposes of paragraph (d), preparing a substance for transfer
includes packaging the substance or separating the substance into discrete
units.
"transfer" means transfer ownership or possession.
"unmarked
plastic explosive" means a plastic explosive that breaches a marking
requirement.
"wrapper" , in relation to a plastic explosive, means a wrapper
the inner surface of which is in contact with the plastic explosive.
The purpose of this Subdivision is to create offences relating to cluster
munitions and explosive bomblets and give effect to the Convention on Cluster
Munitions.
(1) Section 72.38 does not apply to the acquisition or retention of
a cluster munition authorised under subsection (2).
Note: A defendant bears
an evidential burden in relation to the matter in subsection (1): see
subsection 13.3(3).
(2) The Minister administering the Explosives Act 1961may authorise, in
writing, specified members of the Australian Defence Force or other specified
Commonwealth public officials to acquire or retain specified cluster munitions
for one or more of the following purposes:
(a) the development of, and training in, cluster munition and explosive
submunition detection, clearance or destruction techniques;
(b) the development of cluster munition counter-measures;
Transfer to foreign party to
Convention on Cluster Munitions
(1) Section 72.38 does not apply to the transfer of a cluster
munition to a party to the Convention on Cluster Munitions for one or more of
the following purposes:
(a) the development of, and training in, cluster munition and explosive
submunition detection, clearance or destruction techniques;
(b) the development of cluster munition counter-measures;
(c) the destruction of the munition.
Note
1: A defendant bears an evidential burden
in relation to the matter in subsection (1): see subsection 13.3(3).
Note 2: This subsection relates to
paragraph 7 of Article 3 of the Convention on Cluster Munitions.
Intended transfer to Australian Defence Force
(2) Subsections (3) and (4) have effect if:
(a) a person has a cluster munition; and
(b) the person gives notice to a police officer or member of the
Australian Defence Force that the person wishes to transfer the munition to a
member of the Australian Defence Force or other Commonwealth public official;
and
(c) the person gives notice without delay after the first time the
person has the cluster munition after the commencement of this subsection.
(3) Subsection 72.38(1) does not apply to the person stockpiling or
retaining the cluster munition at any time before the person transfers it to a
member of the Australian Defence Force or other Commonwealth public official.
(4) Subsection 72.38(1) does not apply to the person transferring
the cluster munition to a member of the Australian Defence Force or other
Commonwealth public official.
Note: A defendant bears
an evidential burden in relation to the matters in subsection (2) and
whichever of subsections (3) and (4) is relevant: see
subsection 13.3(3).
A person who is an Australian citizen, is a member of the Australian Defence
Force or is performing services under a Commonwealth contract does not commit
an offence against section 72.38 by doing an act if:
(a) the act is done in the course of military cooperation or operations
with a foreign country that is not a party to the Convention on Cluster
Munitions; and
(b) the act is not connected with the Commonwealth:
(i) using a cluster munition; or
(ii) developing, producing or otherwise acquiring a cluster munition; or
(iii) stockpiling or retaining a cluster munition; or
(iv) transferring a cluster munition; and
(c) the act does not consist of expressly requesting the use of a
cluster munition in a case where the choice of munitions used is within the
Commonwealth's exclusive control.
Note
1: A defendant bears an evidential burden
in relation to the matter in this section: see subsection 13.3(3).
Note
2: The expression offence against
section 72.38 is given an extended meaning by subsections 11.2(1)
and 11.2A(1), section 11.3 and subsection 11.6(2).
Note
3: This section relates to paragraphs 3
and 4 of Article 21 of the Convention on Cluster Munitions.
(1) Section 72.38 does not apply to the stockpiling, retention or
transfer of a cluster munition that:
(a) is done by:
(i) a member of the armed forces of a foreign country that is not a
party to the Convention on Cluster Munitions; or
(ii) a person who is connected with such forces as described in
subsection (2) and is neither an Australian citizen nor a resident of
Australia; and
(b) is done in connection with the use by those forces of any of the
following in Australia in the course of military cooperation or operations
with the Australian Defence Force:
(i) a base;
(ii) an aircraft of any part of those forces or an aircraft being
commanded or piloted by a member of those forces in the course of his or her
duties as such a member;
(iii) a ship of any part of those forces or a ship being operated or
commanded by a member of those forces in the course of his or her duties as
such a member.
Note: A
defendant bears an evidential burden in relation to the matter in this
section: see subsection 13.3(3).
(2) This subsection covers a person with any of the following
connections with the armed forces of a foreign country that is not a party to
the Convention on Cluster Munitions:
(a) the person is employed by, or in the service of, any of those
forces;
(b) the person is serving with an organisation accompanying any of those
forces;
(c) the person is attached to or accompanying those forces and is
subject to the law of that country governing any of the armed forces of that
country.
(a) convicts someone of an offence against subsection 72.38(1); or
(b) makes an order under section 19B of the Crimes Act 1914relating to an offence against subsection 72.38(1).
Note: The expression
offence against subsection 72.38(1) is given an extended meaning by
subsections 11.2(1) and 11.2A(1), section 11.3 and
subsection 11.6(2).
(2) The court may order forfeiture to the Commonwealth of any cluster
munition involved in the offence.
(3) A cluster munition ordered to be forfeited to the Commonwealth
becomes the Commonwealth's property.
(1) A person (the first person ) is guilty of an offence if:
(a) the first person organises or facilitates the entry of another
person (the other person ) into a foreign country (whether or not via
Australia); and
(b) the entry of the other person into the foreign country does not
comply with the requirements under that country's law for entry into the
country; and
(c) the other person is not a citizen or permanent resident of the
foreign country.
Penalty: Imprisonment for 10 years or 1,000 penalty
units, or both.
(2) Absolute liability applies to the paragraph (1)(c) element of
the offence.
(3) For the purposes of this Code, an offence against
subsection (1) is to be known as the offence of people smuggling.
(1) A person (the first person ) commits an offence against this section
if the first person commits the offence of people smuggling (the underlying
offence ) in relation to another person (the victim ) and either or both of
the following apply:
(b) in committing the underlying offence, the first person subjects the
victim to cruel, inhuman or degrading treatment;
(c) in committing the underlying offence:
(i) the first person's conduct gives rise to a danger of death or
serious harm to the victim; and
(ii) the first person is reckless as to the danger of death or serious
harm to the victim that arises from the conduct.
Penalty: Imprisonment
for 20 years or 2,000 penalty units, or both.
(2) There is no fault element for the physical element of conduct
described in subsection (1), that the first person commits the underlying
offence, other than the fault elements (however described), if any, for the
underlying offence.
(2A) To avoid doubt, the first person may be convicted of an offence
against this section even if the first person has not been convicted of the
underlying offence.
(1) A person (the first person ) is guilty of an offence if:
(a) the first person organises or facilitates the entry of a group of at
least 5 persons (the other persons ) into a foreign country (whether or not
via Australia); and
(b) the entry of at least 5 of the other persons into the foreign
country does not comply with the requirements under that country's law for
entry into that country; and
(c) at least 5 of the other persons whose entry into the foreign country
is covered by paragraph (b) are not citizens or permanent residents of
the foreign country.
Penalty: Imprisonment for 20 years or 2,000
penalty units, or both.
(2) Absolute liability applies to the paragraph (1)(c) element of
the offence.
(3) If, on a trial for an offence against subsection (1), the trier
of fact is not satisfied that the defendant is guilty of that offence, but is
satisfied beyond reasonable doubt that the defendant is guilty of an offence
against subsection 73.1(1), the trier of fact may find the defendant not
guilty of an offence against subsection (1) but guilty of an offence
against subsection 73.1(1), so long as the defendant has been accorded
procedural fairness in relation to that finding of guilt.
(1) A person (the first person ) commits an offence if:
(a) the first person provides material support or resources to another
person or an organisation (the receiver ); and
(b) the support or resources aids the receiver, or a person or
organisation other than the receiver, to engage in conduct constituting the
offence of people smuggling.
Penalty: Imprisonment for 10 years or
1,000 penalty units, or both.
(2) Subsection (1) does not apply if the conduct constituting the
offence of people smuggling relates, or would relate, to:
(a) the first person; or
(b) a group of persons that includes the first person.
(3) To avoid doubt, the first person commits an offence against
subsection (1) even if the offence of people smuggling is not committed.
(1) Proceedings for an offence against this Subdivision must not be
commenced without the Attorney-General's written consent.
(2) However, a person may be arrested, charged, remanded in custody or
released on bail in connection with an offence against this Subdivision before
the necessary consent has been given.
(1) For the purposes of this Subdivision, a travel or identity document
is a false travel or identity document if, and only if:
(a) the document, or any part of the document:
(i) purports to have been made in the form in which it is made by a
person who did not make it in that form; or
(ii) purports to have been made in the form in which it is made on the
authority of a person who did not authorise its making in that form; or
(b) the document, or any part of the document:
(i) purports to have been made in the terms in which it is made by a
person who did not make it in those terms; or
(ii) purports to have been made in the terms in which it is made on the
authority of a person who did not authorise its making in those terms; or
(c) the document, or any part of the document:
(i) purports to have been altered in any respect by a person who
did not alter it in that respect; or
(ii) purports to have been altered in any respect on the authority of a
person who did not authorise its alteration in that respect; or
(d) the document, or any part of the document:
(i) purports to have been made or altered by a person who did not exist;
or
(ii) purports to have been made or altered on the authority of a person
who did not exist; or
(e) the document, or any part of the document, purports to have been
made or altered on a date on which, at a time at which, at a place at which,
or otherwise in circumstances in which, it was not made or altered.
(2) For the purposes of this Subdivision, a person is taken to make a
false travel or identity document if the person alters a document so as to
make it a false travel or identity document (whether or not it was already a
false travel or identity document before the alteration).
(3) This section has effect as if a document that purports to be a true
copy of another document were the original document.
A person (the first person ) commits an offence if:
(a) the first person makes, provides or possesses a false travel or
identity document; and
(b) the first person intends that the document will be used to
facilitate the entry of another person (the other person ) into a foreign
country, where the entry of the other person into the foreign country would
not comply with the requirements under that country's law for entry into the
country; and
(c) the first person made, provided or possessed the document:
(i) having obtained (whether directly or indirectly) a benefit to do so;
or
(ii) with the intention of obtaining (whether directly or indirectly) a
benefit.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or
both.
(1) A person (the first person ) commits an offence if:
(a) the first person provides or possesses a travel or identity
document; and
(b) the first person knows that:
(i) the issue of the travel or identity document; or
(ii) an alteration of the travel or identity document;
has been obtained dishonestly or by threats; and
(c) the first person intends that the document will be used to
facilitate the entry of another person (the other person ) into a foreign
country, where the entry of the other person into the foreign country would
not comply with the requirements under that country's law for entry into the
country; and
(d) the first person provided or possessed the document:
(i) having obtained (whether directly or indirectly) a benefit to do so;
or
(ii) with the intention of obtaining (whether directly or indirectly) a
benefit.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or
both.
(2) For the purposes of subsection (1), a threat may be:
(a) express or implied; or
(b) conditional or unconditional.
(3) For the purposes of subsection (1), dishonest means:
(a) dishonest according to the standards of ordinary people; and
(b) known by the defendant to be dishonest according to the standards of
ordinary people.
(4) In a prosecution for an offence against this section, the
determination of dishonesty is a matter for the trier of fact.
A person (the first person ) commits an offence if:
(a) the first person provides or possesses a travel or identity
document; and
(b) the first person intends that the document will be used to
facilitate the entry of another person (the other person ) into a foreign
country, where the entry of the other person into the foreign country would
not comply with the requirements under that country's law for entry into the
country; and
(c) the first person knows that the other person is not the person to
whom the document applies; and
(d) the first person provided or possessed the document:
(i) having obtained (whether directly or indirectly) a benefit to do so;
or
(ii) with the intention of obtaining (whether directly or indirectly) a
benefit.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or
both.
A person (the first person ) commits an offence if:
(a) the first person takes possession of, or destroys, a travel or
identity document that applies to another person (the other person ); and
(b) the first person does so intending to conceal the other person's
identity or nationality; and
(c) at the time of doing so, the first person intends to organise or
facilitate the entry of the other person into a foreign country:
(i) having obtained, or with the intention of obtaining, whether
directly or indirectly, a benefit to organise or facilitate that entry; and
(ii) where the entry of the other person into the foreign country would
not comply with the requirements under that country's law for entry into the
country.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or
both.
(a) causes the death of the Sovereign, the heir apparent of the
Sovereign, the consort of the Sovereign, the Governor-General or the Prime
Minister; or
(b) causes harm to the Sovereign, the Governor-General or the Prime
Minister resulting in the death of the Sovereign, the Governor-General or the
Prime Minister; or
(c) causes harm to the Sovereign, the Governor-General or the Prime
Minister, or imprisons or restrains the Sovereign, the Governor-General or the
Prime Minister; or
(d) levies war, or does any act preparatory to levying war, against the
Commonwealth; or
(g) instigates a person who is not an Australian citizen to make an
armed invasion of the Commonwealth or a Territory of the Commonwealth.
Penalty: Imprisonment for life.
(2) A person commits an offence if the person:
(a) receives or assists another person who, to his or her knowledge, has
committed an offence against this Subdivision (other than this subsection)
with the intention of allowing him or her to escape punishment or
apprehension; or
(b) knowing that another person intends to commit an offence against
this Subdivision (other than this subsection), does not inform a constable of
it within a reasonable time or use other reasonable endeavours to prevent the
commission of the offence.
Penalty: Imprisonment for life.
(8) In this section:
"constable" means a member or special member of
the Australian Federal Police or a member of the police force or police
service of a State or Territory.
(a) a party (the enemy ) is engaged in armed conflict involving the
Commonwealth or the Australian Defence Force; and
(b) the enemy is declared in a Proclamation made under
section 80.1AB; and
(c) the person engages in conduct; and
(d) the person intends that the conduct will materially assist the enemy
to engage in armed conflict involving the Commonwealth or the Australian
Defence Force; and
(e) the conduct materially assists the enemy to engage in armed conflict
involving the Commonwealth or the Australian Defence Force; and
(f) at the time the person engages in the conduct:
(i) the person knows that the person is an Australian citizen or a
resident of Australia; or
(ii) the person knows that the person has voluntarily put himself or
herself under the protection of the Commonwealth; or
(iii) the person is a body corporate incorporated by or under a law of
the Commonwealth or of a State or Territory.
Note
1: There is a defence in section 80.3
for acts done in good faith.
Note 2: If
a body corporate is convicted of an offence against subsection (1),
subsection 4B(3) of the Crimes Act 1914allows a court to impose a fine
of up to 10,000 penalty units.
Penalty: Imprisonment for life.
(2) Strict liability applies to paragraph (1)(b) and
subparagraph (1)(f)(iii).
(3) Absolute liability applies to paragraph (1)(e).
(4) Subsection (1) does not apply to engagement in conduct solely
by way of, or for the purposes of, the provision of aid or assistance of a
humanitarian nature.
Note: A defendant bears
an evidential burden in relation to the matters in this subsection (see
subsection 13.3(3)).
The Governor-General may, by Proclamation, declare a party to be an enemy
engaged in armed conflict involving the Commonwealth or the Australian Defence
Force.
Note: See
subsection 80.1AA(1) for the effect of the Proclamation.
(b) the conduct involves the use of force or violence; and
(c) the person engages in the conduct with the intention of
overthrowing:
(i) the Constitution; or
(ii) the Government of the Commonwealth, of a State or of a Territory;
or
(iii) the lawful authority of the Government of the Commonwealth.
Note
1: There is a defence in section 80.3
for acts done in good faith.
Note 2: If
a body corporate is convicted of an offence against subsection (1),
subsection 4B(3) of the Crimes Act 1914allows a court to impose a fine
of up to 10,000 penalty units.
Urging the overthrow of
the Constitution or Government by force or violence
(1) A person (the first person ) commits an offence if:
(a) the first person intentionally urges another person to overthrow by
force or violence:
(i) the Constitution; or
(ii) the Government of the Commonwealth, of a State or of a Territory;
or
(iii) the lawful authority of the Government of the Commonwealth; and
(b) the first person does so intending that force or violence will
occur.
Penalty: Imprisonment for 7 years.
Note: For intention, see
section 5.2.
(2) Recklessness applies to the element of the offence under
subsection (1) that it is:
(a) the Constitution; or
(b) the Government of the Commonwealth, a State or a Territory; or
(c) the lawful authority of the Government of the Commonwealth;
that
the first person urges the other person to overthrow.
Urging interference in
Parliamentary elections or constitutional referenda by force or violence
(3) A person (the first person ) commits an offence if:
(a) the first person intentionally urges another person to interfere, by
force or violence, with lawful processes for:
(i) an election of a member or members of a House of the Parliament; or
(ii) a referendum; and
(b) the first person does so intending that force or violence will
occur.
Penalty: Imprisonment for 7 years.
Note: For intention, see
section 5.2.
(4) Recklessness applies to the element of the offence under
subsection (3) that it is lawful processes for an election of a member or
members of a House of the Parliament, or for a referendum, that the first
person urges the other person to interfere with.
Note: There is a defence
in section 80.3 for acts done in good faith.
(1) A person (the first person ) commits an offence if:
(a) the first person intentionally urges another person, or a group, to
use force or violence against a group (the targeted group ); and
(b) the first person does so intending that force or violence will
occur; and
(c) the targeted group is distinguished by race, religion, nationality,
national or ethnic origin or political opinion; and
(d) the use of the force or violence would threaten the peace, order and
good government of the Commonwealth.
Penalty: Imprisonment for 7
years.
Note: For
intention, see section 5.2.
(2) A person (the first person ) commits an offence if:
(a) the first person intentionally urges another person, or a group, to
use force or violence against a group (the targeted group ); and
(b) the first person does so intending that force or violence will
occur; and
(c) the targeted group is distinguished by race, religion, nationality,
national or ethnic origin or political opinion.
Penalty: Imprisonment
for 5 years.
Note: For
intention, see section 5.2.
(3) The fault element for paragraphs (1)(c) and (2)(c) is
recklessness.
Note:
For recklessness, see section 5.4.
Alternative verdict
(4) Subsection (5) applies if, in a prosecution for an offence (the
prosecuted offence ) against subsection (1), the trier of fact:
(a) is not satisfied that the defendant is guilty of the offence; but
(b) is satisfied beyond reasonable doubt that the defendant is guilty of
an offence (the alternative offence ) against subsection (2).
(5) The trier of fact may find the defendant not guilty of the
prosecuted offence but guilty of the alternative offence, so long as the
defendant has been accorded procedural fairness in relation to that finding of
guilt.
Note: There is
a defence in section 80.3 for acts done in good faith.
(1) A person (the first person ) commits an offence if:
(a) the first person intentionally urges another person, or a group, to
use force or violence against a person (the targeted person ); and
(b) the first person does so intending that force or violence will
occur; and
(c) the first person does so because of his or her belief that the
targeted person is a member of a group (the targeted group ); and
(d) the targeted group is distinguished by race, religion, nationality,
national or ethnic origin or political opinion; and
(e) the use of the force or violence would threaten the peace, order and
good government of the Commonwealth.
Penalty: Imprisonment for 7
years.
Note: For
intention, see section 5.2.
(2) A person (the first person ) commits an offence if:
(a) the first person intentionally urges another person, or a group, to
use force or violence against a person (the targeted person ); and
(b) the first person does so intending that force or violence will
occur; and
(c) the first person does so because of his or her belief that the
targeted person is a member of a group (the targeted group ); and
(d) the targeted group is distinguished by race, religion, nationality,
national or ethnic origin or political opinion.
Penalty: Imprisonment
for 5 years.
Note: For
intention, see section 5.2.
(3) For the purposes of paragraphs (1)(c) and (2)(c), it is
immaterial whether the targeted person actually is a member of the targeted
group.
(4) The fault element for paragraphs (1)(d) and (2)(d) is
recklessness.
Note:
For recklessness, see section 5.4.
Alternative verdict
(5) Subsection (6) applies if, in a prosecution for an offence (the
prosecuted offence ) against subsection (1), the trier of fact:
(a) is not satisfied that the defendant is guilty of the offence; but
(b) is satisfied beyond reasonable doubt that the defendant is guilty of
an offence (the alternative offence ) against subsection (2).
(6) The trier of fact may find the defendant not guilty of the
prosecuted offence but guilty of the alternative offence, so long as the
defendant has been accorded procedural fairness in relation to that finding of
guilt.
Note: There is
a defence in section 80.3 for acts done in good faith.
(ii) the commission of a terrorism offence referred to in
subsection (2); and
(b) the person engages in that conduct reckless as to whether another
person will:
(i) engage in a terrorist act; or
(ii) commit a terrorism offence referred to in subsection (2).
Note: There is a defence
in section 80.3 for acts done in good faith.
Penalty:
Imprisonment for 5 years.
(2) A terrorism offence is referred to in this subsection if:
(a) the offence is punishable on conviction by imprisonment for 5 years
or more; and
(b) the offence is not:
(i) an offence against section 11.1 (attempt), 11.4 (incitement) or
11.5 (conspiracy) to the extent that it relates to a terrorism offence; or
(ii) a terrorism offence that a person is taken to have committed
because of section 11.2 (complicity and common purpose), 11.2A (joint
commission) or 11.3 (commission by proxy).
Definitions
(3) In this section:
"advocates" : a person advocates the doing of a
terrorist act or the commission of a terrorism offence if the person counsels,
promotes, encourages or urges the doing of a terrorist act or the commission
of a terrorism offence.
(b) the person engages in that conduct reckless as to whether another
person will engage in genocide.
Note: There is a defence
in section 80.3 for acts done in good faith.
Penalty:
Imprisonment for 7 years.
Double jeopardy
(2) A person cannot be tried by a federal court or a court of a State or
Territory for an offence against subsection (1) if the person has already
been convicted or acquitted by the International Criminal Court for an offence
constituted by substantially the same conduct as constituted the offence
against subsection (1).
Definitions
(3) In this section:
"advocate" means counsel, promote, encourage or
urge.
"genocide" means the commission of an offence against Subdivision B
(genocide) of Division 268, other than:
(a) an offence against section 11.1 (attempt), 11.4 (incitement) or
11.5 (conspiracy) to the extent that it relates to an offence against that
Subdivision; or
(b) an offence against that Subdivision that a person is taken to have
committed because of section 11.2 (complicity and common purpose), 11.2A
(joint commission) or 11.3 (commission by proxy).
(4) A reference in this section to advocating genocide includes a
reference to:
(a) advocating genocide, even if genocide does not occur; and
(b) advocating the commission of a specific offence that is genocide;
and
(c) advocating the commission of more than one offence, each of which is
genocide.
(1) Subdivisions B and C, and sections 83.1 and 83.4, do not apply
to a person who:
(a) tries in good faith to show that any of the following persons are
mistaken in any of his or her counsels, policies or actions:
(i) the Sovereign;
(ii) the Governor-General;
(iii) the Governor of a State;
(iv) the Administrator of a Territory;
(v) an adviser of any of the above;
(vi) a person responsible for the government of another country; or
(b) points out in good faith errors or defects in the following, with a
view to reforming those errors or defects:
(i) the Government of the Commonwealth, a State or a Territory;
(ii) the Constitution;
(iii) legislation of the Commonwealth, a State, a Territory or another
country;
(iv) the administration of justice of or in the Commonwealth, a State, a
Territory or another country; or
(c) urges in good faith another person to attempt to lawfully procure a
change to any matter established by law, policy or practice in the
Commonwealth, a State, a Territory or another country; or
(d) points out in good faith any matters that are producing, or have a
tendency to produce, feelings of ill-will or hostility between different
groups, in order to bring about the removal of those matters; or
(e) does anything in good faith in connection with an industrial dispute
or an industrial matter; or
(f) publishes in good faith a report or commentary about a matter of
public interest.
Note:
A defendant bears an evidential burden in relation to the matter in
subsection (1). See subsection 13.3(3).
(2) In considering a defence under subsection (1), the Court may
have regard to any relevant matter, including whether the acts were done:
(a) for a purpose intended to be prejudicial to the safety or defence of
the Commonwealth; or
(b) with the intention of assisting a party:
(i) engaged in armed conflict involving the Commonwealth or the
Australian Defence Force; and
(ii) declared in a Proclamation made under section 80.1AB to be an
enemy engaged in armed conflict involving the Commonwealth or the Australian
Defence Force; or
(f) with the intention of causing violence or creating public disorder
or a public disturbance.
(3) Without limiting subsection (2), in considering a defence under
subsection (1) in respect of an offence against Subdivision C, the Court
may have regard to any relevant matter, including whether the acts were done:
(a) in the development, performance, exhibition or distribution of an
artistic work; or
(b) in the course of any statement, publication, discussion or debate
made or held for any genuine academic, artistic or scientific purpose or any
other genuine purpose in the public interest; or
(c) in the dissemination of news or current affairs.
(1) Subject to subsection (2), section 15.4 (extended
geographical jurisdiction--category D) applies to an offence against this
Division.
(2) Section 15.2 (extended geographical jurisdiction--category B)
applies to an offence against section 80.1AC or subsection 80.2A(2),
80.2B(2) or 80.2C(1).
It is the intention of the Parliament that this Division is not to apply to
the exclusion of a law of a State or a Territory to the extent that the law is
capable of operating concurrently with this Division.
"advantage" : conduct will not advantage the national
security of a foreign country if the conduct will advantage Australia's
national security to an equivalent extent.
"damage to public infrastructure"
: conduct results in damage to public infrastructure if any of the following
paragraphs apply in relation to public infrastructure:
(a) the conduct destroys it or results in its destruction;
(b) the conduct involves interfering with it, or abandoning it,
resulting in it being lost or rendered unserviceable;
(c) the conduct results in it suffering a loss of function or becoming
unsafe or unfit for its purpose;
(d) the conduct limits or prevents access to it or any part of it by
persons who are ordinarily entitled to access it or that part of it;
(e) the conduct results in it or any part of it becoming defective or
being contaminated;
(f) the conduct significantly degrades its quality;
(g) if it is an electronic system--the conduct seriously disrupts it.
"foreign principal" has the meaning given by section 90.2.
"national
security" has the meaning given by section 90.4.
"prejudice" :
embarrassment alone is not sufficient to prejudice Australia's national
security.
(d) any part of the infrastructure of a telecommunications network
within the meaning of the Telecommunications Act 1997;
(e) any infrastructure, facility, premises, network or electronic system
(including an information, telecommunications or financial system) that:
(i) provides or relates to providing the public with utilities or
services (including transport of people or goods) of any kind, or relates to
food (within the meaning of the Food Standards Australia New Zealand Act 1991) intended for the public; and
(ii) is located in Australia; and
(iii) belongs to or is operated by a constitutional corporation or is
used to facilitate constitutional trade and commerce;
(ii) is produced, distributed or sold by a constitutional corporation or
for the purposes of, or in the course of, constitutional trade and commerce.
(2) For the purposes of the application of paragraph (1)(a) or (e)
in relation to property within the meaning of Chapter 7, whether the
property belongs to the Commonwealth or a constitutional corporation is to be
determined in the same way as it would be under Chapter 7 (see
section 130.2).
Fault element for offences in relation to public
infrastructure
(3) For the purposes of a reference, in an element of an offence, to
public infrastructure within the meaning of this Division, absolute liability
applies:
(a) in relation to public infrastructure within the meaning of
paragraph (1)(a)--to the element that the infrastructure, facility,
premises, network or electronic system belongs to the Commonwealth; and
(b) in relation to public infrastructure within the meaning of
paragraph (1)(e)--to the element that the infrastructure, facility,
premises, network or electronic system belongs to or is operated by a
constitutional corporation or is used to facilitate constitutional trade or
commerce; and
(c) in relation to public infrastructure within the meaning of
paragraph (1)(f)--to the element that the food is produced, distributed
or sold by a constitutional corporation or for the purposes of, or in the
course of, constitutional trade and commerce.
(b) the conduct has the result that an article or thing, or software,
becomes vulnerable:
(i) to misuse or impairment; or
(ii) to being accessed or modified by a person not entitled to access or
modify it; and
(c) the article or thing, or software, is or is part of public
infrastructure; and
(d) the person engages in the conduct with the intention that prejudice
to Australia's national security will occur (whether at the time or at a
future time).
Note: An
alternative verdict may be available for an offence against this section (see
section 82.12).
(b) the conduct has the result that an article or thing, or software,
becomes vulnerable:
(i) to misuse or impairment; or
(ii) to being accessed or modified by a person not entitled to access or
modify it; and
(c) the article or thing, or software, is or is part of public
infrastructure; and
(d) the person engages in the conduct reckless as to whether prejudice
to Australia's national security will occur (whether at the time or at a
future time).
(1) If, on a trial of a person for an offence specified in column 1 of
an item in the following table, the trier of fact:
(a) is not satisfied that the person is guilty of that offence; and
(b) is satisfied beyond reasonable doubt that the person is guilty of an
offence against a provision specified in column 2 of that item;
it may find
the person not guilty of the offence specified in column 1 but guilty of an
offence specified in column 2.
Alternative verdicts
Item
Column 1 For an offence against:
Column 2 The alternative verdict is an
offence against:
1
section 82.3 (sabotage involving foreign
principal with intention as to national security)
any of the following:
(a) section 82.4 (sabotage involving foreign principal reckless as to
national security);
(b) section 82.5 (sabotage with intention as to
national security);
(c) section 82.6 (sabotage reckless as to national
security)
2
section 82.4 (sabotage involving foreign principal
reckless as to national security)
section 82.6 (sabotage reckless as
to national security)
3
section 82.5 (sabotage with intention
as to national security)
section 82.6 (sabotage reckless as to
national security)
4
section 82.7 (introducing vulnerability
with intention as to national security)
section 82.8 (introducing
vulnerability reckless as to national security)
(2) Subsection (1) only applies if the person has been accorded
procedural fairness in relation to the finding of guilt for the offence
specified in column 2.
(1) Proceedings for the commitment of a person for trial for an offence
against this Division must not be instituted without the written consent of
the Attorney-General.
(2) However, the following steps may be taken (but no further steps in
proceedings may be taken) without consent having been given:
(a) a person may be arrested for the offence and a warrant for such an
arrest may be issued and executed;
(b) a person may be charged with the offence;
(c) a person so charged may be remanded in custody or on bail.
(3) Nothing in subsection (2) prevents the discharge of the accused
if proceedings are not continued within a reasonable time.
(4) In deciding whether to consent, the Attorney-General must consider
whether the conduct might be authorised by section 82.10.
(1) A person (the advocate ) commits an offence if:
(a) the advocate engages in conduct; and
(b) the conduct involves advocating mutiny; and
(c) the advocate engages in the conduct reckless as to whether the
result will be that a defence member (within the meaning of the
Defence Force Discipline Act 1982) will take part in a mutiny; and
(d) at the time the advocate engages in the conduct:
(i) the advocate knows that the advocate is an Australian citizen or a
resident of Australia; or
(ii) the advocate knows that the advocate has voluntarily put himself or
herself under the protection of the Commonwealth; or
(iii) the advocate is a body corporate incorporated by or under a law of
the Commonwealth or of a State or Territory.
Note: The defence in
section 80.3 for acts done in good faith applies to this offence.
Penalty: Imprisonment for 7 years.
(1A) For the
purposes of this section:
(a) a person advocates mutiny if the person counsels, promotes,
encourages or urges mutiny; and
(b) a reference to advocating mutiny includes a reference to:
(i) advocating mutiny even if mutiny does not occur; and
(ii) advocating a specific mutiny; and
(iii) advocating more than one mutiny.
(2) A mutiny is a combination between persons who are, or at least 2 of
whom are, members of the Australian Defence Force:
(a) to overthrow lawful authority in the Australian Defence Force or in
a force of another country that is acting in cooperation with the Australian
Defence Force; or
(b) to resist such lawful authority in such a manner as to substantially
prejudice the operational efficiency of the Australian Defence Force or of, or
of a part of, a force of another country that is acting in cooperation with
the Australian Defence Force.
(3) Strict liability applies to subparagraph (1)(d)(iii).
(4) Section 15.4 (extended geographical jurisdiction--category D)
applies to an offence against this section.
(a) the person provides, receives, or participates in, training; and
(b) the training involves using arms or practising military exercises,
movements or evolutions; and
(c) any of the following circumstances exists:
(i) the training is provided on behalf of a foreign government principal
within the meaning of Part 5.2 (see section 90.3) or a foreign
political organisation within the meaning of that Part (see
section 90.1);
(ii) the training is directed, funded or supervised by a foreign
government principal or foreign political organisation, or a person acting on
behalf of a foreign government principal or foreign political organisation.
Penalty: Imprisonment for 20 years.
Defence--authorised by written
agreement
(2) Subsection (1) does not apply to a person in relation to
conduct engaged in by the person that is authorised by a written agreement to
which the Commonwealth is a party.
Note: A defendant bears
an evidential burden in relation to the matter in this subsection (see
subsection 13.3(3)).
Defence--solely for service with armed force other
than terrorist organisation
(3) Subsection (1) does not apply in relation to training a person
provides, receives or participates in, if the provision, receipt or
participation is solely in the course of, and as part of, the person's service
in any capacity in or with:
(a) the armed forces of the government of a foreign country; or
(b) any other armed force, if a declaration under
subsection 119.8(1) covers the person and the circumstances of the
person's service in or with the force.
Note: A defendant bears
an evidential burden in relation to the matter in this subsection (see
subsection 13.3(3)).
(4) However, subsection (3) does not apply if:
(a) at the time the person engages in the conduct:
(i) the person is in or with an organisation; or
(ii) the training is funded partly by an organisation; and
(b) the organisation is:
(i) a listed terrorist organisation within the meaning of Part 5.3
(see section 100.1); or
(ii) a prescribed organisation within the meaning of Part 5.5 (see
section 117.1).
Defence--humanitarian assistance etc.
(4A)
Subsection (1) does not apply to a person in relation to conduct engaged
in by the person solely or primarily for one or more of the following
purposes:
(a) providing aid of a humanitarian nature;
(b) performing an official duty for:
(i) the United Nations or an agency of the United Nations; or
(ii) the International Committee of the Red Cross.
Note: A defendant bears
an evidential burden in relation to the matter in this subsection (see
subsection 13.3(3)).
Geographical jurisdiction
(5) Section 15.2 (extended geographical jurisdiction--category B)
applies to an offence against this section.
(b) the conduct involves the use of force or violence, or intimidation,
or the making of threats of any kind; and
(c) the conduct results in interference with the exercise or
performance, in Australia by any other person, of an Australian democratic or
political right or duty; and
(d) the right or duty arises under the Constitution or a law of the
Commonwealth.
Note:
The defence in section 80.3 for acts done in good faith applies to this
offence.
Penalty: Imprisonment for 3 years.
(2) Absolute liability applies to paragraph (1)(d).
(1) Proceedings for the commitment of a person for trial for an offence
against this Division must not be instituted without the written consent of
the Attorney-General.
(2) However, the following steps may be taken (but no further steps in
proceedings may be taken) without consent having been given:
(a) a person may be arrested for the offence and a warrant for such an
arrest may be issued and executed;
(b) a person may be charged with the offence;
(c) a person so charged may be remanded in custody or on bail.
(3) Nothing in subsection (2) prevents the discharge of the accused
if proceedings are not continued within a reasonable time.
(4) In deciding whether to consent, the Attorney-General must consider
whether the conduct might be authorised in a way mentioned in:
(a) for an offence against section 83.3--subsection 83.3(2),
(3) or (4A); and
(b) for an offence against section 83.1 or 83.4--section 80.3.
"advantage" : conduct will not advantage the
national security of a foreign country if the conduct will advantage
Australia's national security to an equivalent extent.
"article" includes
any thing, substance or material.
"concerns" : information or an article
concerns Australia's national security if the information or article relates
to, or is connected with, or is of interest or importance to, or affects,
Australia's national security.
"deal" : a person deals with information or
an article if the person does any of the following in relation to the
information or article:
(a) receives or obtains it;
(b) collects it;
(c) possesses it;
(d) makes a record of it;
(e) copies it;
(f) alters it;
(g) conceals it;
(h) communicates it;
(i) publishes it;
(j) makes it available.
Note: See also the
definition of make available in this subsection and subsection (2).
"foreign government principal" has the meaning given by section 90.3.
"foreign political organisation" includes:
(a) a foreign political party; and
(b) a foreign organisation that exists primarily to pursue political
objectives; and
(c) a foreign organisation that exists to pursue militant, extremist or
revolutionary objectives.
"foreign principal" has the meaning given by
section 90.2.
"information" means information of any kind, whether true
or false and whether in a material form or not, and includes:
(a) an opinion; and
(b) a report of a conversation.
"make available" information or an
article includes:
(a) place it somewhere it can be accessed by another person; and
(b) give it to an intermediary to give to the intended recipient; and
(c) describe how to obtain access to it, or describe methods that are
likely to facilitate access to it (for example, set out the name of a website,
an IP address, a URL, a password, or the name of a newsgroup).
"national
security" has the meaning given by section 90.4.
"prejudice" :
embarrassment alone is not sufficient to prejudice Australia's national
security.
"record" , in relation to information, means a record of
information in any form, including but not limited to, a document, paper,
database, software system or other article or system containing information or
from which information can be derived.
"security classification" has the
meaning given by section 90.5.
"sketch" includes a representation of a
place or thing.
(2) In this Part, dealing with information or an article includes:
(a) dealing with all or part of the information or article; and
(b) dealing only with the substance, effect or description of the
information or article.
(4) This Part applies to and in relation to a document or article
regardless of who made it and what information it contains.
Each of the following is a foreign government principal :
(a) the government of a foreign country or of part of a foreign country;
(b) an authority of the government of a foreign country;
(c) an authority of the government of part of a foreign country;
(d) a foreign local government body or foreign regional government body;
(e) a company to which any of the subparagraphs of paragraph (a) of
the definition of foreign public enterprise in section 70.1 applies;
(f) a body or association to which either of the subparagraphs of
paragraph (b) of the definition of foreign public enterprise in
section 70.1 applies;
(h) an entity or organisation owned, directed or controlled:
(i) by a foreign government principal within the meaning of any other
paragraph of this definition; or
(ii) by 2 or more such foreign government principals that are foreign
government principals in relation to the same foreign country.
(1) The national security of Australia or a foreign country means any of
the following:
(a) the defence of the country;
(b) the protection of the country or any part of it, or the people of
the country or any part of it, from activities covered by subsection (2);
(c) the protection of the integrity of the country's territory and
borders from serious threats;
(d) the carrying out of the country's responsibilities to any other
country in relation to the matter mentioned in paragraph (c) or an
activity covered by subsection (2);
(e) the country's political, military or economic relations with another
country or other countries.
(2) For the purposes of subsection (1), this subsection covers the
following activities relating to a country, whether or not directed from, or
committed within, the country:
(a) espionage;
(b) sabotage;
(c) terrorism;
(d) political violence;
(e) activities intended and likely to obstruct, hinder or interfere with
the performance by the country's defence force of its functions or with the
carrying out of other activities by or for the country for the purposes of its
defence or safety;
(a) a classification of secret or top secret that is applied in
accordance with the policy framework developed by the Commonwealth for the
purpose (or for purposes that include the purpose) of identifying information:
(i) for a classification of secret--that, if disclosed in an
unauthorised manner, could be expected to cause serious damage to the national
interest, organisations or individuals; or
(ii) for a classification of top secret--that, if disclosed in an
unauthorised manner, could be expected to cause exceptionally grave damage to
the national interest; or
(b) any equivalent classification or marking prescribed by the
regulations.
(1A) For the purposes of a reference, in an element of an offence in
this Part, to security classification, strict liability applies to the element
that:
(a) a classification is applied in accordance with the policy framework
developed by the Commonwealth for the purpose (or for purposes that include
the purpose) of identifying the information mentioned in
subparagraph (1)(a)(i) or (ii); or
(b) a classification or marking is prescribed by the regulations as
mentioned in paragraph (1)(b).
(2) Before the Governor-General makes regulations for the purposes of
subsection (1), the Minister must be satisfied that the regulations are
not inconsistent with the policy framework mentioned in paragraph (1)(a).
(3) Despite subsection 14(2) of the Legislation Act 2003,
regulations made for the purposes of subsection (1) of this section may
prescribe a matter by applying, adopting or incorporating any matter contained
in an instrument or other writing as in force or existing from time to time,
if the instrument or other writing is publicly available.
(a) the person deals with information or an article; and
(b) the information or article:
(i) has a security classification; or
(ii) concerns Australia's national security; and
(c) the person intends that the person's conduct will:
(i) prejudice Australia's national security; or
(ii) advantage the national security of a foreign country; and
(d) the conduct results or will result in the information or article
being communicated or made available to a foreign principal or a person acting
on behalf of a foreign principal.
Note: An alternative
verdict may be available for an offence against this subsection (see
section 93.5).
Penalty: Imprisonment for life.
Reckless as to
national security
(2) A person commits an offence if:
(a) the person deals with information or an article; and
(b) the information or article:
(i) has a security classification; or
(ii) concerns Australia's national security; and
(c) the person is reckless as to whether the person's conduct will:
(i) prejudice Australia's national security; or
(ii) advantage the national security of a foreign country; and
(d) the conduct results or will result in the information or article
being communicated or made available to a foreign principal or a person acting
on behalf of a foreign principal.
Penalty: Imprisonment for 25 years.
Other matters
(4) For the purposes of subparagraphs (1)(c)(ii) and (2)(c)(ii),
the person:
(a) does not need to have in mind a particular foreign country; and
(b) may have in mind more than one foreign country.
(5) For the purposes of paragraphs (1)(d) and (2)(d), the person:
(a) does not need to have in mind a particular foreign principal; and
(b) may have in mind more than one foreign principal.
(a) the person deals with information or an article; and
(b) the person intends that the person's conduct will prejudice
Australia's national security; and
(c) the conduct results or will result in the information or article
being communicated or made available to a foreign principal or a person acting
on behalf of a foreign principal.
Note: An alternative
verdict may be available for an offence against this subsection (see
section 93.5).
Penalty: Imprisonment for 25 years.
Reckless as
to national security
(2) A person commits an offence if:
(a) the person deals with information or an article; and
(b) the person is reckless as to whether the person's conduct will
prejudice Australia's national security; and
(c) the conduct results or will result in the information or article
being communicated or made available to a foreign principal or a person acting
on behalf of a foreign principal.
Penalty: Imprisonment for 20 years.
Other matters
(3) For the purposes of paragraphs (1)(c) and (2)(c):
(a) the person does not need to have in mind a particular foreign
principal; and
(b) the person may have in mind more than one foreign principal.
(a) the person deals with information or an article; and
(aa) the person deals with the information or article for the primary
purpose of communicating the information or article, or making it available,
to a foreign principal or a person acting on behalf of a foreign principal;
and
(b) the person's conduct results or will result in the information or
article being communicated or made available to a foreign principal or a
person acting on behalf of a foreign principal; and
(c) the information or article has a security classification.
Penalty: Imprisonment for 20 years.
(2) For the purposes of paragraphs (1)(aa) and (b):
(a) the person does not need to have in mind a particular foreign
principal; and
(b) the person may have in mind more than one foreign principal.
(3) Strict liability applies to paragraph (1)(aa).
(1) It is a defence to a prosecution for an offence by a person against
this Subdivision that the person dealt with the information or article:
(a) in accordance with a law of the Commonwealth; or
(b) in accordance with an arrangement or agreement to which the
Commonwealth is party and which allows for the exchange of information or
articles; or
(c) in the person's capacity as a public official.
Note: A defendant bears
an evidential burden in relation to the matter in this subsection (see
subsection 13.3(3)).
(2) It is a defence to a prosecution for an offence by a person against
this Subdivision that the information or article the person deals with is
information or an article that has already been communicated or made available
to the public with the authority of the Commonwealth.
Note: A defendant bears
an evidential burden in relation to the matters in this subsection (see
subsection 13.3(3)).
(3) It is a defence to a prosecution for an offence by a person against
section 91.1, in which the prosecution relies on
subparagraph 91.1(1)(c)(ii) or (2)(c)(ii), or against section 91.3,
if:
(a) the person did not make or obtain the information or article by
reason of any of the following:
(i) the person being, or having been, a Commonwealth officer (within the
meaning of Part 5.6);
(ii) the person being otherwise engaged to perform work for a
Commonwealth entity;
(iii) an arrangement or agreement to which the Commonwealth or a
Commonwealth entity is party and which allows for the exchange of information;
and
(b) the information or article has already been communicated, or made
available, to the public (the prior publication ); and
(c) the person was not involved in the prior publication (whether
directly or indirectly); and
(d) at the time the person deals with the information or article, the
person believes that doing so will not prejudice Australia's national
security; and
(e) having regard to the nature, extent and place of the prior
publication, the person has reasonable grounds for that belief.
Note: A defendant bears
an evidential burden in relation to the matters in this subsection (see
subsection 13.3(3)).
(1) In determining the sentence to be passed in respect of a person for
an offence against subsection 91.1(1) (punishable by life imprisonment),
the court must take into account any circumstances set out in
paragraph 91.6(1)(b) that exist in relation to the commission of the
offence.
(2) However, the court need only take the circumstances into account so
far as the circumstances are known to the court and relevant.
(3) The circumstances are in addition to any other matters the court
must take into account (for example, the matters mentioned in section 16A
of the Crimes Act 1914).
(1) A person commits an offence against this section if:
(a) the person commits an offence against section 91.1 (other than
subsection 91.1(1)), 91.2 or 91.3 (the underlying offence ); and
(b) any of the following circumstances exist in relation to the
commission of the underlying offence:
(ii) the person dealt with information or an article from a foreign
intelligence agency;
(iii) the person dealt with 5 or more records or articles each of which
has a security classification;
(iv) the person altered a record or article to remove or conceal its
security classification;
(v) at the time the person dealt with the information or article, the
person held an Australian Government security clearance allowing access to
information that has, or articles that have, a security classification of at
least secret.
Penalty:
(a) if the penalty for the underlying offence is imprisonment for 25
years--imprisonment for life; or
(b) if the penalty for the underlying offence is imprisonment for 20
years--imprisonment for 25 years.
(2) There is no fault element for the physical element in
paragraph (1)(a) other than the fault elements (however described), if
any, for the underlying offence.
(4) To avoid doubt, a person does not commit an underlying offence for
the purposes of paragraph (1)(a) if the person has a defence to the
underlying offence.
(5) To avoid doubt, the person may be convicted of an offence against
this section even if the person has not been convicted of the underlying
offence.
Note: An
alternative verdict may be available for an offence against this section (see
section 93.5).
(a) the person deals with information or an article; and
(b) the person intends that the person's conduct will:
(i) prejudice Australia's national security; or
(ii) advantage the national security of a foreign country; and
(c) the person is reckless as to whether the conduct involves the
commission, by the person or any other person, of an offence against
Subdivision A (espionage); and
(d) any of the following circumstances exists:
(i) the conduct is engaged in on behalf of, or in collaboration with, a
foreign principal or a person acting on behalf of a foreign principal;
(ii) the conduct is directed, funded or supervised by a foreign
principal or a person acting on behalf of a foreign principal.
Note: An alternative
verdict may be available for an offence against this subsection (see
section 93.5).
Penalty: Imprisonment for 25 years.
Reckless as
to national security
(2) A person commits an offence if:
(a) the person deals with information or an article; and
(b) the person is reckless as to whether the person's conduct will:
(i) prejudice Australia's national security; or
(ii) advantage the national security of a foreign country; and
(c) the person is reckless as to whether the conduct involves the
commission, by the person or any other person, of an offence against
Subdivision A (espionage); and
(d) any of the following circumstances exists:
(i) the conduct is engaged in on behalf of, or in collaboration with, a
foreign principal or a person acting on behalf of a foreign principal;
(ii) the conduct is directed, funded or supervised by a foreign
principal or a person acting on behalf of a foreign principal.
Penalty: Imprisonment for 20 years.
Conduct on behalf of foreign
principal
(3) A person commits an offence if:
(a) the person deals with information or an article; and
(b) the person is reckless as to whether the person's conduct involves
the commission, by the person or any other person, of an offence against
Subdivision A (espionage); and
(c) any of the following circumstances exists:
(i) the conduct is engaged in on behalf of, or in collaboration with, a
foreign principal or a person acting on behalf of a foreign principal;
(ii) the conduct is directed, funded or supervised by a foreign
principal or a person acting on behalf of a foreign principal.
Penalty: Imprisonment for 15 years.
Other matters
(4) For the purposes of subparagraphs (1)(b)(ii) and (2)(b)(ii),
the person:
(a) does not need to have in mind a particular foreign country; and
(b) may have in mind more than one foreign country.
(5) For the purposes of paragraphs (1)(d), (2)(d) and (3)(c), the
person:
(a) does not need to have in mind a particular foreign principal; and
(b) may have in mind more than one foreign principal.
(1) It is a defence to a prosecution for an offence by a person against
this Subdivision that the person dealt with the information or article:
(a) in accordance with a law of the Commonwealth; or
(b) in accordance with an arrangement or agreement to which the
Commonwealth is party and which allows for the exchange of information or
articles; or
(c) in the person's capacity as a public official.
Note: A defendant bears
an evidential burden in relation to the matter in this subsection (see
subsection 13.3(3)).
(2) It is a defence to a prosecution for an offence by a person against
this Subdivision that the information or article the person deals with is
information or an article that has already been communicated or made available
to the public with the authority of the Commonwealth.
Note: A defendant bears
an evidential burden in relation to the matters in this subsection (see
subsection 13.3(3)).
(a) the person engages in conduct in relation to another person (the
target ); and
(b) the person engages in the conduct with the intention of soliciting
or procuring, or making it easier to solicit or procure, the target to deal
with information or an article in a way that would constitute an offence
against Subdivision A (espionage) or B (espionage on behalf of foreign
principal); and
(c) any of the following circumstances exists:
(i) the conduct is engaged in on behalf of, or in collaboration with, a
foreign principal or a person acting on behalf of a foreign principal;
(ii) the conduct is directed, funded or supervised by a foreign
principal or a person acting on behalf of a foreign principal.
Penalty: Imprisonment for 15 years.
(2) For the purposes of paragraph (1)(c):
(a) the person does not need to have in mind a particular foreign
principal; and
(b) the person may have in mind more than one foreign principal.
(3) A person may commit an offence against subsection (1):
(a) even if an offence against Subdivision A or B is not committed; and
(b) even if it is impossible for the target to deal with information or
an article in a way that would constitute an offence against Subdivision A or
B; and
(c) even if the person does not have in mind particular information or a
particular article, or a particular dealing or kind of dealing with
information or an article, at the time the person engages in conduct in
relation to the target; and
(d) whether it is a single dealing, or multiple dealings, that the
person intends to solicit or procure or make it easier to solicit or procure.
(4) Section 11.1 (attempt) does not apply to an offence against
subsection (1).
(b) the person does so with the intention of preparing for, or planning,
an offence against Subdivision A (espionage) or B (espionage on behalf of
foreign principal).
Penalty: Imprisonment for 15 years.
(2) Section 11.1 (attempt) does not apply to an offence against
subsection (1).
(3) Subsection (1) applies:
(a) whether or not an offence against Subdivision A or B is committed;
and
(b) whether or not the person engages in the conduct in preparation for,
or planning, a specific offence against a provision of Subdivision A or B; and
(c) whether or not the person engages in the conduct in preparation for,
or planning, more than one offence against Subdivision A or B.
"deception" means an intentional or reckless deception,
whether by words or other conduct, and whether as to fact or as to law, and
includes:
(a) a deception as to the intentions of the person using the deception
or any other person; and
(b) conduct by a person that causes a computer, a machine or an
electronic device to make a response that the person is not authorised to
cause it to do.
"menaces" has the same meaning as in Part 7.5 (see
section 138.2).
(b) the person does so with the intention of preparing for, or planning,
an offence against another provision of this Subdivision (foreign
interference).
Penalty: Imprisonment for 10 years.
(2) Section 11.1 (attempt) does not apply to an offence against
subsection (1).
(3) Subsection (1) applies:
(a) whether or not an offence against this Subdivision is committed; and
(b) whether or not the person engages in the conduct in preparation for,
or planning, a specific offence against a provision of this Subdivision; and
(c) whether or not the person engages in the conduct in preparation for,
or planning, more than one offence against this Subdivision.
(i) directly or indirectly receives or obtains funds from, or directly
or indirectly makes funds available to, an organisation or a person acting on
behalf of an organisation; or
(ii) directly or indirectly collects funds for or on behalf of an
organisation or a person acting on behalf of an organisation; and
(b) the person knows that the organisation is a foreign intelligence
agency.
Note: An
alternative verdict may be available for an offence against this section (see
section 93.5).
(i) directly or indirectly receives or obtains funds from, or directly
or indirectly makes funds available to, an organisation or a person acting on
behalf of an organisation; or
(ii) directly or indirectly collects funds for or on behalf of an
organisation or a person acting on behalf of an organisation; and
(b) the organisation is a foreign intelligence agency.
(a) the person dishonestly receives, obtains, takes, copies or
duplicates, sells, buys or discloses information; and
(b) all of the following circumstances exist:
(i) the information is not generally known in trade or business, or in
the particular trade or business concerned;
(ii) the information has a commercial value that would be, or could
reasonably be expected to be, destroyed or diminished if the information were
communicated;
(iii) the owner of the information has made reasonable efforts in the
circumstances to prevent the information becoming generally known; and
(c) any of the following circumstances exists:
(i) the conduct is engaged in on behalf of, or in collaboration with, a
foreign government principal or a person acting on behalf of a foreign
government principal;
(ii) the conduct is directed, funded or supervised by a foreign
government principal or a person acting on behalf of a foreign government
principal.
Penalty: Imprisonment for 15 years.
(2) For the purposes of paragraph (1)(a), dishonest means:
(a) dishonest according to the standards of ordinary people; and
(b) known by the defendant to be dishonest according to the standards of
ordinary people.
(3) In a prosecution for an offence against this section, the
determination of dishonesty is a matter for the trier of fact.
(4) For the purposes of paragraph (1)(c):
(a) the person does not need to have in mind a particular foreign
government principal; and
(b) the person may have in mind more than one foreign government
principal.
(1) Proceedings for the commitment of a person for trial for an offence
against this Part must not be instituted without:
(a) the written consent of the Attorney-General; and
(b) for proceedings that relate to information or an article that has a
security classification--a certification by the Attorney-General that, at the
time of the conduct that is alleged to constitute the offence, it was
appropriate that the information or article had a security classification.
(2) However, the following steps may be taken (but no further steps in
proceedings may be taken) without consent or certification having been
obtained:
(a) a person may be arrested for the offence and a warrant for such an
arrest may be issued and executed;
(b) a person may be charged with the offence;
(c) a person so charged may be remanded in custody or on bail.
(3) Nothing in subsection (2) prevents the discharge of the accused
if proceedings are not continued within a reasonable time.
(4) In deciding whether to consent, the Attorney-General must consider
whether the conduct might be authorised:
(a) for an offence against Subdivision A of Division 91
(espionage)--in a way mentioned in section 91.4; and
(b) for an offence against Subdivision B of Division 91 (espionage
on behalf of foreign principal)--in a way mentioned in section 91.9; and
(c) for an offence against Subdivision B of Division 92 (foreign
interference)--in a way mentioned in section 92.5; and
(d) for an offence against Subdivision C of Division 92 (foreign
interference involving foreign intelligence agencies)--in a way mentioned in
section 92.11.
(1) This section applies to a hearing of an application or other
proceedings before a federal court, a court exercising federal jurisdiction or
a court of a Territory, whether under this Act or otherwise.
(2) At any time before or during the hearing, the judge or magistrate,
or other person presiding or competent to preside over the proceedings, may,
if satisfied that it is in the interests of Australia's national security:
(a) order that some or all of the members of the public be excluded
during the whole or a part of the hearing; or
(b) order that no report of the whole or a specified part of, or
relating to, the application or proceedings be published; or
(c) make such order and give such directions as he or she thinks
necessary for ensuring that no person, without the approval of the court, has
access (whether before, during or after the hearing) to any affidavit,
exhibit, information or other document used in the application or the
proceedings that is on the file in the court or in the records of the court.
(3) A person commits an offence if the person contravenes an order made
or direction given under this section.
Despite subsection 11.1(3), the fault element, in relation to each
physical element of an offence of attempting to commit an offence against a
provision of:
(a) Subdivision A of Division 91 (espionage); or
(b) Subdivision B of Division 91 (espionage on behalf of foreign
principal);
is the fault element in relation to that physical element of the
offence against the provision of Subdivision A or B of Division 91.
(1) If, on a trial of a person for an offence specified in column 1 of
an item in the following table, the trier of fact:
(a) is not satisfied that the person is guilty of that offence; and
(b) is satisfied beyond reasonable doubt that the person is guilty of an
offence against a provision specified in column 2 of that item;
it may find
the person not guilty of the offence specified in column 1 but guilty of the
offence specified in column 2.
Alternative verdicts
Item
Column 1 For an offence against:
Column 2 The alternative verdict is an
offence against:
1
subsection 91.1(1)
subsection 91.1(2)
2
subsection 91.2(1)
subsection 91.2(2)
3
subsection 91.6(1)
the underlying
offence mentioned in paragraph 91.6(1)(a)
4
subsection 91.8(1)
subsection 91.8(2)
5
subsection 92.2(1)
subsection 92.3(1)
6
subsection 92.2(2)
subsection 92.3(2)
7
section 92.7
section 92.8
8
section 92.9
section 92.10
(2) Subsection (1) only applies if the person has been accorded
procedural fairness in relation to the finding of guilt for the offence
specified in column 2.
"confirmed control
order" means an order made under section 104.16.
"constitutional
corporation" means a corporation to which paragraph 51(xx) of the
Constitution applies.
"continued preventative detention order" means an
order made under section 105.12.
"control order" means an interim
control order or a confirmed control order.
"corresponding State
preventative detention law" means a law of a State or Territory that is, or
particular provisions of a law of a State or Territory that are, declared by
the regulations to correspond to Division 105 of this Act.
"engage in a
hostile activity" has the meaning given by subsection 117.1(1).
"express amendment" of the provisions of this Part or Chapter 2 means the
direct amendment of the provisions (whether by the insertion, omission,
repeal, substitution or relocation of words or matter).
"frisk search"
means:
(a) a search of a person conducted by quickly running the hands over the
person's outer garments; and
(b) an examination of anything worn or carried by the person that is
conveniently and voluntarily removed by the person.
"funds" means:
(a) property and assets of every kind, whether tangible or intangible,
movable or immovable, however acquired; and
(b) legal documents or instruments in any form, including electronic or
digital, evidencing title to, or interest in, such property or assets,
including, but not limited to, bank credits, travellers cheques, bank cheques,
money orders, shares, securities, bonds, debt instruments, drafts and letters
of credit.
"identification material" , in relation to a person, means
prints of the person's hands, fingers, feet or toes, recordings of the
person's voice, samples of the person's handwriting or photographs (including
video recordings) of the person, but does not include tape recordings made for
the purposes of section 23U or 23V of the Crimes Act 1914.
"initial
preventative detention order" means an order made under section 105.8.
"interim control order" means an order made under section 104.4, 104.7 or
104.9.
"issuing authority" :
(a) for initial preventative detention orders--means a senior AFP
member; and
(b) for continued preventative detention orders--means a person
appointed under section 105.2.
"issuing court" means:
(a) the Federal Court of Australia; or
(c) the Federal Circuit Court of Australia.
"lawyer" means a person
enrolled as a legal practitioner of a federal court or the Supreme Court of a
State or Territory.
"listed terrorist organisation" means an organisation
that is specified by the regulations for the purposes of paragraph (b) of
the definition of terrorist organisation in section 102.1.
"ordinary
search" means a search of a person or of articles in the possession of a
person that may include:
(a) requiring the person to remove his or her overcoat, coat or jacket
and any gloves, shoes or hat; and
(b) an examination of those items.
"organisation" means a body
corporate or an unincorporated body, whether or not the body:
(a) is based outside Australia; or
(b) consists of persons who are not Australian citizens; or
(c) is part of a larger organisation.
"police officer" means:
(a) an AFP member; or
(b) a member (however described) of a police force of a State or
Territory.
"preventative
detention order" means an order under section 105.8 or 105.12.
"prohibited contact order" means an order made under section 105.15 or
105.16.
"referring State" has the meaning given by section 100.2.
"seizable item" means anything that:
(a) would present a danger to a person; or
(b) could be used to assist a person to escape from lawful custody; or
(c) could be used to contact another person or to operate a device
remotely.
"senior AFP member" means:
(a) the Commissioner of the Australian Federal Police; or
(b) a Deputy Commissioner of the Australian Federal Police; or
(c) an AFP member of, or above, the rank of Superintendent.
"superior
court" means:
(a) the High Court; or
(b) the Federal Court of Australia; or
(d) the Supreme Court of a State or Territory; or
(e) the District Court (or equivalent) of a State or Territory.
"terrorist act" means an action or threat of action where:
(a) the action falls within subsection (2) and does not fall within
subsection (3); and
(b) the action is done or the threat is made with the intention of
advancing a political, religious or ideological cause; and
(c) the action is done or the threat is made with the intention of:
(i)
coercing, or influencing by intimidation, the government of the Commonwealth
or a State, Territory or foreign country, or of part of a State, Territory or
foreign country; or
(ii) intimidating the public or a section of the public.
"tracking
device" means any electronic device capable of being used to determine or
monitor the location of a person or an object or the status of an object.
(2) Action falls within this subsection if it:
(a) causes serious harm that is physical harm to a person; or
(b) causes serious damage to property; or
(c) causes a person's death; or
(d) endangers a person's life, other than the life of the person taking
the action; or
(e) creates a serious risk to the health or safety of the public or a
section of the public; or
(f) seriously interferes with, seriously disrupts, or destroys, an
electronic system including, but not limited to:
(i) an information system; or
(ii) a telecommunications system; or
(iii) a financial system; or
(iv) a system used for the delivery of essential government services; or
(v) a system used for, or by, an essential public utility; or
(vi) a system used for, or by, a transport system.
(3) Action falls within this subsection if it:
(a) is advocacy, protest, dissent or industrial action; and
(b) is not intended:
(i) to cause serious harm that is physical harm to a person; or
(ii) to cause a person's death; or
(iii) to endanger the life of a person, other than the person taking the
action; or
(iv) to create a serious risk to the health or safety of the public or a
section of the public.
(4) In this Division:
(a) a reference to any person or property is a reference to any person
or property wherever situated, within or outside Australia; and
(b) a reference to the public includes a reference to the public of a
country other than Australia.
Note: A court that is
sentencing a person who has been convicted of an offence against this Part,
the maximum penalty for which is 7 or more years of imprisonment, must warn
the person about continuing detention orders (see section 105A.23).
(1) A State is a referring State if the Parliament of the State has
referred the matters covered by subsections (2) and (3) to the Parliament
of the Commonwealth for the purposes of paragraph 51(xxxvii) of the
Constitution:
(a) if and to the extent that the matters are not otherwise included in
the legislative powers of the Parliament of the Commonwealth (otherwise than
by a reference under paragraph 51(xxxvii) of the Constitution); and
(b) if and to the extent that the matters are included in the
legislative powers of the Parliament of the State.
This subsection has
effect subject to subsection (5).
(2) This subsection covers the matters to which the referred provisions
relate to the extent of making laws with respect to those matters by including
the referred provisions in this Code.
(3) This subsection covers the matter of terrorist acts, and of actions
relating to terrorist acts, to the extent of making laws with respect to that
matter by making express amendment of this Part or Chapter 2.
(4) A State is a referring State even if a law of the State provides
that the reference to the Commonwealth Parliament of either or both of the
matters covered by subsections (2) and (3) is to terminate in particular
circumstances.
(5) A State ceases to be a referring State if a reference by the State
of either or both of
the matters covered by subsections (2) and (3)
terminate.
(6) In this section:
"referred provisions" means the provisions of
Part 5.3 of this Code as inserted by the Criminal Code Amendment
(Terrorism) Act 2002 , to the extent to which they deal with matters that are
included in the legislative powers of the Parliaments of the States.
(1) The operation of this Part in a referring State is based on:
(a) the legislative powers that the Commonwealth Parliament has under
section 51 of the Constitution (other than paragraph 51(xxxvii));
and
(b) the legislative powers that the Commonwealth Parliament has in
respect of matters to which this Part relates because those matters are
referred to it by the Parliament of the referring State under
paragraph 51(xxxvii) of the Constitution.
Note: The State
reference fully supplements the Commonwealth Parliament's other powers by
referring the matters to the Commonwealth Parliament to the extent to which
they are not otherwise included in the legislative powers of the Commonwealth
Parliament.
Operation in a non-referring State
(2) The operation of this Part in a State that is not a referring
State is based on the legislative powers that the Commonwealth Parliament has
under section 51 of the Constitution (other than
paragraph 51(xxxvii)).
Note:
Subsection 100.4(5) identifies particular powers that are being relied
on.
Operation in a Territory
(3) The operation of this Part in the Northern Territory, the
Australian Capital Territory or an external Territory is based on:
(a) the legislative powers that the Commonwealth Parliament has under
section 122 of the Constitution to make laws for the government of that
Territory; and
(b) the legislative powers that the Commonwealth Parliament has under
section 51 of the Constitution (other than paragraph 51(xxxvii)).
Despite subsection 22(3) of the Acts Interpretation Act 1901, this Part
as applying in those Territories is a law of the Commonwealth.
Operation
outside Australia
(4) The operation of this Part outside Australia and the external
Territories is based on:
(a) the legislative powers that the Commonwealth Parliament has under
paragraph 51(xxix) of the Constitution; and
(b) the other legislative powers that the Commonwealth Parliament has
under section 51 of the Constitution (other than
paragraph 51(xxxvii)).
Part
generally applies to all terrorist acts and preliminary acts
(1) Subject to subsection (4), this Part applies to the following
conduct:
(a) all actions or threats of action that constitute terrorist acts (no
matter where the action occurs, the threat is made or the action, if carried
out, would occur);
(b) all actions ( preliminary acts ) that relate to terrorist acts but
do not themselves constitute terrorist acts (no matter where the preliminary
acts occur and no matter where the terrorist acts to which they relate occur
or would occur).
Note:
See the following provisions:
(a)
subsection 101.1(2);
(b) subsection 101.2(4);
(c) subsection 101.4(4);
(d)
subsection 101.5(4);
(e) subsection 101.6(3);
(f) section 102.9.
Operation in relation to terrorist
acts and preliminary acts occurring in a State that is not a referring State
(2) Subsections (4) and (5) apply to conduct if the conduct is
itself a terrorist act and:
(a) the terrorist act consists of an action and the action occurs in a
State that is not a referring State; or
(b) the terrorist act consists of a threat of action and the threat is
made in a State that is not a referring State.
(3) Subsections (4) and (5) also apply to conduct if the conduct is
a preliminary act that occurs in a State that is not a referring State and:
(a) the terrorist act to which the preliminary act relates consists of
an action and the action occurs, or would occur, in a State that is not a
referring State; or
(b) the terrorist act to which the preliminary act relates consists of a
threat of action and the threat is made, or would be made, in a State that is
not a referring State.
(4) Notwithstanding any other provision in this Part, this Part applies
to the conduct only to the extent to which the Parliament has power to
legislate in relation to:
(a) if the conduct is itself a terrorist act--the action or threat of
action that constitutes the terrorist act; or
(b) if the conduct is a preliminary act--the action or threat of action
that constitutes the terrorist act to which the preliminary act relates.
(5) Without limiting the generality of subsection (4),
this Part applies to the action or threat of action if :
(a) the action affects, or if carried out would affect, the interests
of:
(i) the Commonwealth; or
(ii) an authority of the Commonwealth; or
(iii) a constitutional corporation; or
(b) the threat is made to:
(i) the Commonwealth; or
(ii) an authority of the Commonwealth; or
(iii) a constitutional corporation; or
(c) the action is carried out by, or the threat is made by, a
constitutional corporation; or
(d) the action takes place, or if carried out would take place, in a
Commonwealth place; or
(e) the threat is made in a Commonwealth place; or
(f) the action involves, or if carried out would involve, the use of a
postal service or other like service; or
(g) the threat is made using a postal or other like service; or
(h) the action involves, or if carried out would involve, the use of an
electronic communication; or
(i) the threat is made using an electronic communication; or
(j) the action disrupts, or if carried out would disrupt, trade or
commerce:
(i) between Australia and places outside Australia; or
(ii) among the States; or
(iii) within a Territory, between a State and a Territory or between 2
Territories; or
(k) the action disrupts, or if carried out would disrupt:
(i) banking (other than State banking not extending beyond the limits of
the State concerned); or
(ii) insurance (other than State insurance not extending beyond the
limits of the State concerned); or
(l) the action is, or if carried out would be, an action in relation to
which the Commonwealth is obliged to create an offence under international
law; or
(m) the threat is one in relation to which the Commonwealth is obliged
to create an offence under international law.
(6) To avoid doubt, subsections (2) and (3) apply to a State that
is not a referring State at a particular time even if no State is a referring
State at that time.
(1) The Acts Interpretation Act 1901, as in force on the day on which
Schedule 1 to the Criminal Code Amendment (Terrorism) Act 2003 commences,
applies to this Part.
(1) This Part is not intended to exclude or limit the concurrent
operation of any law of a State or Territory.
(2) Without limiting subsection (1), this Part is not intended
to exclude or limit the concurrent operation of a law of a State or Territory
that makes:
(a) an act or omission that is an offence against a provision of this
Part; or
(b) a similar act or omission;
an offence against the law of the State
or Territory.
(3) Subsection (2) applies even if the law of the State or
Territory does any one or more of the following:
(a) provides for a penalty for the offence that differs from the penalty
provided for in this Part;
(b) provides for a fault element in relation to the offence that differs
from the fault elements applicable to the offence under this Part;
(c) provides for a defence in relation to the offence that differs from
the defences applicable to the offence under this Part.
(4) If:
(a) an act or omission of a person is an offence under this Part and is
also an offence under the law of a State or Territory; and
(b) the person has been punished for the offence under the law of the
State or Territory;
the person is not liable to be punished for the offence
under this Part.
(1) The regulations may modify the operation of this Part so that:
(a) provisions of this Part do not apply to a matter that is dealt with
by a law of a State or Territory specified in the regulations; or
(b) no inconsistency arises between the operation of a provision of this
Part and the operation of a State or Territory law specified in the
regulations.
(2) Without limiting subsection (1), regulations made for the
purposes of that subsection may provide that the provision of this Part does
not apply to:
(a) a person specified in the regulations; or
(b) a body specified in the regulations; or
(c) circumstances specified in the regulations; or
(d) a person or body specified in the regulations in the circumstances
specified in the regulations.
(3) In this section:
"matter" includes act, omission, body, person or
thing.
(1) A person commits an offence if the person engages in a terrorist
act.
Penalty: Imprisonment for life.
(2) Section 15.4 (extended geographical jurisdiction--category D)
applies to an offence against subsection (1).
101.2 Providing
or receiving training connected with terrorist acts
(1) A person commits an offence if:
(a) the person provides or receives training; and
(b) the training is connected with preparation for, the engagement of a
person in, or assistance in a terrorist act; and
(c) the person mentioned in paragraph (a) knows of the connection
described in paragraph (b).
Penalty: Imprisonment for 25 years.
(2) A person commits an offence if:
(a) the person provides or receives training; and
(b) the training is connected with preparation for, the engagement of a
person in, or assistance in a terrorist act; and
(c) the person mentioned in paragraph (a) is reckless as to the
existence of the connection described in paragraph (b).
Penalty:
Imprisonment for 15 years.
(3) A person commits an offence under this section even if:
(a) a terrorist act does not occur; or
(b) the training is not connected with preparation for, the engagement
of a person in, or assistance in a specific terrorist act; or
(c) the training is connected with preparation for, the engagement of a
person in, or assistance in more than one terrorist act.
(4) Section 15.4 (extended geographical jurisdiction--category D)
applies to an offence against this section.
(5) If, in a prosecution for an offence (the prosecuted offence )
against a subsection of this section, the trier of fact is not satisfied that
the defendant is guilty of the offence, but is satisfied beyond reasonable
doubt that the defendant is guilty of an offence (the alternative offence )
against another subsection of this section, the trier of fact may find the
defendant not guilty of the prosecuted offence but guilty of the alternative
offence, so long as the defendant has been accorded procedural fairness in
relation to that finding of guilt.
(b) the thing is connected with preparation for, the engagement of a
person in, or assistance in a terrorist act; and
(c) the person mentioned in paragraph (a) knows of the connection
described in paragraph (b).
Penalty: Imprisonment for 15 years.
(2) A person commits an offence if:
(a) the person possesses a thing; and
(b) the thing is connected with preparation for, the engagement of a
person in, or assistance in a terrorist act; and
(c) the person mentioned in paragraph (a) is reckless as to the
existence of the connection described in paragraph (b).
Penalty:
Imprisonment for 10 years.
(3) A person commits an offence under subsection (1) or (2) even
if:
(a) a terrorist act does not occur; or
(b) the thing is not connected with preparation for, the engagement of a
person in, or assistance in a specific terrorist act; or
(c) the thing is connected with preparation for, the engagement of a
person in, or assistance in more than one terrorist act.
(4) Section 15.4 (extended geographical jurisdiction--category D)
applies to an offence against this section.
(5) Subsections (1) and (2) do not apply if the possession of the
thing was not intended to facilitate preparation for, the engagement of a
person in, or assistance in a terrorist act.
Note: A defendant bears
an evidential burden in relation to the matter in subsection (5) (see
subsection 13.3(3)).
(6) If, in a prosecution for an offence (the prosecuted offence )
against a subsection of this section, the trier of fact is not satisfied that
the defendant is guilty of the offence, but is satisfied beyond reasonable
doubt that the defendant is guilty of an offence (the alternative offence )
against another subsection of this section, the trier of fact may find the
defendant not guilty of the prosecuted offence but guilty of the alternative
offence, so long as the defendant has been accorded procedural fairness in
relation to that finding of guilt.
(b) the document is connected with preparation for, the engagement of a
person in, or assistance in a terrorist act; and
(c) the person mentioned in paragraph (a) knows of the connection
described in paragraph (b).
Penalty: Imprisonment for
15 years .
(2) A person commits an offence if:
(a) the person collects or makes a document; and
(b) the document is connected with preparation for, the engagement of a
person in, or assistance in a terrorist act; and
(c) the person mentioned in paragraph (a) is reckless as to the
existence of the connection described in paragraph (b).
Penalty:
Imprisonment for 10 years.
(3) A person commits an offence under subsection (1) or (2) even
if:
(a) a terrorist act does not occur; or
(b) the document is not connected with preparation for, the engagement
of a person in, or assistance in a specific terrorist act; or
(c) the document is connected with preparation for, the engagement of a
person in, or assistance in more than one terrorist act.
(4) Section 15.4 (extended geographical jurisdiction--category D)
applies to an offence against this section.
(5) Subsections (1) and (2) do not apply if the collection or
making of the document was not intended to facilitate preparation for, the
engagement of a person in, or assistance in a terrorist act.
Note: A defendant bears
an evidential burden in relation to the matter in subsection (5) (see
subsection 13.3(3)).
(6) If, in a prosecution for an offence (the prosecuted offence )
against a subsection of this section, the trier of fact is not satisfied that
the defendant is guilty of the offence, but is satisfied beyond reasonable
doubt that the defendant is guilty of an offence (the alternative offence )
against another subsection of this section, the trier of fact may find the
defendant not guilty of the prosecuted offence but guilty of the alternative
offence, so long as the defendant has been accorded procedural fairness in
relation to that finding of guilt.
"advocate" has the meaning given by
subsection (1A).
"associate" : a person associates with another person
if the person meets or communicates with the other person.
"close family
member" of a person means:
(a) the person's spouse or de facto partner; or
(b) a parent, step-parent or grandparent of the person; or
(c) a child, step-child or grandchild of the person; or
(d) a brother, sister, step-brother or step-sister of the person; or
(e) a guardian or carer of the person.
Note: See also
subsection (19).
"member" of an organisation includes:
(a) a person who is an informal member of the organisation; and
(b) a person who has taken steps to become a member of the organisation;
and
(c) in the case of an organisation that is a body corporate--a director
or an officer of the body corporate.
"recruit" includes induce, incite and
encourage.
"terrorist organisation" means:
(a) an organisation that is directly or indirectly
engaged in, preparing, planning, assisting in or fostering the doing of a
terrorist act; or
(b) an organisation that is specified by the regulations for the
purposes of this paragraph (see subsections (2), (3) and
(4) ).
Definition of advocates
(1A) In this
Division, an organisation advocates the doing of a terrorist act if:
(a) the organisation directly or indirectly counsels, promotes,
encourages or urges the doing of a terrorist act; or
(b) the organisation directly or indirectly provides instruction on the
doing of a terrorist act; or
(c) the organisation directly praises the doing of a terrorist act in
circumstances where there is a substantial risk that such praise might have
the effect of leading a person (regardless of his or her age or any mental
impairment that the person might suffer) to engage in a terrorist act.
Terrorist organisation regulations
(2) Before the Governor-General makes a regulation specifying an
organisation for the purposes of paragraph (b) of the definition of
terrorist organisation in this section, the AFP Minister must be satisfied on
reasonable grounds that the organisation:
(a) is directly or indirectly engaged in, preparing, planning, assisting
in or fostering the doing of a terrorist act; or
(b) advocates the doing of a terrorist act.
(2A) Before the
Governor-General makes a regulation specifying an organisation for the
purposes of paragraph (b) of the definition of terrorist organisation in
this section, the AFP Minister must arrange for the Leader of the Opposition
in the House of Representatives to be briefed in relation to the proposed
regulation.
(3) Regulations for the purposes of paragraph (b) of the definition
of terrorist organisation in this section cease to have effect on the
third anniversary of the day on which they take effect. To avoid doubt, this
subsection does not prevent:
(a) the repeal of those regulations; or
(b) the cessation of effect of those regulations under
subsection (4); or
(c) the making of new regulations the same in substance as those
regulations (whether the new regulations are made or take effect before or
after those regulations cease to have effect because of this subsection).
(4)
If:
(a) an organisation is specified by regulations made for the purposes of
paragraph (b) of the definition of terrorist organisation in this
section; and
(b) the AFP Minister ceases to be satisfied of either of the following
(as the case requires):
(i) that the organisation is directly or indirectly engaged in,
preparing, planning, assisting in or fostering the doing of a terrorist act;
(ii) that the organisation advocates the doing of a terrorist act;
the
AFP Minister must, by written notice
published in the Gazette , make a declaration to the effect that the AFP
Minister
has ceased to be so satisfied. The regulations, to the extent to which they
specify the organisation, cease to have effect when the declaration is made.
(5) To avoid doubt, subsection (4) does not prevent the
organisation from being subsequently specified by regulations made
for the purposes of paragraph (b) of the definition of terrorist
organisation in this section if the
AFP Minister becomes satisfied as mentioned in subsection (2).
(17) If:
(a) an organisation (the listed organisation ) is specified in
regulations made for the purposes of paragraph (b) of the definition of
terrorist organisation in this section; and
(b) an individual or an organisation (which may be the listed
organisation) makes an application (the de-listing application ) to the AFP
Minister for a declaration under subsection (4) in relation to the listed
organisation; and
(c) the de-listing application is made on the grounds that there is no
basis for the AFP Minister to be satisfied that the listed organisation:
(i) is directly or indirectly engaged in, preparing, planning, assisting
in or fostering the doing of a terrorist act; or
(ii) advocates the doing of a terrorist act;
as the case requires;
the AFP Minister must consider the de-listing
application.
(18) Subsection (17) does not limit the matters that may be
considered by the AFP Minister for the purposes of subsection (4).
(19) For
the purposes of this Division, the close family members of a person are taken
to include the following (without limitation):
(a) a de facto partner of the person;
(b) someone who is the child of the person, or of whom the person is the
child, because of the definition of child in the Dictionary;
(c) anyone else who would be a member of the person's family if someone
mentioned in paragraph (a) or (b) is taken to be a close family member of
the person.
(20) In this section, a reference to the doing of a terrorist act
includes:
(a) a reference to the doing of a terrorist act, even if a terrorist act
does not occur; and
(b) a reference to the doing of a specific terrorist act; and
(c) a reference to the doing of more than one terrorist act.
(1) This section applies if the AFP Minister is satisfied on reasonable
grounds that:
(a) an organisation is specified in regulations made for the purposes of
paragraph (b) of the definition of terrorist organisation in
subsection 102.1(1); and
(b) the organisation:
(i) is referred to by another name (the alias ), in addition to, or
instead of, a name used to specify the organisation in the regulations; or
(ii) no longer uses a name (the former name ) used in the regulations to
specify the organisation.
(2) The AFP Minister may, by legislative instrument, amend the
regulations to do either or both of the following:
(a) include the alias in the regulations if the AFP Minister is
satisfied as referred to in subparagraph (1)(b)(i);
(b) remove the former name from the regulations if the AFP Minister is
satisfied as referred to in subparagraph (1)(b)(ii).
(3) Amendment of regulations under subsection (2) does not:
(a) prevent the further amendment or repeal of the regulations by
regulations made under section 5 of this Act for the purposes of
paragraph (b) of the definition of terrorist organisation in
subsection 102.1(1); or
(b) affect when the amended regulations cease to have effect under
section 102.1.
(4) The AFP Minister may not, by legislative instrument made under this
section, amend the regulations to remove entirely an organisation that has
been prescribed.
(5) To avoid doubt, this section does not affect the power under
section 5 of this Act to make regulations for the purposes of
paragraph (b) of the definition of terrorist organisation in
subsection 102.1(1).
(1) This section applies in relation to the following disallowable
instruments:
(a) a regulation that specifies an organisation for the purposes of
paragraph (b) of the definition of terrorist organisation in
section 102.1;
(b) an instrument made under section 102.1AA.
Review of
disallowable instrument
(2) The Parliamentary Joint Committee on Intelligence and Security may:
(a) review the disallowable instrument as soon as possible after the
making of the instrument; and
(b) report the Committee's comments and recommendations to each House of
the Parliament before the end of the applicable disallowance period for that
House.
Review of disallowable instrument--extension of disallowance period
(3) If the Committee's report on a review of a disallowable instrument
is tabled in a House of the Parliament:
(a) during the applicable disallowance period for that House; and
(b) on or after the eighth sitting day of the applicable disallowance
period;
then Part 2 of Chapter 3 of the Legislation Act 2003has
effect, in relation to that disallowable instrument and that House, as if each
period of 15 sitting days referred to in that Part were extended in accordance
with the table:
Extension of applicable disallowance period
Item
If the Committee's report is tabled in that House...
extend the
period of 15 sitting days by...
1
on the fifteenth sitting day of
the applicable disallowance period
8 sitting days of that House
2
on the fourteenth sitting day of the applicable disallowance period
7
sitting days of that House
3
on the thirteenth sitting day of the
applicable disallowance period
6 sitting days of that House
4
on
the twelfth sitting day of the applicable disallowance period
5 sitting
days of that House
5
on the eleventh sitting day of the applicable
disallowance period
4 sitting days of that House
6
on the tenth
sitting day of the applicable disallowance period
3 sitting days of that
House
7
on the ninth sitting day of the applicable disallowance
period
2 sitting days of that House
8
on the eighth sitting day
of the applicable disallowance period
1 sitting day of that House
Applicable disallowance period
(4) The applicable disallowance period for a House of the Parliament
means the period of 15 sitting days of that House after the disallowable
instrument, or a copy of the disallowable instrument, was laid before that
House in accordance with section 38 of the Legislation Act 2003.
(a) the person intentionally is a member of an organisation; and
(b) the organisation is a terrorist organisation; and
(c) the person knows the organisation is a terrorist organisation.
Penalty: Imprisonment for 10 years.
(2) Subsection (1) does not apply if the person proves that he or
she took all reasonable steps to cease to be a member of the organisation as
soon as practicable after the person knew that the organisation was a
terrorist organisation.
Note: A defendant bears
a legal burden in relation to the matter in subsection (2) (see
section 13.4).
(i) receives funds from, or makes funds available to, an organisation
(whether directly or indirectly); or
(ii) collects funds for, or on behalf of, an organisation (whether
directly or indirectly); and
(b) the organisation is a terrorist organisation; and
(c) the person knows the organisation is a terrorist organisation.
Penalty: Imprisonment for 25 years.
(2) A person commits an offence if:
(a) the person intentionally:
(i) receives funds from, or makes funds available to, an organisation
(whether directly or indirectly); or
(ii) collects funds for, or on behalf of, an organisation (whether
directly or indirectly); and
(b) the organisation is a terrorist organisation; and
(c) the person is reckless as to whether the organisation is a terrorist
organisation.
Penalty: Imprisonment for 15 years.
(3) Subsections (1) and (2) do not apply to the person's receipt of
funds from the organisation if the person proves that he or she received the
funds solely for the purpose of the provision of:
(a) legal representation for a person in proceedings relating to this
Division; or
(aa) legal advice or legal representation in connection with the
question of whether the organisation is a terrorist organisation; or
(b) assistance to the organisation for it to comply with a law of the
Commonwealth or a State or Territory.
Note: A defendant bears
a legal burden in relation to the matter in subsection (3) (see
section 13.4).
(a) the person intentionally provides to an organisation support or
resources that would help the organisation engage in an activity described in
paragraph (a) of the definition of terrorist organisation in this
Division; and
(b) the organisation is a terrorist organisation; and
(c) the person knows the organisation is a terrorist organisation.
Penalty: Imprisonment for 25 years.
(2) A person commits an offence if:
(a) the person intentionally provides to an organisation support or
resources that would help the organisation engage in an activity described in
paragraph (a) of the definition of terrorist organisation in this
Division; and
(b) the organisation is a terrorist organisation; and
(c) the person is reckless as to whether the organisation is a terrorist
organisation.
(i) the person intentionally associates with another person who is a
member of, or a person who promotes or directs the activities of, an
organisation; and
(ii) the person knows that the organisation is a terrorist organisation;
and
(iii) the association provides support to the organisation; and
(iv) the person intends that the support assist the organisation to
expand or to continue to exist; and
(v) the person knows that the other person is a member of, or a person
who promotes or directs the activities of, the organisation; and
(b) the organisation is a terrorist organisation because of
paragraph (b) of the definition of terrorist organisation in this
Division (whether or not the organisation is a terrorist organisation because
of paragraph (a) of that definition also).
Penalty: Imprisonment
for 3 years.
(2) A person commits an offence if:
(a) the person has previously been convicted of an offence against
subsection (1); and
(b) the person intentionally associates with another person who is a
member of, or a person who promotes or directs the activities of, an
organisation; and
(c) the person knows that the organisation is a terrorist organisation;
and
(d) the association provides support to the organisation; and
(e) the person intends that the support assist the organisation to
expand or to continue to exist; and
(f) the person knows that the other person is a member of, or a person
who promotes or directs the activities of, the organisation; and
(g) the organisation is a terrorist organisation because of
paragraph (b) of the definition of terrorist organisation in this
Division (whether or not the organisation is a terrorist organisation because
of paragraph (a) of that definition also).
Penalty: Imprisonment
for 3 years.
(3) Strict liability applies to paragraphs (1)(b) and (2)(g).
(4) This section does not apply if:
(a) the association is with a close family member and relates only to a
matter that could reasonably be regarded (taking into account the person's
cultural background) as a matter of family or domestic concern; or
(b) the association is in a place being used for public religious
worship and takes place in the course of practising a religion; or
(c) the association is only for the purpose of providing aid of a
humanitarian nature; or
(d) the association is only for the purpose of providing legal advice or
legal representation in connection with:
(i) criminal proceedings or proceedings related to criminal proceedings
(including possible criminal proceedings in the future); or
(ii) the question of whether the organisation is a terrorist
organisation; or
(iv) a listing or proposed listing under section 15 of the Charter
of the United Nations Act 1945 or an application or proposed application to
revoke such a listing, or proceedings relating to such a listing or
application or proposed listing or application; or
(v) proceedings conducted by a military commission of the United States
of America established under a Military Order of 13 November 2001 made by
the President of the United States of America and entitled "Detention,
Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism"; or
(vi) proceedings for a review of a decision relating to a passport or
other travel document or to a failure to issue such a passport or other travel
document (including a passport or other travel document that was, or would
have been, issued by or on behalf of the government of a foreign country).
Note: A defendant bears
an evidential burden in relation to the matters in subsection (4). See
subsection 13.3(3).
(5) This section does not apply unless the person is reckless as to the
circumstance mentioned in paragraph (1)(b) and (2)(g) (as the case
requires).
Note: A
defendant bears an evidential burden in relation to the matter in
subsection (5). See subsection 13.3(3).
(6) This section does not apply to the extent (if any) that it would
infringe any constitutional doctrine of implied freedom of political
communication.
Note: A
defendant bears an evidential burden in relation to the matter in
subsection (6). See subsection 13.3(3).
(7) A person who is convicted of an offence under subsection (1) in
relation to the person's conduct on 2 or more occasions is not liable to be
punished for an offence under subsection (1) for other conduct of the
person that takes place:
(a) at the same time as that conduct; or
(b) within 7 days before or after any of those occasions.
(1) This section applies if, in a prosecution for an offence (the
prosecuted offence ) against a subsection of a section of this Division, the
trier of fact is not satisfied that the defendant is guilty of the offence,
but is satisfied beyond reasonable doubt that the defendant is guilty of an
offence (the alternative offence ) against another subsection of that section.
(2) The trier of fact may find the defendant not guilty of the
prosecuted offence but guilty of the alternative offence, so long as the
defendant has been accorded procedural fairness in relation to that finding of
guilt.
The objects of this Division are to allow obligations, prohibitions and
restrictions to be imposed on a person by a control order for one or more of
the following purposes:
(a) protecting the public from a terrorist act;
(b) preventing the provision of support for or the facilitation of a
terrorist act;
(c) preventing the provision of support for or the facilitation of the
engagement in a hostile activity in a foreign country.
(1) A senior AFP member must not request an interim control order in
relation to a person without the AFP Minister's written consent.
Note: However, in urgent
circumstances, a senior AFP member may request an interim control order
without first obtaining the AFP Minister's consent (see Subdivision C).
(2) A senior AFP member may only seek the AFP Minister's written consent
to request an interim control order in relation to a person if the member:
(a) suspects on reasonable grounds that the order in the terms to be
requested would substantially assist in preventing a terrorist act; or
(b) suspects on reasonable grounds that the person has:
(i) provided training to, received training from or participated in
training with a listed terrorist organisation; or
(ii) engaged in a hostile activity in a foreign country; or
(iii) been convicted in Australia of an offence relating to terrorism, a
terrorist organisation (within the meaning of subsection 102.1(1)) or a
terrorist act (within the meaning of section 100.1); or
(iv) been convicted in a foreign country of an offence that is
constituted by conduct that, if engaged in in Australia, would constitute a
terrorism offence (within the meaning of subsection 3(1) of the
Crimes Act 1914); or
(c) suspects on reasonable grounds that the order in the terms to be
requested would substantially assist in preventing the provision of support
for or the facilitation of a terrorist act; or
(d) suspects on reasonable grounds that the person has provided support
for or otherwise facilitated the engagement in a hostile activity in a foreign
country.
(3) In seeking the AFP Minister's consent, the member must give the AFP
Minister:
(a) a draft of the interim control order to be requested; and
(aa) the following:
(i) a statement of the facts relating to why the order should be made;
(ii) if the member is aware of any facts relating to why the order
should not be made--a statement of those facts; and
(b) if the person is at least 18 years of age and the member has
information about the person's age--that information; and
(ba) if the person is under 18 years of age--information about the
person's age; and
(c) a summary of the grounds on which the order should be made.
Note: An interim control
order cannot be requested in relation to a person who is under 14 years of age
(see section 104.28).
(4) The AFP Minister's consent may be made subject to the member making
changes required by the AFP Minister to the draft of the interim control order
to be requested.
(5) To avoid doubt, a senior AFP member may seek the AFP Minister's
consent to request an interim control order in relation to a person even if:
(a) such a request has previously been made in relation to the person;
or
(b) the person is detained in custody.
Note: An interim control
order in relation to a person who is detained in custody does not begin to be
in force until the person is released from custody (see
paragraph 104.5(1)(d)).
(6) In subsection (2), a reference to a terrorist act includes:
(a) a reference to a terrorist act that does not occur; and
If the AFP Minister consents to the request under section 104.2,
the senior AFP member may request an interim control order by giving an
issuing court the following :
(a) a request the information in which is sworn or affirmed by the
member;
(b) all that is required under subsection 104.2(3) (incorporating
any change made to the draft of the interim control order under
subsection 104.2(4));
(d) the following:
(i) an explanation as to why
each of the proposed obligations, prohibitions or restrictions should be
imposed on the person;
(ii) if the member is aware of any facts relating to why any of
those obligations, prohibitions or restrictions should not be imposed on the
person--a statement of those facts;
(e) the following:
(i) the outcomes and particulars of all previous requests for interim
control orders (including the outcomes of the hearings to confirm the orders)
in relation to the person;
(ii) the outcomes and particulars of all previous applications for
variations of control orders made in relation to the person;
(iii) the outcomes and particulars of all previous applications for
revocations of control orders made in relation to the person;
(iv) the outcomes and particulars of all previous applications for
preventative detention orders in relation to the person;
(v) information (if any) that the member has about any periods for which
the person has been detained under an order made under a corresponding State
preventative detention law;
(f) a copy of the AFP Minister's consent.
Note: The member might
commit an offence if the draft request is false or misleading (see
sections 137.1 and 137.2).
(1) The issuing court may make an order under this section in relation
to the person, but only if:
(a) the senior AFP member has requested it in accordance with
section 104.3; and
(b) the court has received and considered such further information (if
any) as the court requires; and
(c) the court is satisfied on the balance of probabilities:
(i) that making the order would substantially assist in preventing a
terrorist act; or
(ii) that the person has provided training to, received training from or
participated in training with a listed terrorist organisation; or
(iii) that the person has engaged in a hostile activity in a foreign
country; or
(iv) that the person has been convicted in Australia of an offence
relating to terrorism, a terrorist organisation (within the meaning of
subsection 102.1(1)) or a terrorist act (within the meaning of
section 100.1); or
(v) that the person has been convicted in a foreign country of an
offence that is constituted by conduct that, if engaged in in Australia, would
constitute a terrorism offence (within the meaning of subsection 3(1) of
the Crimes Act 1914); or
(vi) that making the order would substantially assist in preventing the
provision of support for or the facilitation of a terrorist act; or
(vii) that the person has provided support for or otherwise facilitated
the engagement in a hostile activity in a foreign country; and
(d) the court is satisfied on the balance of probabilities that each of
the obligations, prohibitions and restrictions to be imposed on the person by
the order is reasonably necessary, and reasonably appropriate and adapted, for
the purpose of:
(i) protecting the public from a terrorist act; or
(ii) preventing the provision of support for or the facilitation of a
terrorist act; or
(iii) preventing the provision of support for or the facilitation of the
engagement in a hostile activity in a foreign country.
(2) For the purposes of paragraph (1)(d), in determining whether
each of the obligations, prohibitions and restrictions to be imposed on the
person by the order is reasonably necessary, and reasonably appropriate and
adapted, the court must take into account:
(a) as a paramount consideration in all cases--the objects of this
Division (see section 104.1); and
(b) as a primary consideration in the case where the person is 14 to 17
years of age--the best interests of the person; and
(c) as an additional consideration in all cases--the impact of the
obligation, prohibition or restriction on the person's circumstances
(including the person's financial and personal circumstances).
(2A) In
determining what is in the best interests of a person for the purposes of
paragraph (2)(b), the court must take into account the following:
(a) the age, maturity, sex and background (including lifestyle, culture
and traditions) of the person;
(b) the physical and mental health of the person;
(c) the benefit to the person of having a meaningful relationship with
his or her family and friends;
(d) the right of the person to receive an education;
(e) the right of the person to practise his or her religion;
(f) any other matter the court considers relevant.
(3) The court need not include in the order an obligation, prohibition
or restriction that was sought by the senior AFP member if the court is not
satisfied as mentioned in paragraph (1)(d) in respect of that obligation,
prohibition or restriction.
(4) In paragraphs (1)(c) and (d), a reference to a terrorist act
includes:
(a) a reference to a terrorist act that does not occur; and
(1) If the issuing court makes the interim control order, the order
must:
(a) state that the court is satisfied of the matters mentioned in
paragraphs 104.4(1)(c) and (d); and
(b) specify the name of the person to whom the order relates; and
(c) specify all of the obligations, prohibitions and restrictions
mentioned in subsection (3) that are to be imposed on the person by the
order; and
(d) state that the order does not begin to be in force until:
(i) it is served personally on the person; and
(ii) if the person is detained in custody--the person is released from
custody; and
(e) specify a day on which the person may attend the court for the court
to:
(i) confirm (with or without variation) the interim control order; or
(ii) declare the interim control order to be void; or
(iii) revoke the interim control order; and
(f) specify the period during which the confirmed control order is to be
in force, which must not end more than 12 months after the day on which the
interim control order is made; and
(g) state that the person's lawyer may attend a specified place in order
to obtain a copy of the interim control order; and
(h) set out a summary of the grounds on which the order is made.
Note
1: An interim control order made in
relation to a person must be served on the person at least 48 hours before the
day specified as mentioned in paragraph (1)(e) (see section 104.12).
Note 2: If the person is 14 to 17 years of
age, then a confirmed control order must not end more than 3 months after the
day on which the interim control order is made (see section 104.28).
(1A) The day
specified for the purposes of paragraph (1)(e) must be as soon as
practicable, but at least 7 days, after the order is made.
(1B) In
specifying a day for the purposes of paragraph (1)(e), the issuing court
must take into account:
(a) that the persons mentioned in subsection 104.14(1) may need to
prepare in order to adduce evidence or make submissions to the court in
relation to the confirmation of the order; and
(aa) if the person to whom the order relates is detained in custody--any
other matter relating to the person's detention that the court considers
relevant; and
(b) any other matter the court considers relevant.
(1C) To avoid
doubt, if the person is detained in custody, the person has a right to attend
court on the day specified for the purposes of paragraph (1)(e).
(2) Paragraph (1)(f) does not prevent the making of successive
control orders in relation to the same person.
(2AA) To avoid doubt, if a control
order is in force in relation to a person, the control order does not cease to
be in force merely because the person is detained in custody.
Note: However, if a
person is detained in custody, and a control order is made in relation to the
person, the control order does not begin to be in force until the person is
released from custody (see paragraph (1)(d)).
(3) The obligations, prohibitions and restrictions that the court may
impose on the person by the order are the following:
(a) a prohibition or restriction on the person being at specified areas
or places;
(b) a prohibition or restriction on the person leaving Australia;
(c) a requirement that the person remain at specified premises between
specified times each day, or on specified days, but for no more than 12 hours
within any 24 hours;
(d) a requirement that the person wear a tracking device;
(e) a prohibition or restriction on the person communicating or
associating with specified individuals;
(f) a prohibition or restriction on the person accessing or using
specified forms of telecommunication or other technology (including the
internet);
(g) a prohibition or restriction on the person possessing or using
specified articles or substances;
(h) a prohibition or restriction on the person carrying out specified
activities (including in respect of his or her work or occupation);
(i) a requirement that the person report to specified persons at
specified times and places;
(j) a requirement that the person allow himself or herself to be
photographed;
(k) a requirement that the person allow impressions of his or her
fingerprints to be taken;
(l) a requirement that the person participate in specified counselling
or education.
Note:
Restrictions apply to the use of photographs or impressions of fingerprints
taken as mentioned in paragraphs (3)(j) and (k) (see
section 104.22).
(3A) If the court imposes a requirement under paragraph (3)(d) that
the person wear a tracking device, then the court must also impose on the
person by the order a requirement that the person do all of the following:
(a) take steps specified in the order (if any) and reasonable steps to
ensure that the tracking device and any equipment necessary for the operation
of the tracking device are or remain in good working order;
(b) report to persons specified in the order (if any), at the times and
places specified in the order (if any), for the purposes of having the
tracking device inspected;
(c) if the person becomes aware that the tracking device or any
equipment necessary for the operation of the tracking device is not in good
working order--notify an AFP member as soon as practicable, but no later than
4 hours, after becoming so aware.
(3B) If the court
imposes a requirement under paragraph (3)(d) that the person wear a
tracking device, then the court must also include in the order an
authorisation for one or more AFP members:
(a) to take steps specified in the order to ensure that the tracking
device and any equipment necessary for the operation of the tracking device
are or remain in good working order; and
(b) to enter one or more premises specified in the order for the
purposes of installing any equipment necessary for the operation of the
tracking device.
Communicating and associating
(4) Subsection 102.8(4) applies to paragraph (3)(e) and the
person's communication or association in the same way as that subsection
applies to section 102.8 and a person's association.
(5) This section does not affect the person's right to contact,
communicate or associate with the person's lawyer unless the person's lawyer
is a specified individual as mentioned in paragraph (3)(e). If the
person's lawyer is so specified, the person may contact, communicate or
associate with any other lawyer who is not so specified.
Counselling and
education
(6) A person is required to participate in specified counselling or
education as mentioned in paragraph (3)(l) only if the person agrees, at
the time of the counselling or education, to participate in the counselling or
education.
(1) A senior AFP member may request, by telephone, fax, email or other
electronic means, an issuing court to make an interim control order in
relation to a person if:
(a) the member considers it necessary to use such means because of
urgent circumstances; and
(b) the member suspects the matters mentioned in
subsection 104.2(2) on reasonable grounds.
(2) The AFP Minister's consent under section 104.2 is not required
before the request is made.
Note: However, if the
AFP Minister's consent is not obtained before the member makes the request,
the AFP Minister's consent must be obtained within 8 hours of the member
making the request (see section 104.10).
(3) The issuing court may require communication by voice to the extent
that is practicable in the circumstances.
(4) The request must include the following:
(a) all that is required under paragraphs
104.3(b) to (e) in respect of an ordinary request for an interim control
order;
(b) an explanation as to why the making of the interim control order is
urgent;
(c) if the AFP Minister's consent has been obtained before making the
request--a copy of the AFP Minister's consent.
Note: The member might
commit an offence if the request is false or misleading (see
sections 137.1 and 137.2).
(5) The information and the explanation included in the request must be
sworn or affirmed by the member, but do not have to be sworn or affirmed
before the request is made.
Note:
Subsection 104.7(5) requires the information and the explanation to be
sworn or affirmed within 24 hours.
(1) Before making an order in response to a request under
section 104.6, the issuing court must:
(a) consider the information and the explanation included in the
request; and
(b) receive and consider such further information (if any) as the court
requires.
(2) If the issuing court is satisfied that an order should be made
urgently, the court may complete the same form of order that would be made
under sections 104.4 and 104.5.
Procedure after urgent interim control
order is made
(3) If the issuing court makes the order, the court must inform the
senior AFP member, by telephone, fax, email or other electronic means, of:
(a) the terms of the order; and
(b) the day on which, and the time at which, it was completed.
(4) The member must then complete a form of order in terms substantially
corresponding to those given by the issuing court, stating on the form:
(a) the name of the court; and
(b) the day on which, and the time at which, the order was completed.
(5) Within 24 hours of being informed under subsection (3), the
member must give or transmit the following to the issuing court:
(a) the form of order completed by the member;
(b) if the information and the explanation included in the request were
not already sworn or affirmed--that information and explanation duly sworn or
affirmed;
(c) if the AFP Minister's consent was not obtained before making the
request--a copy of the AFP Minister's consent.
(6) The issuing court must attach to the documents provided under
subsection (5) the form of order the court has completed.
(1) A senior AFP member may request, in person, an issuing court to make
an interim control order in relation to a person without first obtaining the
AFP Minister's consent under section 104.2 if:
(a) the member considers it necessary to request the order without the
consent because of urgent circumstances; and
(b) the member suspects the matters mentioned in
subsection 104.2(2) on reasonable grounds.
Note: The AFP Minister's
consent must be obtained within 8 hours of making the request (see
section 104.10).
(2) The request must include the following:
(a) all that is required under paragraphs
104.3(a) to (e) in respect of an ordinary request for an interim control
order;
(b) an explanation that is sworn or affirmed as to why the making of the
interim control order without first obtaining the AFP Minister's consent is
urgent.
Note: The
member might commit an offence if the request is false or misleading (see
sections 137.1 and 137.2).
(1) Before making an order in response to a request under
section 104.8, the issuing court must:
(a) consider the information and the explanation included in the
request; and
(b) receive and consider such further information (if any) as the court
requires.
(2) If the issuing court is satisfied that an order should be made
urgently, the court may make the same order that would be made under
sections 104.4 and 104.5.
(3) Within 24 hours of the order being made under subsection (2),
the member must:
(a) give or transmit a copy of the order to the issuing court; and
(b) either:
(i) give or transmit a copy of the AFP Minister's consent to request the
order to the court; or
(ii) notify the court in writing that the AFP Minister's consent was not
obtained.
Note:
Section 104.10 deals with the AFP Minister's consent.
(1) If the AFP Minister's consent to request an interim control order
was not first sought before making a request under section 104.6 or
104.8, the senior AFP member who made the request must, in accordance with
subsection 104.2(3), seek that consent within 8 hours of making the
request.
(2) In any case, if the AFP Minister:
(a) refuses his or her consent to request the order; or
(b) has not given his or her consent to request the order;
within 8
hours of the request being made, the order immediately ceases to be in force.
Note: However, the
senior AFP member can seek the AFP Minister's consent to request a new interim
control order in relation to the person (see subsection 104.2(5)).
(3) If the order ceases to be in force under subsection (2), the
senior AFP member must, as soon as practicable:
(a) notify the court that the order has ceased to be in force; and
(b) if the order has been served on the person in relation to whom it
was made:
(i) annotate the order to indicate that it has ceased to be in force;
and
(ii) cause the annotated order to be served personally on the person.
Note: For the personal
service of documents on a person detained in custody, see
section 104.28B.
(1) An application to vary an interim control order may be made to the
issuing court by:
(a) the person in relation to whom the order is made; or
(b) a senior AFP member.
Note: For example, an
application may be made to vary an interim control order to reflect a change
in the mobile telephone number of the person in relation to whom the order is
made.
(2) The issuing court may vary the interim control order, but only if
the court is satisfied that:
(a) written consent to the variation has been given by:
(i) if the application is made by the person in relation to whom the
order is made--a senior AFP member; or
(ii) if the application is made by a senior AFP member--the person in
relation to whom the order is made; and
(b) the variation does not involve adding any obligations, prohibitions
or restrictions to the order; and
(c) the variation is appropriate in the circumstances.
(3) A variation begins to be in force when the order for the variation
is made, or at a later time ordered by the issuing court.
Service and explanation of an
interim control order
(1) As soon as practicable after an interim control order is made in
relation to a person, and at least 48 hours before the day specified as
mentioned in paragraph 104.5(1)(e), an AFP member:
(a) must serve the order personally on the person; and
(b) must inform the person of the following:
(i) the effect of the order;
(ii) the period for which the order (if confirmed) is in force;
(iii) the effect of sections 104.12A, 104.13, 104.14, 104.18 and
104.27 (and section 104.22 if appropriate);
(iiia) that the person has a right to obtain legal advice and legal
representation;
(iv) that the person may have appeal and review rights in relation to
the decision of the issuing court to make the order;
(v) the person's right to attend court on the day specified for the
purposes of paragraph 104.5(1)(e);
(vi) the right of the person or one or more representatives of the
person, and (if relevant) the right of the Queensland public interest monitor,
to adduce evidence or make submissions under subsection 104.14(1) if the
order is confirmed;
(vii) that the person may have appeal and review rights in relation to
any decision of the issuing court to confirm the order;
(viii) the person's right to apply under section 104.18 for an
order revoking or varying the order if it is confirmed;
(ix) the right of the person or one or more representatives of the
person, and (if relevant) the right of the Queensland public interest monitor,
to adduce evidence or make submissions under subsection 104.19(3) or
104.23(4) in relation to an application to revoke or vary the order if it is
confirmed; and
(c) must ensure that the person understands the information provided
under paragraph (b) (taking into account the person's age, language
skills, mental capacity and any other relevant factor).
Note: For the personal
service of documents on a person detained in custody, see
section 104.28B.
(3) Paragraphs (1)(b) and (c) do not apply if the actions of the
person in relation to whom the interim control order has been made make it
impracticable for the AFP member to comply with those paragraphs.
(3A)
Paragraphs (1)(b) and (c) do not apply if the person in relation to whom
the interim control order has been made is detained in custody and it is
impracticable for the AFP member to comply with those paragraphs.
(4) A failure to comply with paragraph (1)(c) does not make the
control order ineffective to any extent.
If person is resident, or order
made, in Queensland
(5) If:
(a) the person in relation to whom the interim control order is made is
a resident of Queensland; or
(b) the issuing court that made the interim control order did so in
Queensland;
an AFP member must give to the Queensland public interest
monitor a copy of the order.
If person is 14 to 17
(6) As soon as practicable after an interim control order is made in
relation to a person who is 14 to 17 years of age, and at least 48 hours
before the day specified as mentioned in paragraph 104.5(1)(e), an AFP
member must take reasonable steps to serve a copy of the order personally on
at least one parent or guardian of the person.
(1) At least 48 hours before the day specified in an interim control
order as mentioned in paragraph 104.5(1)(e), the senior AFP member who
requested the order must:
(a) elect whether to confirm the order on the specified day; and
(b) give a written notification to the issuing court that made the order
of the member's election.
(2) If the senior AFP member elects to confirm the order, an AFP member
must:
(a) serve personally on the person in relation to whom the order is
made:
(i) a copy of the notification; and
(ii) a copy of the documents mentioned in paragraphs 104.2(3)(aa) and
104.3(d); and
(iii) any other written details required to enable the person to
understand and respond to the substance of the facts, matters and
circumstances which will form the basis of the confirmation of the order; and
(b) if the person is a resident of Queensland, or the court made the
order in Queensland--give the Queensland public interest monitor a copy of the
documents mentioned in paragraph (a); and
(c) if the person is 14 to 17 years of age--take reasonable steps to
serve a copy of the documents mentioned in paragraph (a) personally on at
least one parent or guardian of the person.
Note: For the personal
service of documents on a person detained in custody, see
section 104.28B.
(3) To avoid doubt, subsection (2) does not require any information
to be served or given if disclosure of that information is likely:
(b)
to be protected by public interest immunity; or
(c) to put at risk ongoing operations by law enforcement agencies or
intelligence agencies; or
(d) to put at risk the safety of the community, law enforcement officers
or intelligence officers.
The fact that information of a kind mentioned in
this subsection is not required to be disclosed does not imply that such
information is required to be disclosed in other provisions of this Part that
relate to the disclosure of information.
(4) If the senior AFP member elects not to confirm the order, and the
order has already been served on the person, then:
(a) the order immediately ceases to be in force; and
(b) an AFP member must:
(i) annotate the order to indicate that it has ceased to be in force;
and
(ii) cause the annotated order and a copy of the notification to be
served personally on the person; and
(iii) if the person is a resident of Queensland, or the court made the
order in Queensland--give the Queensland public interest monitor a copy of the
annotated order and the notification; and
(iv) if the person is 14 to 17 years of age--cause reasonable steps to
be taken to serve a copy of the annotated order and the notification
personally on at least one parent or guardian of the person.
Note: For the personal
service of documents on a person detained in custody, see
section 104.28B.
(1) A lawyer of the person in relation to whom an interim control order
is made may attend the place specified in the order as mentioned in
paragraph 104.5(1)(g) in order to obtain a copy of the order.
(2) This section does not:
(a) require more than one person to give the lawyer a copy of the order;
or
(b) entitle the lawyer to request, be given a copy of, or see, a
document other than the order.
(a) an interim control order is made in relation to a person; and
(b) an election is made under section 104.12A to confirm the order;
and
(c) the issuing court is satisfied on the balance of probabilities that
section 104.12 and subsection 104.12A(2) have been complied with in
relation to the order.
Who may adduce evidence or make submissions
(1) On the day specified as mentioned in paragraph 104.5(1)(e), the
following persons may adduce evidence (including by calling witnesses or
producing material), or make submissions, to the issuing court in relation to
the confirmation of the order:
(a) the senior AFP member who requested the interim control order;
(b) one or more other AFP members;
(c) the person in relation to whom the interim control order is made;
(d) one or more representatives of the person;
(e) if:
(i) the person is a resident of Queensland; or
(ii) the court made the interim control order in Queensland;
the Queensland public interest monitor.
(2) Subsection (1) does not otherwise limit the power of the court
to control proceedings in relation to the confirmation of an interim control
order.
(3) Subject to subsection (3A), before taking action under this
section, the court must consider:
(a) the original request for the interim control order; and
(b) any evidence adduced, and any submissions made, under
subsection (1) in respect of the order.
(3A) To avoid
doubt, in proceedings under this section, the issuing court:
(a) must take judicial notice of the fact that the original request for
the interim control order was made in particular terms; but
(b) may only take action on evidence adduced, and submissions made,
under subsection (1) in relation to the confirmation of the order.
Note: The
Evidence Act 1995covers the admissibility of evidence adduced under
subsection (1).
Failure of person or representative etc. to attend
(4) The court may confirm the order without variation if none of the
following persons attend the court on the specified day:
(a) the person in relation to whom the order is made;
(b) a representative of the person;
(c) if the person is a resident of Queensland, or the court made the
order in Queensland--the Queensland public interest monitor.
Attendance of
person or representative etc.
(5) The court may take the action mentioned in subsection (6) or
(7) if any of the following persons attend the court on the specified day:
(a) the person in relation to whom the order is made;
(b) a representative of the person;
(c) if the person is a resident of Queensland, or the court made the
order in Queensland--the Queensland public interest monitor.
(6) The court may declare, in writing, the order to be void if the court
is satisfied that, at the time of making the order, there were no grounds on
which to make the order.
(7) Otherwise, the court may:
(a) revoke the order if, at the time of confirming the order, the court
is not satisfied as mentioned in paragraph 104.4(1)(c); or
(b) confirm and vary the order by removing one or more obligations,
prohibitions or restrictions if, at the time of confirming the order, the
court is satisfied as mentioned in paragraph 104.4(1)(c) but is not
satisfied as mentioned in paragraph 104.4(1)(d); or
(c) confirm the order without variation if, at the time of confirming
the order, the court is satisfied as mentioned in paragraphs 104.4(1)(c) and
(d).
Note: If the
court confirms the interim control order, the court must make a new order
under section 104.16.
(1) If the issuing court confirms the interim control order under
section 104.14, the court must make a corresponding order that:
(a) states that the court is satisfied of the matters mentioned in
paragraphs 104.4(1)(c) and (d); and
(b) specifies the name of the person to whom the order relates; and
(c) specifies all of the obligations, prohibitions and restrictions
mentioned in subsection 104.5(3) that are to be imposed on the person by
the order; and
(d) specifies the period during which the order is to be in force, which
must not end more than 12 months after the day on which the interim control
order was made; and
(e) states that the person's lawyer may attend a specified place in
order to obtain a copy of the confirmed control order.
Note: If the person is
14 to 17 years of age, then a confirmed control order must not end more than 3
months after the day on which the interim control order is made (see
section 104.28).
(2) Paragraph (1)(d) does not prevent the making of successive
control orders in relation to the same person.
(1) As soon as practicable after an interim control order is declared to
be void, revoked or confirmed (with or without variation) under
section 104.14, an AFP member must:
(a) serve the declaration, the revocation or the confirmed control order
personally on the person; and
(b) if the court confirms the interim order (with or without
variation)--inform the person of the following:
(i) that the person may have appeal and review rights in relation to the
decision of the issuing court to confirm the order;
(ii) the person's right to apply under section 104.18 for an order
revoking or varying the order;
(iii) the right of the person or one or more representatives of the
person, and (if relevant) the right of the Queensland public interest monitor,
to adduce evidence or make submissions under subsection 104.19(3) or
104.23(4) in relation to an application to revoke or vary the order; and
(c) if paragraph (b) applies--ensure that the person understands
the information provided under that paragraph (taking into account the
person's age, language skills, mental capacity and any other relevant factor).
Note: For the personal
service of documents on a person detained in custody, see
section 104.28B.
(2) Paragraphs (1)(b) and (c) do not apply if the actions of the
person in relation to whom the interim control order has been declared void,
revoked or confirmed make it impracticable for the AFP member to comply with
those paragraphs.
(2A) Paragraphs (1)(b) and (c) do not apply if the person in
relation to whom the interim control order has been declared void, revoked or
confirmed is detained in custody and it is impracticable for the AFP member to
comply with those paragraphs.
(3) A failure to comply with paragraph (1)(c) does not make the
control order ineffective to any extent.
If person is 14 to 17
(4) If the person is 14 to 17 years of age, then as soon as practicable
after the interim control order is declared to be void, revoked or confirmed
(with or without variation) under section 104.14, an AFP member must take
reasonable steps to serve a copy of the declaration, revocation or confirmed
control order personally on at least one parent or guardian of the person.
(1) A person in relation to whom a confirmed control order is made may
apply to an issuing court for the court to revoke or vary the order under
section 104.20.
(2) The person may make the application at any time after the order is
served on the person.
(3) The person must give written notice of both the application and the
grounds on which the revocation or variation is sought to the following
persons:
(a) the Commissioner of the Australian Federal Police;
(b) if:
(i) the person in relation to whom the order is made is a resident of
Queensland; or
(ii) the court will hear the application in Queensland;
the Queensland public interest monitor.
(4) The following persons may adduce additional evidence (including by
calling witnesses or producing material), or make additional submissions, to
the court in relation to the application to revoke or vary the order:
(a) the Commissioner;
(b) one or more other AFP members;
(c) the person in relation to whom the order is made;
(d) one or more representatives of the person;
(e) if paragraph (3)(b) applies--the Queensland public interest
monitor.
(5) Subsection (4) does not otherwise limit the power of the court
to control proceedings in relation to an application to revoke or vary a
confirmed control order.
(1) While a confirmed control order is in force, the Commissioner of the
Australian Federal Police must cause an application to be made to an issuing
court:
(a) to revoke the order, under section 104.20, if the Commissioner
is satisfied that the grounds on which the order was confirmed have ceased to
exist; and
(b) to vary the order, under that section, by removing one or more
obligations, prohibitions or restrictions, if the Commissioner is satisfied
that those obligations, prohibitions or restrictions should no longer be
imposed on the person.
(2) The Commissioner must cause written notice of both the application
and the grounds on which the revocation or variation is sought to be given to
the following persons:
(a) the person in relation to whom the order is made;
(b) if:
(i) the person in relation to whom the order is made is a resident of
Queensland; or
(ii) the court will hear the application in Queensland;
the Queensland public interest monitor.
(2A) If the
person is 14 to 17 years of age, the Commissioner must cause reasonable steps
to be taken to give written notice of both the application and the grounds on
which the revocation or variation is sought to at least one parent or guardian
of the person.
(3) The following persons may adduce additional evidence (including by
calling witnesses or producing material), or make additional submissions, to
the court in relation to the application to revoke or vary the order:
(a) the Commissioner;
(b) one or more other AFP members;
(c) the person in relation to whom the order is made;
(d) one or more representatives of the person;
(e) if paragraph (2)(b) applies--the Queensland public interest
monitor.
(4) Subsection (3) does not otherwise limit the power of the court
to control proceedings in relation to an application to revoke or vary a
confirmed control order.
(1) If an application is made under section 104.18 or 104.19 in
respect of a confirmed control order, the court may:
(a) revoke the order if, at the time of considering the application, the
court is not satisfied as mentioned in paragraph 104.4(1)(c); or
(b) vary the order by removing one or more obligations, prohibitions or
restrictions if, at the time of considering the application, the court is
satisfied as mentioned in paragraph 104.4(1)(c) but is not satisfied as
mentioned in paragraph 104.4(1)(d); or
(c) dismiss the application if, at the time of considering the
application, the court is satisfied as mentioned in paragraphs 104.4(1)(c) and
(d).
(2) A revocation or variation begins to be in force when the court
revokes or varies the order.
(3) As soon as practicable after a confirmed control order in relation
to a person is revoked or varied, an AFP member must:
(a) serve the revocation or variation personally on the person; and
(b) if the person is 14 to 17 years of age--take reasonable steps to
serve a copy of the revocation or variation personally on at least one parent
or guardian of the person.
Note: For the personal
service of documents on a person detained in custody, see
section 104.28B.
(1) If a control order is confirmed or varied under section 104.14,
104.20 or 104.24, a lawyer of the person in relation to whom the control order
is made may attend the place specified in the order as mentioned in
paragraph 104.16(1)(e) or 104.25(d) in order to obtain a copy of the
order.
(2) This section does not:
(a) require more than one person to give the lawyer a copy of the order;
or
(b) entitle the lawyer to request, be given a copy of, or see, a
document other than the order.
(1) A photograph, or an impression of fingerprints, taken as mentioned
in paragraph 104.5(3)(j) or (k) must only be used for the purpose of
ensuring compliance with the relevant control order.
(2) If:
(a) a period of 12 months elapses after the control order ceases to be
in force; and
(b) proceedings in respect of the control order ha ve not been brought,
or have been brought and discontinued or completed, within that period;
the
photograph or the impression must be destroyed as soon as practicable after
the end of that period.
(1) The Commissioner of the Australian Federal Police may cause an
application to be made to an issuing court to vary, under section 104.24,
a confirmed control order, by adding one or more obligations, prohibitions or
restrictions mentioned in subsection 104.5(3) to the order, if the
Commissioner:
(a) suspects on reasonable grounds that the varied order in the terms to
be sought would substantially assist in preventing a terrorist act; or
(b) suspects on reasonable grounds that the person has:
(i) provided training to, received training from or participated in
training with a listed terrorist organisation; or
(ii) engaged in a hostile activity in a foreign country; or
(iii) been convicted in Australia of an offence relating to terrorism, a
terrorist organisation (within the meaning of subsection 102.1(1)) or a
terrorist act (within the meaning of section 100.1); or
(iv) been convicted in a foreign country of an offence that is
constituted by conduct that, if engaged in in Australia, would constitute a
terrorism offence (within the meaning of subsection 3(1) of the
Crimes Act 1914); or
(c) suspects on reasonable grounds that the varied order in the terms to
be sought would substantially assist in preventing the provision of support
for or the facilitation of a terrorist act; or
(d) suspects on reasonable grounds that the person has provided support
for or otherwise facilitated the engagement in a hostile activity in a foreign
country.
(2) The Commissioner must cause the court to be given:
(a) a copy of the additional obligations, prohibitions and restrictions
to be imposed on the person by the order; and
(b) the following:
(i) an explanation as to why each of those obligations, prohibitions and
restrictions should be imposed on the person; and
(ii) if the Commissioner is aware of any facts relating to why any of
those obligations, prohibitions or restrictions should not be imposed on the
person--a statement of those facts; and
(c) the outcomes and particulars of all previous applications under this
section for variations of the order; and
(d) if the person is at least 18 years of age and the Commissioner has
information about the person's age--that information; and
(e) if the person is under 18 years of age--information about the
person's age.
Note 1: A control order
cannot be made in relation to a person who is under
14 years of age (see section 104.28).
Note
2: An offence might be committed if the
application is false or misleading (see sections 137.1 and 137.2).
(3) As soon as practicable after an application is made under
subsection (1), the Commissioner must:
(a) cause the documents mentioned in subsection (3AA) to be served
personally on the person in relation to whom the order is made; and
(b) if the person is a resident of Queensland, or the court will hear
the application in Queensland--cause the documents mentioned in
subsection (3AA) to be given to the Queensland public interest monitor;
and
(c) if the person is 14 to 17 years of age--cause reasonable steps to be
taken to serve the documents mentioned in subsection (3AA) personally on
at least one parent or guardian of the person.
(3AA) The documents are the
following:
(a) written notice of the application and the grounds on which the
variation is sought;
(b) a copy of the documents mentioned in paragraph (2)(b);
(c) any other written details required to enable the person in relation
to whom the order is made to understand and respond to the substance of the
facts, matters and circumstances which will form the basis of the variation of
the order.
(3A)
To avoid doubt, subsections (3) and (3AA) do not require any information
to be given if disclosure of that information is likely:
(b)
to be protected by public interest immunity; or
(c)
to put at risk ongoing operations by law enforcement agencies or intelligence
agencies; or
(d) to put at risk the safety of the community, law enforcement officers
or intelligence officers.
The fact that information of a kind mentioned in
this subsection is not required to be disclosed does not imply that such
information is required to be disclosed in other provisions of this Part that
relate to the disclosure of information.
(4) The following persons may adduce additional evidence (including by
calling witnesses or producing material), or make additional submissions, to
the court in relation to the application to vary the order:
(a) the Commissioner;
(b) one or more other AFP members;
(c) the person in relation to whom the order is made;
(d) one or more representatives of the person;
(e) if paragraph (3)(b) applies--the Queensland public interest
monitor.
(5) Subsection (4) does not otherwise limit the power of the court
to control proceedings in relation to an application to vary a confirmed
control order.
(6) In subsection (1), a reference to a terrorist act includes:
(a) a reference to a terrorist act that does not occur; and
(1) If an application is made under section 104.23, the issuing
court may vary the control order, but only if:
(a) an application has been made in accordance with section 104.23;
and
(b) the court is satisfied on the balance of probabilities that each of
the additional obligations, prohibitions and restrictions to be imposed on the
person by the order is reasonably necessary, and reasonably appropriate and
adapted, for the purpose of:
(i) protecting the public from a terrorist act; or
(ii) preventing the provision of support for or the facilitation of a
terrorist act; or
(iii) preventing the provision of support for or the facilitation of the
engagement in a hostile activity in a foreign country.
(2) For the purposes of paragraph (1)(b), in determining whether
each of the additional obligations, prohibitions and restrictions to be
imposed on the person by the order is reasonably necessary, and reasonably
appropriate and adapted, the court must take into account:
(a) as a paramount consideration in all cases--the objects of this
Division (see section 104.1); and
(b) as a primary consideration in the case where the person is 14 to 17
years of age--the best interests of the person; and
(c) as an additional consideration in all cases--the impact of the
obligation, prohibition or restriction on the person's circumstances
(including the person's financial and personal circumstances).
(2A) In
determining what is in the best interests of the person for the purposes of
paragraph (2)(b), the court must take into account the matters referred
to in subsection 104.4(2A).
(3) The court need not include in the order an obligation, prohibition
or restriction that was sought if the court is not satisfied as mentioned in
paragraph (1)(b) in respect of that obligation, prohibition or
restriction.
(4) In paragraph (1)(b), a reference to a terrorist act includes:
(a) a reference to a terrorist act that does not occur; and
(1) As soon as practicable after a control order is varied under
section 104.24, an AFP member:
(a) must serve the varied order personally on the person; and
(b) must inform the person that the order has been varied to impose
additional obligations, prohibitions and restrictions; and
(c) must inform the person of the following:
(i) the effect of the additional obligations, prohibitions and
restrictions;
(ii) the effect of sections 104.18, 104.21 and 104.27 (and
section 104.22 if appropriate);
(iii) that the person may have appeal and review rights in relation to
the decision of the issuing court to vary the order;
(iv) the person's right to apply under section 104.18 for an order
revoking or varying the order;
(v) the right of the person or one or more representatives of the
person, and (if relevant) the right of the Queensland public interest monitor,
to adduce evidence or make submissions under subsection 104.19(3) or
104.23(4) in relation to an application to revoke or vary the order; and
(d) must ensure that the person understands the information provided
under paragraph (c) (taking into account the person's age, language
skills, mental capacity and any other relevant factor).
Note: For the personal
service of documents on a person detained in custody, see
section 104.28B.
(3) Paragraphs (1)(c) and (d) do not apply if the actions of the
person in relation to whom the control order has been made make it
impracticable for the AFP member to comply with those paragraphs.
(3A)
Paragraphs (1)(b), (c) and (d) do not apply if the person in relation to
whom the control order has been made is detained in custody and it is
impracticable for the AFP member to comply with those paragraphs.
(4) A failure to comply with paragraph (1)(d) does not make the
control order ineffective to any extent.
If person is 14 to 17
(5) As soon as practicable after a control order in relation to a person
who is 14 to 17 years of age is varied under section 104.24, an AFP
member must take reasonable steps to serve a copy of the varied order
personally on at least one parent or guardian of the person.
(1) A control order cannot be requested, made or confirmed in relation
to a person who is under 14 years of age.
Rule for people 14 to 17
(2) If an issuing court is satisfied that a person in relation to whom
an interim control order is being made or confirmed is 14 to 17 years of age,
the period during which the confirmed control order is to be in force must not
end more than 3 months after the day on which the interim control order is
made by the court.
(3) Subsection (2) does not prevent the making of successive
control orders in relation to the same person.
Young person's right to legal
representation
(4) If an issuing court is satisfied, in proceedings relating to a
control order, that:
(a) the person to whom the control order relates, or the person in
relation to whom the control order is requested, is at least 14 but under 18;
and
(b) the person does not have a lawyer acting in relation to the
proceedings;
the court must appoint a lawyer to act for the person in
relation to the proceedings.
(5) However, the issuing court is not required to appoint a lawyer if:
(a) the proceedings are ex parte proceedings relating to a request for
an interim control order; or
(b) the person refused a lawyer previously appointed under
subsection (4) during proceedings relating to:
(i) the control order; or
(ii) if the control order is a confirmed control order--the interim
control order that was confirmed.
(6) The regulations may provide in relation to the appointing of lawyers
under subsection (4) (including in relation to lawyers appointed under
that subsection).
(1) Proceedings in relation to a request under section 104.3, 104.6
or 104.8 to make an interim control order are taken to be interlocutory
proceedings for all purposes (including for the purpose of section 75 of
the Evidence Act 1995).
(2) The following proceedings are taken not to be interlocutory
proceedings for any purpose (including for the purpose of section 75 of
the Evidence Act 1995):
(a) proceedings in relation to the confirmation under
section 104.14 of an interim control order;
(b) proceedings in relation to an application under section 104.18,
104.19 or 104.23 to revoke or vary a confirmed control order.
(1) In proceedings in relation to a control order (including proceedings
to vary or revoke a control order), an issuing court must not make an order
for costs against the person in relation to whom the control order is sought
(or has been made).
(2) However, subsection (1) does not apply to the extent that the
court is satisfied that the person has acted unreasonably in the conduct of
the proceedings.
(1) A document that is required under this Division to be given to a
person (the prisoner ) personally who is detained in custody at a prison is
taken to have been given to the prisoner at the time referred to in
paragraph (3)(b) if the document is given to the following person (the
recipient ):
(a) the legal representative of the prisoner;
(b) if the prisoner does not have a legal representative--the chief
executive officer (however described) of the prison, or a delegate of the
chief executive officer.
Note: The obligation to
inform the prisoner of the matters referred to in paragraphs 104.12(1)(b),
104.17(1)(b) and 104.26(1)(b) and (c) might not apply if it is impracticable
for an AFP member to comply with the obligation (see
subsections 104.12(3A), 104.17(2A) and 104.26(3A)).
(2) The recipient must, as soon as reasonably practicable, give the
document to the prisoner personally.
(3) Once the recipient has done so, he or she must notify the Court and
the person who gave the recipient the document, in writing:
(a) that the document has been given to the prisoner; and
(1) The AFP Minister must, as soon as practicable after each
30 June, cause to be prepared a report about the operation of this
Division, Division 5 of Part IAAB of the Crimes Act 1914(monitoring
warrants), and the rest of that Part to the extent that it relates to that
Division, during the year ended on that 30 June.
(2) Without limiting subsection (1), a report relating to a year
must include the following matters:
(a) the number of interim control orders made under:
(i) section 104.4; and
(ii) section 104.7; and
(iii) section 104.9;
(aa) the number of interim control orders in respect of which an
election was made under section 104.12A not to confirm the order;
(b) the number of control orders confirmed under section 104.14;
(c) the number of control orders declared to be void under
section 104.14;
(d) the number of control orders revoked under sections 104.14 and
104.20;
(e) the number of control orders varied under sections 104.14,
104.20 and 104.24;
(f) particulars of:
(i) any complaints made or referred to the Commonwealth Ombudsman that
related to control orders; and
(ii) any information given under section 40SA of the
Australian Federal Police Act 1979that related to control orders and raised
an AFP conduct or practices issue (within the meaning of that Act);
(g) the number of monitoring warrants issued under Division 5 of
Part IAAB of the Crimes Act 1914;
(h) the number of such warrants executed under that Division;
(j) for control orders relating to people who are 14 to 17 years of
age--the matters referred to in paragraphs (a) to (i) in so far as those
matters specifically relate to those control orders.
(3) The AFP Minister must cause copies of the report to be laid before
each House of the Parliament within 15 sitting days of that House after the
report is completed.
(a) the AFP Minister to be notified in writing if:
(i) a control order is declared to be void under section 104.14; or
(ii) a control order is revoked under section 104.14 or 104.20; or
(iii) a control order is varied under section 104.14, 104.20 or
104.24; and
(b) the AFP Minister to be given a copy of the varied order (if
appropriate).
104.31 Queensland public interest monitor functions
and powers not affected
This Division does not affect a function or power that the Queensland public
interest monitor, or a Queensland deputy public interest monitor, has under a
law of Queensland.
The object of this Division is to allow a person to be taken into custody and
detained for a short period of time in order to:
(a) prevent a terrorist act that is capable of being carried out, and
could occur, within the next 14 days from occurring; or
(b) preserve evidence of, or relating to, a recent terrorist act.
Note:
Section 105.42 provides that, while a person is being detained under a
preventative detention order, the person may only be questioned for very
limited purposes.
(a) a number of police officers are detaining, or involved in the
detention of, a person under a preventative detention order at a particular
time; and
(b) an obligation is expressed in this Division to be imposed on the
police officer detaining the person;
the obligation is imposed at that time
on:
(c) if those police officers include only one AFP member--that AFP
member; or
(d) if those police officers include 2 or more AFP members--the most
senior of those AFP members; or
(e) if those police officers do not include an AFP member--the most
senior of those police officers.
(1) An AFP member may apply for a preventative detention order in
relation to a person only if the AFP member meets the requirements of
subsection (4) or (6).
(2) An issuing authority may make a preventative detention order in
relation to a person only if the issuing authority meets the requirements of
subsection (4) or (6).
Note: For the definition
of issuing authority , see subsection 100.1(1) and section 105.2.
(3) The person in relation to whom the preventative detention order is
applied for, or made, is the subject for the purposes of this section.
(4) A person meets the requirements of this subsection if:
(a) in the case of an AFP member--the member suspects, on reasonable
grounds, that the subject:
(i) will engage in a terrorist act; or
(ii) possesses a thing that is connected with the preparation for, or
the engagement of a person in, a terrorist act; or
(iii) has done an act in preparation for, or planning, a terrorist act;
and
(b) in the case of an issuing authority--the issuing authority is
satisfied there are reasonable grounds to suspect that the subject:
(i) will engage in a terrorist act; or
(ii) possesses a thing that is connected with the preparation for, or
the engagement of a person in, a terrorist act; or
(iii) has done an act in preparation for, or planning, a terrorist act;
and
(c) the person is satisfied that making the order would substantially
assist in preventing a terrorist act occurring; and
(d) the person is satisfied that detaining the subject for the period
for which the person is to be detained under the order is reasonably necessary
for the purpose referred to in paragraph (c).
(5) A terrorist act referred to in subsection (4) must be one that:
(a) for paragraphs (4)(a) and (c)--the AFP member suspects, on
reasonable grounds; or
(b) for paragraphs (4)(b) and (c)--the issuing authority is
satisfied there are reasonable grounds to suspect;
is capable of being
carried out, and could occur, within the next 14 days.
(6) A person meets the requirements of this subsection if the person is
satisfied that:
(a) a terrorist act has occurred within the last 28 days; and
(b) it is reasonably necessary to detain the subject to preserve
evidence of, or relating to, the terrorist act; and
(c) detaining the subject for the period for which the person is to be
detained under the order is reasonably necessary for the purpose referred to
in paragraph (b).
(7) An issuing authority may refuse to make a preventative detention
order unless the AFP member applying for the order gives the issuing authority
any further information that the issuing authority requests concerning the
grounds on which the order is sought.
(1) A preventative detention order cannot be applied for, or made, in
relation to a person who is under 16 years of age.
Note: See also
section 105.39 and subsections 105.43(4) to (9) and (11) for the
special rules for people who are under 18 years of age.
(2) If:
(a) a person is being detained under a preventative detention order or a
purported preventative detention order; and
(b) the police officer who is detaining the person is satisfied on
reasonable grounds that the person is under 16 years of age;
the police
officer must:
(c) if the police officer is an AFP member--release the person, as soon
as practicable, from detention under the order or purported order; or
(d) if the police officer is not an AFP member--inform a senior AFP
member, as soon as practicable, of the police officer's reasons for being
satisfied that the person is under 16 years of age.
(3) If:
(a) a senior AFP member is informed by a police officer under
paragraph (2)(d); and
(b) the senior AFP member is satisfied on reasonable grounds that the
person being detained is under 16 years of age;
the senior AFP member must
arrange to have the person released, as soon as practicable, from detention
under the order or purported order.
If the police officer who is detaining a person under a preventative detention
order has reasonable grounds to believe that the person is unable, because of
inadequate knowledge of the English language or a disability, to communicate
with reasonable fluency in that language:
(a) the police officer has an obligation under subsection 105.31(3)
to arrange for the assistance of an interpreter in informing the person about:
(i) the effect of the order or any extension, or further extension, of
the order; and
(ii) the person's rights in relation to the order; and
(b) the police officer has an obligation under
subsection 105.37(3A) to give the person reasonable assistance to:
(i) choose a lawyer to act for the person in relation to the order; and
(a) an initial preventative detention order is made in relation to a
person on the basis of assisting in preventing a terrorist act occurring
within a particular period; and
(b) the person is taken into custody under the order;
another initial
preventative detention order cannot be applied for, or made, in relation to
the person on the basis of assisting in preventing the same terrorist act
occurring within that period.
Note: It will be
possible to apply for, and make, another initial preventative detention order
in relation to the person on the basis of preserving evidence of, or relating
to, the terrorist act if it occurs.
(2) If:
(a) an initial preventative detention order is made in relation to a
person on the basis of assisting in preventing a terrorist act occurring
within a particular period; and
(b) the person is taken into custody under the order;
another initial
preventative detention order cannot be applied for, or made, in relation to
the person on the basis of assisting in preventing a different terrorist act
occurring within that period unless the application, or the order, is based on
information that became available to be put before an issuing authority only
after the initial preventative detention order referred to in
paragraph (a) was made.
(3) If:
(a) an initial preventative detention order is made in relation to a
person on the basis of preserving evidence of, or relating to, a terrorist
act; and
(b) the person is taken into custody under the order;
another initial
preventative detention order cannot be applied for, or made, in relation to
the person on the basis of preserving evidence of, or relating to, the same
terrorist act.
Detention orders under corresponding State preventative
detention laws
(4) If:
(a) an order for a person's detention is made under a corresponding
State preventative detention law on the basis of assisting in preventing a
terrorist act occurring within a particular period; and
(b) the person is taken into custody under that order;
an initial
preventative detention order cannot be applied for, or made, under this
Division in relation to the person on the basis of assisting in preventing the
same terrorist act occurring within that period.
(5) If:
(a) an order for a person's detention is made under a corresponding
State preventative detention law on the basis of assisting in preventing a
terrorist act occurring within a particular period; and
(b) the person is taken into custody under that order;
an initial
preventative detention order cannot be applied for, or made, under this
Division in relation to the person on the basis of assisting in preventing a
different terrorist act occurring within that period unless the application,
or the order, is based on information that became available to be put before
an issuing authority only after the order referred to in paragraph (a)
was made.
(6) If:
(a) an order for a person's detention is made under a corresponding
State preventative detention law on the basis of preserving evidence of, or
relating to, a terrorist act; and
(b) the person is taken into custody under that order;
an initial
preventative detention order cannot be applied for, or made, under this
Division in relation to the person on the basis of preserving evidence of, or
relating to, the same terrorist act.
(1) An AFP member may apply to an issuing authority for an initial
preventative detention order in relation to a person.
Note
1: Senior AFP members are issuing
authorities for initial preventative detention orders (see the definition of
issuing authority in subsection 100.1(1)).
Note
2: For the definition of senior AFP member
, see subsection 100.1(1).
(2) The application must:
(a) be made either:
(i) in writing (other than writing by means of an electronic
communication); or
(ii) if the AFP member considers it necessary because of urgent
circumstances--orally in person or by telephone, or by fax, email or other
electronic means of communication; and
(b) set out the facts and other grounds on which the AFP member
considers that the order should be made; and
(c) specify the period for which the person is to be detained under the
order and set out the facts and other grounds on which the AFP member
considers that the person should be detained for that period; and
(d) set out the information (if any) that the applicant has about the
person's age; and
(e) set out the following:
(i) the outcomes and particulars of all previous applications for
preventative detention orders in relation to the person;
(ii) the outcomes and particulars of all previous requests for interim
control orders (including the outcomes of the hearings to confirm the orders)
in relation to the person;
(iii) the outcomes and particulars of all previous applications for
variations of control orders made in relation to the person;
(iv) the outcomes of all previous applications for revocations of
control orders made in relation to the person; and
(f) set out the information (if any) that the applicant has about any
periods for which the person has been detained under an order made under a
corresponding State preventative detention law; and
(g) set out a summary of the grounds on which the AFP member considers
that the order should be made.
Note:
Sections 137.1 and 137.2 create offences for providing false or
misleading information or documents.
(2B) If the
application is made orally, information given by the AFP member to the issuing
authority in connection with the application must be verified or given on oath
or affirmation, unless the issuing authority is satisfied that it is not
practical to administer an oath or affirmation to the member.
(3) If:
(a) an initial preventative detention order is made in relation to a
person on the basis of assisting in preventing a terrorist act occurring
within a particular period; and
(b) the person is taken into custody under the order; and
(c) an application is made for another initial preventative detention
order in relation to the person on the basis of assisting in preventing a
different terrorist act occurring within that period;
the application must
also identify the information on which the application is based that became
available to be put before an issuing authority only after the initial
preventative detention order referred to in paragraph (a) was made.
Note: See
subsection 105.6(2).
(4) If:
(a) an order for a person's detention is made under a corresponding
State preventative detention law on the basis of assisting in preventing a
terrorist act occurring within a particular period; and
(b) the person is taken into custody under that order; and
(c) an application is made for an initial preventative detention order
in relation to the person on the basis of assisting in preventing a different
terrorist act occurring within that period;
the application must also
identify the information on which the application is based that became
available to be put before an issuing authority only after the order referred
to in paragraph (a) was made.
(1) On application by an AFP member, an issuing authority may, subject
to subsection (1A), make an initial preventative detention order under
this section in relation to a person.
Note
1: Senior AFP members are issuing
authorities for initial preventative detention orders (see the definition of
issuing authority in subsection 100.1(1)).
Note
2: For the definition of senior AFP member
, see subsection 100.1(1).
(1A) If the
application is made orally in person or by telephone, or by fax, email or
other electronic means of communication, the issuing authority must not make
the order unless the issuing authority is satisfied that it is necessary,
because of urgent circumstances, to apply for the order by such means.
(2) Subsection (1) has effect subject to sections 105.4, 105.5
and 105.6.
(3) An initial preventative detention order under this section is an
order that the person specified in the order may be:
(a) taken into custody; and
(b) detained during the period that:
(i) starts when the person is first taken into custody under the order;
and
(ii) ends a specified period of time after the person is first taken
into custody under the order.
(4) The order must be in writing.
(5) The period of time specified in the order under
subparagraph (3)(b)(ii) must not exceed 24 hours.
(6) An initial preventative detention order under this section must set
out:
(a) any of the following:
(i) the true name of the person in relation to whom the order is made;
(ii) if, after reasonable inquiries have been made, the person's true
name is not known but an alias is known for the person--the alias of the
person in relation to whom the order is made;
(iii) if, after reasonable inquiries have been made, the person's true
name is not known and no alias is known for the person--a description
sufficient to identify the person in relation to whom the order is made; and
(b) the period during which the person may be detained under the order;
and
(c) the date on which, and the time at which, the order is made; and
(d) the date and time after which the person may not be taken into
custody under the order; and
(e) a summary of the grounds on which the order is made.
(7) If the person in relation to whom the order is made is:
(a) under 18 years of age; or
(b) incapable of managing his or her affairs;
the order may provide
that the period each day for which the person is entitled to have contact with
another person under subsection 105.39(2) is the period of more than 2
hours that is specified in the order.
(7A) If the order
is made on an application that was made orally (see
subparagraph 105.7(2)(a)(ii)), the issuing authority must either:
(a) ensure that there is an audio, or audio-visual, recording of the
application; or
(b) as soon as practicable after the order is made, make a written
record of the details of the application, including any information given in
support of it.
(8) The senior AFP member nominated under subsection 105.19(5) in
relation to the initial preventative detention order must, as soon as
reasonably practicable after the order is made:
(a) notify the Commonwealth Ombudsman in writing of the making of the
order; and
(b) give the Commonwealth Ombudsman a copy of the order; and
(c) if the person in relation to whom the order is made is taken into
custody under the order--notify the Commonwealth Ombudsman in writing that the
person has been taken into custody under the order; and
(d) notify the Parliamentary Joint Committee on Intelligence and
Security in writing of the making of the order.
(1) An initial preventative detention order in relation to a person
starts to have effect when it is made.
Note: The order comes
into force when it is made and authorises the person to be taken into custody
(see paragraph 105.8(3)(a)). The period for which the person may then be
detained under the order only starts to run when the person is first taken
into custody under the order (see subparagraph 105.8(3)(b)(i)).
(2) An initial preventative detention order in relation to a person
ceases to have effect at the end of the period of 48 hours after the order is
made if the person has not been taken into custody under the order within that
period.
(3) If the person is taken into custody under the order within 48 hours
after the order is made, the order ceases to have effect when whichever of the
following first occurs:
(a) the end of:
(i) the period specified in the order as the period during which the
person may be detained under the order; or
(ii) if that period is extended or further extended under
section 105.10--that period as extended or further extended;
(b) the revocation of the order under section 105.17.
Note
1: The order does not cease to have effect
merely because the person is released from detention under the order.
Note
2: An AFP member may apply under
section 105.11 for a continued preventative detention order in relation
to the person to allow the person to continue to be detained for up to 48
hours after the person is first taken into custody under the initial
preventative detention order.
(a) an initial preventative detention order is made in relation to a
person; and
(b) the order is in force in relation to the person;
an AFP member may
apply to an issuing authority for initial preventative detention orders for an
extension, or a further extension, of the period for which the order is to be
in force in relation to the person.
(2) The application must:
(a) be made in writing; and
(b) set out the facts and other grounds on which the AFP member
considers that the extension, or further extension, is reasonably necessary
for the purpose for which the order was made; and
(c) set out the outcomes and particulars of all previous applications
for extensions, or further extensions, of the order.
Note:
Paragraph (b)--see subsections 105.4(4) and (6) for the purpose for
which a preventative detention order may be made.
(3) The issuing authority may extend, or further extend, the period for
which the order is to be in force in relation to the person if the issuing
authority is satisfied that detaining the person under the order for the
period as extended, or further extended, is reasonably necessary for the
purpose for which the order was made.
(4) The extension, or further extension, must be made in writing.
(5) The period as extended, or further extended, must end no later than
24 hours after the person is first taken into custody under the order.
An AFP member who proposes to apply for a continued preventative detention
order in relation to a person under section 105.11 must, before applying
for the order:
(a) notify the person of the proposed application; and
(b) inform the person that, when the proposed application is made, any
material that the person gives the AFP member in relation to the proposed
application will be put before the issuing authority for continued
preventative detention orders to whom the application is made.
Note: The AFP member who
applies for the order must put the material before the issuing authority--see
subsection 105.11(5).
(1) If an initial preventative detention order is in force in relation
to a person in relation to a terrorist act, an AFP member may apply to an
issuing authority in relation to continued preventative detention orders for a
continued preventative detention order in relation to the person in relation
to the terrorist act.
Note: Certain judges,
AAT members and retired judges are issuing authorities for continued
preventative detention orders (see the definition of issuing authority in
subsection 100.1(1) and section 105.2).
(2) The application must:
(a) be made in writing; and
(b) set out the facts and other grounds on which the AFP member
considers that the order should be made; and
(c) specify the period for which the person is to continue to be
detained under the order and set out the facts and other grounds on which the
AFP member considers that the person should continue to be detained for that
period; and
(d) set out the information (if any) that the applicant has about the
person's age; and
(e) set out the following:
(i) the outcomes and particulars of all previous applications for
preventative detention orders in relation to the person;
(ii) the outcomes and particulars of all previous requests for interim
control orders (including the outcomes of the hearings to confirm the orders)
in relation to the person;
(iii) the outcomes and particulars of all previous applications for
variations of control orders made in relation to the person;
(iv) the outcomes of all previous applications for revocations of
control orders made in relation to the person; and
(f) set out the information (if any) that the applicant has about any
periods for which the person has been detained under an order made under a
corresponding State preventative detention law; and
(g) set out a summary of the grounds on which the AFP member considers
that the order should be made.
Note:
Sections 137.1 and 137.2 create offences for providing false or
misleading information or documents.
(3) Subparagraph (2)(e)(i) does not require the application to set
out details in relation to the application that was made for the initial
preventative detention order in relation to which the continued preventative
detention order is sought.
(4) The information in the application must be sworn or affirmed by the
AFP member.
(5) The AFP member applying for the continued preventative detention
order in relation to the person must put before the issuing authority to whom
the application is made any material in relation to the application that the
person has given the AFP member.
(1) On application by an AFP member, an issuing authority may make a
continued preventative detention order under this section in relation to a
person if:
(a) an initial preventative detention order is in force in relation to
the person; and
(b) the person has been taken into custody under the order (whether or
not the person is being detained under the order).
Note: Certain judges,
AAT members and retired judges are issuing authorities for continued
preventative detention orders (see the definition of issuing authority in
subsection 100.1(1) and section 105.2).
(2) Subsection (1) has effect subject to sections 105.4, 105.5
and 105.6. Section 105.4 requires the issuing authority to consider
afresh the merits of making the order and to be satisfied, after taking into
account relevant information (including any information that has become
available since the initial preventative detention order was made), of the
matters referred to in subsection 105.4(4) or (6) before making the
order.
(3) A continued preventative detention order under this section is an
order that the person specified in the order may be detained during a further
period that:
(a) starts at the end of the period during which the person may be
detained under the initial preventative detention order; and
(b) ends a specified period of time after the person is first taken into
custody under the initial preventative detention order.
(4) The order must be in writing.
(5) The period of time specified under paragraph (3)(b) must not
exceed 48 hours.
(6) A continued preventative detention order under this section must set
out:
(a) any of the following:
(i) the true name of the person in relation to whom the order is made;
(ii) if, after reasonable inquiries have been made, the person's true
name is not known but an alias is known for the person--the alias of the
person in relation to whom the order is made;
(iii) if, after reasonable inquiries have been made, the person's true
name is not known and no alias is known for the person--a description
sufficient to identify the person in relation to whom the order is made; and
(b) the further period during which the person may be detained under the
order; and
(c) the date on which, and the time at which, the order is made; and
(d) a summary of the grounds on which the order is made.
(7) If the person in relation to whom the order is made is:
(a) under 18 years of age; or
(b) incapable of managing his or her affairs;
the order may provide
that the period each day for which the person is entitled to have contact with
another person under subsection 105.39(2) is the period of more than 2
hours that is specified in the order.
(8) The senior AFP member nominated under subsection 105.19(5) in
relation to the continued preventative detention order must, as soon as
reasonably practicable after the order is made:
(a) notify the Commonwealth Ombudsman in writing of the making of the
order; and
(b) give the Commonwealth Ombudsman a copy of the order; and
(c) notify the Parliamentary Joint Committee on Intelligence and
Security in writing of the making of the order.
(1) A continued preventative detention order in relation to a person
starts to have effect when it is made.
Note: The order comes
into force when it is made. The period for which the person may be detained
under the order, however, only starts to run when the period during which the
person may be detained under the initial preventative detention order ends
(see paragraph 105.12(3)(a)).
(2) A continued preventative detention order in relation to a person
ceases to have effect when whichever of the following first occurs:
(a) the end of:
(i) the period specified in the order as the further period during which
the person may be detained; or
(ii) if that period is extended or further extended under
section 105.14--that period as extended or further extended;
(b) the revocation of the order under section 105.17.
Note: The order does not
cease to have effect merely because the person is released from detention
under the order.
(a) an initial preventative detention order is made in relation to a
person; and
(b) a continued preventative detention order is made in relation to the
person in relation to that initial preventative detention order; and
(c) the continued preventative detention order is in force in relation
to the person;
an AFP member may apply to an issuing authority for continued
preventative detention orders for an extension, or a further extension, of the
period for which the continued preventative detention order is to be in force
in relation to the person.
(2) The application must:
(a) be made in writing; and
(b) set out the facts and other grounds on which the AFP member
considers that the extension, or further extension, is reasonably necessary
for the purpose for which the order was made; and
(c) set out the outcomes and particulars of all previous applications
for extensions, or further extensions, of the continued preventative detention
order.
Note:
Paragraph (b)--see subsections 105.4(4) and (6) for the purpose for
which a preventative detention order may be made.
(3) The information in the application must be sworn or affirmed by the
AFP member.
(4) The issuing authority may extend, or further extend, the period for
which the continued preventative detention order is to be in force in relation
to the person if the issuing authority is satisfied that detaining the person
under the order for the period as extended, or further extended, is reasonably
necessary for the purpose for which the order was made.
(5) The extension, or further extension, must be made in writing.
(6) The period as extended, or further extended, must end no later than
48 hours after the person is first taken into custody under the initial
preventative detention order.
(1) An AFP member may apply for a prohibited contact order in relation
to a person only if the AFP member meets the requirements of
subsection (4).
(2) An issuing authority for initial preventative detention orders, or
continued preventative detention orders, may make a prohibited contact order
in relation to a person's detention under a preventative detention order only
if the issuing authority meets the requirements of subsection (4).
(3) The person in relation to whose detention the prohibited contact
order is applied for, or made, is the subject for the purposes of this
section.
(4) A person meets the requirements of this subsection if the person is
satisfied that making the prohibited contact order is reasonably necessary:
(a) to avoid a risk to action being taken to prevent a terrorist act
occurring; or
(b) to prevent serious harm to a person; or
(c) to preserve evidence of, or relating to, a terrorist act; or
(d) to prevent interference with the gathering of information about:
(i) a terrorist act; or
(ii) the preparation for, or the planning of, a terrorist act; or
(e) to avoid a risk to:
(i) the arrest of a person who is suspected of having committed an
offence against this Part; or
(ii) the taking into custody of a person in relation to whom a
preventative detention order is in force, or in relation to whom a
preventative detention order is likely to be made; or
(iii) the service on a person of a control order.
(5) An issuing authority may refuse to make a prohibited contact order
unless the AFP member applying for the order gives the issuing authority any
further information that the issuing authority requests concerning the grounds
on which the order is sought.
(1) An AFP member who applies to an issuing authority for a preventative
detention order in relation to a person (the subject ) may also apply for a
prohibited contact order under this section in relation to the subject's
detention under the preventative detention order.
(1A) The
application for the prohibited contact order may be made either:
(a) in writing (other than writing by means of an electronic
communication); or
(b) if the AFP member considers it necessary because of urgent
circumstances--orally in person or by telephone, or by fax, email or other
electronic means of communication.
(2) The application must set out:
(a) the terms of the order sought; and
(b) the facts and other grounds on which the AFP member considers that
the order should be made.
(3) If:
(a) a continued preventative detention order is being applied for; and
(b) the application for the prohibited contact order is made in
accordance with paragraph (1A)(a);
the information in the application
for the prohibited contact order must be sworn or affirmed by the AFP member.
(3A) If:
(a) a continued preventative detention order is being applied for; and
(b) the application for the prohibited contact order is made in
accordance with paragraph (1A)(b);
the information in the application
for the prohibited contact order must be sworn or affirmed by the AFP member
unless the issuing authority is satisfied that it is not practical to
administer an oath or affirmation to the member.
(4) If the issuing authority makes the preventative detention order, the
issuing authority may, subject to subsection (4A), make a prohibited
contact order under this section that the subject is not, while being detained
under the preventative detention order, to contact the person specified in the
prohibited contact order.
Note:
Section 105.14A sets out the basis on which the order may be made.
(4A) If the
application for the prohibited contact order is made orally in person or by
telephone, or by fax, email or other electronic means of communication, the
issuing authority must not make the order unless the issuing authority is
satisfied that it was necessary, because of urgent circumstances, to apply for
the order by such means.
(5) The prohibited contact order must be in writing.
(6) The senior AFP member nominated under subsection 105.19(5) in
relation to the preventative detention order must:
(a) notify the Commonwealth Ombudsman in writing of the making of the
prohibited contact order; and
(b) give the Commonwealth Ombudsman a copy of the prohibited contact
order; and
(c) notify the Parliamentary Joint Committee on Intelligence and
Security in writing of the making of the prohibited contact order.
(7) If the prohibited contact order is made on an application that was
made orally, the issuing authority must either:
(a) ensure that there is an audio, or audio-visual, recording of the
application; or
(b) as soon as practicable after the order is made, make a written
record of the details of the application, including any information given in
support of it.
(1) If a preventative detention order is in force in relation to a
person (the subject ), an AFP member may apply to an issuing authority for
preventative detention orders of that kind for a prohibited contact order
under this section in relation to the subject's detention under the
preventative detention order.
(1A) The
application may be made either:
(a) in writing (other than writing by means of an electronic
communication); or
(b) if the AFP member considers it necessary because of urgent
circumstances--orally in person or by telephone, or by fax, email or other
electronic means of communication.
(2) The application must set out:
(a) the terms of the order sought; and
(b) the facts and other grounds on which the AFP member considers that
the order should be made.
(3) If:
(a) the preventative detention order is a continued preventative
detention order; and
(b) the application for the prohibited contact order is made in
accordance with paragraph (1A)(a);
the information in the application
for the prohibited contact order must be sworn or affirmed by the AFP member.
(3A) If:
(a) the preventative detention order is a continued preventative
detention order; and
(b) the application for the prohibited contact order is made in
accordance with paragraph (1A)(b);
the information in the application
for the prohibited contact order must be sworn or affirmed by the AFP member
unless the issuing authority is satisfied that it is not practical to
administer an oath or affirmation to the member.
(4) The issuing authority may, subject to subsection (4A), make a
prohibited contact order under this section that the subject is not, while
being detained under the preventative detention order, to contact the person
specified in the prohibited contact order.
Note:
Section 105.14A sets out the basis on which the order may be made.
(4A) If the
application for the prohibited contact order is made orally in person or by
telephone, or by fax, email or other electronic means of communication, the
issuing authority must not make the order unless the issuing authority is
satisfied that it was necessary, because of urgent circumstances, to apply for
the order by such means.
(5) The prohibited contact order must be in writing.
(6) The senior AFP member nominated under subsection 105.19(5) in
relation to the preventative detention order must:
(a) notify the Commonwealth Ombudsman in writing of the making of the
prohibited contact order; and
(b) give the Commonwealth Ombudsman a copy of the prohibited contact
order; and
(c) notify the Parliamentary Joint Committee on Intelligence and
Security in writing of the making of the prohibited contact order.
(7) If the prohibited contact order is made on an application that was
made orally, the issuing authority must either:
(a) ensure there is an audio, or audio-visual, recording of the
application; or
(b) as soon as practicable after the order is made, make a written
record of the details of the application, including any information given in
support of it.
(a) a preventative detention order is in force in relation to a person;
and
(b) the police officer who is detaining the person under the order is
satisfied that the grounds on which the order was made have ceased to exist;
the police officer must:
(c) if the police officer is an AFP member--apply to an issuing
authority for preventative detention orders of that kind for the revocation of
the order; or
(d) if the police officer is not an AFP member--inform a senior AFP
member of the police officer's reasons for being satisfied that the grounds on
which the order was made have ceased to exist.
(2) If:
(a) a senior AFP member is informed by a police officer under
paragraph (1)(d); and
(b) the senior AFP member is satisfied that the grounds on which the
preventative detention order was made have ceased to exist;
the senior AFP
member must apply to an issuing authority for preventative detention orders of
that kind for the revocation of the order.
(3) If:
(a) a preventative detention order is in force in relation to a person;
and
(b) an issuing authority for preventative detention orders of that kind
is satisfied, on application by an AFP member, that the grounds on which the
order was made have ceased to exist;
the issuing authority must revoke the
order.
Prohibited contact order
(4) If:
(a) a prohibited contact order is in force in relation to a person's
detention under a preventative detention order; and
(b) the police officer who is detaining the person under the
preventative detention order is satisfied that the grounds on which the
prohibited contact order was made have ceased to exist;
the police officer
must:
(c) if the police officer is an AFP member--apply to an issuing
authority for preventative detention orders of that kind for the revocation of
the prohibited contact order; or
(d) if the police officer is not an AFP member--inform a senior AFP
member of the police officer's reasons for being satisfied that the grounds on
which the prohibited contact order was made have ceased to exist.
(5) If:
(a) a senior AFP member is informed by a police officer under
paragraph (4)(d); and
(b) the senior AFP member is satisfied that the grounds on which the
prohibited contact order was made in relation to the person's detention under
the preventative detention order have ceased to exist;
the senior AFP member
must apply to an issuing authority for preventative detention orders of that
kind for the revocation of the prohibited contact order.
(6) If:
(a) a prohibited contact order is in force in relation to a person's
detention under a preventative detention order; and
(b) an issuing authority for preventative detention orders of that kind
is satisfied, on application by an AFP member, that the grounds on which the
prohibited contact order was made have ceased to exist;
the issuing
authority must revoke the prohibited contact order.
Detainee's right to make
representations about revocation of preventative detention order
(7) A person being detained under a preventative detention order may
make representations to the senior AFP member nominated under
subsection 105.19(5) in relation to the order with a view to having the
order revoked.
(b) a prohibited contact order in relation to a person's detention under
a continued preventative detention order;
has, in the performance of his or
her duties under this Subdivision, the same protection and immunity as a
Justice of the High Court.
(2) A function of:
(a) making or revoking a continued preventative detention order; or
(b) extending, or further extending, the period for which a continued
preventative detention order is to be in force; or
(c) making or revoking a prohibited contact order in relation to a
person's detention under a continued preventative detention order;
that is
conferred on a judge or a member of the Administrative Appeals Tribunal is
conferred on the judge or member of the Administrative Appeals Tribunal in a
personal capacity and not as a court or a member of a court.
General powers given by
preventative detention order
(1) While a preventative detention order is in force in relation to a
person:
(a) any police officer may take the person into custody; and
(b) any police officer may detain the person.
(2) A police officer, in taking a person into custody under and in
detaining a person under a preventative detention order, has the same powers
and obligations as the police officer would have if the police officer were
arresting the person, or detaining the person, for an offence.
(3) In subsection (2):
"offence" means:
(a) if the police officer is an AFP member--an offence against a law of
the Commonwealth; or
(b) if the police officer is not an AFP member--an offence against a law
of the State or Territory of whose police force the police officer is a
member.
(4) Subsection (2) does not apply to the extent to which particular
powers, and the obligations associated with those powers, are provided for in
this Subdivision or Subdivision D or E.
Nominated senior AFP member
(5) If a preventative detention order is made in relation to person, the
Commissioner of the Australian Federal Police must nominate a senior AFP
member (the nominated senior AFP member ) to oversee the exercise of powers
under, and the performance of obligations in relation to, the preventative
detention order.
(6) The nominated senior AFP member must be someone who was not involved
in the making of the application for the preventative detention order.
(7) The nominated senior AFP member must:
(a) oversee the exercise of powers under, and the performance of
obligations in relation to, the preventative detention order; and
(b) without limiting paragraph (a), ensure that the provisions of
section 105.17 (which deals with revocation of preventative detention
orders and prohibited contact orders) are complied with in relation to the
preventative detention order; and
(c) receive and consider any representations that are made under
subsection (8).
(8) The following persons:
(a) the person being detained under the preventative detention order;
(b) a lawyer acting for that person in relation to the preventative
detention order;
(c) a person with whom that person has contact under
subsection 105.39(2);
are entitled to make representations to the
nominated senior AFP member in relation to:
(d) the exercise of powers under, and the performance of obligations in
relation to, the preventative detention order; and
(e) without limiting paragraph (a), compliance with the provisions
of section 105.17 (which deals with revocation of preventative detention
orders and prohibited contact orders) in relation to the preventative
detention order; and
(f) the person's treatment in connection with the person's detention
under the preventative detention order.
(9) The Commissioner of the Australian Federal Police may, in writing,
delegate to a senior AFP member the Commissioner's powers under
subsection (5).
As soon as practicable after a person is first taken into custody under an
initial preventative detention order, the police officer who is detaining the
person under the order must endorse on the order the date on which, and time
at which, the person is first taken into custody under the order.
(1) If a police officer believes on reasonable grounds that a person
whose name or address is, or whose name and address are, unknown to the police
officer may be able to assist the police officer in executing a preventative
detention order, the police officer may request the person to provide his or
her name or address, or name and address, to the police officer.
(2) If a police officer:
(a) makes a request of a person under subsection (1); and
(b) informs the person of the reason for the request; and
(c) if the police officer is not in uniform--shows the person evidence
that the police officer is a police officer; and
(d) complies with subsection (4) if the person makes a request
under that subsection;
the person must not:
(e) refuse or fail to comply with the request; or
(f) give a name or address that is false in a material particular.
Penalty: 20 penalty units.
(3) Subsection (2) does not apply if the person has a reasonable
excuse.
Note: A
defendant bears an evidential burden in relation to the matter in
subsection (3) (see subsection 13.3(3)).
(4) If a police officer who makes a request of a person under
subsection (1) is requested by the person to provide to the person any of
the following:
(a) his or her name;
(b) the address of his or her place of duty;
(c) his or her identification number if he or she has an identification
number;
(d) his or her rank if he or she does not have an identification number;
the police officer must not:
(e) refuse or fail to comply with the request; or
(f) give a name, address, number or rank that is false in a material
particular.
(a) a preventative detention order is in force in relation to a person;
and
(b) a police officer believes on reasonable grounds that the person is
on any premises;
the police officer may enter the premises, using such force
as is necessary and reasonable in the circumstances and with such assistance
from other police officers as is necessary, at any time of the day or night
for the purpose of searching the premises for the person or taking the person
into custody.
(2) A police officer must not enter a dwelling house under
subsection (1) at any time during the period commencing at 9 pm on a day
and ending at 6 am on the following day unless the police officer believes on
reasonable grounds that:
(a) it would not be practicable to take the person into custody, either
at the dwelling house or elsewhere, at another time; or
(b) it is necessary to do so in order to prevent the concealment, loss
or destruction of evidence of, or relating to, a terrorist act.
(3) In subsection (2):
"dwelling house" includes a conveyance,
and a room in a hotel, motel, boarding house or club, in which people
ordinarily retire for the night.
A police officer who takes a person into custody under a preventative
detention order, or who is present when the person is taken into custody, may,
if the police officer suspects on reasonable grounds that it is prudent to do
so in order to ascertain whether the person is carrying any seizable items:
(a) conduct a frisk search of the person at, or soon after, the time
when the person is taken into custody; and
(b) seize any seizable items found as a result of the search.
A police officer who takes a person into custody under a preventative
detention order, or who is present when the person is taken into custody, may,
if the police officer suspects on reasonable grounds that the person is
carrying:
(a) evidence of, or relating to, a terrorist act; or
(b) a seizable item;
conduct an ordinary search of the person at, or
soon after, the time when the person is taken into custody, and seize any such
thing found as a result of the search.
(c) a copy of the warrant is given to the police officer who is
detaining the person under the preventative detention order.
(2) The police officer must take such steps as are necessary to ensure
that the person may be dealt with in accordance with the warrant.
(3) Without limiting subsection (2), the police officer may, under
section 105.26, release the person from detention under the preventative
detention order so that the person may be dealt with in accordance with the
warrant.
Note: If the
police officer is not an AFP member, the police officer will need to obtain
the approval of a senior AFP member before releasing the person from detention
(see subsection 105.26(2)).
(4) To avoid doubt, the fact that the person is released from detention
under the preventative detention order so that the person may be questioned
before a prescribed authority under the warrant does not extend the period for
which the preventative detention order remains in force in relation to the
person.
(1) The police officer who is detaining a person under a preventative
detention order may release the person from detention under the order.
Note: A person may be
released, for example, so that the person may be arrested and otherwise dealt
with under the provisions of Division 4 of Part IAA, and
Part IC, of the Crimes Act 1914.
(2) If the police officer detaining the person under the order is not an
AFP member:
(a) the police officer must not release the person from detention
without the approval of a senior AFP member; and
(b) the senior AFP member must approve the person's release if the
person is being released so that the person may be dealt with in accordance
with a warrant under Division 3 of Part III of the
Australian Security Intelligence Organisation Act 1979.
(3) The police officer who releases the person from detention under the
preventative detention order must give the person a written statement that the
person is being released from that detention. The statement must be signed by
the police officer.
(4) Subsection (3) does not apply if the police officer releases
the person from detention so that the person may be dealt with:
(b) under the provisions of Division 4 of Part IAA, and
Part IC, of the Crimes Act 1914.
(5) To avoid doubt, a person may be taken to have been released from
detention under a preventative detention order even if:
(a) the person is informed that he or she is being released from
detention under the order; and
(b) the person is taken into custody on some other basis immediately
after the person is informed that he or she is being released from detention
under the order.
(6) To avoid doubt, a person is taken not to be detained under a
preventative detention order during a period during which the person is
released from detention under the order.
Note: During this
period, the provisions of this Division that apply to a person who is being
detained under a preventative detention order (for example,
section 105.34 which deals with the people the person may contact) do not
apply to the person.
(7) To avoid doubt:
(a) the release of the person under subsection (1) from detention
under the preventative detention order does not extend the period for which
the preventative detention order remains in force; and
(b) a person released under subsection (1) from detention under a
preventative detention order may again be taken into custody and detained
under the order at any time while the order remains in force in relation to
the person.
Note:
Paragraph (a)--this means that the time for which the person may be
detained under the order continues to run while the person is released.
(1) A senior AFP member may arrange for a person (the subject ) who is
being detained under a preventative detention order to be detained under the
order at a prison or remand centre of a State or Territory.
(2) If an arrangement is made under subsection (1):
(a) the preventative detention order is taken to authorise the person in
charge of the prison or remand centre to detain the subject at the prison or
remand centre while the order is in force in relation to the subject; and
(b) section 105.33 applies in relation to the subject's detention
under the order at the prison or remand centre as if:
(i) the person in charge of that prison or remand centre; or
(ii) any other person involved in the subject's detention at that prison
or remand centre;
were a person exercising authority under the order or implementing or
enforcing the order; and
(c) the senior AFP member who makes the arrangement is taken, while the
subject is detained at the prison or remand centre, to be the AFP member
detaining the subject for the purposes of Subdivisions D and E of this
Division.
(3) The arrangement under subsection (1) may include provision for
the Commonwealth meeting the expenses of the subject's detention at the prison
or remand centre.
(1) As soon as practicable after a person is first taken into custody
under an initial preventative detention order, the police officer who is
detaining the person under the order must inform the person of the matters
covered by subsection (2).
Note 1:
A contravention of this subsection may be an offence under
section 105.45.
Note 2: A
contravention of this subsection does not affect the lawfulness of the
person's detention under the order (see subsection 105.31(5)).
(2) The matters covered by this subsection are:
(a) the fact that the preventative detention order has been made in
relation to the person; and
(b) the period during which the person may be detained under the order;
and
(c) the restrictions that apply to the people the person may contact
while the person is being detained under the order; and
(d) the fact that an application may be made under section 105.11
for an order that the person continue to be detained for a further period; and
(da) the person's entitlement under subsection 105.17(7) to make
representations to the senior AFP member nominated under
subsection 105.19(5) in relation to the order with a view to having the
order revoked; and
(e) any right the person has to make a complaint to the Commonwealth
Ombudsman under the Ombudsman Act 1976in relation to:
(i) the application for, or the making of, the preventative detention
order; or
(ii) the treatment of the person by an AFP member in connection with the
person's detention under the order; and
(i) the application for, or the making of, the preventative detention
order; or
(ii) the treatment of the person by an AFP member in connection with the
person's detention under the order; and
(f) any right the person has to complain to an officer or authority of a
State or Territory in relation to the treatment of the person by a member of
the police force of that State or Territory in connection with the person's
detention under the order; and
(g) the fact that the person may seek from a federal court a remedy
relating to:
(i) the order; or
(ii) the treatment of the person in connection with the person's
detention under the order; and
(h) the person's entitlement under section 105.37 to contact a
lawyer; and
(i) the name and work telephone number of the senior AFP member who has
been nominated under subsection 105.19(5) to oversee the exercise of
powers under, and the performance of obligations in relation to, the order.
Note:
Paragraph (g)--see section 105.51.
(2A) Without
limiting paragraph (2)(c), the police officer detaining the person under
the order must inform the person under that paragraph about the persons that
he or she may contact under section 105.35 or 105.39.
(3) Paragraph (2)(c) does not require the police officer to inform
the person being detained of:
(a) the fact that a prohibited contact order has been made in relation
to the person's detention; or
(b) the name of a person specified in a prohibited contact order that
has been made in relation to the person's detention.
(1) As soon as practicable after a continued preventative detention
order (the continued order ) is made in relation to a person, the police
officer who is detaining the person must inform the person of the matters
covered by subsection (2).
Note 1:
A contravention of this subsection may be an offence under
section 105.45.
Note 2: A
contravention of this subsection does not affect the lawfulness of the
person's detention under the order (see subsection 105.31(5)).
(2) The matters covered by this subsection are:
(a) the fact that the continued order has been made in relation to the
person; and
(b) the further period during which the person may continue to be
detained under the continued order; and
(c) the restrictions that apply to the people the person may contact
while the person is being detained under the continued order; and
(ca) the person's entitlement under subsection 105.17(7) to make
representations to the senior AFP member nominated under
subsection 105.19(5) in relation to the order with a view to having the
order revoked; and
(d) any right the person has to make a complaint to the Commonwealth
Ombudsman under the Ombudsman Act 1976in relation to:
(i) the application for the continued order; or
(ii) the treatment of the person by an AFP member in connection with the
person's detention under the continued order; and
(ii) the treatment of the person by an AFP member in connection with the
person's detention under the continued order; and
(e) any right the person has to complain to an officer or authority of a
State or Territory about the treatment of the person by a member of the police
force of that State or Territory in connection with the person's detention
under the continued order; and
(f) the fact that the person may seek from a federal court a remedy
relating to:
(i) the continued order; or
(ii) the treatment of the person in connection with the person's
detention under the continued order; and
(g) the person's entitlement under section 105.37 to contact a
lawyer; and
(h) the name and work telephone number of the senior AFP member who has
been nominated under subsection 105.19(5) to oversee the exercise of
powers under, and the performance of obligations in relation to, the continued
order.
Note:
Paragraph (f)--see section 105.51.
(2A) Without
limiting paragraph (2)(c), the police officer detaining the person under
the order must inform the person under that paragraph about the persons that
he or she may contact under section 105.35 or 105.39.
(3) Paragraph (2)(c) does not require the police officer to inform
the person being detained of:
(a) the fact that a prohibited contact order has been made in relation
to the person's detention; or
(b) the name of a person specified in a prohibited contact order that
has been made in relation to the person's detention.
If a preventative detention order is extended, or further extended, under
section 105.10 or 105.14, the police officer detaining the person under
the order must inform the person of the extension, or further extension, as
soon as practicable after the extension, or further extension, is made.
Note
1: A contravention of this subsection may
be an offence under section 105.45.
Note
2: A contravention of this subsection does
not affect the lawfulness of the person's detention under the order (see
subsection 105.31(5)).
(1) Subsection 105.28(1) or 105.29(1) or section 105.30 does
not apply if the actions of the person being detained under the preventative
detention order make it impracticable for the police officer to comply with
that subsection.
Note:
A defendant bears an evidential burden in relation to the matter in
subsection (1) (see subsection 13.3(3)).
(2) The police officer detaining the person under the preventative
detention order complies with subsection 105.28(1) or 105.29(1) if the
police officer informs the person in substance of the matters covered by
subsection 105.28(2) or 105.29(2) (even if this is not done in language
of a precise or technical nature).
(3) The police officer who is detaining the person under the
preventative detention order must arrange for the assistance of an interpreter
in complying with subsection 105.28(1) or 105.29(1) or
section 105.30 if the police officer has reasonable grounds to believe
that the person is unable, because of inadequate knowledge of the English
language or a disability, to communicate with reasonable fluency in that
language.
(4) Without limiting subsection (3), the assistance of the
interpreter may be provided by telephone.
(5) The lawfulness of a person's detention under a preventative
detention order is not affected by a failure to comply with
subsection 105.28(1) or 105.29(1), section 105.30 or
subsection (3) of this section.
(1) As soon as practicable after a person is first taken into custody
under an initial preventative detention order, the police officer who is
detaining the person under the order must give the person a copy of the order.
(3) Despite subsection 105.19(2), a police officer does not need to
have a copy of the order with him or her, or to produce a copy of the order to
the person being taken into custody, when the police officer takes the person
into custody.
(4) As soon as practicable after a continued preventative detention
order is made in relation to a person in relation to whom an initial
preventative detention order is in force, the police officer who is detaining
the person under the initial preventative detention order, or the continued
preventative detention order, must give the person a copy of the continued
preventative detention order.
(5) As soon as practicable after a preventative detention order is
extended, or further extended, under section 105.10 or 105.14, the police
officer who is detaining the person under the preventative detention order
must give the person a copy of the extension or further extension.
(6) A person who is being detained under a preventative detention order
may request a police officer who is detaining the person to arrange for a copy
of:
(a) the order; or
(c) any extension or further extension of the order under
section 105.10 or 105.14;
to be given to a lawyer acting for the person
in relation to the order.
Note 1:
Section 105.37 deals with the person's right to contact a lawyer and the
obligation of the police officer detaining the person to give the person
assistance to choose a lawyer.
Note 2:
Section 105.40 prevents the person from contacting a lawyer who is
specified in a prohibited contact order.
(7) The police officer must make arrangements for a copy of the order,
or the extension or further extension, to be given to the lawyer as soon as
practicable after the request is made.
(8) Without limiting subsection (7), the copy of the order, or the
extension, may be faxed or emailed to the lawyer.
(9) To avoid doubt, subsection (7) does not entitle the lawyer to
be given a copy of, or see, a document other than the order, or the extension
or further extension.
(10)
Nothing in this section requires a copy of a prohibited contact order to be
given to a person.
(11) The
police officer who gives:
(a) the person being detained under an initial preventative detention
order; or
(b) a lawyer acting for the person;
a copy of the initial preventative
detention order under this section must endorse on the copy the date on which,
and time at which, the person was first taken into custody under the order.
(12) The
lawfulness of a person's detention under a preventative detention order is not
affected by a failure to comply with subsection (1), (4), (5), (7) or
(11).
(1) Subject to subsection (2), the police officer detaining a
person who is under 18 years of age under a preventative detention order must
ensure that the person is not detained together with persons who are 18 years
of age or older.
Note:
A contravention of this subsection may be an offence under
section 105.45.
(2) Subsection (1) does not apply if a senior AFP member approves
the person being detained together with persons who are 18 years of age or
older.
(3) The senior AFP member may give an approval under subsection (2)
only if there are exceptional circumstances justifying the giving of the
approval.
(4) An approval under subsection (2) must:
(a) be given in writing; and
(b) set out the exceptional circumstances that justify the giving of the
approval.
Except as provided by sections 105.35, 105.36, 105.37 and 105.39, while a
person is being detained under a preventative detention order, the person:
(a) is not entitled to contact another person; and
(b) may be prevented from contacting another person.
Note
1: This section will not apply to the
person if the person is released from detention under the order (even though
the order may still be in force in relation to the person).
Note
2: A person's entitlement to contact other
people under sections 105.35, 105.37 and 105.39 may be subject to a
prohibited contact order made under section 105.15 or 105.16 (see
section 105.40).
(1) The person being detained is entitled to contact:
(a) one of his or her family members; and
(b) if he or she:
(i) lives with another person and that other person is not a family
member of the person being detained; or
(ii) lives with other people and those other people are not family
members of the person being detained;
that other person or one of those other people; and
(c) if he or she is employed--his or her employer; and
(d) if he or she employs people in a business--one of the people he or
she employs in that business; and
(e) if he or she engages in a business together with another person or
other people--that other person or one of those other people; and
(f) if the police officer detaining the person being detained agrees to
the person contacting another person--that person;
by telephone, fax or
email but solely for the purposes of letting the person contacted know that
the person being detained is safe but is not able to be contacted for the time
being.
(2) To avoid doubt, the person being detained is not entitled, under
subsection (1), to disclose:
(a) the fact that a preventative detention order has been made in
relation to the person; or
(b) the fact that the person is being detained; or
(c) the period for which the person is being detained.
(3) In this section:
"family member" of a person means:
(a) the person's spouse or de facto partner; or
(b) a parent, step-parent or grandparent of the person; or
(c) a child, step-child or grandchild of the person; or
(d) a brother, sister, step-brother or step-sister of the person; or
(e) a guardian or carer of the person.
(4) For the purposes of this section, the family members of a person are
taken to include the following (without limitation):
(a) a de facto partner of the person;
(b) someone who is the child of the person, or of whom the person is the
child, because of the definition of child in the Dictionary;
(c) anyone else who would be a member of the person's family if someone
mentioned in paragraph (a) or (b) is taken to be a family member of the
person.
Note 1: Subsections 7(3)
to (5) of the Ombudsman Act 1976provide for the manner in which a person who
is in custody may make a complaint to the Commonwealth Ombudsman under that
Act.
(2) If the person being detained has the right, under a law of a State
or Territory, to complain to an officer or authority of the State or Territory
about the treatment of the person by a member of the police force of that
State or Territory in connection with the person's detention under the order,
the person is entitled to contact that officer or authority to make a
complaint in accordance with that law.
(1) The person being detained is entitled to contact a lawyer but solely
for the purpose of:
(a) obtaining advice from the lawyer about the person's legal rights in
relation to:
(i) the preventative detention order; or
(ii) the treatment of the person in connection with the person's
detention under the order; or
(b) arranging for the lawyer to act for the person in relation to, and
instructing the lawyer in relation to, proceedings in a federal court for a
remedy relating to:
(i) the preventative detention order; or
(ii) the treatment of the person in connection with the person's
detention under the order; or
(c) arranging for the lawyer to act for the person in relation to, and
instructing the lawyer in relation to, a complaint to the Commonwealth
Ombudsman under the Ombudsman Act 1976in relation to:
(i) the application for, or the making of, the preventative detention
order; or
(ii) the treatment of the person by an AFP member in connection with the
person's detention under the order; or
(ca) arranging for the lawyer to act for the person in relation to, and
instructing the lawyer in relation to, the giving of information under
section 40SA of the Australian Federal Police Act 1979in relation to:
(i) the application for, or the making of, the preventative detention
order; or
(ii) the treatment of the person by an AFP member in connection with the
person's detention under the order; or
(d) arranging for the lawyer to act for the person in relation to, and
instructing the lawyer in relation to, a complaint to an officer or authority
of a State or Territory about the treatment of the person by a member of the
police force of that State or Territory in connection with the person's
detention under the order; or
(e) arranging for the lawyer to act for the person in relation to an
appearance, or hearing, before a court that is to take place while the person
is being detained under the order.
(2) The form of contact that the person being detained is entitled to
have with a lawyer under subsection (1) includes:
(a) being visited by the lawyer; and
(b) communicating with the lawyer by telephone, fax or email.
(3) If:
(a) the person being detained asks to be allowed to contact a particular
lawyer under subsection (1); and
(b) either:
(i) the person is not entitled to contact that lawyer because of
section 105.40 (prohibited contact order); or
(ii) the person is not able to contact that lawyer;
the police officer
who is detaining the person must give the person reasonable assistance to
choose another lawyer for the person to contact under subsection (1).
(3A) If the
police officer who is detaining a person under a preventative detention order
has reasonable grounds to believe that:
(a) the person is unable, because of inadequate knowledge of the English
language, or a disability, to communicate with reasonable fluency in that
language; and
(b) the person may have difficulties in choosing or contacting a lawyer
because of that inability;
the police officer must give the person
reasonable assistance (including, if appropriate, by arranging for the
assistance of an interpreter) to choose and contact a lawyer under
subsection (1).
(4) In recommending lawyers to the person being detained as part of
giving the person assistance under subsection (3) or (3A), the police
officer who is detaining the person may give priority to lawyers who have been
given a security clearance at an appropriate level by the Australian
Government Security Vetting Agency or by another Commonwealth, State or
Territory agency that is authorised or approved by the Commonwealth to issue
security clearances.
(5) Despite subsection (4) but subject to section 105.40, the
person being detained is entitled under this section to contact a lawyer who
does not have a security clearance of the kind referred to in
subsection (4).
(1) The contact the person being detained has with another person under
section 105.35 or 105.37 may take place only if it is conducted in such a
way that the contact, and the content and meaning of the communication that
takes place during the contact, can be effectively monitored by a police
officer exercising authority under the preventative detention order.
(2) The contact may take place in a language other than English only if
the content and meaning of the communication that takes place during the
contact can be effectively monitored with the assistance of an interpreter.
(3) Without limiting subsection (2), the interpreter referred to in
that subsection may be a police officer.
(4) If the person being detained indicates that he or she wishes the
contact to take place in a language other than English, the police officer who
is detaining the person must:
(a) arrange for the services of an appropriate interpreter to be
provided if it is reasonably practicable to do so during the period during
which the person is being detained; and
(b) if it is reasonably practicable to do so--arrange for those services
to be provided as soon as practicable.
(5) Any communication between:
(a) a person who is being detained under a preventative detention order;
and
(b) a lawyer;
for a purpose referred to in
paragraph 105.37(1)(a), (b), (c), (ca), (d) or (e) is not admissible in
evidence against the person in any proceedings in a court.
(v) is not a member (however described) of a police force of a State or
Territory; and
(vi) is not an ASIO employee or an ASIO affiliate.
(3) To avoid doubt:
(a) if the person being detained (the detainee ) has 2 parents or 2 or
more guardians, the detainee is entitled, subject to section 105.40, to
have contact under subsection (2) with each of those parents or
guardians; and
(b) the detainee is entitled to disclose the following to a person with
whom the detainee has contact under subsection (2):
(i) the fact that a preventative detention order has been made in
relation to the detainee;
(ii) the fact that the detainee is being detained;
(iii) the period for which the detainee is being detained.
(4) The form of contact that the person being detained is entitled to
have with another person under subsection (2) includes:
(a) being visited by that other person; and
(b) communicating with that other person by telephone, fax or email.
(5) The period for which the person being detained is entitled to have
contact with another person each day under subsection (2) is:
(a) 2 hours; or
(b) such longer period as is specified in the preventative detention
order.
Note:
Paragraph (b)--see subsections 105.8(7) and 105.12(7).
(6) Despite subsection (5), the police officer who is detaining the
person may permit the person to have contact with a person under
subsection (2) for a period that is longer than the period provided for
in subsection (5).
(7) The contact that the person being detained has with another person
under subsection (2) must be conducted in such a way that the content and
meaning of any communication that takes place during the contact can be
effectively monitored by a police officer exercising authority under the
preventative detention order.
(8) If the communication that takes place during the contact takes place
in a language other than English, the contact may continue only if the content
and meaning of the communication in that language can be effectively monitored
with the assistance of an interpreter.
(9) Without limiting subsection (8), the interpreter referred to in
that subsection may be a police officer.
(10) If the
person being detained indicates that he or she wishes the communication that
takes place during the contact to take place in a language other than English,
the police officer who is detaining the person must:
(a) arrange for the services of an appropriate interpreter to be
provided if it is reasonably practicable to do so during the period during
which the person is being detained; and
(b) if it is reasonably practicable to do so--arrange for those services
to be provided as soon as practicable.
(1) A person (the subject ) commits an offence if:
(a) the subject is being detained under a preventative detention order;
and
(b) the subject discloses to another person:
(i) the fact that a preventative detention order has been made in
relation to the subject; or
(ii) the fact that the subject is being detained; or
(iii) the period for which the subject is being detained; and
(c) the disclosure occurs while the subject is being detained under the
order; and
(d) the disclosure is not one that the subject is entitled to make under
section 105.36, 105.37 or 105.39.
Penalty: Imprisonment for 5
years.
Lawyer
(2) A person (the lawyer ) commits an offence if:
(a) a person being detained under a preventative detention order (the
detainee ) contacts the lawyer under section 105.37; and
(b) the lawyer discloses to another person:
(i) the fact that a preventative detention order has been made in
relation to the detainee; or
(ii) the fact that the detainee is being detained; or
(iii) the period for which the detainee is being detained; or
(iv) any information that the detainee gives the lawyer in the course of
the contact; and
(c) the disclosure occurs while the detainee is being detained under the
order; and
(d) the disclosure is not made for the purposes of:
(i) proceedings in a federal court for a remedy relating to the
preventative detention order or the treatment of the detainee in connection
with the detainee's detention under the order; or
(ii) a complaint to the Commonwealth Ombudsman under the
Ombudsman Act 1976in relation to the application for, or making of, the
preventative detention order or the treatment of the detainee by an AFP member
in connection with the detainee's detention under the order; or
(iia) the giving of information under section 40SA of the
Australian Federal Police Act 1979in relation to the application for, or
making of, the preventative detention order or the treatment of the detainee
by an AFP member in connection with the detainee's detention under the order;
or
(iii) a complaint to an officer or authority of a State or Territory
about the treatment of the detainee by a member of the police force of that
State or Territory in connection with the detainee's detention under the
order; or
(iv) making representations to the senior AFP member nominated under
subsection 105.19(5) in relation to the order, or another police officer
involved in the detainee's detention, about the exercise of powers under the
order, the performance of obligations in relation to the order or the
treatment of the detainee in connection with the detainee's detention under
the order.
Penalty: Imprisonment for 5 years.
Person having special
contact with detainee who is under 18 years of age or incapable of managing
own affairs
(3) A person (the parent/guardian ) commits an offence if:
(a) a person being detained under a preventative detention order (the
detainee ) has contact with the parent/guardian under section 105.39; and
(b) the parent/guardian discloses to another person:
(i) the fact that a preventative detention order has been made in
relation to the detainee; or
(ii) the fact that the detainee is being detained; or
(iii) the period for which the detainee is being detained; or
(iv) any information that the detainee gives the parent/guardian in the
course of the contact; and
(c) the other person is not a person the detainee is entitled to have
contact with under section 105.39; and
(d) the disclosure occurs while the detainee is being detained under the
order; and
(e) the disclosure is not made for the purposes of:
(i) a complaint to the Commonwealth Ombudsman under the
Ombudsman Act 1976in relation to the application for, or the making of, the
preventative detention order or the treatment of the detainee by an AFP member
in connection with the detainee's detention under the order; or
(ia) the giving of information under section 40SA of the
Australian Federal Police Act 1979in relation to the application for, or the
making of, the preventative detention order or the treatment of the detainee
by an AFP member in connection with the detainee's detention under the order;
or
(ii) a complaint to an officer or authority of a State or Territory
about the treatment of the detainee by a member of the police force of that
State or Territory in connection with the detainee's detention under the
order; or
(iii) making representations to the senior AFP member nominated under
subsection 105.19(5) in relation to the order, or another police officer
involved in the detainee's detention, about the exercise of powers under the
order, the performance of obligations in relation to the order or the
treatment of the detainee in connection with the detainee's detention under
the order.
Penalty: Imprisonment for 5 years.
(4) To avoid doubt, a person does not contravene subsection (3)
merely by letting another person know that the detainee is safe but is not
able to be contacted for the time being.
(4A) A person
(the parent/guardian ) commits an offence if:
(a) the parent/guardian is a parent or guardian of a person who is being
detained under a preventative detention order (the detainee ); and
(b) the detainee has contact with the parent/guardian under
section 105.39; and
(c) while the detainee is being detained under the order, the
parent/guardian discloses information of the kind referred to in
paragraph (3)(b) to another parent or guardian of the detainee (the other
parent/guardian ); and
(d) when the disclosure is made, the detainee has not had contact with
the other parent/guardian under section 105.39 while being detained under
the order; and
(e) the parent/guardian does not, before making the disclosure, inform
the senior AFP member nominated under subsection 105.19(5) in relation to
the order that the parent/guardian is proposing to disclose information of
that kind to the other parent/guardian.
Penalty: Imprisonment for 5
years.
(4B) If:
(a) a person (the parent/guardian ) is a parent or guardian of a person
being detained under a preventative detention order (the detainee ); and
(b) the parent/guardian informs the senior AFP member nominated under
subsection 105.19(5) in relation to the order that the parent/guardian
proposes to disclose information of the kind referred to in
paragraph (3)(b) to another parent or guardian of the detainee (the other
parent/guardian );
that senior AFP member may inform the parent/guardian
that the detainee is not entitled to contact the other parent/guardian under
section 105.39.
Note: The
parent/guardian may commit an offence against subsection (2) if the other
parent/guardian is a person the detainee is not entitled to have contact with
under section 105.39 and the parent/guardian does disclose information of
that kind to the other parent/guardian. This is because of the operation of
paragraph (3)(c).
Interpreter assisting in monitoring contact with
detainee
(5) A person (the interpreter ) commits an offence if:
(a) the interpreter is an interpreter who assists in monitoring the
contact that a person being detained under a preventative detention order (the
detainee ) has with someone while the detainee is being detained under the
order; and
(b) the interpreter discloses to another person:
(i) the fact that a preventative detention order has been made in
relation to the detainee; or
(ii) the fact that the detainee is being detained; or
(iii) the period for which the detainee is being detained; or
(iv) any information that interpreter obtains in the course of assisting
in the monitoring of that contact; and
(c) the disclosure occurs while the detainee is being detained under the
order.
Penalty: Imprisonment for 5 years.
Passing on improperly
disclosed information
(6) A person (the disclosure recipient ) commits an offence if:
(a) a person (the earlier discloser ) discloses to the disclosure
recipient:
(i) the fact that a preventative detention order has been made in
relation to a person; or
(ii) the fact that a person is being detained under a preventative
detention order; or
(iii) the period for which a person is being detained under a
preventative detention order; or
(iv) any information that a person who is being detained under a
preventative detention order communicates to a person while the person is
being detained under the order; and
(b) the disclosure by the earlier discloser to the disclosure recipient
contravenes:
(i) subsection (1), (2), (3) or (5); or
(ii) this subsection; and
(c) the disclosure recipient discloses that information to another
person; and
(d) the disclosure by the disclosure recipient occurs while the person
referred to in subparagraph (a)(i), (ii), (iii) or (iv) is being detained
under the order.
Penalty: Imprisonment for 5 years.
Police officer
or interpreter monitoring contact with lawyer
(7) A person (the monitor ) commits an offence if:
(a) the monitor is:
(i) a police officer who monitors; or
(ii) an interpreter who assists in monitoring;
contact that a person being detained under a preventative detention order (the
detainee ) has with a lawyer under section 105.37 while the detainee is
being detained under the order; and
(b) information is communicated in the course of that contact; and
(c) the information is communicated for one of the purposes referred to
in subsection 105.37(1); and
(d) the monitor discloses that information to another person.
(1) A police officer must not question a person while the person is
being detained under a preventative detention order except for the purposes
of:
(a) determining whether the person is the person specified in the order;
or
(b) ensuring the safety and well-being of the person being detained; or
(c) allowing the police officer to comply with a requirement of this
Division in relation to the person's detention under the order.
Note
1: This subsection will not apply to the
person if the person is released from detention under the order (even though
the order may still be in force in relation to the person).
Note
2: A contravention of this subsection may
be an offence under section 105.45.
(2) An ASIO employee or an ASIO affiliate must not question a person
while the person is being detained under a preventative detention order.
Note 1: This subsection will not apply to
the person if the person is released from detention under the order (even
though the order may still be in force in relation to the person).
Note
2: A contravention of this subsection may
be an offence under section 105.45.
(3) An AFP member, or an ASIO employee or an ASIO affiliate, must not
question a person while the person is being detained under an order made under
a corresponding State preventative detention law.
Note
1: This subsection will not apply to the
person if the person is released from detention under the order (even though
the order may still be in force in relation to the person).
Note
2: A contravention of this subsection may
be an offence under section 105.45.
(4) If a police officer questions a person while the person is being
detained under a preventative detention order, the police officer who is
detaining the person must ensure that:
(a) a video recording is made of the questioning if it is practicable to
do so; or
(b) an audio recording is made of the questioning if it is not
practicable for a video recording to be made of the questioning.
Note: A contravention of
this subsection may be an offence under section 105.45.
(5) Subsection (4) does not apply if:
(a) the questioning occurs to:
(i) ensure the safety and well being of the person being detained; or
(ii) determine whether the person is the person specified in the order;
and
(b) complying with subsection (4) is not practicable because of the
seriousness and urgency of the circumstances in which the questioning occurs.
Note: A defendant bears
an evidential burden in relation to the matter in subsection (5) (see
subsection 13.3(3)).
(6) A recording made under subsection (4) must be kept for the
period of 12 months after the recording is made.
(1) A police officer must not take identification material from a person
who is being detained under a preventative detention order except in
accordance with this section.
Note: A contravention of
this subsection may be an offence under section 105.45.
(2) A police officer who is of the rank of sergeant or higher may take
identification material from the person, or cause identification material from
the person to be taken, if:
(a) the person consents in writing; or
(b) the police officer believes on reasonable grounds that it is
necessary to do so for the purpose of confirming the person's identity as the
person specified in the order.
(3) A police officer may use such force as is necessary and reasonable
in the circumstances to take identification material from a person under this
section.
(4) Subject to this section, a police officer must not take
identification material (other than hand prints, fingerprints, foot prints or
toe prints) from the person if the person:
(a) is under 18 years of age; or
(b) is incapable of managing his or her affairs;
unless a Judge of the
Federal Circuit Court of Australia orders that the material be taken.
Note: A contravention of
this subsection may be an offence under section 105.45.
(5) In deciding whether to make such an order, the Judge of the Federal
Circuit Court of Australia must have regard to:
(a) the age, or any disability, of the person; and
(b) such other matters as the Judge of the Federal Circuit Court of
Australia thinks fit.
(6) The taking of identification material from a person who:
(a) is under 18 years of age; or
(b) is incapable of managing his or her affairs;
must be done in the
presence of:
(c) a parent or guardian of the person; or
(d) if a parent or guardian of the person is not acceptable to the
person--another appropriate person.
Note
1: For appropriate person , see
subsection (11).
Note 2: A
contravention of this subsection may be an offence under section 105.45.
(7) Despite this section, identification material may be taken from a
person who is under 18 years of age and is capable of managing his or her
affairs if:
(a) subsections (8) and (9) are satisfied; or
(b) subsection (8) or (9) is satisfied (but not both) and a Judge
of the Federal Circuit Court of Australia orders that the material be taken.
In deciding whether to make such an order, the Judge of the Federal Circuit
Court of Australia must have regard to the matters set out in
subsection (5).
(8) This subsection applies if the person agrees in writing to the
taking of the material.
(9) This subsection applies if either:
(a) a parent or guardian of the person; or
(b) if a parent or guardian is not acceptable to the person--another
appropriate person;
agrees in writing to the taking of the material.
Note: For appropriate
person , see subsection (11).
(10)
Despite this section, identification material may be taken from a person who:
(a) is at least 18 years of age; and
(b) is capable of managing his or her affairs;
if the person consents
in writing.
(11) A reference in this section to an appropriate person in relation to
a person (the subject ) who is under 18 years of age, or incapable of managing
his or her affairs, is a reference to a person who:
(a) is capable of representing the subject's interests; and
(b) as far as is practicable in the circumstances, is acceptable to the
subject and the police officer who is detaining the subject; and
(1) A function of making an order conferred on a Judge of the Federal
Circuit Court of Australia by section 105.43 is conferred on the Judge of
the Federal Circuit Court of Australia in a personal capacity and not as a
court or a member of a court.
(2) Without limiting the generality of subsection (1), an order
made by a Judge of the Federal Circuit Court of Australia under
section 105.43 has effect only by virtue of this Act and is not to be
taken by implication to be made by a court.
(3) A Judge of the Federal Circuit Court of Australia performing a
function of, or connected with, making an order under section 105.43 has
the same protection and immunity as if he or she were performing that function
as, or as a member of, the Federal Circuit Court of Australia.
(1) The AFP Minister must, as soon as practicable after each
30 June, cause to be prepared a report about the operation of this
Division during the year ended on that 30 June.
(2) Without limiting subsection (1), a report relating to a year
must include the following matters:
(a) the number of initial preventative detention orders made under
section 105.8 during the year;
(b) the number of continued preventative detention orders made under
section 105.12 during the year;
(c) whether a person was taken into custody under each of those orders
and, if so, how long the person was detained for;
(d) particulars of:
(i) any complaints made or referred to the Commonwealth Ombudsman during
the year that related to the detention of a person under a preventative
detention order; and
(ii) any information given under section 40SA of the
Australian Federal Police Act 1979during the year that related to the
detention of a person under a preventative detention order and raised an AFP
conduct or practices issue (within the meaning of that Act);
(e) the number of prohibited contact orders made under
sections 105.15 and 105.16 during the year;
(f) the number of preventative detention orders, and the number of
prohibited contact orders, that a court has found not to have been validly
made or that the Administrative Appeals Tribunal has declared to be void.
(3) The AFP Minister must cause copies of the report to be laid before
each House of the Parliament within 15 sitting days of that House after the
report is completed.
105.49 Queensland public
interest monitor functions and powers not affected
This Division does not affect a function or power that the Queensland public
interest monitor, or a Queensland deputy public interest monitor, has under a
law of Queensland.
(5) An application may be made to the Administrative Appeals Tribunal
for review of:
(a) a decision by an issuing authority under section 105.8 or
105.12 to make a preventative detention order; or
(b) a decision by an issuing authority in relation to a preventative
detention order to extend or further extend the period for which the order is
in force in relation to a person.
The application cannot be made while the
order is in force.
(6) The power of the Administrative Appeals Tribunal to review a
decision referred to in subsection (5) may be exercised by the Tribunal
only in the Security Division of the Tribunal.
(7) The Administrative Appeals Tribunal may:
(a) declare a decision referred to in subsection (5) in relation to
a preventative detention order in relation to a person to be void if the
Tribunal would have set the decision aside if an application for review of the
decision had been able to be made to the Tribunal while the order was in
force; and
(b) determine that the Commonwealth should compensate the person in
relation to the person's detention under the order if the Tribunal declares
the decision to be void under paragraph (a).
(8) If the Administrative Appeals Tribunal makes a determination under
paragraph (7)(b), the Commonwealth is liable to pay the compensation
determined by the Tribunal.
(9) The provisions of the Administrative Appeals Tribunal Act 1975apply
in relation to an application to the Administrative Appeals Tribunal for
review of a decision referred to in subsection (5) with the modifications
specified in the regulations made under this Act.
(a) a person is detained under a preventative detention order (the
Commonwealth order ) that is made on the basis of:
(i) assisting in preventing a terrorist act occurring within a period;
or
(ii) preserving evidence of, or relating to, a terrorist act; and
(b) the person is detained under an order (the State order ) that is
made under a corresponding State preventative detention law on the basis of:
(i) assisting in preventing the same terrorist act, or a different
terrorist act, occurring within that period; or
(ii) preserving evidence of, or relating to, the same terrorist act; and
(c) the person brings proceedings before a court of a State or Territory
in relation to:
(i) the application for, or the making of, the State order; or
(ii) the person's treatment in connection with the person's detention
under the State order.
(2) The court may:
(a) review the application for, or the making of, the Commonwealth
order, or the person's treatment in connection with the person's detention
under the Commonwealth order, on the same grounds as those on which the court
may review the application for, or the making of, the State order, or the
person's treatment in connection with the person's detention under the State
order; and
(b) grant the same remedies in relation to the application for, or the
making of, the Commonwealth order, or the person's treatment in connection
with the person's detention under the Commonwealth order, as those the court
can grant in relation to the application for, or the making of, the State
order, or the person's treatment in connection with the person's detention
under the State order.
(3) If:
(a) the person applies to the court for:
(i) review of the application for, or the making of, the Commonwealth
order or the person's treatment in connection with the person's detention
under the Commonwealth order; or
(ii) a remedy in relation to the application for, or the making of, the
Commonwealth order or the person's treatment in connection with the person's
detention under the Commonwealth order; and
(b) the person applies to the court for an order under this subsection;
the court may order the Commissioner of the Australian Federal Police to give
the court, and the parties to the proceedings, the information that was put
before the person who issued the Commonwealth order when the application for
the Commonwealth order was made.
(4) Subsection (3) does not require information to be given to the
court, or the parties to the proceedings, if the disclosure of the information
is likely to prejudice national security (within the meaning of the
National Security Information (Criminal and Civil Proceedings) Act 2004).
The object of this Division is to ensure the safety and protection of the
community by providing for the continuing detention of terrorist offenders who
pose an unacceptable risk of committing serious Part 5.3 offences if
released into the community.
"Commonwealth law enforcement officer" has the meaning
given by Part 7.8.
"continuing detention order" means an order made
under subsection 105A.7(1).
"continuing detention order decision"
means:
(a) a decision on an application for a continuing detention order or an
interim detention order; or
(b) a decision in a review of a continuing detention order to affirm,
revoke or vary the order; or
(c) a decision made under section 105A.15A (when a terrorist
offender is unable to engage a legal representative).
"continuing detention
order proceeding" means a proceeding under Subdivision C or D.
"intelligence
or security officer" has the meaning given by Part 10.6.
"interim
detention order" means an order made under subsection 105A.9(2).
"prison" includes any gaol, lock-up or other place of detention.
"relevant
expert" means any of the following persons who is competent to assess the risk
of a terrorist offender committing a serious Part 5.3 offence if the
offender is released into the community:
(a) a person who is :
(i) registered as a medical practitioner under a law of a State or
Territory; and
(ii) a fellow of the Royal Australian and New Zealand College of
Psychiatrists;
(b) any other person registered as a medical practitioner under a law of
a State or Territory;
(c) a person registered as a psychologist under a law of a State or
Territory;
(d) any other expert.
serious Part 5.3 offence means an offence
against this Part, the maximum penalty for which is 7 or more years of
imprisonment.
"terrorist offender" : see section 105A.2A,
subsection 105A.3(1) and section 105A.18.
For the purposes of this Division (except section 105A.4), if a person
escapes from custody, the person is taken to be detained in custody and
serving a sentence of imprisonment until the person resumes serving the
person's sentence.
(1) A continuing detention order may be made under section 105A.7
in relation to a person (the terrorist offender ) if:
(a) the person has been convicted of:
(i) an offence against Subdivision A of Division 72 (international
terrorist activities using explosive or lethal devices); or
(iii) a serious Part 5.3 offence; or
(iv) an offence against Part 5.5 (foreign incursions and
recruitment) , except an offence against subsection 119.7(2) or (3)
(publishing recruitment advertisements); or
(i) the person is detained in custody and serving a sentence of
imprisonment for the offence;
(ia) the person is detained in custody and serving a sentence of
imprisonment for an offence other than the offence referred to in
paragraph (a), and has been continuously detained in custody since being
convicted of the offence referred to in that paragraph;
(ii) a continuing detention order or interim detention order is in force
in relation to the person; and
(c) if subparagraph (b)(i) applies--the person will be at least 18
years old when the sentence referred to in that subparagraph ends; and
(d) if subparagraph (b)(ia) applies--the person will be at least 18
years old when the sentence referred to in that subparagraph ends.
Note: Before making the
order, a Court must be satisfied of certain matters under section 105A.7.
(1A) To avoid
doubt, subparagraph (1)(b)(ia) applies:
(a) whether the offence for which the person is serving the sentence of
imprisonment is an offence against a law of the Commonwealth, a State or a
Territory; and
(b) whether the sentence served for the offence referred to in
paragraph (1)(a) was served concurrently or cumulatively, or both, with:
(i) the sentence referred to in subparagraph (1)(b)(ia); or
(ii) any of the other sentences served by the person since being
convicted of the offence referred to in paragraph (1)(a) (the other
sentences ); and
(c) whether the sentence referred to in subparagraph (1)(b)(ia) or
the other sentences were imposed before or after, or at the same time as, the
sentence for the offence referred to in paragraph (1)(a); and
(d) whether or not the person has been continuously serving a sentence
of imprisonment for an offence since being convicted of the offence referred
to in paragraph (1)(a).
(2) The effect of the order is to commit the offender to detention in a
prison for the period the order is in force.
Note
1: The period must not be more than 3
years (see subsection 105A.7(5)).
Note
2: An arrangement with a State or
Territory must be in force for an offender to be detained at a prison of the
State or Territory (see subsection 105A.21(2)).
Note
3: The offender may not be eligible to be
released on bail or parole while the continuing detention order is in force
(see section 105A.24).
(1) A terrorist offender who is detained in a prison under a continuing
detention order must be treated in a way that is appropriate to his or her
status as a person who is not serving a sentence of imprisonment, subject to
any reasonable requirements necessary to maintain:
(a) the management, security or good order of the prison; and
(b) the safe custody or welfare of the offender or any prisoners; and
(c) the safety and protection of the community.
(2) The offender must not be accommodated or detained in the same area
or unit of the prison as persons who are in prison for the purpose of serving
sentences of imprisonment unless:
(a) it is reasonably necessary for the purposes of rehabilitation,
treatment, work, education, general socialisation or other group activities;
or
(b) it is necessary for the security or good order of the prison or the
safe custody or welfare of the offender or prisoners; or
(c) it is necessary for the safety and protection of the community; or
(d) the offender elects to be so accommodated or detained.
(3) This section does not apply if the offender is serving a sentence of
imprisonment.
(1) The AFP Minister, or a legal representative of the AFP Minister,
(the applicant ) may apply to a Supreme Court of a State or Territory for a
continuing detention order in relation to a terrorist offender.
(2) However, the application may not be made more than 12 months before
the end of:
(a) a sentence of imprisonment referred to in:
(i) subparagraph 105A.3(1)(b)(i); or
(ii) subparagraph 105A.3(1)(b)(ia);
that the offender is serving, at the end of which the offender would be
required to be released into the community; or
(b) if a continuing detention order is in force in relation to the
offender--the period for which the order is in force.
(2A) The AFP
Minister must ensure that reasonable inquiries are made to ascertain any facts
known to any Commonwealth law enforcement officer or intelligence or security
officer that would reasonably be regarded as supporting a finding that the
order should not be made.
Content of application
(3) The application must:
(a) include any report or other document that the applicant intends, at
the time of the application, to rely on in relation to the application; and
(aa) include:
(i) a copy of any material in the possession of the applicant; and
(ii) a statement of any facts that the applicant is aware of;
that would reasonably be regarded as supporting a finding that the order
should not be made, except any information, material or facts that are likely
to be protected by public interest immunity (whether the claim for public
interest immunity is to be made by the AFP Minister or any other person); and
(b) include information about the offender's age; and
(c) request that the order be in force for a specified period.
Note
1: The period must not be more than 3
years (see subsection 105A.7(5)).
Note
2: Evidence may also be adduced later
under section 105A.14.
Note 3: For
public interest immunity, see also subsection (9).
Giving offender copy
of application
(4) The applicant must, subject to subsection (5), give a copy of
the application to the offender personally within 2 business days after the
application is made.
Note: For giving the
offender documents, see section 105A.15.
(5) The applicant is not required to give to the offender, when the
applicant gives the copy of the application to the offender under
subsection (4), any information included in the application if a Minister
(the decision-maker ) is likely to take any of the following actions in
relation to the information:
(b) seek an arrangement under section 38B of that Act;
(d) seek an order of the Court preventing or limiting disclosure of the
information.
(6) However, the applicant must (subject to subsection (7)) give
the offender personally a complete copy of the application if:
(a) the decision-maker decides not to take any of the actions referred
to in any of paragraphs (5)(a) to (d); or
(b) the Minister gives a certificate referred to in
paragraph (5)(a); or
(c) the Court makes an order in relation to action taken by the
decision-maker under paragraph (5)(b) or (d).
Note: For giving an
offender documents, see section 105A.15.
(7) Subsection (6) is subject to:
(a) the certificate referred to in paragraph (5)(a); or
(b) any order made by the Court.
(8) The copy of the application must be given:
(a) within 2 business days of:
(i) the decision-maker's decision not to take any of the actions
referred to in any of paragraphs (5)(a) to (d); or
(ii) the giving of the certificate referred to in paragraph (5)(a);
or
(iii) the order referred to in paragraph (6)(c) being made; and
(b) within a reasonable period before the preliminary hearing referred
to in section 105A.6.
Public interest immunity
(9) If information (however described) is excluded from an application
on the basis of public interest immunity as mentioned in
paragraph (3)(aa), the applicant must give written notice to the offender
personally stating that the information has been excluded on the basis of
public interest immunity. The notice must be given at the time that a copy of
the application is given to the offender.
(10) To
avoid doubt, nothing in this section imposes an obligation on the offender to
satisfy the Court that a claim of public interest immunity should not be
upheld.
Note: The
offender may seek to access any information, material or facts that are likely
to be protected by public interest immunity (for example, through a subpoena).
Under the law of public interest immunity, the person claiming the immunity
must make and substantiate the claim, and satisfy the Court that the claim
should be upheld.
(1) If an application for a continuing detention order is made to a
Supreme Court of a State or Territory in relation to a terrorist offender, the
Court must hold a preliminary hearing to determine whether to appoint one or
more relevant experts.
(2) The hearing must be held within 28 days after a copy of the
application is given to the offender under subsection 105A.5(4).
(3) The Court may, either at the preliminary hearing or at any later
time in the proceeding, appoint one or more relevant experts if the Court
considers that doing so is likely to materially assist the Court in deciding
whether to make a continuing detention order in relation to the offender.
(3A) The AFP
Minister, the offender, or a legal representative of the AFP Minister or
offender, may nominate one or more relevant experts for the purposes of
subsection (3).
(4) The relevant expert who is appointed must:
(a) conduct an assessment of the risk of the offender committing a
serious Part 5.3 offence if the offender is released into the community;
and
(b) provide a report of the expert's assessment to the Court, the AFP
Minister and the offender.
Note: For giving the
offender documents, see section 105A.15.
Attendance and participation
at assessment
(5) The offender must attend the assessment.
Note: The assessment may
be conducted over a number of sessions.
(5A) None of the
following is admissible in evidence against the offender in criminal or civil
proceedings:
(a) the answer to a question or information given at the assessment;
(b) answering a question or giving information at the assessment.
(6) The Court must ensure that the effect of
subsections (5) and (5A) and paragraph 105A.8(1)(b) is explained to
the offender.
Contents of report
(7) The expert's report may include any one or more of the following
matters:
(a) the expert's assessment of the risk of the offender committing a
serious Part 5.3 offence if the offender is released into the community;
(b) reasons for that assessment;
(c) the pattern or progression to date of behaviour on the part of the
offender in relation to serious Part 5.3 offences, and an indication of
the nature of any likely future behaviour on his or her part in relation
to serious Part 5.3 offences;
(d) efforts made to date by the offender to address the causes of his or
her behaviour in relation to serious Part 5.3 offences, including whether
he or she has actively participated in any rehabilitation or treatment
programs;
(e) if the offender has participated in any rehabilitation or treatment
programs--whether or not this participation has had a positive effect on him
or her;
(f) any relevant background of the offender, including developmental and
social factors;
(g) factors that might increase or decrease any risks that have been
identified of the offender committing a serious Part 5.3 offence if the
offender is released into the community;
(h) any other matters the expert considers relevant.
Other relevant
experts
(8) This section does not prevent the AFP Minister, the offender, or a
legal representative of the AFP Minister or offender, from calling his or her
own relevant expert as a witness in the proceeding.
(1) A Supreme Court of a State or Territory may make a written order
under this subsection if:
(a) an application is made in accordance with section 105A.5 for a
continuing detention order in relation to a terrorist offender; and
(b) after having regard to matters in accordance with
section 105A.8, the Court is satisfied to a high degree of probability,
on the basis of admissible evidence, that the offender poses an unacceptable
risk of committing a serious Part 5.3 offence if the offender is released
into the community; and
(c) the Court is satisfied that there is no other less restrictive
measure that would be effective in preventing the unacceptable risk.
Note
1: An example of a less restrictive
measure is a control order.
Note 2: The
rules of evidence and procedure for civil matters apply when the Court has
regard to matters in accordance with section 105A.8, as referred to in
paragraph (1)(b) of this section (see subsection 105A.8(3) and
section 105A.13).
(2) Otherwise, the Court must dismiss the application.
Onus of
satisfying Court
(3) The AFP Minister bears the onus of satisfying the Court of the
matters referred to in paragraphs (1)(b) and (c).
Period of order
(4) The order must specify the period during which it is in force.
(5) The period must be a period of no more than 3 years that the Court
is satisfied is reasonably necessary to prevent the unacceptable risk.
Court
may make successive continuing detention orders
(6) To avoid doubt, subsection (5) does not prevent a Supreme Court
of a State or Territory making a continuing detention order in relation to a
terrorist offender that begins to be in force immediately after a previous
continuing detention order in relation to the offender ceases to be in force.
(1) In deciding whether the Court is satisfied as referred to in
paragraph 105A.7(1)(b) in relation to a terrorist offender, a Supreme
Court of a State or Territory must have regard to the following matters:
(a) the safety and protection of the community;
(b) any report received from a relevant expert under section 105A.6
in relation to the offender, and the level of the offender's participation in
the assessment by the expert;
(c) the results of any other assessment conducted by a relevant expert
of the risk of the offender committing a serious Part 5.3 offence, and
the level of the offender's participation in any such assessment;
(d) any report, relating to the extent to which the offender can
reasonably and practicably be managed in the community, that has been prepared
by:
(i) the relevant State or Territory corrective services; or
(ii) any other person or body who is competent to assess that extent;
(e) any treatment or rehabilitation programs in which the offender has
had an opportunity to participate, and the level of the offender's
participation in any such programs;
(f) the level of the offender's compliance with any obligations to which
he or she is or has been subject while:
(i) on release on parole for any offence referred to in
paragraph 105A.3(1)(a); or
(ii) subject to a continuing detention order or interim detention order;
(g) the offender's history of any prior convictions for, and findings of
guilt made in relation to, any offence referred to in
paragraph 105A.3(1)(a);
(h) the views of the sentencing court at the time any sentence for any
offence referred to in paragraph 105A.3(1)(a) was imposed on the
offender;
(i) any other information as to the risk of the offender committing a
serious Part 5.3 offence.
(2) Subsection (1) does not prevent the Court from having regard to
any other matter the Court considers relevant.
(3) To avoid doubt, section 105A.13 (civil evidence and procedure
rules in relation to continuing detention order proceedings) applies to the
Court's consideration of the matters referred to in subsections (1) and
(2) of this section.
(1) The AFP Minister, or a legal representative of the AFP Minister, may
apply to a Supreme Court of a State or Territory for an interim detention
order in relation to a terrorist offender if an application has been made to
the Court for a continuing detention order in relation to the offender.
(1A) On receiving
the application for the interim detention order, the Court must hold a hearing
to determine whether to make the order.
(2) The Court may make a written order under this subsection if:
(a) the Court is satisfied that any of the following periods will end
before the application for the continuing detention order has been determined:
(i) if subparagraph 105A.3(1)(b)(i) applies--the sentence of
imprisonment referred to in that subparagraph that the offender is serving;
(ia) if subparagraph 105A.3(1)(b)(ia) applies--the sentence of
imprisonment referred to in that subparagraph that the offender is serving;
(ii) the period for which a continuing detention order or an interim
detention order is in force in relation to the offender; and
(b) the Court is satisfied that there are reasonable grounds for
considering that a continuing detention order will be made in relation to the
offender.
Note: More
than one interim detention order can be made in relation to a person (see
subsection (6)).
(3) The effect of the order is to commit the offender to detention in a
prison while the order is in force.
Period of order
(4) The order must specify the period during which it is in force.
(5) The period must be a period of no more than 28 days that the Court
is satisfied is reasonably necessary to determine the application for the
continuing detention order.
(6) The total period of all interim detention orders made in relation to
the offender before the Court makes a decision on the application for the
continuing detention order must not be more than 3 months.
Treatment of
certain offenders covered by interim detention orders
(7) While an interim detention order is in force in relation to the
offender, section 105A.4 applies as if a continuing detention order were
in force in relation to the offender.
Note:
Section 105A.4 deals with the treatment of a terrorist offender who is in
a prison under a continuing detention order.
(1A) The AFP Minister, or a legal representative of the AFP Minister,
must, before the end of the period referred to in subsection (1B), apply
to a Supreme Court of a State or Territory for a review of a continuing
detention order that is in force in relation to a terrorist offender.
Note: For when an
application is not required to be made, see subsection (2).
(1B) The
application must be made before the end of the period of 12 months after:
(a) the order began to be in force; or
(b) if the order has been reviewed under this Subdivision by a Supreme
Court of a State or Territory--the most recent review ended.
(1)
On receiving the application, t he Court must begin the review of the order
before the end of that period.
Note: For the process
for reviewing a continuing detention order, see section 105A.12.
(2)
Despite subsection (1), an application for a review, and a review, are
not required if an application for a new continuing detention order in
relation to the offender has been made and not withdrawn.
(3) The application must be made to the Court of the State or Territory
where the prison in which the offender is detained is located.
(4) If an application is not made in accordance with this section, the
order ceases to be in force at the end of the period referred to in
subsection (1B).
(1) A terrorist offender, or a legal representative of a terrorist
offender, in relation to whom a continuing detention order is in force may
apply to a Supreme Court of a State or Territory for review of the order.
Note: For the process
for reviewing a continuing detention order, see section 105A.12.
(2) The Court may review the order if the Court is satisfied that:
(a) there are new facts or circumstances which would justify reviewing
the order; or
(b) it would be in the interests of justice, having regard to the
purposes of the order and the manner and effect of its implementation, to
review the order.
(3) Otherwise, the Court must dismiss the application.
(4) The application must be made to the Supreme Court of the State or
Territory where the prison in which the offender is detained is located.
(1) This section applies if, under section 105A.10 or 105A.11, a
Supreme Court of a State or Territory reviews a continuing detention order
that is in force in relation to a terrorist offender.
Parties to the review
(2) The parties to the review are:
(a) the AFP Minister; and
(b) the offender.
Relevant experts
(3) The Court may appoint one or more relevant experts for the purposes
of the review. If the Court does so, subsections 105A.6(4) to (7) apply
in relation to the review.
(3A) The AFP
Minister, the offender, or a legal representative of the AFP Minister or
offender, may nominate one or more relevant experts for the purposes of
subsection (3).
(3B) Subsection (3) does not prevent the AFP Minister, the
offender, or a legal representative of the AFP Minister or offender, from
calling his or her own relevant expert as a witness in the review.
Affirming
or revoking the order
(4) The Court may affirm the order if:
(a) after having regard to the matters referred to in
section 105A.8, the Court is satisfied to a high degree of probability,
on the basis of admissible evidence, that the offender poses an unacceptable
risk of committing a serious Part 5.3 offence if the offender is released
into the community; and
(b) the Court is satisfied that there is no other less restrictive
measure that would be effective in preventing the unacceptable risk.
Note
1: An example of a less restrictive
measure is a control order.
Note 2: The
rules of evidence and procedure for civil matters apply when the Court has
regard to matters in accordance with section 105A.8, as referred to in
paragraph (4)(a) of this section (see subsection 105A.8(3) and
section 105A.13).
(5) Otherwise, the Court must revoke the order.
Onus of satisfying
Court
(5A) The
AFP Minister must ensure that reasonable inquiries are made to ascertain any
facts known to any Commonwealth law enforcement officer or intelligence or
security officer that would reasonably be regarded as supporting a finding
that the order should not be affirmed.
(6) The AFP Minister bears the onus of satisfying the Court of the
matters referred to in subsection (4).
(6A) The AFP
Minister, or the legal representative of the AFP Minister, must present to the
Court:
(a) a copy of any material in the possession of the AFP Minister or
legal representative; and
(b) a statement of any facts that the AFP Minister or legal
representative is aware of;
that would reasonably be regarded as supporting
a finding that the order should not be affirmed.
Varying the period
specified by the order
(7) The Court must vary the order to specify a shorter period for which
the order will be in force if:
(a) the Court affirms the order under subsection (4); but
(b) the Court is not satisfied that the period currently specified is
reasonably necessary to prevent the unacceptable risk.
The shorter period
must be a period that the Court is satisfied is reasonably necessary to
prevent the unacceptable risk.
(1) A Supreme Court of a State or Territory must, subject to
subsection (2), apply the rules of evidence and procedure for civil
matters during a continuing detention order proceeding.
(2) Despite anything in the rules of evidence and procedure, the Court
may receive in evidence in the proceeding evidence of:
(a) the level of the offender's compliance with any obligations to which
he or she is or has been subject while on release on parole for any offence;
and
(b) the offender's history of any prior convictions for, and findings of
guilt made in relation to, any offence.
A party to a continuing detention order proceeding in a Supreme Court of a
State or Territory may adduce evidence (including by calling witnesses or
producing material), or make submissions, to the Court in relation to the
proceeding.
(1) A document that is required to be given under this Division to a
terrorist offender who is detained in a prison is taken to have been given to
the offender at the time referred to in paragraph (3)(b) if the document
is given to the following person (the recipient ):
(a) the legal representative of the offender;
(b) if the offender does not have a legal representative--the chief
executive officer (however described) of the prison, or a delegate of the
chief executive officer.
(2) The
recipient must, as soon as reasonably practicable, give the document to the
offender personally.
(3) Once the
recipient has done so, he or she must notify the Court and the person who gave
the recipient the document, in writing:
(a) that the document has been given to the offender; and
(a) a continuing detention order proceeding relating to a terrorist
offender is before a Supreme Court of a State or Territory; and
(b) the offender, due to circumstances beyond the offender's control, is
unable to engage a legal representative in relation to the proceeding.
(2) The Court may make either or both of the following orders:
(a) an order staying the proceeding for such period and subject to such
conditions as the Court thinks fit;
(b) an order requiring the Commonwealth to bear, in accordance with the
regulations (if any), all or part of the reasonable costs and expenses of the
offender's legal representation for the proceeding.
(3) The regulations may prescribe matters that the Court may, must or
must not take into account in determining either or both of the following:
(a) whether circumstances are beyond the offender's control;
(b) reasonable costs and expenses of the offender's legal representation
for the proceeding.
(4) This section does not limit any other power of the Court.
(1) An appeal lies to the court of appeal (however described) of a State
or Territory if:
(a) the Supreme Court of the State or Territory makes a continuing
detention order decision; and
(b) the court of appeal has jurisdiction to hear appeals from the
Supreme Court in relation to civil matters.
(2) The appeal is to be by way of rehearing. In particular, in relation
to the appeal, the court of appeal:
(a) subject to this subsection, has all the powers, functions and duties
that the Supreme Court has in relation to the relevant continuing detention
order proceedings; and
(b) may draw inferences of fact which are not inconsistent with the
findings of the Supreme Court; and
(c) may receive further evidence as to questions of fact (orally in
court, by affidavit or in any other way) if the court of appeal is satisfied
that there are special grounds for doing so.
(3) The appeal against the decision of the Supreme Court may be made:
(a) as of right, within 28 days after the day on which the decision was
made; or
(b) by leave, within such further time as the court of appeal allows.
(4) The making of the appeal does not stay the operation of the order.
(5) This section does not limit any other right of appeal that exists
apart from this section.
(1) This section applies in relation to a continuing detention order
proceeding if:
(a) the proceeding is any of the following:
(i) a proceeding on an application for a continuing detention order in
relation to a terrorist offender;
(ii) an appeal against a decision to dismiss such an application;
(iii) an appeal against a decision to revoke a continuing detention
order in relation to a terrorist offender;
(iv) an appeal against a decision (including in a review of such an
order) to specify a particular period for which such an order will be in
force;
(v) an appeal against a decision under section 105A.15A to stay a
continuing detention order proceeding in relation to a terrorist offender
(including a decision under that section to stay a proceeding for a specified
period or to impose a specified condition); and
(b) before the application or appeal is determined (whether before or
after the appeal is made), the offender is released from custody because:
(i) if subparagraph 105A.3(1)(b)(i) applies--the sentence of
imprisonment referred to in that subparagraph that the offender was serving
ends; or
(ia) if subparagraph 105A.3(1)(b)(ia) applies--the sentence of
imprisonment referred to in that subparagraph that the offender was serving
ends; or
(ii) the period for which a continuing detention order or an interim
detention order is in force in relation to the offender ends; or
(iii) a continuing detention order in force in relation to the offender
was revoked as referred to in subparagraph (a)(iii) of this subsection.
(2) For the purposes of the continuing detention order proceeding:
(a) the offender is taken to remain a terrorist offender:
(i) who is detained in custody and serving a sentence of imprisonment;
or
(ii) in relation to whom a continuing detention order or interim
detention order is in force;
despite being released from custody; and
(b) a reference in this Division to the offender being released into the
community includes a reference to the offender remaining in the community.
Power of police officer to detain terrorist offender
(3) If a continuing detention order or interim detention order is in
force in relation to the offender at any time after the offender is released
as mentioned in paragraph (1)(b):
(a) any police officer may take the offender into custody; and
(b) any police officer may detain the offender;
for the purpose of
giving effect to the order.
(4) A police officer, in:
(a) taking the offender into custody; or
(b) detaining the offender;
under subsection (3) has the same
powers and obligations as the police officer would have if the police officer
were arresting the offender, or detaining the offender, for an offence.
(5) In subsection (4):
"offence" means:
(a) if the police officer is an AFP member--an offence against a law of
the Commonwealth; or
(b) if the police officer is not an AFP member--an offence against a law
of the State or Territory of whose police force the police officer is a
member.
(1) The AFP Minister may request a person prescribed by the regulations
for the purposes of this subsection to give the AFP Minister information that
the AFP Minister reasonably believes to be relevant to the administration or
execution of this Division.
(2) The request need not be in writing.
Disclosing information
(3) The AFP Minister may disclose information to a person prescribed by
the regulations for the purposes of this subsection if:
(a) the information was acquired by any of the following in the exercise
of a power under, or the performance of a function or duty in connection with,
this Division:
(i) the AFP Minister;
(ii) a legal representative of the AFP Minister;
(iii) the Secretary of the Department administered by the AFP Minister;
(iv) an APS employee in the Department administered by the AFP Minister;
and
(b) the AFP Minister reasonably believes that the disclosure is
necessary to enable the person to exercise the person's powers, or to perform
the person's functions or duties; and
(c) if the regulations provide that information may be disclosed to the
person only if specified circumstances are met--those circumstances are met.
(4) Subsection (3) applies despite any other law of the
Commonwealth, a State or a Territory (whether written or unwritten).
(1) The AFP Minister may arrange for a terrorist offender in relation to
whom a continuing detention order or interim detention order is in force to be
detained in a prison of a State or Territory.
(2) If an arrangement is made under subsection (1), the continuing
detention order or interim detention order is taken to authorise the chief
executive officer (however described) of the prison to detain the offender at
the prison while the order is in force.
(1) The AFP Minister must, as soon as practicable after each
30 June, cause a report to be prepared about the operation of this
Division during the year ended on that 30 June.
(2) Without limiting subsection (1), a report relating to a year
must include the number of each of the following:
(a) applications for continuing detention orders made during the year;
(b) applications for interim detention orders made during the year;
(c) continuing detention orders made during the year;
(d) interim detention orders made during the year;
(e) applications for review of continuing detention orders made by
terrorist offenders during the year;
(f) continuing detention orders affirmed during the year;
(g) continuing detention orders varied during the year;
(h) continuing detention orders revoked during the year.
(3) The AFP Minister must cause copies of the report to be laid before
each House of the Parliament within 15 sitting days of that House after the
report is completed.
(1) A court that is sentencing a person who is convicted of an offence
referred to in paragraph 105A.3(1)(a) must warn the person that an
application may be made under this Division for a continuing detention order
requiring the person to be detained in a prison after the end of the person's
sentence for the offence, or at the end of any later sentence if the person is
continuously detained in custody and would otherwise be released into the
community.
(2) A failure by the court to comply with subsection (1) does not:
(a) affect the validity of the sentence for the offence; or
(b) prevent an application from being made under this Division in
relation to the person.
(1) A person in relation to whom a continuing detention order or an
interim detention order is in force is not eligible to be released on bail or
parole until the order ceases to be in force.
(2) Subsection (1) does not prevent the person from applying,
before the order ceases to be in force, to be released on bail if the person
is charged with an offence while the order is in force.
Note: Although the
person can apply to be released on bail, as a result of subsection (1),
the person cannot be released on bail until the continuing detention order
ceases to be in force.
(3) This section applies despite any law of the Commonwealth, a State or
a Territory.
A continuing detention order, and an interim detention order, cannot be
applied for, or made, after the end of 10 years after the day the Criminal
Code Amendment (High Risk Terrorist Offenders) Act 2016 received the Royal
Assent.
(a) regulations were made before commencement for the purposes of
paragraph (c) of the definition of terrorist organisation in
subsection 102.1(1), as in force before commencement; and
(b) the regulations were in force immediately before commencement;
the
regulations have effect, after commencement, as if they had been made for the
purposes of paragraph (b) of the definition of terrorist organisation in
subsection 102.1(1), as in force after commencement.
(2) In this section, commencement means the commencement of this
section.
(a) regulations were made before commencement for the purposes of
paragraph (a) of the definition of terrorist organisation in
subsection 102.1(1), as in force before commencement; and
(b) the regulations were in force immediately before commencement;
the
regulations continue to have effect, after commencement, as if they had been
made for the purposes of that paragraph, as in force after commencement.
(2) In this section, commencement means the commencement of this
section.
(1) An appointment that is in force immediately before the commencement
of this section under subsection 105.2(1) in respect of a Federal
Magistrate continues in force, after that commencement, as an appointment in
respect of a Judge of the Federal Circuit Court of Australia under that
subsection.
(2) A consent that is in force immediately before the commencement of
this section under subsection 105.2(2) in respect of a Federal Magistrate
continues in force, after that commencement, as a consent in respect of a
Judge of the Federal Circuit Court of Australia.
(3) A thing done by, or in relation to, a Federal Magistrate, as an
issuing authority for continued preventative detention orders, under
Division 105 before the commencement of this section has effect, after
that commencement, as if it had been done by, or in relation to, a Judge of
the Federal Circuit Court of Australia, as an issuing authority for continued
preventative detention orders, under that Division.
(1) The amendments of section 102.1, made by Schedule 1 to the
Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 , do not
affect the continuity of any regulations that are in force for the purposes of
that section immediately before the commencement of this section.
(2) Section 104.2, as amended by Schedule 1 to the
Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 , applies
to requests for interim control orders made after the commencement of this
section, where the conduct in relation to which the request is made occurs
before or after that commencement.
(3) Section 104.4, as amended by Schedule 1 to the
Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 , applies
to the making of orders requested after the commencement of this section,
where the conduct in relation to which the request is made occurs before or
after that commencement.
(4) Sections 104.6 and 104.8, as amended by Schedule 1 to the
Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 , apply
to the making of requests after the commencement of this section, where the
conduct in relation to which the request is made occurs before or after that
commencement.
(8) Section 105.12, as amended by Schedule 1 to the
Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 , applies
in relation to continued preventative detention orders made after the
commencement of this section, regardless of when the initial preventative
detention order to which the continued order relates was made.
(9) Section 105.15, as amended by Schedule 1 to the
Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 , applies
in relation to applications for prohibited contact orders made after the
commencement of this section, regardless of when the application for the
preventative detention order to which the prohibited contact order relates was
made.
(10) Section 105.16, as amended by Schedule 1 to the
Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014, applies
in relation to applications for prohibited contact orders made after the
commencement of this section, regardless of when the preventative detention
order to which the prohibited contact order relates was made.
(1) Section 104.1, as amended by Schedule 1 to the
Counter-Terrorism Legislation Amendment Act (No. 1) 2014, applies in
relation to control orders, where the relevant interim control order is
requested after the commencement of this section.
(2) S ections 104.2, 104.3, 104.10 and 104.12A, as amended by
Schedule 1 to the
Counter-Terrorism Legislation Amendment Act (No. 1) 2014, apply to
requests for interim control orders made after the commencement of this
section, where the conduct in relation to which the request is made occurs
before or after that commencement.
(3)
Section 104.4 and subsection 104.5(1B), as amended by
Schedule 1 to the
Counter-Terrorism Legislation Amendment Act (No. 1) 2014, apply to the
making of orders requested after the commencement of this section, where the
conduct in relation to which the request is made occurs before or after that
commencement .
(4) Sections 104.6 and 104.8, as amended by Schedule 1 to the
Counter-Terrorism Legislation Amendment Act (No. 1) 2014 , apply to the
making of requests after the commencement of this section, where the conduct
in relation to which the request is made occurs before or after that
commencement.
(5) Section 104.14, as amended by Schedule 1 to the
Counter-Terrorism Legislation Amendment Act (No. 1) 2014, applies to
confirmations of control orders, where the relevant interim control order is
requested after that commencement.
(6) Sections 104.20, 104.23 and 104.24, as amended by
Schedule 1 to the Counter-Terrorism Legislation Amendment Act
(No. 1) 2014 , apply to variations of control orders, where the relevant
interim control order is requested after that commencement.
(1) The amendments of section 104.2 made by the Criminal Code
Amendment (High Risk Terrorist Offenders) Act 2016 apply in relation to any
control order, whether made before or after this section commences.
(2) The amendments of subsections 104.5(1) and (1B) and
section 104.12 made by that Act apply in relation to a control order if
the request for the control order is made after this section commences.
(3) Subsections 104.5(1C) and (2AA), as inserted by that Act, apply
in relation to any control order, whether made before or after this section
commences.
(4) The amendments of section 104.17 made by that Act apply in
relation to any interim control order that is declared to be void, revoked or
confirmed after this section commences.
(5) The amendments of section 104.26 made by that Act apply in
relation to any control order varied after this section commences.
(6) Section 104.28B, as inserted by that Act, applies in relation
to the giving of documents after this section commences.
(7)
Division 105A (except section 105A.23), as inserted by that Act,
applies in relation to:
(a) any person who, on the day this section commences, is detained in
custody and serving a sentence of imprisonment for an offence referred to in
paragraph 105A.3(1)(a) of this Code; and
(b) any person who, on or after that day, begins a sentence of
imprisonment for such an offence (whether the conviction for the offence
occurred before, on or after that day).
(8) Section 105A.23, as inserted by that Act, applies in relation
to any sentence imposed on a person after this section commences, whether the
offence in relation to which the sentence is imposed was committed before or
after that commencement.
(1) The amendment of subsection 104.5(1A) made by the
Counter-Terrorism Legislation Amendment Act (No. 1) 2018(the amending
Act ) applies in relation to an interim control order made on or after the day
(the commencement day ) this section commences, including such an order that
was requested before the commencement day.
Note
1: Section 104.5 deals with the terms
of an interim control order.
Note 2:
This section was inserted by the amending Act.
(2) Subdivision CA of Division 104 of this Act, as inserted by the
amending Act, applies in relation to an interim control order made before, on
or after the commencement day.
Note: Subdivision CA of
Division 104 deals with the variation of an interim control order.
(3) Subsection 104.14(3A) of this Act, as inserted by the amending
Act, applies in relation to proceedings for the confirmation of an interim
control order:
(a) if the proceedings start on or after the commencement day; and
(b) whether the original request for the interim control order was made
before, on or after the commencement day.
Note:
Subsection 104.14(3A) deals with the evidentiary status in confirmation
proceedings of such an original request.
(4) Section 104.28AA of this Act, as inserted by the amending Act,
applies in relation to the proceedings in relation to a control order
(including proceedings to vary or revoke a control order) if:
(a) the proceedings start on or after the commencement day; or
(b) the proceedings had started, but not ended, immediately before the
commencement day.
Note:
Section 104.28AA deals with costs in control order proceedings.
(5) Subsections 119.3(5A) and (6) of this Act, as substituted by
the amending Act, apply in relation to a declaration of the Foreign Affairs
Minister made under subsection 119.3(1) before, on or after the
commencement day.
Note:
Subsections 119.3(5A) and (6) deal with the revocation of declarations
made under subsection 119.3(1).
(1) The amendments of Division 105A made by Part 1 of
Schedule 2 to the Counter-Terrorism Legislation Amendment (2019 Measures
No. 1) Act 2019 apply in relation to:
(a) any person who, on the day this section commences, is detained in
custody; and
(b) any person who, on or after that day, begins a sentence of
imprisonment for an offence referred to in paragraph 105A.3(1)(a)
(whether the conviction for the offence occurred before, on or after that
day).
(2) To avoid doubt, the amendments of Division 105A made by
Part 1 of Schedule 2 to the Counter-Terrorism Legislation Amendment
(2019 Measures No. 1) Act 2019 apply in relation to a person referred to
in paragraph (1)(a) of this section whose sentence of imprisonment for an
offence referred to in paragraph 105A.3(1)(a) ended before the day this
section commences.
(3) The amendments of section 105A.5 made by Part 2 of
Schedule 2 to the Counter-Terrorism Legislation Amendment (2019 Measures
No. 1) Act 2019 apply in relation to any application for a continuing
detention order made after the commencement of this section.
(a) the person engages in conduct outside Australia (whether before or
after 1 October 2002 or the commencement of this Code); and
(b) the conduct causes the death of another person; and
(c) the other person is an Australian citizen or a resident of
Australia; and
(d) the first-mentioned person intends to cause, or is reckless as to
causing, the death of the Australian citizen or resident of Australia or any
other person by the conduct; and
(e) if the conduct was engaged in before 1 October 2002--at the
time the conduct was engaged in, the conduct constituted an offence against a
law of the foreign country, or the part of the foreign country, in which the
conduct was engaged.
Note: This section
commenced on 1 October 2002.
(1A) If the
conduct constituting an offence against subsection (1) was engaged in
before 1 October 2002, the offence is punishable on conviction by:
(a) if, at the time the conduct was engaged in, the offence mentioned in
paragraph (1)(e) was punishable on conviction by a term of imprisonment
(other than imprisonment for life)--a maximum penalty of imprisonment for a
term of not more than that term; or
(b) otherwise--a maximum penalty of imprisonment for life.
(1B) If the
conduct constituting an offence against subsection (1) was engaged in on
or after 1 October 2002, the offence is punishable on conviction by a
maximum penalty of imprisonment for life.
(2) Absolute liability applies to paragraphs (1)(c) and (e).
(3) If:
(a) a person has been convicted or acquitted of an offence in respect of
conduct under a law of a foreign country or a part of a foreign country; and
(b) the person engaged in the conduct before 1 October 2002;
the
person cannot be convicted of an offence against this section in respect of
that conduct.
(a) the person engages in conduct outside Australia (whether before or
after 1 October 2002 or the commencement of this Code); and
(b) the conduct causes the death of another person; and
(c) the other person is an Australian citizen or a resident of
Australia; and
(d) the first-mentioned person intends that the conduct will cause
serious harm, or is reckless as to a risk that the conduct will cause serious
harm, to the Australian citizen or resident of Australia or any other person;
and
(e) if the conduct was engaged in before 1 October 2002--at the
time the conduct was engaged in, the conduct constituted an offence against a
law of the foreign country, or the part of the foreign country, in which the
conduct was engaged.
Note: This section
commenced on 1 October 2002.
(1A) If the
conduct constituting an offence against subsection (1) was engaged in
before 1 October 2002, the offence is punishable on conviction by:
(a) if, at the time the conduct was engaged in, the offence mentioned in
paragraph (1)(e) was punishable on conviction by imprisonment for a term
of less than 25 years--a maximum penalty of imprisonment for a term of not
more than that term; or
(b) otherwise--a maximum penalty of imprisonment for a term of not more
than 25 years.
(1B) If the conduct constituting an offence against subsection (1)
was engaged in on or after 1 October 2002, the offence is punishable on
conviction by a maximum penalty of imprisonment for a term of not more than 25
years.
(2) Absolute liability applies to paragraphs (1)(b), (c) and (e).
(3) If:
(a) a person has been convicted or acquitted of an offence in respect of
conduct under a law of a foreign country or a part of a foreign country; and
(b) the person engaged in the conduct before 1 October 2002;
the
person cannot be convicted of an offence against this section in respect of
that conduct.
(a) the person engages in conduct outside Australia; and
(b) the conduct causes serious harm to another person; and
(c) the other person is an Australian citizen or a resident of
Australia; and
(d) the first-mentioned person is reckless as to causing serious harm to
the Australian citizen or resident of Australia or any other person by the
conduct.
Penalty: Imprisonment for 15 years.
(2) Absolute liability applies to paragraph (1)(c).
(1) Proceedings for an offence under this Division must not be commenced
without the Attorney-General's written consent.
(2) However, a person may be arrested, charged, remanded in custody, or
released on bail, in connection with an offence under this Division before the
necessary consent has been given.
(a) whether or not a result of the conduct constituting the alleged
offence occurs in Australia; and
(b) if the alleged offence is an ancillary offence and the conduct to
which the ancillary offence relates occurs outside Australia--whether or not
the conduct constituting the ancillary offence occurs in Australia.
"engage
in a hostile activity" : a person engages in a hostile activity in a foreign
country if the person engages in conduct in that country with the intention of
achieving one or more of the following objectives (whether or not such an
objective is achieved):
(a) the overthrow by force or violence of the government of that or any
other foreign country (or of a part of that or any other foreign country);
(b) the engagement, by that or any other person, in action that:
(i) falls within subsection 100.1(2) but does not fall within
subsection 100.1(3); and
(ii) if engaged in in Australia, would constitute a serious offence;
(c) intimidating the public or a section of the public of that or any
other foreign country;
(d) causing the death of, or bodily injury to, a person who is the head
of state of that or any other foreign country, or holds, or performs any of
the duties of, a public office of that or any other foreign country (or of a
part of that or any other foreign country);
(e) unlawfully destroying or damaging any real or personal property
belonging to the government of that or any other foreign country (or of a part
of that or any other foreign country).
"government" of a foreign country or a part of a foreign country means the
authority exercising effective governmental control in that foreign country or
that part of that foreign country.
"listed terrorist organisation" has the
meaning given by subsection 100.1(1).
"military training" means
training in the use of arms or explosives, or the practice of military
exercises or movements.
"prescribed organisation" is:
(a) an organisation that is prescribed by the regulations for the
purposes of this paragraph; or
(b) an organisation referred to in paragraph (b) of the definition
of terrorist organisation in subsection 102.1(1).
"recruit" includes
induce, incite or encourage.
"serious offence" means an offence against a
law of the Commonwealth, a State or a Territory that is punishable by
imprisonment for 2 years or more.
Prescribing organisations
(2) Before the Governor-General makes a regulation prescribing an
organisation for the purposes of paragraph (a) of the definition of
prescribed organisation in subsection (1), the AFP Minister must be
satisfied on reasonable grounds that the organisation is directly or
indirectly engaged in, preparing, planning, assisting in or fostering:
(a) a serious violation of human rights; or
(b) the engagement, in Australia or a foreign country allied or
associated with Australia, in action that falls within
subsection 100.1(2) but does not fall within subsection 100.1(3); or
(c) a terrorist act (within the meaning of section 100.1); or
Note: A
court that is sentencing a person who has been convicted of an offence against
this Part (except subsection 119.7(2) or (3)) must warn the person about
continuing detention orders (see section 105A.23).
(iv) has voluntarily put himself or herself under the protection of
Australia.
Penalty: Imprisonment for life.
Absolute liability
element
(3) Absolute liability applies to paragraphs (1)(b) and (2)(b).
Note: For absolute
liability, see section 6.2.
Exception
(4) Subsections (1) and (2) do not apply to an act done by a person
in the course of, and as part of, the person's service in any capacity in or
with:
(a) the armed forces of the government of a foreign country; or
(b) any other armed force if a declaration under
subsection 119.8(1) covers the person and the circumstances of the
person's service in or with the force.
Note
1: A defendant bears an evidential burden
in relation to the matter in subsection (4): see subsection 13.3(3).
Note 2: For conduct for the defence or
international relations of Australia, see section 119.9.
(5) Paragraph (4)(a) does not apply if:
(a) the person intends to engage, or engages, in a hostile activity in a
foreign country while in or with an organisation; and
(b) the organisation is a prescribed organisation at the following time:
(i) for subsection (1)--the time of the entry referred to in that
subsection;
(ii) for subsection (2)--the time the person engages in the hostile
activity referred to in that subsection.
(iv) has voluntarily put himself or herself under the protection of
Australia.
Penalty: Imprisonment for 10 years.
Absolute liability
element
(2) Absolute liability applies to paragraph (1)(c).
Note: For absolute
liability, see section 6.2.
Exception--entering or remaining solely for
legitimate purposes
(3) Subsection (1) does not apply if the person enters, or remains
in, the area solely for one or more of the following purposes:
(a) providing
aid of a humanitarian nature;
(b) satisfying an obligation to appear before a court or other body
exercising judicial power;
(c) performing an official duty for the Commonwealth, a State or a
Territory;
(d) performing an official duty for the government of a foreign country
or the government of part of a foreign country (including service in the armed
forces of the government of a foreign country), where that performance would
not be a violation of the law of the Commonwealth, a State or a Territory;
(e) performing an official duty for:
(i) the United Nations, or an agency of the United Nations; or
(ii) the International Committee of the Red Cross;
(f) making a news report of events in the area, where the person is
working in a professional capacity as a journalist or is assisting another
person working in a professional capacity as a journalist;
(g) making a bona fide visit to a family member;
(h) any other purpose prescribed by the regulations.
Note: A defendant bears
an evidential burden in relation to the matter in subsection (3): see
subsection 13.3(3).
Exception--entering or remaining solely for service
with armed force other than prescribed organisation
(4) Subsection (1) does not apply if the person enters, or remains
in, the area solely in the course of, and as part of, the person's service in
any capacity in or with:
(a) the armed forces of the government of a foreign country; or
(b) any other armed force if a declaration under
subsection 119.8(1) covers the person and the circumstances of the
person's service in or with the force.
Note: A defendant bears
an evidential burden in relation to the matter in subsection (4): see
subsection 13.3(3).
(5) However, subsection (4) does not apply if:
(a) the person enters, or remains in, an area in a foreign country while
in or with an organisation; and
(b) the organisation is a prescribed organisation at the time the person
enters or remains in the area as referred to in paragraph (1)(a).
Note
1: For conduct for the defence or
international relations of Australia, see section 119.9.
Note
2: Sections 10.1 and 10.3 also
provide exceptions to subsection (1) of this section (relating to
intervening conduct or event and sudden or extraordinary emergency
respectively).
Sunset provision
(6) This section ceases to have effect at the end of 7 September
2021.
(1) The Foreign Affairs Minister may, by legislative instrument, declare
an area in a foreign country for the purposes of section 119.2 if he or
she is satisfied that a listed terrorist organisation is engaging in a hostile
activity in that area of the foreign country.
(2) A single declaration may cover areas in 2 or more foreign countries
if the Foreign Affairs Minister is satisfied that one or more listed terrorist
organisations are engaging in a hostile activity in each of those areas.
(2A) A
declaration must not cover an entire country.
Requirement to brief Leader of
the Opposition
(3) Before making a declaration, the Foreign Affairs Minister must
arrange for the Leader of the Opposition in the House of Representatives to be
briefed in relation to the proposed declaration.
Cessation of declaration
(4) A declaration ceases to have effect on the third anniversary of the
day on which it takes effect. To avoid doubt, this subsection does not
prevent:
(a) the revocation of the declaration; or
(b) the making of a new declaration the same in substance as the
previous declaration (whether the new declaration is made or takes effect
before or after the previous declaration ceases to have effect because of this
subsection).
Note: An
offence committed in relation to the declared area before the cessation can be
prosecuted after the cessation: see section 7 of the Acts Interpretation
Act 1901 as it applies because of paragraph 13(1)(a) of the
Legislation Act 2003.
(5) If:
(a) an area is declared under subsection (1); and
(b) the Foreign Affairs Minister ceases to be satisfied that a listed
terrorist organisation is engaging in a hostile activity in the area;
the
Foreign Affairs Minister must revoke the declaration.
Note: The Foreign
Affairs Minister may, for example, cease to be satisfied that a listed
terrorist organisation is engaging in a hostile activity in the area if the
organisation ceases to be specified in the regulations.
(5A) Even if
paragraph (5)(b) does not apply in relation to a declaration, the Foreign
Affairs Minister may revoke the declaration if that Minister considers it
necessary or desirable to do so.
(6) To avoid doubt, if a declaration of an area is revoked under
subsection (5) or (5A), the revocation of the declaration does not
prevent the area from being subsequently declared under subsection (1) if
the Foreign Affairs Minister becomes, or remains, satisfied as mentioned in
subsection (1).
(7) The Parliamentary Joint Committee on Intelligence and Security may:
(a) review a declaration; and
(b) report the Committee's comments and recommendations to each House of
the Parliament before the end of the applicable disallowance period for that
House.
(iv) has voluntarily put himself or herself under the protection of
Australia; or
(v) is a body corporate incorporated by or under a law of the
Commonwealth or of a State or Territory.
Penalty: Imprisonment for
life.
Accumulating weapons etc.
(2) A person commits an offence if:
(a) the person (whether within or outside Australia) accumulates,
stockpiles or otherwise keeps arms, explosives, munitions, poisons or weapons;
and
(b) the person engages in that conduct with the intention that an
offence against section 119.1 will be committed (whether by that or any
other person); and
(c) when the person engages in the conduct, the person:
(iv) has voluntarily put himself or herself under the protection of
Australia; or
(v) is a body corporate incorporated by or under a law of the
Commonwealth or of a State or Territory.
Penalty: Imprisonment for
life.
Providing or participating in training
(3) A person commits an offence if:
(a) the person engages in any of the following conduct (whether within
or outside Australia):
(i) providing military training to another person;
(ii) participating in providing military training to another person;
(iii) being present at a meeting or assembly of persons, where the
person intends at that meeting or assembly to provide, or participate in
providing, military training to another person; and
(b) the person engages in the conduct intending to prepare the other
person to commit an offence against section 119.1; and
(c) when the person engages in the conduct, the person:
(iv) has voluntarily put himself or herself under the protection of
Australia; or
(v) is a body corporate incorporated by or under a law of the
Commonwealth or of a State or Territory.
Penalty: Imprisonment for
life.
(4) A person commits an offence if:
(a) the person engages in conduct of either of the following kinds
(whether within or outside Australia):
(i) allowing military training to be provided to himself or herself;
(ii) allowing himself or herself to be present at a meeting or assembly
of persons intending to allow military training to be provided to himself or
herself; and
(b) the person engages in the conduct with the intention of committing
an offence against section 119.1; and
(c) when the person engages in the conduct, the person:
(iv) has voluntarily put himself or herself under the protection of
Australia; or
(v) is a body corporate incorporated by or under a law of the
Commonwealth or of a State or Territory.
Penalty: Imprisonment for
life.
Absolute liability element
(6) Absolute liability applies to paragraphs (1)(c), (2)(c),
(3)(c), (4)(c) and (5)(c).
Note: For absolute
liability, see section 6.2.
Exception
(7) This section does not apply if the person engages in conduct solely
by way of, or for the purposes of, the provision of aid of a humanitarian
nature.
Note 1: A defendant bears an
evidential burden in relation to the matter in subsection (7): see
subsection 13.3(3).
Note 2: For
conduct for the defence or international relations of Australia, see
section 119.9.
Disregarding paragraphs 119.1(1)(b) and (2)(b)
(8) A reference in this section to the commission of an offence against
section 119.1 includes a reference to doing an act that would constitute
an offence against section 119.1 if paragraphs 119.1(1)(b) and (2)(b)
were disregarded.
(a) the person is an owner, lessee, occupier, agent or superintendent of
any building, room, premises or other place; and
(b) the person permits a meeting or assembly of persons to be held in
that place (whether the person or the place is within or outside Australia);
and
(c) by permitting the meeting or assembly to be so held, the person
intends to commit, or support or promote the commission of, an offence against
section 119.4; and
(d) when the person permits the meeting to be so held, the person:
(iv) has voluntarily put himself or herself under the protection of
Australia; or
(v) is a body corporate incorporated by or under a law of the
Commonwealth or of a State or Territory.
Penalty: Imprisonment for
life.
Absolute liability element
(3) Absolute liability applies to paragraphs (1)(d) and (2)(d).
Note: For absolute
liability, see section 6.2.
Exception
(4) This section does not apply if the person engages in conduct solely
by way of, or for the purposes of, the provision of aid of a humanitarian
nature.
Note 1: A defendant bears an
evidential burden in relation to the matter in subsection (4): see
subsection 13.3(3).
Note 2: For
conduct for the defence or international relations of Australia, see
section 119.9.
(a) the person recruits, in Australia, another person to become a member
of, or to serve in any capacity with, a body or association of persons; and
(b) the objectives of the body or association include any one or more of
the objectives referred to in the definition of engage in a hostile activity
in subsection 117.1(1).
Note: For conduct for
the defence or international relations of Australia, see section 119.9.
Recruiting others to
serve with foreign armed forces
(1) A person commits an offence if the person recruits, in Australia,
another person to serve in any capacity in or with an armed force in a foreign
country.
Penalty: Imprisonment for 10 years.
Publishing recruitment
advertisements
(2) A person commits an offence if:
(a) the person publishes in Australia:
(i) an advertisement; or
(ii) an item of news that was procured by the provision or promise of
money or any other consideration; and
(b) the person is reckless as to the fact that the publication of the
advertisement or item of news is for the purpose of recruiting persons to
serve in any capacity in or with an armed force in a foreign country.
Penalty: Imprisonment for 10 years.
(3) A person commits an offence if:
(a) the person publishes in Australia:
(i) an advertisement; or
(ii) an item of news that was procured by the provision or promise of
money or any other consideration; and
(b) the advertisement or item of news contains information:
(i) relating to the place at which, or the manner in which, persons may
make applications to serve, or obtain information relating to service, in any
capacity in or with an armed force in a foreign country; or
(ii) relating to the manner in which persons may travel to a foreign
country for the purpose of serving in any capacity in or with an armed force
in a foreign country.
Penalty: Imprisonment for 10 years.
Facilitating recruitment
(4) A person commits an offence if:
(a) the person engages in conduct in Australia; and
(b) the person engages in the conduct intending to facilitate or promote
the recruitment of persons to serve in any capacity in or with an armed force
in a foreign country.
Penalty: Imprisonment for 10 years.
Exception
(5) This section does not apply in relation to service of a person in or
with an armed force in circumstances if a declaration under
subsection 119.8(2) covers the person and the circumstances of the
person's service in or with the armed force.
Note
1: A defendant bears an evidential burden
in relation to the matter in subsection (5): see subsection 13.3(3).
Note 2: For conduct for the defence or
international relations of Australia, see section 119.9.
Armed forces
that are not part of the government of a foreign country
(6) A reference in this section to an armed force in a foreign country
includes any armed force in a foreign country, whether or not the armed force
forms part of the armed forces of the government of that foreign country.
(7) Without limiting this section, a person recruits another person to
serve in or with an armed force in a foreign country if the other person
enters a commitment or engagement to serve in any capacity in or with an armed
force, whether or not the commitment or engagement is legally enforceable or
constitutes legal or formal enlistment in that force.
(1) The AFP Minister may, by legislative instrument, declare that
section 119.1 or 119.2 does not apply to a specified person or class of
persons in any circumstances or specified circumstances if the AFP Minister is
satisfied that it is in the interests of the defence or international
relations of Australia to permit the service of that person or class of
persons in those circumstances in or with:
(a) a specified armed force in a foreign country; or
(b) a specified armed force in a foreign country in a specified
capacity.
Recruitment
(2) The AFP Minister may, by legislative instrument, declare that
section 119.7 does not apply to a specified person or class of persons in
any circumstances or specified circumstances if the AFP Minister is satisfied
that it is in the interests of the defence or international relations of
Australia to permit the recruitment in Australia of that person or class of
persons to serve in those circumstances in or with:
(a) a specified armed force in a foreign country; or
(b) a specified armed force in a foreign country in a specified
capacity.
This Division does not apply in relation to conduct engaged in by a person
acting in the course of the person's duty to the Commonwealth in relation to
the defence or international relations of Australia.
Note
1: A defendant bears an evidential burden
in relation to the matter in this section: see subsection 13.3(3).
Note
2: See also section 119.12
(declarations for the purposes of proceedings).
(1) A prosecution for any of the following offences is (subject to
subsection (2)) to be on indictment:
(a) an offence against this Division;
(b) an offence against section 6 of the Crimes Act 1914, or an
ancillary offence, that relates to an offence against this Division.
(2) If the law of a State or Territory provides for a person who pleads
guilty to a charge in proceedings for the person's commitment for trial on
indictment to be committed to a higher court and dealt with otherwise than on
indictment, a person charged in that State or Territory with an offence
referred to in subsection (1) may be dealt with in accordance with that
law.
(1) The Foreign Affairs Minister may, in writing, declare that:
(a) a specified authority is in effective governmental control in a
specified foreign country or part of a foreign country; or
(b) a specified organisation is not an armed force, or part of an armed
force, of the government of a foreign country.
(2) The Defence Minister may, in writing, declare that if a specified
person had done a specified act (being an act alleged to constitute an
offence) the person would not have been acting in the course of the person's
duty to the Commonwealth in relation to the defence or international relations
of Australia.
(3) Without limiting subsection (1) or (2), a declaration under
that subsection may be made in relation to a specified day or period.
(4) In proceedings for an offence referred to in
paragraph 119.11(1)(a), a certificate under this section is prima facie
evidence of the matters stated in the certificate.
(a) interfere with or prejudice the prevention, detection,
investigation, prosecution or punishment of a criminal offence against a law
of the Commonwealth; or
(b) interfere with or prejudice the performance of functions of the
Australian Federal Police under:
(c) harm or prejudice Australia's international relations in relation to
information that was communicated in confidence:
(i) by, or on behalf of, the government of a foreign country, an
authority of the government of a foreign country or an international
organisation; and
(ii) to the Government of the Commonwealth, to an authority of the
Commonwealth, or to a person receiving the communication on behalf of the
Commonwealth or an authority of the Commonwealth; or
(f) harm or prejudice the health or safety of the Australian public or a
section of the Australian public; or
(g) harm or prejudice the security or defence of Australia.
"Commonwealth officer" means any of the following:
(a) an APS employee;
(b) an individual appointed or employed by the Commonwealth otherwise
than under the Public Service Act 1999;
(c) a member of the Australian Defence Force;
(d) a member or special member of the Australian Federal Police;
(e) an officer or employee of a Commonwealth authority;
(f) an individual who is a contracted service provider for a
Commonwealth contract;
(g) an individual who is an officer or employee of a contracted service
provider for a Commonwealth contract and who provides services for the
purposes (whether direct or indirect) of the Commonwealth contract;
but does
not include an officer or employee of, or a person engaged by, the Australian
Broadcasting Corporation or the Special Broadcasting Service Corporation .
"deal" has the same meaning as in Part 5.2.
Note: For the meaning of
deal in that Part, see subsections 90.1(1) and (2).
"domestic
intelligence agency" means:
(a) the Australian Secret Intelligence Service; or
(b) the Australian Security Intelligence Organisation; or
(c) the Australian Geospatial-Intelligence Organisation; or
(d) the Defence Intelligence Organisation; or
(e) the Australian Signals Directorate; or
(f) the Office of National Intelligence.
"foreign military
organisation" means:
(a) the armed forces of the government of a foreign country; or
(b) the civilian component of:
(i) the Department of State of a foreign country; or
(ii) a government agency in a foreign country;
that is responsible for the defence of the country.
"information" has the
meaning given by section 90.1.
"inherently harmful information" means
information that is any of the following:
(a) security classified information;
(c) information that was obtained by, or made by or on behalf of, a
domestic intelligence agency or a foreign intelligence agency in connection
with the agency's functions;
(e) information relating to the operations, capabilities or technologies
of, or methods or sources used by, a domestic or foreign law enforcement
agency.
"security classification"
has the meaning given by section 90.5.
"security classified
information" means information that has a security classification.
"security
or defence of Australia" includes the operations, capabilities or technologies
of, or methods or sources used by, domestic intelligence agencies or foreign
intelligence agencies.
(2) To avoid doubt, communicate includes publish and make available.
(3) For the purposes of a reference, in an element of an offence in this
Part, to security classified information or security classification, strict
liability applies to the element that:
(a) a classification is applied in accordance with the policy framework
developed by the Commonwealth for the purpose (or for purposes that include
the purpose) of identifying the information mentioned in
subparagraph 90.5(1)(a)(i) or (ii); or
(b) a classification or marking is prescribed by the regulations as
mentioned in paragraph 90.5(1)(b).
Note: See the
definitions of security classified information in subsection (1) and
security classification in section 90.5.
(1) Proper place of custody has the meaning prescribed by the
regulations.
(2) Despite subsection 14(2) of the Legislation Act 2003,
regulations made for the purposes of subsection (1) of this section may
prescribe a matter by applying, adopting or incorporating any matter contained
in an instrument or other writing as in force or existing from time to time,
if the instrument or other writing is publicly available.
(b) the information is inherently harmful information; and
(c) the information was made or obtained by that person by reason of his
or her being, or having been, a Commonwealth officer or otherwise engaged to
perform work for a Commonwealth entity.
Note 1
: For exceptions to the offences in this
section, see section 122.5.
Note 2:
The fault elements for this offence are intention for paragraph (1)(a)
and recklessness for paragraphs (1)(b) and (c) (see section 5.6).
Penalty: Imprisonment for 7 years.
Other dealings with inherently
harmful information
(2) A person commits an offence if:
(a) the person deals with information (other than by communicating it);
and
(b) the information is inherently harmful information; and
(c) the information was made or obtained by that person by reason of his
or her being, or having been, a Commonwealth officer or otherwise engaged to
perform work for a Commonwealth entity.
Note: The fault elements
for this offence are intention for paragraph (2)(a) and recklessness for
paragraphs (2)(b) and (c) (see section 5.6).
Penalty:
Imprisonment for 3 years.
Information removed from, or held outside, proper
place of custody
(3) A person commits an offence if:
(a) the person:
(i) removes information from a proper place of custody for the
information; or
(ii) holds information outside a proper place of custody for the
information; and
(b) the information is inherently harmful information; and
(c) the information was made or obtained by that person by reason of his
or her being, or having been, a Commonwealth officer or otherwise engaged to
perform work for a Commonwealth entity.
Note: The fault elements
for this offence are intention for paragraph (3)(a) and recklessness for
paragraphs (3)(b) and (c) (see section 5.6).
Penalty:
Imprisonment for 3 years.
Failure to comply with direction regarding
information
(4) A person commits an offence if:
(a) the person is given a direction; and
(b) the direction is a lawful direction regarding the retention, use or
disposal of information; and
(c) the person fails to comply with the direction; and
(ca) the failure to comply with the direction results in a risk to the
security of the information; and
(d) the information is inherently harmful information; and
(e) the information was made or obtained by that person by reason of his
or her being, or having been, a Commonwealth officer or otherwise engaged to
perform work for a Commonwealth entity.
Note: The fault elements
for this offence are intention for paragraph (4)(c) and recklessness for
paragraphs (4)(a), (b), (ca), (d) and (e) (see section 5.6).
Communication causing harm to Australia's interests
(1) A person commits an offence if:
(a) the person communicates information; and
(b) either:
(i) the communication causes harm to Australia's interests; or
(ii) the communication will or is likely to cause harm to Australia's
interests; and
(c) the information was made or obtained by that person by reason of his
or her being, or having been, a Commonwealth officer or otherwise engaged to
perform work for a Commonwealth entity.
Note
1: For the definition of cause harm to
Australia's interests , see section 121.1.
Note
2: For exceptions to the offences in this
section, see section 122.5.
Penalty: Imprisonment for 7 years.
Other conduct causing harm to Australia's interests
(2) A person commits an offence if:
(a) the person deals with information (other than by communicating it);
and
(b) either:
(i) the dealing causes harm to Australia's interests; or
(ii) the dealing will or is likely to cause harm to Australia's
interests; and
(c) the information was made or obtained by that person by reason of his
or her being, or having been, a Commonwealth officer or otherwise engaged to
perform work for a Commonwealth entity.
Penalty: Imprisonment for 3
years.
Information removed from, or held outside, proper place of custody
(3) A person commits an offence if:
(a) the person:
(i) removes information from a proper place of custody for the
information; or
(ii) holds information outside a proper place of custody for the
information; and
(b) either:
(i) the removal or holding causes harm to Australia's interests; or
(ii) the removal or holding will or is likely to cause harm to
Australia's interests; and
(c) the information was made or obtained by that person by reason of his
or her being, or having been, a Commonwealth officer or otherwise engaged to
perform work for a Commonwealth entity.
Penalty: Imprisonment for 3
years.
Failure to comply with direction regarding information
(4) A person commits an offence if:
(a) the person is given a direction; and
(b) the direction is a lawful direction regarding the retention, use or
disposal of information; and
(c) the person fails to comply with the direction; and
(d) either:
(i) the failure to comply causes harm to Australia's interests; or
(ii) the failure to comply will or is likely to cause harm to
Australia's interests; and
(e) the information was made or obtained by that person by reason of his
or her being, or having been, a Commonwealth officer or otherwise engaged to
perform work for a Commonwealth entity.
(1) A person commits an offence against this section if:
(a) the person commits an offence against section 122.1 or 122.2
(the underlying offence ); and
(b) any of the following circumstances exist in relation to the
commission of the underlying offence:
(ii) if the commission of the underlying offence involves a record--the
record is marked with a code word, "for Australian eyes only" or as prescribed
by the regulations for the purposes of this subparagraph;
(iii) the commission of the underlying offence involves 5 or more
records each of which has a security classification;
(iv) the commission of the underlying offence involves the person
altering a record to remove or conceal its security classification;
(v) at the time the person committed the underlying offence, the person
held an Australian Government security clearance allowing the person to access
information that has a security classification of at least secret.
Penalty:
(a) if the penalty for the underlying offence is imprisonment for 7
years--imprisonment for 10 years; or
(b) if the penalty for the underlying offence is imprisonment for
3
years--imprisonment for 5 years.
(2) There is no fault element for the physical element in
paragraph (1)(a) other than the fault elements (however described), if
any, for the underlying offence.
(4) To avoid doubt:
(a) a person does not commit an underlying offence for the purposes of
paragraph (1)(a) if the person has a defence to the underlying offence;
and
(b) a person may be convicted of an offence against this section even if
the person has not been convicted of the underlying offence.
(b) the person made or obtained the information by reason of his or her
being, or having been, a Commonwealth officer or otherwise engaged to perform
work for a Commonwealth entity; and
(c) the person is under a duty not to disclose the information; and
(d) the duty arises under a law of the Commonwealth.
Penalty:
Imprisonment for 2 years.
(2) Absolute liability applies in relation to paragraph (1)(d).
Sunset provision
(3) This section does not apply in relation to any communication of
information that occurs after the end of 5 years after this section commences.
(b) the information was not made or obtained by the person by reason of
the person being, or having been, a Commonwealth officer or otherwise engaged
to perform work for a Commonwealth entity; and
(c) the information was made or obtained by another person by reason of
that other person being, or having been, a Commonwealth officer or otherwise
engaged to perform work for a Commonwealth entity; and
(d) any one or more of the following applies:
(i) the information has a security classification of secret or top
secret;
(ii) the communication of the information damages the security or
defence of Australia;
(iii) the communication of the information interferes with or prejudices
the prevention, detection, investigation, prosecution or punishment of a
criminal offence against a law of the Commonwealth;
(iv) the communication of the information harms or prejudices the health
or safety of the Australian public or a section of the Australian public.
Note 1: For exceptions to the offences in
this section, see section 122.5.
Note
2: The fault elements for this offence are
intention for paragraph (1)(a) and recklessness for
paragraphs (1)(b) to (d) (see section 5.6).
Penalty:
Imprisonment for 5 years.
Other dealings with information
(2) A person commits an offence if:
(a) the person deals with information (other than by communicating it);
and
(b) the information was not made or obtained by the person by reason of
the person being, or having been, a Commonwealth officer or otherwise engaged
to perform work for a Commonwealth entity; and
(c) the information was made or obtained by another person by reason of
that other person being, or having been, a Commonwealth officer or otherwise
engaged to perform work for a Commonwealth entity; and
(d) any one or more of the following applies:
(i) the information has a security classification of secret or top
secret;
(ii) the dealing with the information damages the security or defence of
Australia;
(iii) the dealing with the information interferes with or prejudices the
prevention, detection, investigation, prosecution or punishment of a criminal
offence against of a law of the Commonwealth;
(iv) the dealing with the information harms or prejudices the health or
safety of the Australian public or a section of the Australian public.
Note: The fault elements
for this offence are intention for paragraph (2)(a) and recklessness for
paragraphs (2)(b) to (d) (see section 5.6).
Penalty:
Imprisonment for 2 years.
Proof of identity not required
(3) In proceedings for an offence against this section, the prosecution
is not required to prove the identity of the other person referred to in
paragraph (1)(c) or (2)(c).
Powers, functions
and duties in a person's capacity as a public official etc. or under
arrangement
(1) It is a defence to a prosecution for an offence by a person against
this Division that:
(a) the person was exercising a power, or performing a function or duty,
in the person's capacity as a
public official or a person who is otherwise engaged to perform work for a
Commonwealth entity; or
(b) the person communicated, removed, held or otherwise dealt with the
information in accordance with an arrangement or agreement to which the
Commonwealth or a Commonwealth entity is party and which allows for the
exchange of information.
Note:
A defendant may bear an evidential burden in relation to the matters in this
subsection (see subsection (12) of this section and
subsection 13.3(3)).
Information that is already public
(2) It is a defence to a prosecution for an offence by a person against
this Division that the relevant information has already been communicated or
made available to the public with the authority of the Commonwealth.
Note: A defendant bears
an evidential burden in relation to the matters in this subsection (see
subsection 13.3(3)).
Information communicated etc. to integrity agency
(3) It is a defence to a prosecution for an offence by a person against
this Division that the person communicated the relevant information, or
removed, held or otherwise dealt with the relevant information for the purpose
of communicating it:
(iia) the Australian Information Commissioner, a member of the staff of
the Office of the Australian Information Commissioner, or a consultant engaged
under the Australian Information Commissioner Act 2010;
(iii) the Law Enforcement Integrity Commissioner, a staff member of
ACLEI, or a consultant to, or a person made available to, the Integrity
Commissioner under the Law Enforcement Integrity Commissioner Act 2006; and
(b) for the purpose of the Inspector-General, the Ombudsman, the
Australian Information Commissioner or the Law Enforcement Integrity
Commissioner (as the case requires) exercising a power, or performing a
function or duty.
Note:
A person mentioned in paragraph (3)(a) does not bear an evidential burden
in relation to the matters in this subsection (see
subsection (12)).
(4) It is a defence to a prosecution for an offence by a person against
this Division that the person communicated the relevant information, or
removed, held or otherwise dealt with the relevant information for the purpose
of communicating it,
in accordance with:
Note:
A defendant may bear an evidential burden in relation to the matters in this
subsection (see subsection (12) of this section and
subsection 13.3(3)).
Information communicated etc. for the purpose of
reporting offences and maladministration
(4A) It is a
defence to a prosecution for an offence by a person against this Division that
the person communicated, removed, held or otherwise dealt with the relevant
information for the primary purpose of reporting, to an appropriate agency of
the Commonwealth, a State or a Territory:
(a) a criminal offence, or alleged criminal offence, against a law of
the Commonwealth; or
(b) maladministration relating to the prevention, detection,
investigation, prosecution or punishment of a criminal offence against a law
of the Commonwealth; or
(c) maladministration relating to the performance of functions of the
Australian Federal Police under:
Note:
A defendant may bear an evidential burden in relation to the matters in this
subsection (see subsection (12) of this section and
subsection 13.3(3)).
Information communicated etc. to a court or
tribunal
(5) It is a defence to a prosecution for an offence by a person against
this Division that the person communicated the relevant information, or
removed, held or otherwise dealt with the relevant information for the purpose
of communicating it, to a court or tribunal (whether or not as a result of a
requirement).
Note: A
defendant bears an evidential burden in relation to the matters in this
subsection (see subsection 13.3(3)).
Information communicated etc.
for the purposes of obtaining or providing legal advice
(5A) It is a
defence to a prosecution for an offence by a person against this Division that
the person communicated, removed, held or otherwise dealt with the relevant
information for the primary purpose of obtaining or providing, in good faith,
legal advice in relation to:
(a) an offence against this Part; or
(b) the application of any right, privilege, immunity or defence
(whether or not in this Part) in relation to such an offence;
whether that
advice was obtained or provided before or after the person engaged in the
conduct constituting the offence.
Note: A defendant bears
an evidential burden in relation to the matters in this subsection (see
subsection 13.3(3)).
Information communicated etc. by persons engaged
in business of reporting news etc.
(6) It is a defence to a prosecution for an offence by a person against
this Division that the person communicated, removed, held or otherwise dealt
with the relevant information in the person's capacity as a person engaged in
the business of reporting news, presenting current affairs or expressing
editorial or other content in news media, and:
(a) at that time, the person reasonably believed that engaging in that
conduct was in the public interest (see subsection (7)); or
(b) the person:
(i) was, at that time, a member of the administrative staff of an entity
that was engaged in the business of reporting news, presenting current affairs
or expressing editorial or other content in news media; and
(ii) acted under the direction of a journalist, editor or lawyer who was
also a member of the staff of the entity, and who reasonably believed that
engaging in that conduct was in the public interest (see subsection (7)).
Note: A defendant bears
an evidential burden in relation to the matters in this subsection (see
subsection 13.3(3)).
(7) Without limiting paragraph (6)(a) or (b), a person may not
reasonably believe that communicating, removing, holding or otherwise dealing
with information is in the public interest if:
(c) engaging in that conduct would be an offence under section 22,
22A or 22B of the Witness Protection Act 1994(offences relating to
Commonwealth, Territory, State participants or information about the national
witness protection program); or
(d) that conduct was engaged in for the purpose of directly or
indirectly assisting a foreign intelligence agency or a foreign military
organisation.
Information that has been previously communicated
(8) It is a defence to a prosecution for an offence by a person against
this Division if:
(a) the person did not make or obtain the relevant information by reason
of any of the following:
(i) his or her being, or having been, a Commonwealth officer;
(ii) his or her being otherwise engaged to perform work for a
Commonwealth entity;
(iii) an arrangement or agreement to which the Commonwealth or a
Commonwealth entity is party and which allows for the exchange of information;
and
(b) the information has already been communicated, or made available, to
the public (the prior publication ); and
(c) the person was not involved in the prior publication (whether
directly or indirectly); and
(d) at the time of the communication, removal, holding or dealing, the
person believes that engaging in that conduct will not cause harm to
Australia's interests or the security or defence of Australia; and
(e) having regard to the nature, extent and place of the prior
publication, the person has reasonable grounds for that belief.
Note: A defendant bears
an evidential burden in relation to the matters in this subsection (see
subsection 13.3(3)).
Information relating to a person etc.
(9) It is a defence to a prosecution for an offence by a person against
this Division if:
(a) the person did not make or obtain the relevant information by reason
of any of the following:
(i) his or her being, or having been, a Commonwealth officer;
(ii) his or her being otherwise engaged to perform work for a
Commonwealth entity;
(iii) an arrangement or agreement to which the Commonwealth or a
Commonwealth entity is party and which allows for the exchange of information;
and
(b) at the time of the communication, removal, holding or dealing, the
person believes that the making or obtaining of the information by the person
was required or authorised by law; and
(c) having regard to the circumstances of the making or obtaining of the
information, the person has reasonable grounds for that belief; and
(d) any of the following apply:
(i) the person communicates the information to the person to whom the
information relates;
(ii) the person is the person to whom the information relates;
(iii) the communication, removal, holding or dealing is in accordance
with the express or implied consent of the person to whom the information
relates.
Note: A
defendant bears an evidential burden in relation to the matters in this
subsection (see subsection 13.3(3)).
(10) To
avoid doubt, a defence to an offence may constitute an authorisation for the
purposes of paragraph (9)(b).
Removing, holding or otherwise dealing
with information for the purposes of communicating information
(11) For
the purposes of subsection (3), (4), (5) or (5A), it is not necessary to
prove that information, that was removed, held or otherwise dealt with for the
purposes of communicating it, was actually communicated.
Burden of proof for
integrity agency officials
(12)
Despite subsection 13.3(3), in a prosecution for an offence against this
Division, a person mentioned in subparagraph (3)(a)(i), (ii), (iia) or
(iii) does not bear an evidential burden in relation to the matter in:
(a) subsection (1), (4) or (4A); or
(b) either of the following:
(i) subparagraph (3)(a)(i), (ii), (iia) or (iii);
(ii) paragraph (3)(b), to the extent that that paragraph relates to
the Inspector-General of Intelligence and Security, the Ombudsman, the
Australian Information Commissioner or the Law Enforcement Integrity
Commissioner.
Defences do not limit each other
(13) No
defence in this section limits the operation of any other defence in this
section.
(1) A sketch, article, record or document which is made, obtained,
recorded, retained, possessed or otherwise dealt with in contravention of this
Part is forfeited to the Commonwealth.
(2) In subsection (1), sketch , article and record have the same
respective meanings as in Part 5.2.
(1) Proceedings for the commitment of a person for trial for an offence
against this Part must not be instituted without:
(a) the written consent of the Attorney-General; and
(b) for proceedings that relate to security classified information--a
certification by the Attorney-General that, at the time of the conduct that is
alleged to constitute the offence, it was appropriate that the information had
a security classification.
(2) However, the following steps may be taken (but no further steps in
proceedings may be taken) without consent or certification having been
obtained:
(a) a person may be arrested for the offence and a warrant for such an
arrest may be issued and executed;
(b) a person may be charged with the offence;
(c) a person so charged may be remanded in custody or on bail.
(3) Nothing in subsection (2) prevents the discharge of the accused
if proceedings are not continued within a reasonable time.
(4) In deciding whether to consent, the Attorney-General must consider
whether the conduct might be authorised in a way mentioned in
section 122.5.
(a) in relation to a person who is a Commonwealth public official--means
any authority, duty, function or power that:
(i) is conferred on the person as a Commonwealth public official; or
(ii) the person holds himself or herself out as having as a Commonwealth
public official; and
(b) in relation to a person who is a public official--means any
authority, duty, function or power that:
(i) is conferred on the person as a public official; or
(ii) the person holds himself or herself out as having as a public
official.
"gain" means:
(a) a gain in property, whether temporary or permanent; or
(b) a gain by way of the supply of services;
and includes keeping what
one has.
"loss" means a loss in property, whether temporary or permanent,
and includes not getting what one might get.
"obtaining" includes:
(a) obtaining for another person; and
(b) inducing a third person to do something that results in another
person obtaining.
"property" includes:
(a) real property; and
(b) personal property; and
(c) money; and
(d) a thing in action or other intangible property; and
(e) electricity; and
(f) a wild creature that is:
(i) tamed; or
(ii) ordinarily kept in captivity; or
(iii) reduced (or in the course of being reduced) into the possession of
a person.
"services" includes any rights (including rights in relation to,
and interests in, real or personal property), benefits, privileges or
facilities, but does not include rights or benefits being the supply of goods.
"supply" includes:
(a) in relation to goods--supply (including re-supply) by way of sale,
exchange, lease, hire or hire-purchase; and
(b) in relation to services--provide, grant or confer.
Note: The expression
person includes a Commonwealth entity. This is the combined effect of
subsection 2C(1) of the Acts Interpretation Act 1901 (which provides
that person includes a body politic or corporate), and the definition of
person in the Dictionary.
(1) For the purposes of this Division, a person's appropriation of
property belonging to another is taken not to be dishonest if the person
appropriates the property in the belief that the person to whom the property
belongs cannot be discovered by taking reasonable steps.
(2) However, the rule in subsection (1) does not apply if the
person appropriating the property held it as trustee or personal
representative.
(3) For the purposes of this Division, a person's appropriation of
property belonging to another may be dishonest even if the person or another
person is willing to pay for the property.
(1) For the purposes of this Division, any assumption of the rights of
an owner to ownership, possession or control of property, without the consent
of the person to whom it belongs, amounts to an appropriation of the property.
This includes, in a case where a person has come by property (innocently or
not) without committing theft, any later such assumption of rights without
consent by keeping or dealing with it as owner.
(2) For the purposes of this Division, if property, or a right or
interest in property, is, or purports to be, transferred or given to a person
acting in good faith, a later assumption by the person of rights which the
person had believed himself or herself to be acquiring does not, because of
any defect in the transferor's title, amount to an appropriation of the
property.
(1) For the purposes of this Division, a person cannot commit theft of
land, except in the following cases:
(a) the case where the person appropriates anything forming part of the
land by severing it or causing it to be severed;
(b) the case where:
(i) the person is a trustee or personal representative, or is authorised
(by power of attorney, as liquidator of a company or otherwise) to sell or
dispose of land belonging to another; and
(ii) the person appropriates the land, or anything forming part of it,
by dealing with it in breach of the confidence reposed in the person.
(2) For the purposes of this section, land does not include incorporeal
hereditaments.
(1) For the purposes of this Division, if property is subject to a
trust, the persons to whom the property belongs include any person who has a
right to enforce the trust.
(2) Accordingly, for the purposes of this Division, an intention to
defeat the trust is an intention to deprive any such person of the property.
(a) a person gets property by another's fundamental mistake; and
(b) the person is under a legal obligation to make restoration (in whole
or in part) of the property, its proceeds or value;
then, to the extent of
that obligation, the property or proceeds belongs (as against the person) to
the person entitled to restoration.
(2) For the purposes of this Division, an intention not to make
restoration is:
(a) an intention to permanently deprive the person so entitled of the
property or proceeds; and
(b) an appropriation of the property or proceeds without the consent of
the person entitled to restoration.
(3) For the purposes of this section, a fundamental mistake is:
(a) a mistake about the identity of the person getting the property; or
(b) a mistake as to the essential nature of the property; or
(c) a mistake about the amount of any money if the person getting the
money is aware of the mistake at the time of getting the money.
(4) In this section:
"money" includes anything that is equivalent to
money. For this purpose, cheques, negotiable instruments and electronic funds
transfers are taken to be equivalent to money.
If property belongs to 2 or more persons, a reference in this Division (other
than paragraph 131.1(1)(b)) to the person to whom the property belongs is
a reference to all of those persons.
(a) a person appropriates property belonging to another without meaning
the other permanently to lose the thing itself; and
(b) the person's intention is to treat the thing as the person's own to
dispose of regardless of the other's rights;
the person has the intention of
permanently depriving the other of it.
(2) For the purposes of this section, a borrowing or lending of a thing
amounts to treating the thing as the borrower's or lender's own to dispose of
regardless of another's rights if, and only if, the borrowing or lending is
for a period and in circumstances making it equivalent to an outright taking
or disposal.
(3) For the purposes of this section, if:
(a) a person has possession or control (lawfully or not) of property
belonging to another; and
(b) the person parts with the property under a condition as to its
return that the person may not be able to perform; and
(c) the parting is done for purposes of the person's own and without the
other's authority;
the parting is taken to amount to treating the property
as the person's own to dispose of regardless of the other's rights.
(1) For the purposes of this Division, a person may be convicted of
theft of all or any part of a general deficiency in money even though the
deficiency is made up of any number of particular sums of money that were
appropriated over a period of time.
(2) For the purposes of this Division, a person may be convicted of
theft of all or any part of a general deficiency in property other than money
even though the deficiency is made up of any number of particular items of
property that were appropriated over a period of time.
(1) A person commits an offence if the person dishonestly receives
stolen property, knowing or believing the property to be stolen.
Penalty: Imprisonment for 10 years.
(2) For the purposes of this Code, an offence against
subsection (1) is to be known as the offence of receiving.
(2A) In a
prosecution for an offence against subsection (1), it is not necessary to
prove that the defendant knew or believed that the property belonged to a
Commonwealth entity.
Stolen property
(3) For the purposes of this section, property is stolen property if,
and only if:
(a) it is original stolen property (as defined by subsection (5));
or
(aa) it is previously received property (as defined by
subsection (5A)); or
(b) it is tainted property (as defined by subsection (7)).
This
subsection has effect subject to subsections (4) and (6).
(4) For the purposes of this section, stolen property does not include
land obtained in the course of an offence against section 134.1.
Original stolen property
(5) For the purposes of this section, original stolen property is:
(a) property, or a part of property, that:
(i) was appropriated in the course of theft (whether or not the
property, or the part of the property, is in the state it was in when it was
so appropriated); and
(ii) is in the possession or custody of the person who so appropriated
the property; or
(b) property, or a part of property, that:
(i) was obtained in the course of an offence against section 134.1
(whether or not the property, or the part of the property, is in the state it
was in when it was so obtained); and
(ii) is in the possession or custody of the person who so obtained the
property or the person for whom the property was so obtained.
Previously
received property
(5A) For the purposes of this section, previously received property is
property that:
(a) was received in the course of an offence against
subsection (1); and
(b) is in the possession or custody of the person who received the
property in the course of that offence.
(6) For the purposes of this section, property ceases to be original
stolen property or previously received property:
(a) after the property is restored:
(i) to the person from whom it was appropriated or obtained; or
(ii) to other lawful possession or custody; or
(b) after:
(i) the person from whom the property was appropriated or obtained
ceases to have any right to restitution in respect of the property; or
(ii) a person claiming through the person from whom the property was
appropriated or obtained ceases to have any right to restitution in respect of
the property.
Tainted property
(7) For the purposes of this section, tainted property is property that:
(a) is (in whole or in part) the proceeds of sale of, or property
exchanged for:
(i) original stolen property; or
(ii) previously received property; and
(b) if subparagraph (a)(i) applies--is in the possession or custody
of:
(i) if the original stolen property was appropriated in the course of
theft--the person who so appropriated the original stolen property; or
(ii) if the original stolen property was obtained in the course of an
offence against section 134.1--the person who so obtained the property or
the person for whom the property was so obtained; and
(c) if subparagraph (a)(ii) applies--is in the possession or
custody of the person who received the previously received property in the
course of an offence against subsection (1).
Money transfers
(8) For the purposes of this section, if, as a result of the application
of subsection 134.1(9) or (10), an amount credited to an account held by
a person is property obtained in the course of an offence against
section 134.1:
(a) while the whole or any part of the amount remains credited to the
account, the property is taken to be in the possession of the person; and
(b) if the person fails to take such steps as are reasonable in the
circumstances to secure that the credit is cancelled--the person is taken to
have received the property; and
(c) subsection (6) of this section does not apply to the property.
Note:
Subsections 134.1(9) and (10) deal with money transfers.
Alternative
verdicts
(9) If, in a prosecution for an offence of theft or an offence against
section 134.1, the trier of fact is not satisfied that the defendant is
guilty of the offence, but is satisfied beyond reasonable doubt that the
defendant is guilty of an offence of receiving, the trier of fact may find the
defendant not guilty of the offence of theft or the section 134.1 offence
but guilty of the offence of receiving, so long as the defendant has been
accorded procedural fairness in relation to that finding of guilt.
(10) If, in
a prosecution for an offence of receiving, the trier of fact is not satisfied
that the defendant is guilty of the offence, but is satisfied beyond
reasonable doubt that the defendant is guilty of an offence of theft or an
offence against section 134.1, the trier of fact may find the defendant
not guilty of the offence of receiving but guilty of the offence of theft or
the section 134.1 offence, so long as the defendant has been accorded
procedural fairness in relation to that finding of guilt.
Receiving property
stolen before commencement
(11) For
the purposes of this section:
(a) it is to be assumed that sections 131.1 and 134.1 had been in
force at all times before the commencement of this section; and
(b) property that was appropriated or obtained at a time before the
commencement of this section does not become original stolen property unless
the property was appropriated or obtained in circumstances that (apart from
paragraph (a)) amounted to an offence against a law of the Commonwealth
in force at that time.
Obtaining
(12) The
definition of obtaining in section 130.1 does not apply to this section.
Note: See
subsection 134.1(3).
Definition
(13) In
this section:
"account" has the same meaning as in section 133.1.
(1) A person commits an offence if the person commits theft and:
(a) immediately before committing theft, the person:
(i) uses force on another person; or
(ii) threatens to use force then and there on another person;
with intent to commit theft or to escape from the scene; or
(b) at the time of committing theft, or immediately after committing
theft, the person:
(i) uses force on another person; or
(ii) threatens to use force then and there on another person;
with intent to commit theft or to escape from the scene.
Penalty:
Imprisonment for 15 years.
(2) For the purposes of this Code, an offence against
subsection (1) is to be known as the offence of robbery.
Note: Theft means an
offence against section 131.1. Under section 131.1, an element of
the offence of theft is that the property belongs to a Commonwealth entity.
(3) In a prosecution for an offence against subsection (1), it is
not necessary to prove that the defendant knew that the property belonged to a
Commonwealth entity.
(a) commits a robbery in company with one or more other persons; or
(b) commits a robbery and, at the time of the robbery, has an offensive
weapon with him or her.
Penalty: Imprisonment for 20 years.
(2) For the purposes of this Code, an offence against
subsection (1) is to be known as the offence of aggravated robbery.
Note: Robbery means an
offence against section 132.2. Under section 132.2, an element of
the offence of robbery is that the defendant commits theft. Theft means an
offence against section 131.1. Under section 131.1, an element of
the offence of theft is that the property belongs to a Commonwealth entity.
(2A) In a
prosecution for an offence against subsection (1), it is not necessary to
prove that the defendant knew that the property belonged to a Commonwealth
entity.
(3) In this section:
"offensive weapon" includes:
(a) an article made or adapted for use for causing injury to, or
incapacitating, a person; or
(b) an article where the person who has the article intends, or
threatens to use, the article to cause injury to, or to incapacitate, another
person.
(a) the person enters, or remains in, a building, as a trespasser, with
intent to commit theft of a particular item of property in the building; and
(b) the property belongs to a Commonwealth entity.
Penalty:
Imprisonment for 13 years.
(2) For the purposes of this Code, an offence against
subsection (1) is to be known as the offence of burglary.
(2A) In a
prosecution for an offence against subsection (1), it is not necessary to
prove that the defendant knew that the property belonged to a Commonwealth
entity.
(3) A person commits an offence if:
(a) the person enters, or remains in, a building, as a trespasser, with
intent to commit an offence in the building that involves causing harm to
another person or damage to property; and
(aa) the offence referred to in paragraph (a) is an offence against
a law of the Commonwealth; and
(b) the offence referred to in paragraph (a) is punishable by
imprisonment for life or for a term of 5 years or more.
Penalty:
Imprisonment for 13 years.
(3A) In a
prosecution for an offence against subsection (3), it is not necessary to
prove that the defendant knew that the offence referred to in
paragraph (3)(a) is an offence against a law of the Commonwealth.
(4) In a prosecution for an offence against subsection (3), it is
not necessary to prove that the defendant knew that the offence referred to in
paragraph (3)(a) is punishable by imprisonment for life or for a term of
5 years or more.
(5) For the purposes of this Code, an offence against
subsection (3) is also to be known as the offence of burglary.
(6) A person commits an offence if:
(a) the person enters, or remains in, a building, as a trespasser, with
intent to commit an offence in the building that involves causing harm to
another person or damage to property; and
(aa) the offence referred to in paragraph (a) is an offence against
a law of the Commonwealth, a State or a Territory; and
(b) the offence referred to in paragraph (a) is punishable by
imprisonment for life or for a term of 5 years or more; and
(c) the building is owned or occupied by a Commonwealth entity.
Penalty: Imprisonment for 13 years.
(6A) In a
prosecution for an offence against subsection (6), it is not necessary to
prove that the defendant knew that the offence referred to in
paragraph (6)(a) is an offence against a law of the Commonwealth, a State
or a Territory.
(7) In a prosecution for an offence against subsection (6), it is
not necessary to prove that the defendant knew that the offence referred to in
paragraph (6)(a) is punishable by imprisonment for life or for a term of
5 years or more.
(8) Absolute liability applies to the paragraph (6)(c) element of
the offence.
(9) For the purposes of this Code, an offence against
subsection (6) is also to be known as the offence of burglary.
(10) For
the purposes of this section, a person is taken not to be a trespasser:
(a) merely because the person is permitted to enter, or remain in, a
building for a purpose that is not the person's intended purpose; or
(b) if the person is permitted to enter, or remain in, a building as a
result of fraud, misrepresentation or another person's mistake.
(12) In
this section:
"building" includes:
(a) a part of a building; or
(b) a mobile home or a caravan; or
(c) a structure (whether or not movable), a vehicle, or a vessel, that
is used, designed or adapted for residential purposes.
(a) commits a burglary in company with one or more other persons; or
(b) commits a burglary, and at the time of the burglary, has an
offensive weapon with him or her.
Penalty: Imprisonment for 17 years.
(2) For the purposes of this Code, an offence against
subsection (1) is to be known as the offence of aggravated burglary.
(3) In a prosecution for an offence against subsection (1) in
relation to the offence of burglary created by subsection 132.4(1), it is
not necessary to prove that the defendant knew that the property concerned
belonged to a Commonwealth entity.
(4) In a prosecution for an offence against subsection (1) in
relation to the offence of burglary created by subsection 132.4(3), it is
not necessary to prove that:
(a) the defendant knew that the offence referred to in
paragraph 132.4(3)(a) is an offence against a law of the Commonwealth; or
(b) the defendant knew that the offence referred to in
paragraph 132.4(3)(a) is punishable by imprisonment for life or for a
term of 5 years or more.
(5) In a prosecution for an offence against subsection (1) in
relation to the offence of burglary created by subsection 132.4(6), it is
not necessary to prove that:
(a) the defendant knew that the offence referred to in
paragraph 132.4(6)(a) is an offence against a law of the Commonwealth, a
State or a Territory; or
(b) the defendant knew that the offence referred to in
paragraph 132.4(6)(a) is punishable by imprisonment for life or for a
term of 5 years or more; or
(c) the defendant knew that the building was owned or occupied by a
Commonwealth entity.
(6) In this section:
"offensive weapon" includes:
(a) an article made or adapted for use for causing injury to, or
incapacitating, a person; or
(b) an article where the person who has the article intends, or
threatens to use, the article to cause injury to, or to incapacitate, another
person.
(a) the person, knowing that immediate payment for any goods or services
supplied by another person is required or expected from him or her,
dishonestly makes off:
(i) without having paid; and
(ii) with intent to avoid payment of the amount due; and
(b) the other person is a Commonwealth entity.
Penalty:
Imprisonment for 2 years.
(2) Absolute liability applies to the paragraph (1)(b) element of
the offence.
(3) For the purposes of this section, immediate payment includes payment
at the time of collecting goods in respect of which a service has been
provided.
(1) A person commits an offence if the person, when not at home, has
with him or her any article with intent to use it in the course of, or in
connection with, theft or a property offence.
Penalty: Imprisonment
for 3 years.
(2) In a prosecution for an offence against subsection (1) in
relation to:
(a) theft; or
(b) robbery; or
(c) aggravated robbery; or
(d) the offence of burglary created by subsection 132.4(1); or
(e) the offence of aggravated burglary that relates to the offence of
burglary created by subsection 132.4(1); or
(f) an offence against section 134.1;
it is not necessary to
prove that the defendant knew that the property concerned belonged to a
Commonwealth entity.
(3) In a prosecution for an offence against subsection (1) in
relation to:
(a) the offence of burglary created by subsection 132.4(3); or
(b) the offence of aggravated burglary that relates to the offence of
burglary created by subsection 132.4(3);
it is not necessary to prove
that:
(c) the defendant knew that the offence referred to in
paragraph 132.4(3)(a) is an offence against a law of the Commonwealth; or
(d) the defendant knew that the offence referred to in
paragraph 132.4(3)(a) is punishable by imprisonment for life or for a
term of 5 years or more.
(4) In a prosecution for an offence against subsection (1) in
relation to:
(a) the offence of burglary created by subsection 132.4(6); or
(b) the offence of aggravated burglary that relates to the offence of
burglary created by subsection 132.4(6);
it is not necessary to prove
that:
(c) the defendant knew that the offence referred to in
paragraph 132.4(6)(a) is an offence against a law of the Commonwealth, a
State or a Territory; or
(d) the defendant knew that the offence referred to in
paragraph 132.4(6)(a) is punishable by imprisonment for life or for a
term of 5 years or more; or
(e) the defendant knew that the building was owned or occupied by a
Commonwealth entity.
(5) In this section:
"property offence" means:
(a) robbery; or
(b) aggravated robbery; or
(c) burglary; or
(d) aggravated burglary; or
(e) an offence against subsection 132.8(1) or 132.8A(1); or
(f) an offence against section 134.1.
Note: It is an element
of the offence of theft, and of each property offence, that the property
belongs to a Commonwealth entity.
(a) on a particular occasion, dishonestly takes one or more items of
property belonging to a Commonwealth entity, where:
(i) the value or total value of the property is $500 or more; or
(ii) the absence of the property from the possession, custody or control
of the person who would otherwise have had possession, custody or control
would be likely to cause substantial disruption to activities carried on by or
on behalf of a Commonwealth entity; and
(b) does not have consent to do so from the person who has authority to
give consent.
Penalty: Imprisonment for 2 years.
Retention
(2) A person commits an offence if the person:
(a) on a particular occasion, takes one or more items of property
belonging to a Commonwealth entity; and
(b) dishonestly retains any or all of those items; and
(c) does not have consent to the retention from the person who has
authority to give consent; and
(d) either:
(i) at the time of the taking of the property, the value or total value
of the property was $500 or more; or
(ii) the absence of the property from the possession, custody or control
of the person who would otherwise have had possession, custody or control is
likely to cause substantial disruption to activities carried on by or on
behalf of a Commonwealth entity.
"account" means an account (including a loan account, a
credit card account or a similar account) with a bank or other financial
institution.
"deception" means an intentional or reckless deception, whether
by words or other conduct, and whether as to fact or as to law, and includes:
(a) a deception as to the intentions of the person using the deception
or any other person; and
(b) conduct by a person that causes a computer, a machine or an
electronic device to make a response that the person is not authorised to
cause it to do.
(a) the person, by a deception, dishonestly obtains property belonging
to another with the intention of permanently depriving the other of the
property; and
(b) the property belongs to a Commonwealth entity.
Penalty:
Imprisonment for 10 years.
(2) Absolute liability applies to the paragraph (1)(b) element of
the offence.
Obtaining property
(3) For the purposes of this section (and for the purposes of the
application of section 132.1 to this section), a person (the first person
) is taken to have obtained property if, and only if:
(a) the first person obtains ownership, possession or control of it for
himself or herself or for another person; or
(b) the first person enables ownership, possession or control of it to
be retained by himself or herself; or
(c) the first person induces a third person to pass ownership,
possession or control of it to another person; or
(d) the first person induces a third person to enable another person to
retain ownership, possession or control of it; or
(e) subsection (9) or (10) applies.
(4) The definition of obtaining in section 130.1 does not apply for
the purposes of this section (or for the purposes of the application of
section 132.1 to this section).
(5) For the purposes of this section, a person's obtaining of property
belonging to another may be dishonest even if the person or another person is
willing to pay for the property.
Intention of permanently depriving a person
of property
(6) For the purposes of this section, if:
(a) a person obtains property belonging to another without meaning the
other permanently to lose the thing itself; and
(b) the person's intention is to treat the thing as the person's own to
dispose of regardless of the other's rights;
the person has the intention of
permanently depriving the other of it.
(7) For the purposes of subsection (6), a borrowing or lending of a
thing amounts to treating the thing as the borrower's or lender's own to
dispose of regardless of another's rights if, and only if, the borrowing or
lending is for a period and in circumstances making it equivalent to an
outright taking or disposal.
(8) For the purposes of subsection (6), if:
(a) a person has possession or control (lawfully or not) of property
belonging to another; and
(b) the person parts with the property under a condition as to its
return that the person may not be able to perform; and
(c) the parting is done for purposes of the person's own and without the
other's authority;
the parting is taken to amount to treating the property
as the person's own to dispose of regardless of the other's rights.
Money
transfers
(9) For the purposes of this section (and for the purposes of the
application of section 132.1 to this section), if a person (the first
person ) causes an amount to be transferred from an account held by another
person (the second person ) to an account held by the first person:
(a) the amount is taken to have been property that belonged to the
second person; and
(b) the first person is taken to have obtained the property for himself
or herself with the intention of permanently depriving the second person of
the property.
(10) For the purposes of this section (and for the purposes of the
application of section 132.1 to this section), if a person (the first
person ) causes an amount to be transferred from an account held by another
person (the second person ) to an account held by a third person:
(a) the amount is taken to have been property that belonged to the
second person; and
(b) the first person is taken to have obtained the property for the
third person with the intention of permanently depriving the second person of
the property.
(11) For the purposes of this section (and for the purposes of the
application of section 132.1 to this section), if:
(a) a credit is made to an account (the credited account ); and
(b) a debit is made to another account (the debited account ); and
(c) either:
(i) the credit results from the debit; or
(ii) the debit results from the credit;
the amount of the credit is
taken to be transferred from the debited account to the credited account.
(12) For
the purposes of this section (and for the purposes of the application of
section 132.1 to this section), a person is taken to cause an amount to
be transferred from an account if the person induces another person to
transfer the amount from the account (whether or not the other person is the
holder of the account).
General deficiency
(13) A
person may be convicted of an offence against this section involving all or
any part of a general deficiency in money even though the deficiency is made
up of any number of particular sums of money that were obtained over a period
of time.
(14) A person may be convicted of an offence against this section
involving all or any part of a general deficiency in property other than money
even though the deficiency is made up of any number of particular items of
property that were obtained over a period of time.
Alternative verdicts
(15) If, in
a prosecution for an offence of theft, the trier of fact is not satisfied that
the defendant is guilty of the offence, but is satisfied beyond reasonable
doubt that the defendant is guilty of an offence against this section, the
trier of fact may find the defendant not guilty of the offence of theft but
guilty of the offence against this section, so long as the defendant has been
accorded procedural fairness in relation to that finding of guilt.
(16) If, in
a prosecution for an offence against this section, the trier of fact is not
satisfied that the defendant is guilty of the offence, but is satisfied beyond
reasonable doubt that the defendant is guilty of an offence of theft, the
trier of fact may find the defendant not guilty of the offence against this
section but guilty of the offence of theft, so long as the defendant has been
accorded procedural fairness in relation to that finding of guilt.
(a) the person does anything with the intention of dishonestly obtaining
a gain from another person; and
(b) the other person is a Commonwealth entity.
Penalty:
Imprisonment for 10 years.
(2) In a prosecution for an offence against subsection (1), it is
not necessary to prove that the defendant knew that the other person was a
Commonwealth entity.
Causing a loss
(3) A person commits an offence if:
(a) the person does anything with the intention of dishonestly causing a
loss to another person; and
(b) the other person is a Commonwealth entity.
Penalty:
Imprisonment for 10 years.
(4) In a prosecution for an offence against subsection (3), it is
not necessary to prove that the defendant knew that the other person was a
Commonwealth entity.
(5) A person commits an offence if:
(a) the person dishonestly causes a loss, or dishonestly causes a risk
of loss, to another person; and
(b) the first-mentioned person knows or believes that the loss will
occur or that there is a substantial risk of the loss occurring; and
(c) the other person is a Commonwealth entity.
Penalty:
Imprisonment for 10 years.
(6) Absolute liability applies to the paragraph (5)(c) element of
the offence.
Influencing a Commonwealth public official
(7) A person commits an offence if:
(a) the person does anything with the intention of dishonestly
influencing a public official in the exercise of the official's duties as a
public official; and
(b) the public official is a Commonwealth public official; and
(c) the duties are duties as a Commonwealth public official.
Penalty: Imprisonment for 10 years.
(8) In a prosecution for an offence against subsection (7), it is
not necessary to prove that the defendant knew:
(a) that the official was a Commonwealth public official; or
(b) that the duties were duties as a Commonwealth public official.
(aa) as a result of that conduct, the person obtains a financial
advantage for himself or herself from another person; and
(ab) the person knows or believes that he or she is not eligible to
receive that financial advantage; and
(b) the other person is a Commonwealth entity.
Penalty:
Imprisonment for 12 months.
(1A) Absolute
liability applies to the paragraph (1)(b) element of the offence.
(2) A person commits an offence if:
(a) the person engages in conduct; and
(aa) as a result of that conduct, the person obtains a financial
advantage for another person from a third person; and
(ab) the person knows or believes that the other person is not eligible
to receive that financial advantage; and
(b) the third person is a Commonwealth entity.
Penalty:
Imprisonment for 12 months.
(2A) Absolute
liability applies to the paragraph (2)(b) element of the offence.
(3) For the purposes of subsection (2), a person is taken to have
obtained a financial advantage for another person from a Commonwealth entity
if the first-mentioned person induces the Commonwealth entity to do something
that results in the other person obtaining the financial advantage.
(4) The definition of obtaining in section 130.1 does not apply to
this section.
(a) the person conspires with another person with the intention of
dishonestly obtaining a gain from a third person; and
(b) the third person is a Commonwealth entity.
Penalty:
Imprisonment for 10 years.
(2) In a prosecution for an offence against subsection (1), it is
not necessary to prove that the defendant knew that the third person was a
Commonwealth entity.
Causing a loss
(3) A person commits an offence if:
(a) the person conspires with another person with the intention of
dishonestly causing a loss to a third person; and
(b) the third person is a Commonwealth entity.
Penalty:
Imprisonment for 10 years.
(4) In a prosecution for an offence against subsection (3), it is
not necessary to prove that the defendant knew that the third person was a
Commonwealth entity.
(5) A person commits an offence if:
(a) the person conspires with another person to dishonestly cause a
loss, or to dishonestly cause a risk of loss, to a third person; and
(b) the first-mentioned person knows or believes that the loss will
occur or that there is a substantial risk of the loss occurring; and
(c) the third person is a Commonwealth entity.
Penalty:
Imprisonment for 10 years.
(6) In a prosecution for an offence against subsection (5), it is
not necessary to prove that the defendant knew that the third person was a
Commonwealth entity.
Influencing a Commonwealth public official
(7) A person commits an offence if:
(a) the person conspires with another person with the intention of
dishonestly influencing a public official in the exercise of the official's
duties as a public official; and
(b) the public official is a Commonwealth public official; and
(c) the duties are duties as a Commonwealth public official.
Penalty: Imprisonment for 10 years.
(8) In a prosecution for an offence against subsection (7), it is
not necessary to prove that the defendant knew:
(a) that the official was a Commonwealth public official; or
(b) that the duties were duties as a Commonwealth public official.
General provisions
(9) For a person to be guilty of an offence against this section:
(a) the person must have entered into an agreement with one or more
other persons; and
(b) the person and at least one other party to the agreement must have
intended to do the thing pursuant to the agreement; and
(c) the person or at least one other party to the agreement must have
committed an overt act pursuant to the agreement.
(10) A
person may be found guilty of an offence against this section even if:
(a) obtaining the gain, causing the loss, causing the risk of loss, or
influencing the Commonwealth public official, as the case may be, is
impossible; or
(b) the only other party to the agreement is a body corporate; or
(c) each other party to the agreement is a person who is not criminally
responsible; or
(d) subject to subsection (11), all other parties to the agreement
have been acquitted of the offence.
(11) A
person cannot be found guilty of an offence against this section if:
(a) all other parties to the agreement have been acquitted of such an
offence; and
(b) a finding of guilt would be inconsistent with their acquittal.
(12) A
person cannot be found guilty of an offence against this section if, before
the commission of an overt act pursuant to the agreement, the person:
(a) withdrew from the agreement; and
(b) took all reasonable steps to prevent the doing of the thing.
(13) A
court may dismiss a charge of an offence against this section if the court
thinks that the interests of justice require the court to do so.
(14)
Proceedings for an offence against this section must not be commenced without
the consent of the Director of Public Prosecutions. However, before the
necessary consent has been given, a person may be:
(a) arrested for an offence against this section; or
(b) charged with an offence against this section; or
(c) remanded in custody or released on bail in connection with an
offence against this section.
(a) the person makes a statement (whether orally, in a document or in
any other way); and
(b) the person does so knowing that the statement:
(i) is false or misleading; or
(ii) omits any matter or thing without which the statement is
misleading; and
(c) the statement is made in, or in connection with:
(i) an application for a licence, permit or authority; or
(ii) an application for registration; or
(iii) an application or claim for a benefit; and
(d) any of the following subparagraphs applies:
(i) the statement is made to a Commonwealth entity;
(ii) the statement is made to a person who is exercising powers or
performing functions under, or in connection with, a law of the Commonwealth;
(iii) the statement is made in compliance or purported compliance with a
law of the Commonwealth.
Penalty: Imprisonment for 12 months.
(1A) Absolute
liability applies to each of the subparagraph (1)(d)(i), (ii) and (iii)
elements of the offence.
(2) Subsection (1) does not apply as a result of
subparagraph (1)(b)(i) if the statement is not false or misleading in a
material particular.
Note: A defendant bears
an evidential burden in relation to the matter in subsection (2). See
subsection 13.3(3).
(3) Subsection (1) does not apply as a result of
subparagraph (1)(b)(ii) if the statement did not omit any matter or thing
without which the statement is misleading in a material particular.
Note: A defendant bears
an evidential burden in relation to the matter in subsection (3). See
subsection 13.3(3).
Recklessness
(4) A person commits an offence if:
(a) the person makes a statement (whether orally, in a document or in
any other way); and
(b) the person does so reckless as to whether the statement:
(i) is false or misleading; or
(ii) omits any matter or thing without which the statement is
misleading; and
(c) the statement is made in, or in connection with:
(i) an application for a licence, permit or authority; or
(ii) an application for registration; or
(iii) an application or claim for a benefit; and
(d) any of the following subparagraphs applies:
(i) the statement is made to a Commonwealth entity;
(ii) the statement is made to a person who is exercising powers or
performing functions under, or in connection with, a law of the Commonwealth;
(iii) the statement is made in compliance or purported compliance with a
law of the Commonwealth.
Penalty: Imprisonment for 6 months.
(4A) Absolute
liability applies to each of the subparagraph (4)(d)(i), (ii) and (iii)
elements of the offence.
(5) Subsection (4) does not apply as a result of
subparagraph (4)(b)(i) if the statement is not false or misleading in a
material particular.
Note: A defendant bears
an evidential burden in relation to the matter in subsection (5). See
subsection 13.3(3).
(6) Subsection (4) does not apply as a result of
subparagraph (4)(b)(ii) if the statement did not omit any matter or thing
without which the statement is misleading in a material particular.
Note: A defendant bears
an evidential burden in relation to the matter in subsection (6). See
subsection 13.3(3).
Alternative verdicts
(7) If, in a prosecution for an offence against subsection (1), the
trier of fact is not satisfied that the defendant is guilty of the offence,
but is satisfied beyond reasonable doubt that the defendant is guilty of an
offence against subsection (4), the trier of fact may find the defendant
not guilty of the offence against subsection (1) but guilty of the
offence against subsection (4), so long as the defendant has been
accorded procedural fairness in relation to that finding of guilt.
Geographical jurisdiction
(8) Section 15.4 (extended geographical jurisdiction--category D)
applies to an offence against subsection (1) or (4).
Definitions
(9) In this section:
"benefit" includes any advantage and is not
limited to property.
(a) the person gives information to another person; and
(b) the person does so knowing that the information:
(i) is false or misleading; or
(ii) omits any matter or thing without which the information is
misleading; and
(c) any of the following subparagraphs applies:
(i) the information is given to a Commonwealth entity;
(ii) the information is given to a person who is exercising powers or
performing functions under, or in connection with, a law of the Commonwealth;
(iii) the information is given in compliance or purported compliance
with a law of the Commonwealth.
Penalty: Imprisonment for 12 months.
(1A) Absolute
liability applies to each of the subparagraph (1)(c)(i), (ii) and (iii)
elements of the offence.
(2) Subsection (1) does not apply as a result of
subparagraph (1)(b)(i) if the information is not false or misleading in a
material particular.
Note: A defendant bears
an evidential burden in relation to the matter in subsection (2). See
subsection 13.3(3).
(3) Subsection (1) does not apply as a result of
subparagraph (1)(b)(ii) if the information did not omit any matter or
thing without which the information is misleading in a material particular.
Note: A defendant bears
an evidential burden in relation to the matter in subsection (3). See
subsection 13.3(3).
(4) Subsection (1) does not apply as a result of
subparagraph (1)(c)(i) if, before the information was given by a person
to the Commonwealth entity, the Commonwealth entity did not take reasonable
steps to inform the person of the existence of the offence against
subsection (1).
Note: A defendant bears
an evidential burden in relation to the matter in subsection (4). See
subsection 13.3(3).
(5) Subsection (1) does not apply as a result of
subparagraph (1)(c)(ii) if, before the information was given by a person
(the first person ) to the person mentioned in that subparagraph (the
second person ), the second person did not take reasonable steps to inform the
first person of the existence of the offence against subsection (1).
Note: A defendant bears
an evidential burden in relation to the matter in subsection (5). See
subsection 13.3(3).
(6) For the purposes of subsections (4) and (5), it is sufficient
if the following form of words is used:
"Giving false or misleading
information is a serious offence".
(a) the person commits an offence against subsection 137.1(1) (the
underlying offence ); and
(b) the information given in committing the underlying offence was given
in relation to an application for, or the maintenance of, an Australian
Government security clearance.
Penalty: Imprisonment for 5 years.
(2) There is no fault element for the physical element in
paragraph (1)(a) other than the fault elements (however described) for
the underlying offence.
(3) To avoid doubt:
(a) a person does not commit an underlying offence for the purposes of
paragraph (1)(a) if the person has a defence to the underlying offence;
and
(b) a person may be convicted of an offence against subsection (1)
even if the person has not been convicted of the underlying offence.
Alternative verdicts
(4) If, on a trial of a person for an offence against
subsection (1), the trier of fact:
(a) is not satisfied that the person is guilty of that offence; and
(b) is satisfied beyond reasonable doubt that the person is guilty of
the underlying offence;
it may find the person not guilty of the offence
against subsection (1) but guilty of the underlying offence.
(5) Subsection (4) only applies if the person has been accorded
procedural fairness in relation to the finding of guilt for the underlying
offence.
References to section 137.1
(6) A reference in any law to section 137.1 is taken to include a
reference to this section.
(a) the person produces a document to another person; and
(b) the person does so knowing that the document is false or misleading;
and
(c) the document is produced in compliance or purported compliance with
a law of the Commonwealth.
Penalty: Imprisonment for 12 months.
(2) Subsection (1) does not apply if the document is not false or
misleading in a material particular.
Note: A defendant bears
an evidential burden in relation to the matter in subsection (2). See
subsection 13.3(3).
(3) Subsection (1) does not apply to a person who produces a
document if the document is accompanied by a written statement signed by the
person or, in the case of a body corporate, by a competent officer of the body
corporate:
(a) stating that the document is, to the knowledge of the
first-mentioned person, false or misleading in a material particular; and
(b) setting out, or referring to, the material particular in which the
document is, to the knowledge of the first-mentioned person, false or
misleading.
Note: A
defendant bears an evidential burden in relation to the matter in
subsection (3). See subsection 13.3(3).
(1) For the purposes of this Part, a person is taken to have obtained a
benefit for another person if the first-mentioned person induces a third
person to do something that results in the other person obtaining the benefit.
(2) The definition of obtaining in section 130.1 does not apply to
this Part.
(ii) causes a benefit to be provided to another person; or
(iii) offers to provide, or promises to provide, a benefit to another
person; or
(iv) causes an offer of the provision of a benefit, or a promise of the
provision of a benefit, to be made to another person; and
(b) the person does so with the intention of influencing a public
official (who may be the other person) in the exercise of the official's
duties as a public official; and
(c) the public official is a Commonwealth public official; and
(d) the duties are duties as a Commonwealth public official.
(2) In a prosecution for an offence against subsection (1), it is
not necessary to prove that the defendant knew:
(a) that the official was a Commonwealth public official; or
(b) that the duties were duties as a Commonwealth public official.
Receiving a bribe
(3) A Commonwealth public official commits an offence if:
(a) the official dishonestly:
(i) asks for a benefit for himself, herself or another person; or
(ii) receives or obtains a benefit for himself, herself or another
person; or
(iii) agrees to receive or obtain a benefit for himself, herself or
another person; and
(b) the official does so with the intention:
(i) that the exercise of the official's duties as a Commonwealth public
official will be influenced; or
(ii) of inducing, fostering or sustaining a belief that the exercise of
the official's duties as a Commonwealth public official will be influenced.
Geographical jurisdiction
(4) Section 15.4 (extended geographical jurisdiction--category D)
applies to an offence against subsection (1) or (3).
Penalty for
individual
(5) An offence against subsection (1) or (3) 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
(6) An offence against subsection (1) or (3) 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.
(7) 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;
(9) 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.
(ii) causes a benefit to be provided to another person; or
(iii) offers to provide, or promises to provide, a benefit to another
person; or
(iv) causes an offer of the provision of a benefit, or a promise of the
provision of a benefit, to be made to another person; and
(b) the receipt, or expectation of the receipt, of the benefit would
tend to influence a public official (who may be the other person) in the
exercise of the official's duties as a public official; and
(c) the public official is a Commonwealth public official; and
(d) the duties are duties as a Commonwealth public official.
Penalty: Imprisonment for 5 years.
(2) In a prosecution for an offence against subsection (1), it is
not necessary to prove that the defendant knew:
(a) that the official was a Commonwealth public official; or
(b) that the duties were duties as a Commonwealth public official.
Receiving a corrupting benefit
(3) A Commonwealth public official commits an offence if:
(a) the official dishonestly:
(i) asks for a benefit for himself, herself or another person; or
(ii) receives or obtains a benefit for himself, herself or another
person; or
(iii) agrees to receive or obtain a benefit for himself, herself or
another person; and
(b) the receipt, or expectation of the receipt, of the benefit would
tend to influence a Commonwealth public official (who may be the
first-mentioned official) in the exercise of the official's duties as a
Commonwealth public official.
Penalty: Imprisonment for 5 years.
Benefit in the nature of a reward
(4) For the purposes of subsections (1) and (3), it is immaterial
whether the benefit is in the nature of a reward.
(a) any paper or other material on which there is writing; or
(b) any paper or other material on which there are marks, figures,
symbols or perforations that are:
(i) capable of being given a meaning by persons qualified to interpret
them; or
(ii) capable of being responded to by a computer, a machine or an
electronic device; or
(c) any article or material (for example, a disk or a tape) from which
information is capable of being reproduced with or without the aid of any
other article or device.
"false Commonwealth document" has the meaning
given by section 143.3.
"false document" has the meaning given by
section 143.2.
"information" means information, whether in the form of
data, text, sounds, images or in any other form.
(2) The following are examples of things covered by the definition of
document in subsection (1):
(a) a credit card;
(b) a debit card;
(c) a card by means of which property can be obtained.
(1) For the purposes of this Part, a document is a false document if,
and only if:
(a) the document, or any part of the document:
(i) purports to have been made in the form in which it is made by a
person who did not make it in that form; or
(ii) purports to have been made in the form in which it is made on the
authority of a person who did not authorise its making in that form; or
(b) the document, or any part of the document:
(i) purports to have been made in the terms in which it is made by a
person who did not make it in those terms; or
(ii) purports to have been made in the terms in which it is made on the
authority of a person who did not authorise its making in those terms; or
(c) the document, or any part of the document:
(i) purports to have been altered in any respect by a person who did not
alter it in that respect; or
(ii) purports to have been altered in any respect on the authority of a
person who did not authorise its alteration in that respect; or
(d) the document, or any part of the document:
(i) purports to have been made or altered by a person who did not exist;
or
(ii) purports to have been made or altered on the authority of a person
who did not exist; or
(e) the document, or any part of the document, purports to have been
made or altered on a date on which, at a time at which, at a place at which,
or otherwise in circumstances in which, it was not made or altered.
(2) For the purposes of this Part, a person is taken to make a false
document if the person alters a document so as to make it a false document
(whether or not it was already a false document before the alteration).
(3) This section has effect as if a document that purports to be a true
copy of another document were the original document.
(1) For the purposes of this Part, a document is a false Commonwealth
document if, and only if:
(a) the document, or any part of the document:
(i) purports to have been made in the form in which it is made by a
Commonwealth entity, or a Commonwealth public official, who did not make it in
that form; or
(ii) purports to have been made in the form in which it is made on the
authority of a Commonwealth entity, or a Commonwealth public official, who did
not authorise its making in that form; or
(b) the document, or any part of the document:
(i) purports to have been made in the terms in which it is made by a
Commonwealth entity, or a Commonwealth public official, who did not make it in
those terms; or
(ii) purports to have been made in the terms in which it is made on the
authority of a Commonwealth entity, or a Commonwealth public official, who did
not authorise its making in those terms; or
(c) the document, or any part of the document:
(i) purports to have been altered in any respect by a Commonwealth
entity, or a Commonwealth public official, who did not alter it in that
respect; or
(ii) purports to have been altered in any respect on the authority of a
Commonwealth entity, or a Commonwealth public official, who did not authorise
its alteration in that respect; or
(d) the document, or any part of the document:
(i) purports to have been made or altered by a Commonwealth entity, or a
Commonwealth public official, who did not exist; or
(ii) purports to have been made or altered on the authority of a
Commonwealth entity, or a Commonwealth public official, who did not exist; or
(e) the document, or any part of the document, purports to have been
made or altered by a Commonwealth entity, or a Commonwealth public official,
on a date on which, at a time at which, at a place at which, or otherwise in
circumstances in which, it was not made or altered.
(2) For the purposes of this Part, a person is taken to make a false
Commonwealth document if the person alters a document so as to make it a false
Commonwealth document (whether or not it was already a false Commonwealth
document before the alteration).
(3) This section has effect as if a document that purports to be a true
copy of another document were the original document.
(4) A reference in this section to a Commonwealth public official is a
reference to a person in the person's capacity as a Commonwealth public
official.
If it is necessary for the purposes of this Part to prove an intent to induce
a person in the person's capacity as a public official to accept a false
document as genuine, it is not necessary to prove that the defendant intended
so to induce a particular person in the person's capacity as a public
official.
(a) the person makes a false document with the intention that the person
or another will use it:
(i) to dishonestly induce a third person in the third person's capacity
as a public official to accept it as genuine; and
(ii) if it is so accepted, to dishonestly obtain a gain, dishonestly
cause a loss, or dishonestly influence the exercise of a public duty or
function; and
(b) the capacity is a capacity as a Commonwealth public official.
Penalty: Imprisonment for 10 years.
(2) In a prosecution for an offence against subsection (1), it is
not necessary to prove that the defendant knew that the capacity was a
capacity as a Commonwealth public official.
(3) A person commits an offence if:
(a) the person makes a false document with the intention that the person
or another will use it:
(i) to dishonestly cause a computer, a machine or an electronic device
to respond to the document as if the document were genuine; and
(ii) if it is so responded to, to dishonestly obtain a gain, dishonestly
cause a loss, or dishonestly influence the exercise of a public duty or
function; and
(b) the response is in connection with the operations of a Commonwealth
entity.
Penalty: Imprisonment for 10 years.
(4) In a prosecution for an offence against subsection (3), it is
not necessary to prove that the defendant knew that the response was in
connection with the operations of a Commonwealth entity.
(5) A person commits an offence if:
(a) the person makes a false document with the intention that the person
or another will use it:
(i) to dishonestly induce a third person to accept it as genuine; and
(ii) if it is so accepted, to dishonestly obtain a gain, dishonestly
cause a loss, or dishonestly influence the exercise of a public duty or
function; and
(b) the false document is a false Commonwealth document.
Penalty: Imprisonment for 10 years.
(6) In a prosecution for an offence against subsection (5), it is
not necessary to prove that the defendant knew that the false document was a
false Commonwealth document.
(7) A person commits an offence if:
(a) the person makes a false document with the intention that the person
or another will use it:
(i) to dishonestly cause a computer, a machine or an electronic device
to respond to the document as if the document were genuine; and
(ii) if it is so responded to, to dishonestly obtain a gain, dishonestly
cause a loss, or dishonestly influence the exercise of a public duty or
function; and
(b) the false document is a false Commonwealth document.
Penalty: Imprisonment for 10 years.
(8) In a prosecution for an offence against subsection (7), it is
not necessary to prove that the defendant knew that the false document was a
false Commonwealth document.
(9) Section 15.4 (extended geographical jurisdiction--category D)
applies to an offence against subsection (1), (3), (5) or (7).
(a) the person knows that a document is a false document and uses it
with the intention of:
(i) dishonestly inducing another person in the other person's capacity
as a public official to accept it as genuine; and
(ii) if it is so accepted, dishonestly obtaining a gain, dishonestly
causing a loss, or dishonestly influencing the exercise of a public duty or
function; and
(b) the capacity is a capacity as a Commonwealth public official.
Penalty: Imprisonment for 10 years.
(2) In a prosecution for an offence against subsection (1), it is
not necessary to prove that the defendant knew that the capacity was a
capacity as a Commonwealth public official.
(3) A person commits an offence if:
(a) the person knows that a document is a false document and uses it
with the intention of:
(i) dishonestly causing a computer, a machine or an electronic device to
respond to the document as if the document were genuine; and
(ii) if it is so responded to, dishonestly obtaining a gain, dishonestly
causing a loss, or dishonestly influencing the exercise of a public duty or
function; and
(b) the response is in connection with the operations of a Commonwealth
entity.
Penalty: Imprisonment for 10 years.
(4) In a prosecution for an offence against subsection (3), it is
not necessary to prove that the defendant knew that the response was in
connection with the operations of a Commonwealth entity.
(5) A person commits an offence if:
(a) the person knows that a document is a false document and uses it
with the intention of:
(i) dishonestly inducing another person to accept it as genuine; and
(ii) if it is so accepted, dishonestly obtaining a gain, dishonestly
causing a loss, or dishonestly influencing the exercise of a public duty or
function; and
(b) the false document is a false Commonwealth document.
Penalty: Imprisonment for 10 years.
(6) In a prosecution for an offence against subsection (5), it is
not necessary to prove that the defendant knew that the false document was a
false Commonwealth document.
(7) A person commits an offence if:
(a) the person knows that a document is a false document and uses it
with the intention of:
(i) dishonestly causing a computer, a machine or an electronic device to
respond to the document as if the document were genuine; and
(ii) if it is so responded to, dishonestly obtaining a gain, dishonestly
causing a loss, or dishonestly influencing the exercise of a public duty or
function; and
(b) the false document is a false Commonwealth document.
Penalty: Imprisonment for 10 years.
(8) In a prosecution for an offence against subsection (7), it is
not necessary to prove that the defendant knew that the false document was a
false Commonwealth document.
(a) the person knows that a document is a false document and has it in
his or her possession with the intention that the person or another will use
it:
(i) to dishonestly induce a third person in the third person's capacity
as a public official to accept it as genuine; and
(ii) if it is so accepted, to dishonestly obtain a gain, dishonestly
cause a loss, or dishonestly influence the exercise of a public duty or
function; and
(b) the capacity is a capacity as a Commonwealth public official.
Penalty: Imprisonment for 10 years.
(2) In a prosecution for an offence against subsection (1), it is
not necessary to prove that the defendant knew that the capacity was a
capacity as a Commonwealth public official.
(3) A person commits an offence if:
(a) the person knows that a document is a false document and has it in
his or her possession with the intention that the person or another will use
it:
(i) to dishonestly cause a computer, a machine or an electronic device
to respond to the document as if the document were genuine; and
(ii) if it is so responded to, to dishonestly obtain a gain, dishonestly
cause a loss, or dishonestly influence the exercise of a public duty or
function; and
(b) the response is in connection with the operations of a Commonwealth
entity.
Penalty: Imprisonment for 10 years.
(4) In a prosecution for an offence against subsection (3), it is
not necessary to prove that the defendant knew that the response was in
connection with the operations of a Commonwealth entity.
(5) A person commits an offence if:
(a) the person knows that a document is a false document and has it in
his or her possession with the intention that the person or another will use
it:
(i) to dishonestly induce a third person to accept it as genuine; and
(ii) if it is so accepted, to dishonestly obtain a gain, dishonestly
cause a loss, or dishonestly influence the exercise of a public duty or
function; and
(b) the false document is a false Commonwealth document.
Penalty: Imprisonment for 10 years.
(6) In a prosecution for an offence against subsection (5), it is
not necessary to prove that the defendant knew that the false document was a
false Commonwealth document.
(7) A person commits an offence if:
(a) the person knows that a document is a false document and has it in
his or her possession with the intention that the person or another will use
it:
(i) to dishonestly cause a computer, a machine or an electronic device
to respond to the document as if the document were genuine; and
(ii) if it is so responded to, to dishonestly obtain a gain, dishonestly
cause a loss, or dishonestly influence the exercise of a public duty or
function; and
(b) the false document is a false Commonwealth document.
Penalty: Imprisonment for 10 years.
(8) In a prosecution for an offence against subsection (7), it is
not necessary to prove that the defendant knew that the false document was a
false Commonwealth document.
(a) the person knows that a device, material or other thing is designed
or adapted for the making of a false document (whether or not the device,
material or thing is designed or adapted for another purpose); and
(b) the person has the device, material or thing in his or her
possession with the intention that the person or another person will use it to
commit an offence against section 144.1.
Penalty: Imprisonment
for 10 years.
(2) A person commits an offence if:
(a) the person makes or adapts a device, material or other thing; and
(b) the person knows that the device, material or other thing is
designed or adapted for the making of a false document (whether or not the
device, material or thing is designed or adapted for another purpose); and
(c) the person makes or adapts the device, material or thing with the
intention that the person or another person will use it to commit an offence
against section 144.1.
Penalty: Imprisonment for 10 years.
(3) A person commits an offence if:
(a) the person knows that a device, material or other thing is designed
or adapted for the making of a false Commonwealth document (whether or not the
device, material or thing is designed or adapted for another purpose); and
(b) the person has the device, material or thing in his or her
possession; and
(c) the person does not have a reasonable excuse for having the device,
material or thing in his or her possession.
Penalty: Imprisonment for
2 years.
Note: A
defendant bears an evidential burden in relation to the matter in
paragraph (3)(c). See subsection 13.3(3).
(4) A person commits an offence if:
(a) the person makes or adapts a device, material or other thing; and
(b) the person knows that the device, material or other thing is
designed or adapted for the making of a false Commonwealth document (whether
or not the device, material or thing is designed or adapted for another
purpose).
(a) the person dishonestly damages, destroys, alters, conceals or
falsifies a document; and
(b) the document is:
(i) kept, retained or issued for the purposes of a law of the
Commonwealth; or
(ii) made by a Commonwealth entity or a person in the capacity of a
Commonwealth public official; or
(iii) held by a Commonwealth entity or a person in the capacity of a
Commonwealth public official; and
(c) the first-mentioned person does so with the intention of:
(i) obtaining a gain; or
(ii) causing a loss.
Penalty: Imprisonment for 7 years.
(1A) Absolute
liability applies to the paragraph (1)(b) element of the offence.
(2) A person commits an offence if:
(a) the person dishonestly damages, destroys, alters, conceals or
falsifies a document; and
(b) the person does so with the intention of:
(i) obtaining a gain from another person; or
(ii) causing a loss to another person; and
(c) the other person is a Commonwealth entity.
Penalty:
Imprisonment for 7 years.
(3) In a prosecution for an offence against subsection (2), it is
not necessary to prove that the defendant knew that the other person was a
Commonwealth entity.
(a) the person dishonestly gives information to another person; and
(b) the information was derived, directly or indirectly, from a document
that, to the knowledge of the first-mentioned person, is false or misleading
in a material particular; and
(c) the document is:
(i) kept, retained or issued for the purposes of a law of the
Commonwealth; or
(ii) made by a Commonwealth entity or a person in the capacity of a
Commonwealth public official; or
(iii) held by a Commonwealth entity or a person in the capacity of a
Commonwealth public official; and
(d) the first-mentioned person does so with the intention of:
(i) obtaining a gain; or
(ii) causing a loss.
Penalty: Imprisonment for 7 years.
(1A) Absolute
liability applies to the paragraph (1)(c) element of the offence.
(2) A person commits an offence if:
(a) the person dishonestly gives information to another person; and
(b) the information was derived, directly or indirectly, from a document
that, to the knowledge of the first-mentioned person, is false or misleading
in a material particular; and
(c) the first-mentioned person does so with the intention of:
(i) obtaining a gain from another person; or
(ii) causing a loss to another person; and
(d) the other person is a Commonwealth entity.
Penalty:
Imprisonment for 7 years.
(3) In a prosecution for an offence against subsection (2), it is
not necessary to prove that the defendant knew that the other person was a
Commonwealth entity.
(e) a person who is an APS employee in the Department administered by
the Minister administering the Australian Border Force Act 2015and who is in
the Australian Border Force (within the meaning of that Act).
"fear"
includes apprehension.
"harm" means:
(a) physical harm (whether temporary or permanent); or
(b) harm to a person's mental health (whether temporary or permanent);
but does not include being subjected to a force or impact that is within the
limits of what is reasonably acceptable as incidental to:
(c) social interaction; or
(d) life in the community.
"harm to a person's mental health"
includes significant psychological harm to the person, but does not include a
reference to ordinary emotional reactions (for example, distress, grief, fear
or anger).
"physical harm" includes:
(a) unconsciousness; and
(b) pain; and
(c) disfigurement; and
(d) infection with a disease; and
(e) any physical contact with a person that the person might reasonably
object to in the circumstances (whether or not the person was aware of it at
the time).
"serious harm" means any harm (including the cumulative effect
of more than one harm) that:
(a) endangers, or is likely to endanger, a person's life; or
(b) is, or is likely to be, significant and longstanding.
(1) A person (the first person ) commits an offence if:
(a) the first person engages in conduct; and
(b) the first person's conduct causes harm to a public official; and
(c) the first person intends that his or her conduct cause harm to the
official; and
(d) the harm is caused without the consent of the official; and
(e) the first person engages in his or her conduct because of:
(i) the official's status as a public official; or
(ii) any conduct engaged in by the official in the official's capacity
as a public official; and
(ea) the public official is a Commonwealth public official; and
(eb) if subparagraph (e)(i) applies--the status mentioned in that
subparagraph was status as a Commonwealth public official; and
(ec) if subparagraph (e)(ii) applies--the conduct mentioned in that
subparagraph was engaged in by the official in the official's capacity as a
Commonwealth public official.
Penalty:
(f) if the official is a Commonwealth judicial officer or a Commonwealth
law enforcement officer--imprisonment for 13 years; or
(g) in any other case--imprisonment for 10 years.
(1A) Absolute
liability applies to the paragraphs (1)(ea), (eb) and (ec) elements of
the offence.
(1B) If:
(a) a person is charged with an offence against subsection (1); and
(b) the public official concerned is a Commonwealth judicial officer or
a Commonwealth law enforcement officer;
a court of summary jurisdiction may,
with the consent of the defendant and the prosecutor and if the court is
satisfied that it is proper to do so, determine the charge summarily.
(1C) If a court
of summary jurisdiction convicts a person of an offence against
subsection (1) in accordance with subsection (1B), the penalty that
the court may impose is a sentence of imprisonment not exceeding 2 years or a
fine not exceeding 120 penalty units, or both.
Causing harm to a former
Governor-General, former Minister or former Parliamentary Secretary
(2) A person (the first person ) commits an offence if:
(a) the first person engages in conduct; and
(b) the first person's conduct causes harm to another person; and
(c) the other person is a former Governor-General, a former Minister or
a former Parliamentary Secretary; and
(d) the first person intends that his or her conduct cause harm to the
other person; and
(e) the harm is caused without the consent of the other person; and
(f) the first person engages in his or her conduct because of:
(i) the other person's status as a former Governor-General, former
Minister or former Parliamentary Secretary; or
(ii) any conduct engaged in by the other person in the other person's
former capacity as a Governor-General, Minister or Parliamentary Secretary.
(1) A person (the first person ) commits an offence if:
(a) the first person makes to another person (the second person ) a
threat to cause serious harm to the second person or to a third person; and
(b) the second person or the third person is a public official; and
(c) the first person:
(i) intends the second person to fear that the threat will be carried
out; or
(ii) is reckless as to causing the second person to fear that the threat
will be carried out; and
(d) the first person makes the threat because of:
(i) the official's status as a public official; or
(ii) any conduct engaged in by the official in the official's capacity
as a public official; and
(da) the official is a Commonwealth public official; and
(db) if subparagraph (d)(i) applies--the status mentioned in that
subparagraph was status as a Commonwealth public official; and
(dc) if subparagraph (d)(ii) applies--the conduct mentioned in that
subparagraph was engaged in by the official in the official's capacity as a
Commonwealth public official.
Penalty:
(e) if the official is a Commonwealth judicial officer or a Commonwealth
law enforcement officer--imprisonment for 9 years; or
(f) in any other case--imprisonment for 7 years.
(1A) Absolute
liability applies to the paragraphs (1)(da), (db) and (dc) elements of
the offence.
Threatening to cause harm
(2) A person (the first person ) commits an offence if:
(a) the first person makes to another person (the second person ) a
threat to cause harm to the second person or to a third person; and
(b) the second person or the third person is a public official; and
(c) the first person:
(i) intends the second person to fear that the threat will be carried
out; or
(ii) is reckless as to causing the second person to fear that the threat
will be carried out; and
(d) the first person makes the threat because of:
(i) the official's status as a public official; or
(ii) any conduct engaged in by the official in the official's capacity
as a public official; and
(e) the official is a Commonwealth public official; and
(f) if subparagraph (d)(i) applies--the status mentioned in that
subparagraph was status as a Commonwealth public official; and
(g) if subparagraph (d)(ii) applies--the conduct mentioned in that
subparagraph was engaged in by the official in the official's capacity as a
Commonwealth public official.
Penalty: Imprisonment for 2 years
(2A) Absolute
liability applies to the paragraphs (2)(e), (f) and (g) elements of the
offence.
Threatening to cause serious harm to a former Governor-General,
former Minister or former Parliamentary Secretary
(3) A person (the first person ) commits an offence if:
(a) the first person makes to another person (the second person ) a
threat to cause serious harm to the second person or to a third person; and
(b) the second person or the third person is a former Governor-General,
a former Minister or a former Parliamentary Secretary; and
(c) the first person:
(i) intends the second person to fear that the threat will be carried
out; or
(ii) is reckless as to causing the second person to fear that the threat
will be carried out; and
(d) the first person makes the threat because of:
(i) the second or third person's status as a former Governor-General, a
former Minister or a former Parliamentary Secretary; or
(ii) any conduct engaged in by the second or third person in the second
or third person's former capacity as a Governor-General, a Minister or a
Parliamentary Secretary.
Penalty: Imprisonment for 7 years.
Threats
(4) For the purposes of this section, a threat may be:
(a) express or implied; or
(b) conditional or unconditional.
Unnecessary to prove that a
threatened person actually feared harm
(5) In a prosecution for an offence against this section, it is not
necessary to prove that the person threatened actually feared that the threat
would be carried out.
(a) the person knows that another person is a public official; and
(b) the first-mentioned person obstructs, hinders, intimidates or
resists the official in the performance of the official's functions; and
(c) the official is a Commonwealth public official; and
(d) the functions are functions as a Commonwealth public official.
Penalty: Imprisonment for 2 years.
(2) In a prosecution for an offence against subsection (1), it is
not necessary to prove that the defendant knew:
(a) that the official was a Commonwealth public official; or
(b) that the functions were functions as a Commonwealth public official.
(3) For the purposes of this section, it is immaterial whether the
defendant was aware that the public official was performing the official's
functions.
(4) Section 15.3 (extended geographical jurisdiction--category C)
applies to an offence against subsection (1).
(5) The definition of duty in section 130.1 does not apply to this
section.
(6) In this section:
"function" :
(a) in relation to a person who is a public official--means any
authority, duty, function or power that is conferred on the person as a public
official; or
(b) in relation to a person who is a Commonwealth public official--means
any authority, duty, function or power that is conferred on the person as a
Commonwealth public official.
(b) the conduct results in, or is reasonably capable of resulting in, a
representation that the person:
(i) is a Commonwealth body; or
(ii) is acting on behalf of, or with the authority of, a Commonwealth
body; and
(c) the person is not:
(i) the Commonwealth body; or
(ii) acting on behalf of, or with the authority of, the Commonwealth
body.
Penalty: Imprisonment for 2 years.
(2) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in, or is reasonably capable of resulting in, a
representation that the person:
(i) is a Commonwealth body; or
(ii) is acting on behalf of, or with the authority of, a Commonwealth
body; and
(c) the person engages in the conduct with the intention of:
(i) obtaining a gain; or
(ii) causing a loss; or
(iii) influencing the exercise of a public duty or function; and
(d) the person is not:
(i) the Commonwealth body; or
(ii) acting on behalf of, or with the authority of, the Commonwealth
body.
Penalty: Imprisonment for 5 years.
(3) For the purposes of this section, it is immaterial whether the
Commonwealth body exists or is fictitious.
(4) If the Commonwealth body is fictitious, subsection (1) or (2)
does not apply unless a person would reasonably believe that the Commonwealth
body exists.
(5) Without limiting section 15A of the
Acts Interpretation Act 1901, this section does not apply to the extent (if
any) that it would infringe any constitutional doctrine of implied freedom of
political communication.
(6) Section 15.3 (extended geographical jurisdiction--category C)
applies to each offence against this section.
(c) a service, benefit, program or facility for some or all members of
the public that is provided by or on behalf of the Commonwealth, whether under
a law of the Commonwealth or otherwise.
"conduct" does not include conduct
engaged in solely for genuine satirical, academic or artistic purposes.
(1) Section 150.1 is enforceable under Part 7 of the
Regulatory Powers Act.
Note: Part 7 of the
Regulatory Powers Act creates a framework for using injunctions to enforce
provisions.
Authorised person
(2) For the purposes of Part 7 of the Regulatory Powers Act, any
person whose interests have been, or would be, affected by conduct mentioned
in subsection 150.1(1) or (2) is an authorised person in relation to
section 150.1.
Relevant court
(3) For the purposes of Part 7 of the Regulatory Powers Act, each
of the following courts is a relevant court in relation to section 150.1:
(a) the Federal Court of Australia;
(b) the Federal Circuit Court of Australia;
(c) the Supreme Court of a State or Territory;
(d) the District Court (or equivalent) of a State or Territory.
Extension to external Territories etc.
(4) Part 7 of the Regulatory Powers Act, as that Part applies in
relation to section 150.1, extends to:
(a) every external Territory; and
(b) conduct outside Australia; and
(c) conduct that results in, or is reasonably capable of resulting in, a
representation outside Australia; and
(d) conduct that is intended to result in a gain, a loss or influence
outside Australia.
(1) The purpose of this Division is to create certain offences that are
of international concern and certain related offences.
(2) It is the Parliament's intention that the jurisdiction of the
International Criminal Court is to be complementary to the jurisdiction of
Australia with respect to offences in this Division that are also crimes
within the jurisdiction of that Court.
(3) Accordingly, the International Criminal Court Act 2002does not
affect the primacy of Australia's right to exercise its jurisdiction with
respect to offences created by this Division that are also crimes within the
jurisdiction of the International Criminal Court.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator causes serious bodily or mental harm to one or more
persons; and
(b) the person or persons belong to a particular national, ethnical,
racial or religious group; and
(c) the perpetrator intends to destroy, in whole or in part, that
national, ethnical, racial or religious group, as such.
Penalty:
Imprisonment for life.
(2) In subsection (1):
"causes serious bodily or mental harm"
includes, but is not restricted to, commits acts of torture, rape, sexual
violence or inhuman or degrading treatment.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator inflicts certain conditions of life upon one or more
persons; and
(b) the person or persons belong to a particular national, ethnical,
racial or religious group; and
(c) the perpetrator intends to destroy, in whole or in part, that
national, ethnical, racial or religious group, as such; and
(d) the conditions of life are intended to bring about the physical
destruction of that group, in whole or in part.
Penalty: Imprisonment
for life.
(2) In subsection (1):
"conditions of life" includes, but is not
restricted to, intentional deprivation of resources indispensable for
survival, such as deprivation of food or medical services, or systematic
expulsion from homes.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator forcibly transfers one or more persons; and
(b) the person or persons belong to a particular national, ethnical,
racial or religious group; and
(c) the perpetrator intends to destroy, in whole or in part, that
national, ethnical, racial or religious group, as such; and
(d) the transfer is from that group to another national, ethnical,
racial or religious group; and
(e) the person or persons are under the age of 18 years; and
(f) the perpetrator knows that, or is reckless as to whether, the person
or persons are under that age.
Penalty: Imprisonment for life.
(2) In subsection (1):
"forcibly transfers one or more persons"
includes transfers one or more persons:
(a) by threat of force or coercion (such as that caused by fear of
violence, duress, detention, psychological oppression or abuse of power)
against the person or persons or against another person; or
(b) by taking advantage of a coercive environment.
A person (the perpetrator ) commits an offence if:
(a) the perpetrator causes the death of one or more persons; and
(b) the perpetrator's conduct is committed intentionally or knowingly as
part of a widespread or systematic attack directed against a civilian
population.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator causes the death of one or more persons; and
(b) the perpetrator's conduct constitutes, or takes place as part of, a
mass killing of members of a civilian population; and
(c) the perpetrator's conduct is committed intentionally or knowingly as
part of a widespread or systematic attack directed against a civilian
population.
Penalty: Imprisonment for life.
(2) In subsection (1):
"causes the death of" includes causes
death by intentionally inflicting conditions of life (such as the deprivation
of access to food or medicine) intended to bring about the destruction of part
of a population.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator exercises any or all of the powers attaching to the
right of ownership over one or more persons (including the exercise of a power
in the course of trafficking in persons, in particular women and children);
and
(b) the perpetrator's conduct is committed intentionally or knowingly as
part of a widespread or systematic attack directed against a civilian
population.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
"exercises any or all of the powers
attaching to the right of ownership" over a person includes purchases, sells,
lends or barters a person or imposes on a person a similar deprivation of
liberty and also includes exercise a power arising from a debt incurred or
contract made by a person.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator forcibly displaces one or more persons, by expulsion
or other coercive acts, from an area in which the person or persons are
lawfully present to another country or location; and
(b) the forcible displacement is contrary to paragraph 4 of article
12 or article 13 of the Covenant; and
(c) the perpetrator knows of, or is reckless as to, the factual
circumstances that establish the lawfulness of the presence of the person or
persons in the area; and
(d) the perpetrator's conduct is committed intentionally or knowingly as
part of a widespread or systematic attack directed against a civilian
population.
Penalty: Imprisonment for 17 years.
(2) Strict liability applies to paragraph (1)(b).
(3) In subsection (1):
"forcibly displaces one or more persons"
includes displaces one or more persons:
(a) by threat of force or coercion (such as that caused by fear of
violence, duress, detention, psychological oppression or abuse of power)
against the person or persons or against another person; or
(b) by taking advantage of a coercive environment.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator imprisons one or more persons or otherwise severely
deprives one or more persons of physical liberty; and
(b) the perpetrator's conduct violates article 9, 14 or 15 of the
Covenant; and
(c) the perpetrator's conduct is committed intentionally or knowingly as
part of a widespread or systematic attack directed against a civilian
population.
A person (the perpetrator ) commits an offence if:
(a) the perpetrator inflicts severe physical or mental pain or suffering
upon one or more persons who are in the custody or under the control of the
perpetrator; and
(b) the pain or suffering does not arise only from, and is not inherent
in or incidental to, lawful sanctions; and
(c) the perpetrator's conduct is committed intentionally or knowingly as
part of a widespread or systematic attack directed against a civilian
population.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator sexually penetrates another person without the
consent of that person; and
(b) the perpetrator knows of, or is reckless as to, the lack of consent;
and
(c) the perpetrator's conduct is committed intentionally or knowingly as
part of a widespread or systematic attack directed against a civilian
population.
Penalty: Imprisonment for 25 years.
(2) A person (the perpetrator ) commits an offence if:
(a) the perpetrator causes another person to sexually penetrate the
perpetrator without the consent of the other person; and
(b) the perpetrator knows of, or is reckless as to, the lack of consent;
and
(c) the perpetrator's conduct is committed intentionally or knowingly as
part of a widespread or systematic attack directed against a civilian
population.
Penalty: Imprisonment for 25 years.
(3) In this section:
"consent" means free and voluntary agreement.
The following are examples of circumstances in which a person does not consent
to an act:
(a) the person submits to the act because of
force or the fear of force to the person or to someone else;
(b) the person submits to the act because the person is
unlawfully detained;
(c) the person is asleep or
unconscious, or is so affected by alcohol or another drug as to be incapable
of consenting;
(d) the person is incapable of
understanding the essential nature of the act;
(e) the
person is mistaken about the essential nature of the act (for example, the
person mistakenly believes that the act is for medical or hygienic purposes);
(f) the person submits to the act because of psychological
oppression or abuse of power;
(g) the person submits to
the act because of the perpetrator taking advantage of a coercive environment.
(4) In this section:
"sexually penetrate" means:
(a) penetrate (to any extent) the genitalia or anus of a person by any
part of the body of another person or by any object manipulated by that other
person; or
(b) penetrate (to any extent) the mouth of a person by the penis of
another person; or
(c) continue to sexually penetrate as defined in paragraph (a) or
(b).
(5) In this section, being reckless as to a lack of consent to sexual
penetration includes not giving any thought to whether or not the person is
consenting to sexual penetration.
(6) In this section, the genitalia or other parts of the body of a
person include surgically constructed genitalia or other parts of the body of
the person.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator causes another person to enter into or remain in
sexual slavery; and
(b) the perpetrator intends to cause, or is reckless as to causing, that
sexual slavery; and
(c) the perpetrator's conduct is committed intentionally or knowingly as
part of a widespread or systematic attack directed against a civilian
population.
Penalty: Imprisonment for 25 years.
(2) For the purposes of this section, sexual slavery is the condition of
a person who provides sexual services and who, because of the use of force or
threats:
(a) is not free to cease providing sexual services; or
(b) is not free to leave the place or area where the person provides
sexual services.
(3) In this section:
"threat" means:
(a) a threat of force; or
(b) a threat to cause a person's deportation; or
(c) a threat of any other detrimental action unless there are reasonable
grounds for the threat of that action in connection with the provision of
sexual services by a person.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator causes one or more persons to engage in one or more
acts of a sexual nature without the consent of the person or persons,
including by being reckless as to whether there is consent; and
(b) the perpetrator intends that he or she, or another person, will
obtain pecuniary or other advantage in exchange for, or in connection with,
the acts of a sexual nature; and
(c) the perpetrator's conduct is committed intentionally or knowingly as
part of a widespread or systematic attack directed against a civilian
population.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
"consent" means free and voluntary
agreement.
The following are examples of circumstances in which a person does
not consent to an act:
(a) the person submits to the act
because of force or the fear of force to the person or to someone else;
(b) the person submits to the act because the person is
unlawfully detained;
(c) the person is asleep or
unconscious, or is so affected by alcohol or another drug as to be incapable
of consenting;
(d) the person is incapable of
understanding the essential nature of the act;
(e) the
person is mistaken about the essential nature of the act (for example, the
person mistakenly believes that the act is for medical or hygienic purposes);
(f) the person submits to the act because of psychological
oppression or abuse of power;
(g) the person submits to
the act because of the perpetrator taking advantage of a coercive environment.
"threat of force or coercion" includes:
(a) a threat of force or coercion such as that caused by fear of
violence, duress, detention, psychological oppression or abuse of power; or
(b) taking advantage of a coercive environment.
(3) In subsection (1), being reckless as to whether there is
consent to one or more acts of a sexual nature includes not giving any thought
to whether or not the person or persons are consenting to engaging in the act
or acts of a sexual nature.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator unlawfully confines one or more women forcibly made
pregnant; and
(b) the perpetrator intends to affect the ethnic composition of any
population or to destroy, wholly or partly, a national, ethnical, racial or
religious group, as such; and
(c) the perpetrator's conduct is committed intentionally or knowingly as
part of a widespread or systematic attack directed against a civilian
population.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
"forcibly made pregnant" includes made
pregnant by a consent that was affected by deception or by natural, induced or
age-related incapacity.
(3) To avoid doubt, this section does not affect any other law of the
Commonwealth or any law of a State or Territory.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator deprives one or more persons of biological
reproductive capacity; and
(b) the deprivation is not effected by a birth-control measure that has
a non-permanent effect in practice; and
(c) the perpetrator's conduct is neither justified by the medical or
hospital treatment of the person or persons nor carried out with the consent
of the person or persons; and
(d) the perpetrator's conduct is committed intentionally or knowingly as
part of a widespread or systematic attack directed against a civilian
population.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
"consent" does not include consent
effected by deception or by natural, induced or age-related incapacity.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator does either of the following:
(i) commits an act or acts of a sexual nature against one or more
persons;
(ii) causes one or more persons to engage in an act or acts of a sexual
nature;
without the consent of the person or persons, including by being reckless as
to whether there is consent; and
(b) the perpetrator's conduct is of a gravity comparable to the offences
referred to in sections 268.14 to 268.18; and
(c) the perpetrator's conduct is committed intentionally or knowingly as
part of a widespread or systematic attack directed against a civilian
population.
Penalty: Imprisonment for 25 years.
(2) Strict liability applies to paragraph (1)(b).
(3) In subsection (1):
"consent" means free and voluntary
agreement.
The following are examples of circumstances in which a person does
not consent to an act:
(a) the person submits to the act
because of force or the fear of force to the person or to someone else;
(b) the person submits to the act because the person is
unlawfully detained;
(c) the person is asleep or
unconscious, or is so affected by alcohol or another drug as to be incapable
of consenting;
(d) the person is incapable of
understanding the essential nature of the act;
(e) the
person is mistaken about the essential nature of the act (for example, the
person mistakenly believes that the act is for medical or hygienic purposes);
(f) the person submits to the act because of psychological
oppression or abuse of power;
(g) the person submits to
the act because of the perpetrator taking advantage of a coercive environment.
"threat of force or coercion" includes:
(a) a threat of force or coercion such as that caused by fear of
violence, duress, detention, psychological oppression or abuse of power; or
(b) taking advantage of a coercive environment.
(4) In subsection (1), being reckless as to whether there is
consent to one or more acts of a sexual nature includes not giving any thought
to whether or not the person is consenting to the act or acts of a sexual
nature.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator severely deprives one or more persons of any of the
rights referred to in paragraph (b); and
(b) the rights are those guaranteed in articles 6, 7, 8 and 9,
paragraph 2 of article 14, article 18, paragraph 2 of article 20,
paragraph 2 of article 23 and article 27 of the Covenant; and
(c) the perpetrator targets the person or persons by reason of the
identity of a group or collectivity or targets the group or collectivity as
such; and
(d) the grounds on which the targeting is based are political, racial,
national, ethnic, cultural, religious, gender or other grounds that are
recognised in paragraph 1 of article 2 of the Covenant; and
(e) the perpetrator's conduct is committed in connection with another
act that is:
(i) a proscribed inhumane act; or
(ii) genocide; or
(iii) a war crime; and
(f) the perpetrator's conduct is committed intentionally or knowingly as
part of a widespread or systematic attack directed against a civilian
population.
Penalty: Imprisonment for 17 years.
(2) Strict liability applies to:
(a) the physical element of the offence referred to in
paragraph (1)(a) that the rights are those referred to in
paragraph (1)(b); and
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator arrests, detains or abducts one or more persons; and
(b) the arrest, detention or abduction is carried out by, or with the
authorisation, support or acquiescence of, the government of a country or a
political organisation; and
(c) the perpetrator intends to remove the person or persons from the
protection of the law for a prolonged period of time; and
(d) the perpetrator's conduct is committed intentionally or knowingly as
part of a widespread or systematic attack directed against a civilian
population; and
(e) after the arrest, detention or abduction, the government or
organisation refuses to acknowledge the deprivation of freedom of, or to give
information on the fate or whereabouts of, the person or persons.
Penalty: Imprisonment for 17 years.
(2) A person (the perpetrator ) commits an offence if:
(a) one or more persons have been arrested, detained or abducted; and
(b) the arrest, detention or abduction was carried out by, or with the
authorisation, support or acquiescence of, the government of a country or a
political organisation; and
(c) the perpetrator refuses to acknowledge the deprivation of freedom,
or to give information on the fate or whereabouts, of the person or persons;
and
(d) the refusal occurs with the authorisation, support or acquiescence
of the government of the country or the political organisation; and
(e) the perpetrator knows that, or is reckless as to whether, the
refusal was preceded or accompanied by the deprivation of freedom; and
(f) the perpetrator intends that the person or persons be removed from
the protection of the law for a prolonged period of time; and
(g) the arrest, detention or abduction occurred, and the refusal occurs,
as part of a widespread or systematic attack directed against a civilian
population; and
(h) the perpetrator knows that the refusal is part of, or intends the
refusal to be part of, such an attack.
A person (the perpetrator ) commits an offence if:
(a) the perpetrator commits against one or more persons an act that is a
proscribed inhumane act (as defined by the Dictionary) or an act that is of a
nature and gravity similar to any such proscribed inhumane act; and
(b) the perpetrator's conduct is committed in the context of an
institutionalised regime of systematic oppression and domination by one racial
group over any other racial group or groups; and
(c) the perpetrator knows of, or is reckless as to, the factual
circumstances that establish the character of the act; and
(d) the perpetrator intends to maintain the regime by the conduct; and
(e) the perpetrator's conduct is committed intentionally or knowingly as
part of a widespread or systematic attack directed against a civilian
population.
A person (the perpetrator ) commits an offence if:
(a) the perpetrator causes great suffering, or serious injury to body or
to mental or physical health, by means of an inhumane act; and
(b) the act is of a character similar to another proscribed inhumane act
as defined by the Dictionary; and
(c) the perpetrator's conduct is committed intentionally or knowingly as
part of a widespread or systematic attack directed against a civilian
population.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator subjects one or more persons to a particular
biological experiment; and
(b) the experiment seriously endangers the physical or mental health or
integrity of the person or persons; and
(c) the perpetrator's conduct is neither justified by the medical,
dental or hospital treatment of the person or persons nor carried out in the
interest or interests of the person or persons; and
(d) the person or persons are protected under one or more of the Geneva
Conventions or under Protocol I to the Geneva Conventions; and
(e) the perpetrator knows of, or is reckless as to, the factual
circumstances that establish that the person or persons are so protected; and
(f) the perpetrator's conduct takes place in the context of, and is
associated with, an international armed conflict.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator deprives one or more persons of a fair and regular
trial by denying to the person any of the judicial guarantees referred to in
paragraph (b); and
(b) the judicial guarantees are those defined in articles 84, 99 and 105
of the Third Geneva Convention and articles 66 and 71 of the Fourth Geneva
Convention; and
(c) the person or persons are protected under one or more of the Geneva
Conventions or under Protocol I to the Geneva Conventions; and
(d) the perpetrator knows of, or is reckless as to, the factual
circumstances that establish that the person or persons are so protected; and
(e) the perpetrator's conduct takes place in the context of, and is
associated with, an international armed conflict.
Penalty:
Imprisonment for 10 years.
(2) Strict liability applies to:
(a) the physical element of the offence referred to in
paragraph (1)(a) that the judicial guarantees are those referred to in
paragraph (1)(b); and
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator seizes, detains or otherwise holds hostage one or
more persons; and
(b) the perpetrator threatens to kill, injure or continue to detain the
person or persons; and
(c) the perpetrator intends to compel the government of a country, an
international organisation or a person or group of persons to act or refrain
from acting as an explicit or implicit condition for either the safety or the
release of the person or persons; and
(d) the person or persons are protected under one or more of the Geneva
Conventions or under Protocol I to the Geneva Conventions; and
(e) the perpetrator knows of, or is reckless as to, the factual
circumstances that establish that the person or persons are so protected; and
(f) the perpetrator's conduct takes place in the context of, and is
associated with, an international armed conflict.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator directs an attack; and
(b) the object of the attack is personnel involved in a humanitarian
assistance or peacekeeping mission in accordance with the Charter of the
United Nations; and
(c) the personnel are entitled to the protection given to civilians
under the Geneva Conventions or Protocol I to the Geneva Conventions; and
(d) the perpetrator's conduct takes place in the context of, and is
associated with, an international armed conflict.
Penalty:
Imprisonment for life.
(2) A person (the perpetrator ) commits an offence if:
(a) the perpetrator directs an attack; and
(b) the object of the attack is installations, material, units or
vehicles involved in a humanitarian assistance or peacekeeping mission in
accordance with the Charter of the United Nations; and
(c) the installations, material, units or vehicles are entitled to the
protection given to civilian objects under the Geneva Conventions or Protocol
I to the Geneva Conventions; and
(d) the perpetrator's conduct takes place in the context of, and is
associated with, an international armed conflict.
Penalty:
Imprisonment for 20 years.
(3) Strict liability applies to paragraphs (1)(c) and (2)(c).
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator launches an attack; and
(b) the perpetrator knows that the attack will cause incidental death or
injury to civilians; and
(c) the perpetrator knows that the death or injury will be of such an
extent as to be excessive in relation to the concrete and direct military
advantage anticipated; and
(d) the perpetrator's conduct takes place in the context of, and is
associated with, an international armed conflict.
Penalty:
Imprisonment for life.
(2) A person (the perpetrator ) commits an offence if:
(a) the perpetrator launches an attack; and
(b) the perpetrator knows that the attack will cause:
(i) damage to civilian objects; or
(ii) widespread, long-term and severe damage to the natural environment;
and
(c) the perpetrator knows that the damage will be of such an extent as
to be excessive in relation to the concrete and direct military advantage
anticipated; and
(d) the perpetrator's conduct takes place in the context of, and is
associated with, an international armed conflict.
Penalty for a
contravention of this subsection: Imprisonment for 20 years.
A person (the perpetrator ) commits an offence if:
(a) the perpetrator uses a flag, insignia or uniform of the adverse
party; and
(b) the perpetrator uses the flag, insignia or uniform while engaged in
an attack or in order to shield, favour, protect or impede military
operations; and
(c) the perpetrator knows of, or is reckless as to, the illegal nature
of such use of the flag, insignia or uniform; and
(d) the perpetrator's conduct results in death or serious personal
injury; and
(e) the conduct takes place in the context of, and is associated with,
an international armed conflict.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator uses an emblem; and
(b) the emblem is one of the distinctive emblems of the Geneva
Conventions; and
(c) the perpetrator uses the emblem for combatant purposes to invite the
confidence of an adversary in order to lead him or her to believe that the
perpetrator is entitled to protection, or that the adversary is obliged to
accord protection to the perpetrator, with intent to betray that confidence;
and
(d) the perpetrator knows of, or is reckless as to, the illegal nature
of such use; and
(e) the perpetrator's conduct results in death or serious personal
injury; and
(f) the conduct takes place in the context of, and is associated with,
an international armed conflict.
Penalty: Imprisonment for life.
(2) Strict liability applies to paragraph (1)(b).
(3) In this section:
"emblem" means any emblem, identity card, sign,
signal, insignia or uniform.
A person (the perpetrator ) commits an offence if:
(a) the perpetrator:
(i) authorises, organises or directs, or participates in the
authorisation, organisation or direction of, or participates in, the transfer,
directly or indirectly, of parts of the civilian population of the
perpetrator's own country into territory that the country occupies; or
(ii) authorises, organises or directs, or participates in the
authorisation, organisation or direction of, or participates in, the
deportation or transfer of all or parts of the population of territory
occupied by the perpetrator's own country within or outside that territory;
and
(b) the perpetrator's conduct takes place in the context of, and is
associated with, an international armed conflict.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator subjects one or more persons to mutilation, such as
by permanently disfiguring, or permanently disabling or removing organs or
appendages of, the person or persons; and
(b) the perpetrator's conduct causes the death of the person or persons;
and
(c) the conduct is neither justified by the medical, dental or hospital
treatment of the person or persons nor carried out in the interest or
interests of the person or persons; and
(d) the person or persons are in the power of an adverse party; and
(e) the conduct takes place in the context of, and is associated with,
an international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator ) commits an offence if:
(a) the perpetrator subjects one or more persons to mutilation, such as
by permanently disfiguring, or permanently disabling or removing organs or
appendages of, the person or persons; and
(b) the perpetrator's conduct seriously endangers the physical or mental
health, or the integrity, of the person or persons; and
(c) the conduct is neither justified by the medical, dental or hospital
treatment of the person or persons nor carried out in the interest or
interests of the person or persons; and
(d) the person or persons are in the power of an adverse party; and
(e) the conduct takes place in the context of, and is associated with,
an international armed conflict.
Penalty for a contravention of this
subsection: Imprisonment for 25 years.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator subjects one or more persons to a medical or
scientific experiment; and
(b) the experiment causes the death of the person or persons; and
(c) the perpetrator's conduct is neither justified by the medical,
dental or hospital treatment of the person or persons nor carried out in the
interest or interests of the person or persons; and
(d) the person or persons are in the power of an adverse party; and
(e) the conduct takes place in the context of, and is associated with,
an international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator ) commits an offence if:
(a) the perpetrator subjects one or more persons to a medical or
scientific experiment; and
(b) the experiment seriously endangers the physical or mental health, or
the integrity, of the person or persons; and
(c) the perpetrator's conduct is neither justified by the medical,
dental or hospital treatment of the person or persons nor carried out in the
interest or interests of the person or persons; and
(d) the person or persons are in the power of an adverse party; and
(e) the conduct takes place in the context of, and is associated with,
an international armed conflict.
Penalty for a contravention of this
subsection: Imprisonment for 25 years.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator invites the confidence or belief of one or more
persons that the perpetrator is entitled to protection, or that the person or
persons are obliged to accord protection to the perpetrator; and
(b) the perpetrator kills the person or persons; and
(c) the perpetrator makes use of that confidence or belief in killing
the person or persons; and
(d) the person or persons belong to an adverse party; and
(e) the perpetrator's conduct takes place in the context of, and is
associated with, an international armed conflict.
Penalty:
Imprisonment for life.
(2) A person (the perpetrator ) commits an offence if:
(a) the perpetrator invites the confidence or belief of one or more
persons that the perpetrator is entitled to protection, or that the person or
persons are obliged to accord protection to the perpetrator; and
(b) the perpetrator injures the person or persons; and
(c) the perpetrator makes use of that confidence or belief in injuring
the person or persons; and
(d) the person or persons belong to an adverse party; and
(e) the perpetrator's conduct takes place in the context of, and is
associated with, an international armed conflict.
Penalty for a
contravention of this subsection: Imprisonment for 25 years.
A person (the perpetrator ) commits an offence if:
(a) the perpetrator declares or orders that there are to be no
survivors; and
(b) the declaration or order is given with the intention of threatening
an adversary or conducting hostilities on the basis that there are to be no
survivors; and
(c) the perpetrator is in a position of effective command or control
over the subordinate forces to which the declaration or order is directed; and
(d) the perpetrator's conduct takes place in the context of, and is
associated with, an international armed conflict.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator destroys or seizes certain property; and
(b) the property is property of an adverse party; and
(c) the property is protected from the destruction or seizure under
article 18 of the Third Geneva Convention, article 53 of the Fourth Geneva
Convention or article 54 of Protocol I to the Geneva Conventions; and
(d) the perpetrator knows of, or is reckless as to, the factual
circumstances that establish that the property is so protected; and
(e) the destruction or seizure is not justified by military necessity;
and
(f) the perpetrator's conduct takes place in the context of, and is
associated with, an international armed conflict.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator coerces one or more persons by act or threat to take
part in military operations against that person's or those persons' own
country or forces; and
(b) the person or persons are nationals of an adverse party; and
(c) the perpetrator's conduct takes place in the context of, and is
associated with, an international armed conflict.
Penalty:
Imprisonment for 10 years.
(2) It is not a defence to a prosecution for an offence against
subsection (1) that the person or persons were in the service of the
perpetrator at a time before the beginning of the international armed
conflict.
A person (the perpetrator ) commits an offence if:
(a) the perpetrator employs a gas or other analogous substance or
device; and
(b) the gas, substance or device is such that it causes death or serious
damage to health in the ordinary course of events through its asphyxiating or
toxic properties; and
(c) the perpetrator's conduct takes place in the context of, and is
associated with, an international armed conflict.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator employs certain bullets; and
(b) the bullets are such that their use violates the Hague Declaration
because they expand or flatten easily in the human body; and
(c) the perpetrator knows that, or is reckless as to whether, the nature
of the bullets is such that their employment will uselessly aggravate
suffering or the wounding effect; and
(d) the perpetrator's conduct takes place in the context of, and is
associated with, an international armed conflict.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator sexually penetrates another person without the
consent of that person; and
(b) the perpetrator knows about, or is reckless as to, the lack of
consent; and
(c) the perpetrator's conduct takes place in the context of, and is
associated with, an international armed conflict.
Penalty:
Imprisonment for 25 years.
(2) A person (the perpetrator ) commits an offence if:
(a) the perpetrator causes another person to sexually penetrate the
perpetrator without the consent of the other person; and
(b) the perpetrator knows about, or is reckless as to, the lack of
consent; and
(c) the perpetrator's conduct takes place in the context of, and is
associated with, an international armed conflict.
Penalty:
Imprisonment for 25 years.
(3) In this section:
"consent" means free and voluntary agreement.
The following are examples of circumstances in which a person does not consent
to an act:
(a) the person submits to the act because of
force or the fear of force to the person or to someone else;
(b) the person submits to the act because the person is
unlawfully detained;
(c) the person is asleep or
unconscious, or is so affected by alcohol or another drug as to be incapable
of consenting;
(d) the person is incapable of
understanding the essential nature of the act;
(e) the
person is mistaken about the essential nature of the act (for example, the
person mistakenly believes that the act is for medical or hygienic purposes);
(f) the person submits to the act because of psychological
oppression or abuse of power;
(g) the person submits to
the act because of the perpetrator taking advantage of a coercive environment.
(4) In this section:
"sexually penetrate" means:
(a) penetrate (to any extent) the genitalia or anus of a person by any
part of the body of another person or by any object manipulated by that other
person; or
(b) penetrate (to any extent) the mouth of a person by the penis of
another person; or
(c) continue to sexually penetrate as defined in paragraph (a) or
(b).
(5) In this section, being reckless as to a lack of consent to sexual
penetration includes not giving any thought to whether or not the person is
consenting to sexual penetration.
(6) In this section, the genitalia or other parts of the body of a
person include surgically constructed genitalia or other parts of the body of
the person.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator causes another person to enter into or remain in
sexual slavery; and
(b) the perpetrator intends to cause, or is reckless as to causing, that
sexual slavery; and
(c) the perpetrator's conduct takes place in the context of, and is
associated with, an international armed conflict.
Penalty:
Imprisonment for 25 years.
(2) For the purposes of this section, sexual slavery is the condition of
a person who provides sexual services and who, because of the use of force or
threats:
(a) is not free to cease providing sexual services; or
(b) is not free to leave the place or area where the person provides
sexual services.
(3) In this section:
"threat" means:
(a) a threat of force; or
(b) a threat to cause a person's deportation; or
(c) a threat of any other detrimental action unless there are reasonable
grounds for the threat of that action in connection with the provision of
sexual services by a person.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator causes one or more persons to engage in one or more
acts of a sexual nature without the consent of the person or persons,
including by being reckless as to whether there is consent; and
(b) the perpetrator intends that he or she, or another person, will
obtain pecuniary or other advantage in exchange for, or in connection with,
the acts of a sexual nature; and
(c) the perpetrator's conduct takes place in the context of, and is
associated with, an international armed conflict.
Penalty:
Imprisonment for 25 years.
(2) In subsection (1):
"consent" means free and voluntary
agreement.
The following are examples of circumstances in which a person does
not consent to an act:
(a) the person submits to the act
because of force or the fear of force to the person or to someone else;
(b) the person submits to the act because the person is
unlawfully detained;
(c) the person is asleep or
unconscious, or is so affected by alcohol or another drug as to be incapable
of consenting;
(d) the person is incapable of
understanding the essential nature of the act;
(e) the
person is mistaken about the essential nature of the act (for example, the
person mistakenly believes that the act is for medical or hygienic purposes);
(f) the person submits to the act because of psychological
oppression or abuse of power;
(g) the person submits to
the act because of the perpetrator taking advantage of a coercive environment.
"threat of force or coercion" includes:
(a) a threat of force or coercion such as that caused by fear of
violence, duress, detention, psychological oppression or abuse of power; or
(b) taking advantage of a coercive environment.
(3) In subsection (1), being reckless as to whether there is
consent to one or more acts of a sexual nature includes not giving any thought
to whether or not the person is consenting to the act or acts of a sexual
nature.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator unlawfully confines one or more women forcibly made
pregnant; and
(b) the perpetrator intends to affect the ethnic composition of any
population or to destroy, wholly or partly, a national, ethnical, racial or
religious group, as such; and
(c) the perpetrator's conduct takes place in the context of, and is
associated with, an international armed conflict.
Penalty:
Imprisonment for 25 years.
(2) In subsection (1):
"forcibly made pregnant" includes made
pregnant by a consent that was effected by deception or by natural, induced or
age-related incapacity.
(3) To avoid doubt, this section does not affect any other law of the
Commonwealth or any law of a State or Territory.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator deprives one or more persons of biological
reproductive capacity; and
(b) the deprivation is not effected by a birth-control measure that has
a non-permanent effect in practice; and
(c) the perpetrator's conduct is neither justified by the medical or
hospital treatment of the person or persons nor carried out with the consent
of the person or persons; and
(d) the perpetrator's conduct takes place in the context of, and is
associated with, an international armed conflict.
Penalty:
Imprisonment for 25 years.
(2) In subsection (1):
"consent" does not include consent
effected by deception or by natural, induced or age-related incapacity.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator does either of the following:
(i) commits an act or acts of a sexual nature against one or more
persons;
(ii) causes one or more persons to engage in an act or acts of a sexual
nature;
without the consent of the person or persons, including by being reckless as
to whether there is consent; and
(b) the perpetrator's conduct is of a gravity comparable to the offences
referred to in sections 268.59 to 268.63; and
(c) the conduct takes place in the context of, and is associated with,
an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) Strict liability applies to paragraph (1)(b).
(3) In subsection (1):
"consent" means free and voluntary
agreement.
The following are examples of circumstances in which a person does
not consent to an act:
(a) the person submits to the act
because of force or the fear of force to the person or to someone else;
(b) the person submits to the act because the person is
unlawfully detained;
(c) the person is asleep or
unconscious, or is so affected by alcohol or another drug as to be incapable
of consenting;
(d) the person is incapable of
understanding the essential nature of the act;
(e) the
person is mistaken about the essential nature of the act (for example, the
person mistakenly believes that the act is for medical or hygienic purposes);
(f) the person submits to the act because of psychological
oppression or abuse of power;
(g) the person submits to
the act because of the perpetrator taking advantage of a coercive environment.
"threat of force or coercion" includes:
(a) a threat of force or coercion such as that caused by fear of
violence, duress, detention, psychological oppression or abuse of power; or
(b) taking advantage of a coercive environment.
(4) In subsection (1), being reckless as to whether there is
consent to one or more acts of a sexual nature includes not giving any thought
to whether or not the person is consenting to the act or acts of a sexual
nature.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator uses the presence of one or more civilians,
prisoners of war, medical or religious personnel or persons who are hors de
combat ; and
(b) the perpetrator intends the perpetrator's conduct to render a
military objective immune from attack or to shield, favour or impede military
operations; and
(c) the perpetrator's conduct takes place in the context of, and is
associated with, an international armed conflict.
Penalty:
(a) if the conduct results in the death of any of the persons referred
to in paragraph (a)--imprisonment for life; or
(b) otherwise--imprisonment for 17 years.
(2) In this section:
"religious personnel" includes non-confessional,
non-combatant military personnel carrying out a similar function to religious
personnel.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator attacks one or more persons; and
(b) the person or persons are using, in conformity with the Geneva
Conventions or the Protocols to the Geneva Conventions, any of the distinctive
emblems of the Geneva Conventions; and
(c) the perpetrator intends the persons so using such an emblem to be
the object of the attack; and
(d) the perpetrator's conduct takes place in the context of, and is
associated with, an international armed conflict.
Penalty:
Imprisonment for life.
(2) A person (the perpetrator ) commits an offence if:
(a) the perpetrator attacks one or more buildings, medical units or
transports or other objects; and
(b) the buildings, units or transports or other objects are using, in
conformity with the Geneva Conventions or the Protocols to the Geneva
Conventions, any of the distinctive emblems of the Geneva Conventions; and
(c) the perpetrator intends the buildings, units or transports or other
objects so using such an emblem to be the object of the attack; and
(d) the perpetrator's conduct takes place in the context of, and is
associated with, an international armed conflict.
Penalty:
Imprisonment for 20 years.
(3) Strict liability applies to paragraphs (1)(b) and (2)(b).
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator causes the death of one or more persons; and
(b) the person or persons are neither taking an active part in the
hostilities nor are members of an organised armed group; and
(c) the perpetrator knows of, or is reckless as to, the factual
circumstances establishing that the person or persons are neither taking an
active part in the hostilities nor are members of an organised armed
group; and
(d) the perpetrator's conduct takes place in the context of, and is
associated with, an armed conflict that is not an international armed
conflict.
Penalty: Imprisonment for life.
(1A)
Subsection (1) does not apply if:
(a) the death of the person or persons occurs in the course of, or as a
result of, an attack on a military objective; and
(b) at the time the attack was launched:
(i) the perpetrator did not expect that the attack would result in the
incidental death of, or injury to, civilians that would have been excessive in
relation to the concrete and direct military advantage anticipated; and
(ii) it was reasonable in all the circumstances that the perpetrator did
not have such an expectation.
Note: A defendant bears
an evidential burden in relation to the matter in subsection (1A). See
subsection 13.3(3).
(2) To avoid doubt, a reference in subsection (1) to a person or
persons who are not taking an active part in the hostilities includes a
reference to:
(a) a person or persons who are hors de combat ; or
(b) civilians, medical personnel or religious personnel who are not
taking an active part in the hostilities.
(3) For the purposes of this section, the expression members of an
organised armed group does not include members of an organised armed group who
are hors de combat .
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator subjects one or more persons to mutilation, such as
by permanently disfiguring, or permanently disabling or removing organs or
appendages of, the person or persons; and
(b) the perpetrator's conduct causes the death of the person or persons;
and
(c) the conduct is neither justified by the medical, dental or hospital
treatment of the person or persons nor carried out in the interest or
interests of the person or persons; and
(d) the person or persons are neither taking an active part in the
hostilities nor are members of an organised armed group; and
(e) the perpetrator knows of, or is reckless as to, the factual
circumstances establishing that the person or persons are neither taking an
active part in the hostilities nor are members of an organised armed
group; and
(f) the conduct takes place in the context of, and is associated with,
an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for life.
(1A)
Subsection (1) does not apply if:
(a) the death of the person or persons occurs in the course of, or as a
result of, an attack on a military objective; and
(b) at the time the attack was launched:
(i) the perpetrator did not expect that the attack would result in the
incidental death of, or injury to, civilians that would have been excessive in
relation to the concrete and direct military advantage anticipated; and
(ii) it was reasonable in all the circumstances that the perpetrator did
not have such an expectation.
Note: A defendant bears
an evidential burden in relation to the matter in subsection (1A). See
subsection 13.3(3).
(2) A person (the perpetrator ) commits an offence if:
(a) the perpetrator subjects one or more persons to mutilation, such as
by permanently disfiguring, or permanently disabling or removing organs or
appendages of, the person or persons; and
(b) the perpetrator's conduct seriously endangers the physical or mental
health, or the integrity, of the person or persons; and
(c) the conduct is neither justified by the medical, dental or hospital
treatment of the person or persons nor carried out in the interest or
interests of the person or persons; and
(d) the person or persons are neither taking an active part in the
hostilities nor are members of an organised armed group; and
(e) the perpetrator knows of, or is reckless as to, the factual
circumstances establishing that the person or persons are neither taking an
active part in the hostilities nor are members of an organised armed
group; and
(f) the conduct takes place in the context of, and is associated with,
an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 25 years.
(2A)
Subsection (2) does not apply if:
(a) the serious endangerment of the physical or mental health, or
integrity, of the person or persons occurs in the course of, or as a result
of, an attack on a military objective; and
(b) at the time the attack was launched:
(i) the perpetrator did not expect that the attack would result in the
incidental death of, or injury to, civilians that would have been excessive in
relation to the concrete and direct military advantage anticipated; and
(ii) it was reasonable in all the circumstances that the perpetrator did
not have such an expectation.
Note: A defendant bears
an evidential burden in relation to the matter in subsection (2A). See
subsection 13.3(3).
(3) To avoid doubt, a reference in subsection (1) or (2) to a
person or persons who are not taking an active part in the hostilities
includes a reference to:
(a) a person or persons who are hors de combat ; or
(b) civilians, medical personnel or religious personnel who are not
taking an active part in the hostilities.
(4) For the purposes of this section, the expression members of an
organised armed group does not include members of an organised armed group who
are hors de combat .
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator inflicts severe physical or mental pain or suffering
upon one or more persons; and
(b) the person or persons are neither taking an active part in the
hostilities nor are members of an organised armed group; and
(c) the perpetrator knows of, or is reckless as to, the factual
circumstances establishing that the person or persons are neither taking an
active part in the hostilities nor are members of an organised armed
group; and
(d) the perpetrator's conduct takes place in the context of, and is
associated with, an armed conflict that is not an international armed
conflict.
Penalty: Imprisonment for 25 years.
(1A)
Subsection (1) does not apply if:
(a) the infliction of the severe physical or mental pain or suffering on
the person or persons occurs in the course of, or as a result of, an attack on
a military objective; and
(b) at the time the attack was launched:
(i) the perpetrator did not expect that the attack would result in the
incidental death of, or injury to, civilians that would have been excessive in
relation to the concrete and direct military advantage anticipated; and
(ii) it was reasonable in all the circumstances that the perpetrator did
not have such an expectation.
Note: A defendant bears
an evidential burden in relation to the matter in subsection (1A). See
subsection 13.3(3).
(2) To avoid doubt, a reference in subsection (1) to a person or
persons who are not taking an active part in the hostilities includes a
reference to:
(a) a person or persons who are hors de combat ; or
(b) civilians, medical personnel or religious personnel who are not
taking an active part in the hostilities.
(3) For the purposes of this section, the expression members of an
organised armed group does not include members of an organised armed group who
are hors de combat .
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator inflicts severe physical or mental pain or suffering
upon one or more persons; and
(b) the perpetrator inflicts the pain or suffering for the purpose of:
(i) obtaining information or a confession; or
(ii) a punishment, intimidation or coercion; or
(iii) a reason based on discrimination of any kind; and
(c) the person or persons are not taking an active part in the
hostilities; and
(d) the perpetrator knows of, or is reckless as to, the factual
circumstances establishing that the person or persons are not taking an active
part in the hostilities; and
(e) the perpetrator's conduct takes place in the context of, and is
associated with, an armed conflict that is not an international armed
conflict.
Penalty: Imprisonment for 25 years.
(2) To avoid doubt, a reference in subsection (1) to a person or
persons who are not taking an active part in the hostilities includes a
reference to:
(a) a person or persons who are hors de combat ; or
(b) civilians, medical personnel or religious personnel who are not
taking an active part in the hostilities.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator severely humiliates, degrades or otherwise violates
the dignity of one or more persons (whether or not the person or persons are
alive); and
(b) the person or persons are not taking an active part in the
hostilities; and
(c) the perpetrator knows of, or is reckless as to, the factual
circumstances establishing that the person or persons are not taking an active
part in the hostilities; and
(d) the perpetrator's conduct takes place in the context of, and is
associated with, an armed conflict that is not an international armed
conflict.
Penalty: Imprisonment for 17 years.
(2) To avoid doubt, a reference in subsection (1) to a person or
persons who are not taking an active part in the hostilities includes a
reference to a person or persons who:
(a) are hors de combat ; or
(b) are civilians, medical personnel or religious personnel who are not
taking an active part in the hostilities; or
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator seizes, detains or otherwise holds hostage one or
more persons; and
(b) the perpetrator threatens to kill, injure or continue to detain the
person or persons; and
(c) the perpetrator intends to compel the government of a country, an
international organisation or a person or group of persons to act or refrain
from acting as an explicit or implicit condition for either the safety or the
release of the person or persons; and
(d) the person or persons are not taking an active part in the
hostilities; and
(e) the perpetrator knows of, or is reckless as to, the factual
circumstances establishing that the person or persons are not taking an active
part in the hostilities; and
(f) the perpetrator's conduct takes place in the context of, and is
associated with, an armed conflict that is not an international armed
conflict.
Penalty: Imprisonment for 17 years.
(2) To avoid doubt, a reference in subsection (1) to a person or
persons who are not taking an active part in the hostilities includes a
reference to:
(a) a person or persons who are hors de combat ; or
(b) civilians, medical personnel or religious personnel who are not
taking an active part in the hostilities.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator passes a sentence on one or more persons; and
(b) the person or persons are not taking an active part in the
hostilities; and
(c) the perpetrator knows of, or is reckless as to, the factual
circumstances establishing that the person or persons are not taking an active
part in the hostilities; and
(d) either of the following applies:
(i) there was no previous judgment pronounced by a court;
(ii) the court that rendered judgment did not afford the essential
guarantees of independence and impartiality or other judicial guarantees; and
(e) if the court did not afford other judicial guarantees--those
guarantees are guarantees set out in articles 14, 15 and 16 of the Covenant;
and
(f) the perpetrator knows of:
(i) if subparagraph (d)(i) applies--the absence of a previous
judgment; or
(ii) if subparagraph (d)(ii) applies--the failure to afford the
relevant guarantees and the fact that they are indispensable to a fair trial;
and
(g) the perpetrator's conduct takes place in the context of, and is
associated with, an armed conflict that is not an international armed
conflict.
Penalty: Imprisonment for 10 years.
(2) A person (the perpetrator ) commits an offence if:
(a) the perpetrator executes one or more persons; and
(b) the person or persons are not taking an active part in the
hostilities; and
(c) the perpetrator knows of, or is reckless as to, the factual
circumstances establishing that the person or persons are not taking an active
part in the hostilities; and
(d) either of the following applies:
(i) there was no previous judgment pronounced by a court;
(ii) the court that rendered judgment did not afford the essential
guarantees of independence and impartiality or other judicial guarantees; and
(e) if the court did not afford other judicial guarantees--those
guarantees are guarantees set out in articles 14, 15 and 16 of the Covenant;
and
(f) the perpetrator knows of:
(i) if subparagraph (d)(i) applies--the absence of a previous
judgment; or
(ii) if subparagraph (d)(ii) applies--the failure to afford the
relevant guarantees and the fact that they are indispensable to a fair trial;
and
(g) the perpetrator's conduct takes place in the context of, and is
associated with, an armed conflict that is not an international armed
conflict.
Penalty: Imprisonment for life.
(3) Strict liability applies to paragraphs (1)(e) and (2)(e).
(4) To avoid doubt, a reference in subsection (1) or (2) to a
person or persons who are not taking an active part in the hostilities
includes a reference to:
(a) a person or persons who are hors de combat ; or
(b) civilians, medical personnel or religious personnel who are not
taking an active part in the hostilities.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator attacks one or more persons; and
(b) the person or persons are using, in conformity with the Geneva
Conventions or the Protocols to the Geneva Conventions, any of the distinctive
emblems of the Geneva Conventions; and
(c) the perpetrator intends the persons so using such an emblem to be
the object of the attack; and
(d) the perpetrator's conduct takes place in the context of, and is
associated with, an armed conflict that is not an international armed
conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator ) commits an offence if:
(a) the perpetrator attacks one or more buildings, medical units or
transports or other objects; and
(b) the buildings, units or transports or other objects are using, in
conformity with the Geneva Conventions or the Protocols to the Geneva
Conventions, any of the distinctive emblems of the Geneva Conventions; and
(c) the perpetrator intends the buildings, units or transports or other
objects so using such an emblem to be the object of the attack; and
(d) the perpetrator's conduct takes place in the context of, and is
associated with, an armed conflict that is not an international armed
conflict.
Penalty: Imprisonment for 20 years.
(3) Strict liability applies to paragraphs (1)(b) and (2)(b).
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator directs an attack; and
(b) the object of the attack is personnel involved in a humanitarian
assistance or peacekeeping mission in accordance with the Charter of the
United Nations; and
(c) the personnel are entitled to the protection given to civilians
under the Geneva Conventions or Protocol II to the Geneva Conventions; and
(d) the perpetrator's conduct takes place in the context of, and is
associated with, an armed conflict that is not an international armed
conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator ) commits an offence if:
(a) the perpetrator directs an attack; and
(b) the object of the attack is installations, material, units or
vehicles involved in a humanitarian assistance or peacekeeping mission in
accordance with the Charter of the United Nations; and
(c) the installations, material, units or vehicles are entitled to the
protection given to civilian objects under the Geneva Conventions and Protocol
II to the Geneva Conventions; and
(d) the perpetrator's conduct takes place in the context of, and is
associated with, an armed conflict that is not an international armed
conflict.
Penalty: Imprisonment for 20 years.
(3) Strict liability applies to paragraphs (1)(c) and (2)(c).
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator sexually penetrates another person without the
consent of that person; and
(b) the perpetrator knows of, or is reckless as to, the lack of consent;
and
(c) the perpetrator's conduct takes place in the context of, and is
associated with, an armed conflict that is not an international armed
conflict.
Penalty: Imprisonment for 25 years.
(2) A person (the perpetrator ) commits an offence if:
(a) the perpetrator causes another person to sexually penetrate the
perpetrator without the consent of the other person; and
(b) the perpetrator knows of, or is reckless as to, the lack of consent;
and
(c) the perpetrator's conduct takes place in the context of, and is
associated with, an armed conflict that is not an international armed
conflict.
Penalty: Imprisonment for 25 years.
(3) In this section:
"consent" means free and voluntary agreement.
The following are examples of circumstances in which a person does not consent
to an act:
(a) the person submits to the act because of
force or the fear of force to the person or to someone else;
(b) the person submits to the act because the person is
unlawfully detained;
(c) the person is asleep or
unconscious, or is so affected by alcohol or another drug as to be incapable
of consenting;
(d) the person is incapable of
understanding the essential nature of the act;
(e) the
person is mistaken about the essential nature of the act (for example, the
person mistakenly believes that the act is for medical or hygienic purposes);
(f) the person submits to the act because of psychological
oppression or abuse of power;
(g) the person submits to
the act because of the perpetrator taking advantage of a coercive environment.
(4) In this section:
"sexually penetrate" means:
(a) penetrate (to any extent) the genitalia or anus of a person by any
part of the body of another person or by any object manipulated by that other
person; or
(b) penetrate (to any extent) the mouth of a person by the penis of
another person; or
(c) continue to sexually penetrate as defined in paragraph (a) or
(b).
(5) In this section, being reckless as to a lack of consent to sexual
penetration includes not giving any thought to whether or not the person is
consenting to sexual penetration.
(6) In this section, the genitalia or other parts of the body of a
person include surgically constructed genitalia or other parts of the body of
the person.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator causes another person to enter into or remain in
sexual slavery; and
(b) the perpetrator intends to cause, or is reckless as to causing, that
sexual slavery; and
(c) the perpetrator's conduct takes place in the context of, and is
associated with, an armed conflict that is not an international armed
conflict.
Penalty: Imprisonment for 25 years.
(2) For the purposes of this section, sexual slavery is the condition of
a person who provides sexual services and who, because of the use of force or
threats:
(a) is not free to cease providing sexual services; or
(b) is not free to leave the place or area where the person provides
sexual services.
(3) In this section:
"threat" means:
(a) a threat of force; or
(b) a threat to cause a person's deportation; or
(c) a threat of any other detrimental action unless there are reasonable
grounds for the threat of that action in connection with the provision of
sexual services by a person.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator causes one or more persons to engage in one or more
acts of a sexual nature without the consent of the person or persons,
including by being reckless as to whether there is consent; and
(b) the perpetrator intends that he or she, or another person, will
obtain pecuniary or other advantage in exchange for, or in connection with,
the acts of a sexual nature; and
(c) the perpetrator's conduct takes place in the context of, and is
associated with, an armed conflict that is not an international armed
conflict.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
"consent" means free and voluntary
agreement.
The following are examples of circumstances in which a person does
not consent to an act:
(a) the person submits to the act
because of force or the fear of force to the person or to someone else;
(b) the person submits to the act because the person is
unlawfully detained;
(c) the person is asleep or
unconscious, or is so affected by alcohol or another drug as to be incapable
of consenting;
(d) the person is incapable of
understanding the essential nature of the act;
(e) the
person is mistaken about the essential nature of the act (for example, the
person mistakenly believes that the act is for medical or hygienic purposes);
(f) the person submits to the act because of psychological
oppression or abuse of power;
(g) the person submits to
the act because of the perpetrator taking advantage of a coercive environment.
"threat of force or coercion" includes:
(a) a threat of force or coercion such as that caused by fear of
violence, duress, detention, psychological oppression or abuse of power; or
(b) taking advantage of a coercive environment.
(3) In subsection (1), being reckless as to whether there is
consent to one or more acts of a sexual nature includes not giving any thought
to whether or not the person is consenting to the act or acts of a sexual
nature.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator unlawfully confines one or more women forcibly made
pregnant; and
(b) the perpetrator intends to affect the ethnic composition of any
population or to destroy, wholly or partly, a national, ethnical, racial or
religious group as such; and
(c) the perpetrator's conduct takes place in the context of, and is
associated with, an armed conflict that is not an international armed
conflict.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
"forcibly made pregnant" includes made
pregnant by a consent that was affected by deception or by natural, induced or
age-related incapacity.
(3) To avoid doubt, this section does not affect any other law of the
Commonwealth or any law of a State or Territory.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator deprives one or more persons of biological
reproductive capacity; and
(b) the deprivation is not effected by a birth-control measure that has
a non-permanent effect in practice; and
(c) the perpetrator's conduct is neither justified by the medical or
hospital treatment of the person or persons nor carried out with the consent
of the person or persons; and
(d) the perpetrator's conduct takes place in the context of, and is
associated with, an armed conflict that is not an international armed
conflict.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
"consent" does not include consent
effected by deception or by natural, induced or age-related incapacity.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator does either of the following:
(i) commits an act or acts of a sexual nature against one or more
persons;
(ii) causes one or more persons to engage in an act or acts of a sexual
nature;
without the consent of the person or persons, including by being reckless as
to whether there is consent; and
(b) the perpetrator's conduct is of a gravity comparable to the offences
referred to in sections 268.82 to 268.87; and
(c) the conduct takes place in the context of, and is associated with,
an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) Strict liability applies to paragraph (1)(b).
(3) In subsection (1):
"consent" means free and voluntary
agreement.
The following are examples of circumstances in which a person does
not consent to an act:
(a) the person submits to the act
because of force or the fear of force to the person or to someone else;
(b) the person submits to the act because the person is
unlawfully detained;
(c) the person is asleep or
unconscious, or is so affected by alcohol or another drug as to be incapable
of consenting;
(d) the person is incapable of
understanding the essential nature of the act;
(e) the
person is mistaken about the essential nature of the act (for example, the
person mistakenly believes that the act is for medical or hygienic purposes);
(f) the person submits to the act because of psychological
oppression or abuse of power;
(g) the person submits to
the act because of the perpetrator taking advantage of a coercive environment.
"threat of force or coercion" includes:
(a) a threat of force or coercion such as that caused by fear of
violence, duress, detention, psychological oppression or abuse of power,
against the person or another person; or
(b) taking advantage of a coercive environment.
(4) In subsection (1), being reckless as to whether there is
consent to one or more acts of a sexual nature includes not giving any thought
to whether or not the person is consenting to the act or acts of a sexual
nature.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator invites the confidence or belief of one or more
persons that the perpetrator is entitled to protection, or that the person or
persons are obliged to accord protection to the perpetrator; and
(b) the perpetrator kills the person or persons; and
(c) the perpetrator makes use of that confidence or belief in killing
the person or persons; and
(d) the person or persons belong to an adverse party; and
(e) the perpetrator's conduct takes place in the context of, and is
associated with, an armed conflict that is not an international armed
conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator ) commits an offence if:
(a) the perpetrator invites the confidence or belief of one or more
persons that the perpetrator is entitled to protection, or that the person or
persons are obliged to accord protection to the perpetrator; and
(b) the perpetrator injures the person or persons; and
(c) the perpetrator makes use of that confidence or belief in injuring
the person or persons; and
(d) the person or persons belong to an adverse party; and
(e) the perpetrator's conduct takes place in the context of, and is
associated with, an armed conflict that is not an international armed
conflict.
Penalty for a contravention of this subsection: Imprisonment for
25 years.
A person (the perpetrator ) commits an offence if:
(a) the perpetrator declares or orders that there are to be no
survivors; and
(b) the declaration or order is given with the intention of threatening
an adversary or conducting hostilities on the basis that there are to be no
survivors; and
(c) the perpetrator is in a position of effective command or control
over the subordinate forces to which the declaration or order is directed; and
(d) the perpetrator's conduct takes place in the context of, and is
associated with, an armed conflict that is not an international armed
conflict.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator subjects one or more persons to mutilation, such as
by permanently disfiguring, or permanently disabling or removing organs or
appendages of, the person or persons; and
(b) the perpetrator's conduct causes the death of the person or persons;
and
(c) the conduct is neither justified by the medical, dental or hospital
treatment of the person or persons nor carried out in the interest or
interests of the person or persons; and
(d) the person or persons are in the power of another party to the
conflict; and
(e) the conduct takes place in the context of, and is associated with,
an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator ) commits an offence if:
(a) the perpetrator subjects one or more persons to mutilation, such as
by permanently disfiguring, or permanently disabling or removing organs or
appendages of, the person or persons; and
(b) the perpetrator's conduct seriously endangers the physical or mental
health, or the integrity, of the person or persons; and
(c) the conduct is neither justified by the medical, dental or hospital
treatment of the person or persons nor carried out in the interest or
interests of the person or persons; and
(d) the person or persons are in the power of another party to the
conflict; and
(e) the conduct takes place in the context of, and is associated with,
an armed conflict that is not an international armed conflict.
Penalty for a
contravention of this subsection: Imprisonment for 25 years.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator subjects one or more persons to a medical or
scientific experiment; and
(b) the experiment causes the death of the person or persons; and
(c) the perpetrator's conduct is neither justified by the medical,
dental or hospital treatment of the person or persons nor carried out in the
interest or interests of the person or persons; and
(d) the person or persons are in the power of another party to the
conflict; and
(e) the conduct takes place in the context of, and is associated with,
an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator ) commits an offence if:
(a) the perpetrator subjects one or more persons to a medical or
scientific experiment; and
(b) the experiment seriously endangers the physical or mental health, or
the integrity, of the person or persons; and
(c) the perpetrator's conduct is neither justified by the medical,
dental or hospital treatment of the person or persons nor carried out in the
interest or interests of the person or persons; and
(d) the person or persons are in the power of another party to the
conflict; and
(e) the conduct takes place in the context of, and is associated with,
an armed conflict that is not an international armed conflict.
Penalty for a
contravention of this subsection: Imprisonment for 25 years.
A person (the perpetrator ) commits an offence if:
(a) the perpetrator subjects one or more persons to a medical procedure;
and
(b) the procedure seriously endangers the physical or mental health, or
the integrity, of the person or persons; and
(c) the perpetrator's conduct is not justified by the state of health of
the person or persons; and
(d) the perpetrator knows that, or is reckless as to whether, the
conduct is consistent with generally accepted medical standards that would be
applied under similar medical circumstances to persons who are of the same
nationality as the perpetrator and are in no way deprived of liberty; and
(e) the person or persons are in the power of, or are interned, detained
or otherwise deprived of liberty by, the country of the perpetrator as a
result of an international armed conflict; and
(f) the conduct takes place in the context of, and is associated with,
an international armed conflict.
(1) A person (the perpetrator ) commits an offence if:
(a) the perpetrator removes from one or more persons blood, tissue or
organs for transplantation; and
(b) in the case of the removal of blood--the removal:
(i) is not for transfusion; or
(ii) is for transfusion without the consent of the person or persons;
and
(c) in the case of the removal of skin--the removal:
(i) is not for grafting; or
(ii) is for grafting without the consent of the person or persons; and
(d) the intent of the removal is non-therapeutic; and
(e) the removal is not carried out under conditions consistent with
generally accepted medical standards and controls designed for the benefit of
the person or persons and of the recipient; and
(f) the person or persons are in the power of, or are interned, detained
or otherwise deprived of liberty by, an adverse party as a result of an
international armed conflict; and
(g) the conduct takes place in the context of, and is associated with,
an international armed conflict.
Penalty: Imprisonment for 25 years.
(2) In subsection (1):
"consent" means consent given voluntarily
and without any coercion or inducement.
A person (the perpetrator ) commits an offence if:
(a) the perpetrator launches an attack against works or installations
containing dangerous forces; and
(b) the attack is such that it will cause loss of life, injury to
civilians, or damage to civilian objects, to such an extent as to be excessive
in relation to the concrete and direct military advantage anticipated; and
(c) the perpetrator knows that the attack will cause loss of life,
injury to civilians, or damage to civilian objects, to such an extent; and
(d) the attack results in death or serious injury to body or health; and
(e) the perpetrator's conduct takes place in the context of, and is
associated with, an international armed conflict.
(1) A person (the perpetrator ) commits an offence if:
(a) one or more persons are in the power of, or are interned, detained
or otherwise deprived of liberty by, an adverse party as a result of an
international armed conflict; and
(b) the perpetrator unjustifiably delays the repatriation of the person
or persons to the person's own country or the persons' own countries; and
(c) the delay is in violation of Part IV of the Third Geneva
Convention or Chapter XII of Section IV of Part III of the Fourth Geneva
Convention.
A person (the perpetrator ) commits an offence if:
(a) the perpetrator commits against one or more persons an act that is a
proscribed inhumane act or is of a nature and gravity similar to any
proscribed inhumane act; and
(b) the perpetrator knows of, or is reckless at to, the factual
circumstances that establish the character of the act; and
(c) the perpetrator's conduct is committed in the context of an
institutionalised regime of systematic oppression and domination by one racial
group over any other racial group or groups; and
(d) the perpetrator intends to maintain the regime by the conduct; and
(e) the conduct takes place in the context of, and is associated with,
an international armed conflict.
A person (the perpetrator ) commits an offence if:
(a) the perpetrator directs an attack; and
(b) the object of the attack is any one or more of the following that
are not used in support of the military effort and are not located in the
immediate proximity of military objectives:
(i) clearly recognised historic monuments;
(ii) works of art;
(iii) places of worship; and
(c) the monuments, works of art and places of worship constitute the
cultural or spiritual heritage of peoples and have been given special
protection by special arrangement (for example, within the framework of a
competent international organisation); and
(d) the perpetrator's conduct takes place in the context of, and is
associated with, an international armed conflict.
(a) the person makes a sworn statement in or for the purposes of a
proceeding before the International Criminal Court; and
(b) the statement is false.
Penalty: Imprisonment for 10 years.
(2) A person who is an interpreter commits the offence of perjury if:
(a) the person, by a sworn statement, gives an interpretation of a
statement or other thing in or for the purposes of a proceeding before the
International Criminal Court; and
(1) A person commits an offence if the person destroys or conceals
evidence with the intention of:
(a) influencing a decision on the institution of a proceeding before the
International Criminal Court; or
(b) influencing the outcome of such a proceeding.
Penalty:
Imprisonment for 7 years.
(2) For the purposes of this section, destroying evidence includes
making the evidence illegible, indecipherable or otherwise incapable of being
identified.
(1) A person commits an offence if the person provides, or offers or
promises to provide, a benefit to another person with the intention that the
other person or a third person will:
(a) not attend as a witness at a proceeding before the International
Criminal Court; or
(b) give false evidence at such a proceeding; or
(c) withhold true evidence at such a proceeding.
Penalty:
Imprisonment for 5 years.
(2) A person commits an offence if the person asks for, or receives or
agrees to receive, a benefit for himself, herself or another person with the
intention that he, she or another person will:
(a) not attend as a witness at a proceeding before the International
Criminal Court; or
(b) give false evidence at such a proceeding; or
(c) withhold true evidence at such a proceeding.
Penalty:
Imprisonment for 5 years.
(3) A person commits an offence if the person provides, or offers or
promises to provide, a benefit to another person with the intention that the
other person or a third person will:
(a) not attend as an interpreter at a proceeding before the
International Criminal Court; or
(b) give a false or misleading interpretation as an interpreter at such
a proceeding.
(1) A person commits an offence if the person causes or threatens to
cause any detriment to another person with the intention that the other person
or a third person will:
(a) not attend as a witness at a proceeding before the International
Criminal Court; or
(b) give false evidence at such a proceeding; or
(c) withhold true evidence at such a proceeding.
Penalty:
Imprisonment for 7 years.
(2) A person commits an offence if the person causes or threatens to
cause any detriment to another person with the intention that the other person
or a third person will:
(a) not attend as an interpreter at a proceeding before the
International Criminal Court; or
(b) give a false or misleading interpretation as an interpreter in such
a proceeding.
(1) A person commits an offence if the person, by his or her conduct,
intentionally prevents another person from attending as a witness or
interpreter at a proceeding before the International Criminal Court.
Penalty: Imprisonment for 5 years.
(2) This section does not apply to conduct that constitutes an offence
against section 268.105, 268.106, 268.107, 268.109 or 268.110.
A person commits an offence if the person, by his or her conduct,
intentionally prevents another person from producing in evidence at a
proceeding before the International Criminal Court a thing that is legally
required to be produced.
(1) A person commits an offence if the person causes or threatens to
cause any detriment to another person who was a witness in a proceeding before
the International Criminal Court:
(a) because of anything done by the other person in or for the purposes
of the proceeding; and
(b) in the belief that the other person was a witness who had done that
thing.
Penalty: Imprisonment for 5 years.
(2) It is a defence to a prosecution for an offence against
subsection (1) that:
(a) the detriment to the witness was not (apart from this section) an
offence; and
(b) the witness committed perjury in the proceeding before the
International Criminal Court.
Note: A defendant bears
an evidential burden in relation to the matters in subsection (2). See
subsection 13.3(3).
(3) In this section:
"witness" includes:
(a) a person who attends at a proceeding before the International
Criminal Court as a witness but is not called as a witness; or
(1) A person commits an offence if the person causes or threatens to
cause any detriment to another person who is an official of the International
Criminal Court:
(a) because of anything done by the other person; and
(b) in the belief that the other person was an official of that Court
who had done that thing for the purposes of a proceeding before that Court.
Penalty: Imprisonment for 5 years.
(2) A person commits an offence if the person causes or threatens to
cause any detriment to another person who is an official of the International
Criminal Court:
(a) because of anything done by a third person who is an official of
that Court; and
(b) in the belief that the third person was an official of that Court
who had done that thing for the purposes of a proceeding before that Court.
(1) A person commits an offence if the person, by his or her conduct,
intentionally perverts the course of justice in respect of the International
Criminal Court.
Penalty: Imprisonment for 5 years.
(2) This section does not apply to conduct that constitutes the
publication of any matter.
(3) In this section:
"perverts" includes obstructs, prevents or
defeats.
(1) A person who is an official of the International Criminal Court
commits an offence if:
(a) the person:
(i) asks for a benefit for himself, herself or another person; or
(ii) receives or obtains a benefit for himself, herself or another
person; or
(iii) agrees to receive or obtain a benefit for himself, herself or
another person; and
(b) the person does so with the intention that the exercise of the
person's duties as an official of the International Criminal Court will be
influenced.
Penalty: Imprisonment for 10 years.
(2) For the purposes of subsection (1), it is immaterial whether
the benefit is in the nature of a reward.
(1) The criminal responsibility imposed by this section is in addition
to other grounds of criminal responsibility under the law in force in
Australia for acts or omissions that are offences under this Division.
(2) A military commander or person effectively acting as a military
commander is criminally responsible for offences under this Division committed
by forces under his or her effective command and control, or effective
authority and control, as the case may be, as a result of his or her failure
to exercise control properly over those forces, where:
(a) the military commander or person either knew or, owing to the
circumstances at the time, was reckless as to whether the forces were
committing or about to commit such offences; and
(b) the military commander or person failed to take all necessary and
reasonable measures within his or her power to prevent or repress their
commission or to submit the matter to the competent authorities for
investigation and prosecution.
(3) With respect to superior and subordinate relationships not described
in subsection (2), a superior is criminally responsible for offences
against this Division committed by subordinates under his or her effective
authority and control, as a result of his or her failure to exercise control
properly over those subordinates, where:
(a) the superior either knew, or consciously disregarded information
that clearly indicated, that the subordinates were committing or about to
commit such offences; and
(b) the offences concerned activities that were within the effective
responsibility and control of the superior; and
(c) the superior failed to take all necessary and reasonable measures
within his or her power to prevent or repress their commission or to submit
the matter to the competent authorities for investigation and prosecution.
(1) The fact that genocide or a crime against humanity has been
committed by a person pursuant to an order of a Government or of a superior,
whether military or civilian, does not relieve the person of criminal
responsibility.
(2) Subject to subsection (3), the fact that a war crime has been
committed by a person pursuant to an order of a Government or of a superior,
whether military or civilian, does not relieve the person of criminal
responsibility.
(3) It is a defence to a war crime that:
(a) the war crime was committed by a person pursuant to an order of a
Government or of a superior, whether military or civilian; and
(b) the person was under a legal obligation to obey the order; and
(c) the person did not know that the order was unlawful; and
(d) the order was not manifestly unlawful.
Note: A defendant bears
an evidential burden in establishing the elements in subsection (3). See
subsection 13.3(3).
(1) Section 15.4 (extended geographical jurisdiction--Category D)
applies to genocide, crimes against humanity and war crimes.
(2) Section 15.3 (extended geographical jurisdiction--Category C)
applies to crimes against the administration of the justice of the
International Criminal Court.
A person cannot be tried by a federal court or a court of a State or Territory
for an offence under this Division if the person has already been convicted or
acquitted by the International Criminal Court for an offence constituted by
substantially the same conduct as constituted the offence under this Division.
(1) Proceedings for an offence under this Division must not be commenced
without the Attorney-General's written consent.
(2) An offence against this Division may only be prosecuted in the name
of the Attorney-General.
(3) However, a person may be arrested, charged, remanded in custody, or
released on bail, in connection with an offence under this Division before the
necessary consent has been given.
(1) Subject to any jurisdiction of the High Court under the
Constitution, a decision by the Attorney-General to give, or to refuse to
give, a consent under section 268.121:
(a) is final; and
(b) must not be challenged, appealed against, reviewed, quashed or
called in question; and
(c) is not subject to prohibition, mandamus, injunction, declaration or
certiorari.
(2) The reference in subsection (1) to a decision includes a
reference to the following:
(a) a decision to vary, suspend, cancel or revoke a consent that has
been given;
(b) a decision to impose a condition or restriction in connection with
the giving of, or a refusal to give, a consent or to remove a condition or
restriction so imposed;
(c) a decision to do anything preparatory to the making of a decision to
give, or to refuse to give, a consent or preparatory to the making of a
decision referred to in paragraph (a) or (b), including a decision for
the taking of evidence or the holding of an inquiry or investigation;
(d) a decision doing or refusing to do anything else in connection with
a decision to give, or to refuse to give, a consent or a decision referred to
in paragraph (a), (b) or (c);
(e) a failure or refusal to make a decision whether or not to give a
consent or a decision referred to in a paragraph (a), (b), (c) or (d).
(3) Any jurisdiction of the High Court referred to in
subsection (1) is exclusive of the jurisdiction of any other court.
The provisions of section 12 (other than subsection 12(2)) of the
Geneva Conventions Act 1957 apply in relation to the trial of a person for an
offence against this Division in the same way as they apply in relation to the
trial of a protected prisoner of war.
If, in proceedings under this Division in respect of a grave breach of any of
the Geneva Conventions or of Protocol I to the Geneva Conventions, a question
arises under:
(a) Article 2 of the Geneva Convention concerned (which relates to the
circumstances in which the Convention applies); or
(b) Article 1 of that Protocol (which relates to the circumstances in
which the Protocol applies);
a certificate signed by the Minister
responsible for legislation relating to foreign affairs certifying to any
matter relevant to that question is prima facie evidence of the matter so
certified.
"coercion" includes coercion by any of the following:
(a) force;
(b) duress;
(c) detention;
(d) psychological oppression;
(e) abuse of power;
(f) taking advantage of a person's vulnerability.
"conducting a
business" includes:
(a) taking any part in the management of the business; and
(b) exercising control or direction over the business; and
(c) providing finance for the business.
"debt bondage is the
condition of a person (the first person" ) if:
(a) the condition arises from a pledge:
(i) by the first person of the personal services of the first person; or
(ii) by another person of the personal services of the first person, and
the first person is under the other person's control; or
(iii) by the first person of the personal services of another person who
is under the first person's control; and
(b) the pledge is made as security for a debt owed, or claimed to be
owed, (including any debt incurred, or claimed to be incurred, after the
pledge is given) by the person making the pledge; and
(c) any of the following apply:
(i) the debt owed or claimed to be owed is manifestly excessive;
(ii) the reasonable value of those services is not applied toward the
liquidation of the debt or purported debt;
(iii) the length and nature of those services are not respectively
limited and defined.
"deceive" has the same meaning as in Division 271
(see section 271.1).
"forced labour" has the meaning given by
section 270.6.
"forced marriage" has the meaning given by
section 270.7A.
"servitude" has the meaning given by
section 270.4.
"slavery" has the meaning given by section 270.1.
"slavery-like offence" means an offence against any of the following
provisions:
(a) section 270.5 (servitude offences);
(b) section 270.6A (forced labour offences);
(c) section 270.7 (deceptive recruiting for labour or services);
(d) section 270.7B (forced marriage offences);
(e) section 270.7C (debt bondage).
"threat" means:
(a) a threat of coercion; or
(b) a threat to cause a person's deportation or removal from Australia;
or
(c) a threat of any other detrimental action, unless there are
reasonable grounds for the threat of that action in connection with the
provision of labour or services by a person.
Note: Threat includes a
threat made by any conduct, whether express or implied and whether conditional
or unconditional (see the definition in the Dictionary).
For the purposes of this Division, slavery is the condition of a person over
whom any or all of the powers attaching to the right of ownership are
exercised, including where such a condition results from a debt or contract
made by the person.
Slavery remains unlawful and its abolition is maintained, despite the repeal
by the Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999 of
Imperial Acts relating to slavery.
(1) A person who, whether within or outside Australia, intentionally:
(aa) reduces a person to slavery; or
(a) possesses a slave or exercises over a slave any of the other powers
attaching to the right of ownership; or
(b) engages in slave trading; or
(c) enters into any commercial transaction involving a slave; or
(d) exercises control or direction over, or provides finance for:
(i) any act of slave trading; or
(ii) any commercial transaction involving a slave;
commits an offence.
Penalty: Imprisonment for 25 years.
(2) A person who:
(a) whether within or outside Australia:
(i) enters into any commercial transaction involving a slave; or
(ii) exercises control or direction over, or provides finance for, any
commercial transaction involving a slave; or
(iii) exercises control or direction over, or provides finance for, any
act of slave trading; and
(b) is reckless as to whether the transaction or act involves a slave,
slavery, slave trading or the reduction of a person to slavery;
commits an
offence.
Penalty: Imprisonment for 17 years.
(3) In this section:
"commercial transaction involving a slave"
includes a commercial transaction by which a person is reduced to slavery.
"slave trading" includes:
(a) the capture, transport or disposal of a person with the intention of
reducing the person to slavery; or
(b) the purchase or sale of a slave.
(4) A person who engages in any conduct with the intention of securing
the release of a person from slavery does not commit an offence against this
section.
(5) The defendant bears a legal burden of proving the matter mentioned
in subsection (4).
(1) Proceedings for an offence against section 270.3, where the
conduct constituting the alleged offence occurs wholly outside Australia, must
not take place except with the consent in writing of the Attorney-General.
(2) Even though a consent in accordance with subsection (1) has not
been given in relation to an offence against section 270.3:
(a) a person may be arrested for the offence, and a warrant for the
arrest of a person for the offence may be issued and executed; and
(b) a person may be charged with the offence; and
(c) a person so charged may be remanded in custody or on bail;
but no
further step in proceedings referred to in subsection (1) is to be taken
until such a consent has been given.
(3) Subsection (2) does not prevent the discharge of the accused if
proceedings are not continued within a reasonable time.
(1) For the purposes of this Division, servitude is the condition of a
person (the victim ) who provides labour or services, if, because of the use
of coercion, threat or deception:
(a) a reasonable person in the position of the victim would not consider
himself or herself to be free:
(i) to cease providing the labour or services; or
(ii) to leave the place or area where the victim provides the labour or
services; and
(b) the victim is significantly deprived of personal freedom in respect
of aspects of his or her life other than the provision of the labour or
services.
(2) Subsection (1) applies whether the coercion, threat or
deception is used against the victim or another person.
(3) The victim may be in a condition of servitude whether or not:
(a) escape from the condition is practically possible for the victim; or
(b) the victim has attempted to escape from the condition.
Causing a person to enter into or remain in
servitude
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct causes another person to enter into or remain in
servitude.
Penalty:
(a) in the case of an aggravated offence (see
section 270.8)--imprisonment for 20 years; or
(b) in any other case--imprisonment for 15 years.
Conducting a
business involving servitude
(2) A person commits an offence if:
(a) the person conducts any business; and
(b) the business involves the servitude of another person (or persons).
Penalty:
(a) in the case of an aggravated offence (see
section 270.8)--imprisonment for 20 years; or
(b) in any other case--imprisonment for 15 years.
Alternative verdict
of forced labour
(3) Subsection (4) applies if, in a prosecution for an offence (the
servitude offence ) against a provision listed in column 1 of the following
table, the trier of fact:
(a) is not satisfied that the defendant is guilty of that offence; but
(b) is satisfied beyond reasonable doubt that the defendant is guilty of
an offence (the forced labour offence ) against the corresponding provision
listed in column 2 of the table.
Servitude and forced labour
offences
Item
Column 1
Servitude offences
Column 2
Forced
labour offences
1
Subsection (1) of this section
Subsection 270.6A(1)
2
Subsection (2) of this section
Subsection 270.6A(2)
(4) The trier of fact may find the defendant not guilty of the servitude
offence, but guilty of the forced labour offence, so long as the defendant has
been afforded procedural fairness in relation to that finding of guilt.
(1) For the purposes of this Division, forced labour
is the condition of a person (the victim ) who provides labour or services if,
because of the use of coercion, threat or deception, a reasonable person in
the position of the victim would not consider himself or herself to be free:
(a) to cease providing the labour or services; or
(b) to leave the place or area where the victim provides the labour or
services.
(2) Subsection (1) applies whether the coercion, threat or
deception is used against the victim or another person.
(3) The victim may be in a condition of forced labour whether or not:
(a) escape from the condition is practically possible for the victim; or
(b) the victim has attempted to escape from the condition.
Causing a person to enter into or remain in
forced labour
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct causes another person to enter into or remain in forced
labour.
Penalty:
(a) in the case of an aggravated offence (see
section 270.8)--imprisonment for 12 years; or
(b) in any other case--imprisonment for 9 years.
Conducting a business
involving forced labour
(2) A person commits an offence if:
(a) the person conducts any business; and
(b) the business involves the forced labour of another person (or
persons).
Penalty:
(a) in the case of an aggravated offence (see
section 270.8)--imprisonment for 12 years; or
(b) in any other case--imprisonment for 9 years.
Note: On a trial for an
offence against section 270.5 (servitude offences), the trier of fact may
find a defendant not guilty of that offence but guilty of the corresponding
offence under this section (see subsections 270.5(3) and (4)).
(b) the recruiter engages in the conduct with the intention of inducing
another person (the victim ) to enter into an engagement to provide labour or
services; and
(c) the conduct causes the victim to be deceived about:
(i) the extent to which the victim will be free to leave the place or
area where the victim provides the labour or services; or
(ii) the extent to which the victim will be free to cease providing the
labour or services; or
(iii) the extent to which the victim will be free to leave his or her
place of residence; or
(iv) if there is or will be a debt owed or claimed to be owed by the
victim in connection with the engagement--the quantum, or the existence, of
the debt owed or claimed to be owed; or
(v) the fact that the engagement will involve exploitation, or the
confiscation of the victim's travel or identity documents; or
(vi) if the engagement is to involve the provision of sexual
services--that fact, or the nature of sexual services to be provided (for
example, whether those services will require the victim to have unprotected
sex).
Penalty:
(a) in the case of an aggravated offence (see
section 270.8)--imprisonment for 9 years; or
(b) a marriage recognised under a law of a foreign country;
(c) a relationship registered (however that process is described) under
a law of a foreign country, if the relationship is of the same, or a similar,
type as any registered relationship within the meaning of section 2E of
the Acts Interpretation Act 1901;
(d) a marriage (including a relationship or marriage mentioned in
paragraph (a), (b) or (c)) that is void, invalid, or not recognised by
law, for any reason, including the following:
(i) a party to the marriage has not freely or fully consented to the
marriage (for example, because of natural, induced or age-related incapacity);
(ii) a party to the marriage is married (within the meaning of this
subsection) to more than one person.
Note: Section 2E of
the Acts Interpretation Act 1901covers relationships registered under a law
of a State or Territory that are prescribed by regulations under that Act.
(3) Subparagraph (1)(a)(i) applies whether the coercion, threat or
deception is used against the victim or another person.
(1) A person (the first person ) commits an offence if:
(a) the first person engages in conduct; and
(b) the conduct causes another person to enter into a forced marriage as
the victim of the marriage.
Penalty:
(a) in the case of an aggravated offence (see
section 270.8)--imprisonment for 9 years; or
(b) in any other case--imprisonment for 7 years.
Being a party to a
forced marriage
(2) A person commits an offence if:
(a) the person is a party to a marriage (within the meaning of
section 270.7A); and
(b) the marriage is a forced marriage; and
(c) the person is not a victim of the forced marriage.
Penalty:
(a) in the case of an aggravated offence (see
section 270.8)--imprisonment for 9 years; or
(b) in any other case--imprisonment for 7 years.
(3) Strict liability applies to paragraph (2)(c).
Note: For strict
liability, see section 6.1.
(4) Subsection (2) does not apply if the person has a reasonable
excuse.
Note: A
defendant bears an evidential burden in relation to the matter in
subsection (4) (see subsection 13.3(3)).
Consent to commence
proceedings if defendant under 18
(5) Proceedings for an offence against subsection (1) or (2) must
not be commenced without the consent of the Attorney-General if the defendant
was under 18 at the time the defendant allegedly engaged in the conduct
constituting the offence.
(6) However, a person may be arrested for, charged with or remanded in
custody or on bail in connection with, such an offence before the necessary
consent has been given.
(1) For the purposes of this Division, a slavery-like offence committed
by a person (the offender ) against another person (the victim ) is an
aggravated offence if any of the following applies:
(a) the victim is under 18;
(b) the offender, in committing the offence, subjects the victim to
cruel, inhuman or degrading treatment;
(c) the offender, in committing the offence:
(i) engages in conduct that gives rise to a danger of death or serious
harm to the victim or another person; and
(ii) is reckless as to that danger.
Note: In the case of a
slavery-like offence against section 270.7B involving a marriage that is
a forced marriage because the victim was under 16 when the marriage was
entered into (see paragraph 270.7A(1)(b)), the offence is also an
aggravated offence because of paragraph (a) of this subsection.
(2) If the prosecution intends to prove an aggravated offence, the
charge must allege the relevant aggravated offence.
(3) If, on a trial for an aggravated offence, the trier of fact is not
satisfied that the defendant is guilty of the aggravated offence, but is
otherwise satisfied that the defendant is guilty of the corresponding
slavery-like offence, it may find the defendant not guilty of the aggravated
offence, but guilty of the corresponding slavery-like offence.
(4) Subsection (3) only applies if the defendant has been afforded
procedural fairness in relation to the finding of guilt for the corresponding
slavery-like offence.
(1) For the purposes of proceedings for a slavery-like offence, the
trier of fact may have regard to any of the matters covered by
subsection (2) in determining whether, in relation to a person (the
alleged victim ) against whom the offence is alleged to have been committed:
(a) in the case of an offence against this Subdivision--the alleged
victim has been coerced, threatened or deceived; or
(b) in the case of an offence against section 270.5--the alleged
victim was significantly deprived of personal freedom; or
(c) in the case of an offence against section 270.7B--the alleged
victim was incapable of understanding the nature and effect of a marriage
ceremony; or
(d) in the case of an offence against section 270.7C--another
person has caused the alleged victim to enter into debt bondage.
(2) The following matters are covered by this subsection:
(a) the economic relationship between the alleged victim, the alleged
offender or a family member of the alleged victim or alleged offender, and any
other person;
(b) the terms of any written or oral contract or agreement between the
alleged victim, the alleged offender or a family member of the alleged victim
or alleged offender, and any other person;
(c) the personal circumstances of the alleged victim, including but not
limited to:
(i) whether he or she is entitled to be in Australia under the
Migration Act 1958; and
(ii) his or her ability to speak, write and understand English or
another language; and
(iii) the extent of his or her social and physical dependence on the
alleged offender or any other person.
(3) Subsection (1) does not:
(a) prevent the leading of any other evidence in the relevant
proceedings; or
(b) limit the manner in which evidence may be given or the admissibility
of evidence.
(4) In this section:
"family member" of a person means:
(a) the person's spouse or de facto partner; or
(b) a parent, step-parent or grandparent of the person; or
(c) a child, step-child or grandchild of the person; or
(d) a brother, sister, step-brother or step-sister of the person; or
(e) a guardian or carer of the person.
(5) For the purposes of this section, the family members of a person are
taken to include the following (without limitation):
(a) a de facto partner of the person;
(b) someone who is the child of the person, or of whom the person is the
child, because of the definition of child in the Dictionary;
(c) anyone else who would be a member of the person's family if someone
mentioned in paragraph (a) or (b) is taken to be a family member of the
person.
To avoid doubt, it is not a defence in a proceeding for an offence against
this Division that a person against whom the offence is alleged to have been
committed consented to, or acquiesced in, conduct constituting any element of
the offence.
(1) This Division is not intended to exclude or limit the operation of
any other law of the Commonwealth or any law of a State or Territory.
Note: Division 279
(video link evidence) applies to a proceeding for an offence against this
Division.
(2) Without limiting subsection (1), this Division is not intended
to exclude or limit the concurrent operation of any other law of the
Commonwealth, or a law of a State or Territory, that makes:
(a) an act or omission that is an offence against a provision of this
Division; or
(b) a similar act or omission;
an offence against the law of the
Commonwealth, State or Territory.
(3) Subsection (2) applies even if the other law of the
Commonwealth, or the law of the State or Territory, does any one or more of
the following:
(a) provides for a penalty for the offence that differs from the penalty
provided for in this Division;
(b) provides for a fault element in relation to the offence that differs
from the fault elements applicable to the offence under this Division;
(c) provides for a defence in relation to the offence that differs from
the defences applicable to the offence under this Division.
If a person has been convicted or acquitted in a country outside Australia of
an offence against the law of that country in respect of any conduct, the
person cannot be convicted of an offence against this Division in respect of
that conduct.
"coercion" has the same meaning as in Division 270
(see section 270.1A).
"confiscate" , in relation to a person's travel
or identity document, means to take possession of the document, whether
permanently or otherwise, to the exclusion of the person, or to destroy the
document.
"constitutional corporation" means a corporation to which
paragraph 51(xx) of the Constitution applies.
"deceive" means mislead
as to fact (including the intention of any person) or as to law, by words or
other conduct.
For the purposes of this Division, exploitation , of one person (the victim )
by another person, occurs if the other person's conduct causes the victim to
enter into any of the following conditions:
(a) slavery, or a condition similar to slavery;
(b) servitude;
(c) forced labour;
(d) forced marriage;
(e) debt bondage.
Note: Division 270
(slavery and slavery-like offences) deals with slavery, servitude, forced
labour, forced marriage and debt bondage.
(1) A person (the first person ) commits an offence of trafficking in
persons if:
(a) the first person organises or facilitates the entry or proposed
entry, or the receipt, of another person into Australia; and
(b) the first person uses coercion, threat or deception; and
(c) that use of coercion, threat or deception results in the first
person obtaining the other person's compliance in respect of that entry or
proposed entry or in respect of that receipt.
Penalty: Imprisonment
for 12 years.
(1A) A person (the first person ) commits an offence of trafficking in
persons if:
(a) the first person organises or facilitates the exit or proposed exit
of another person from Australia; and
(b) the first person uses coercion, threat or deception; and
(c) that use of coercion, threat or deception results in the first
person obtaining the other person's compliance in respect of that exit or
proposed exit.
Penalty: Imprisonment for 12 years.
(1B) A person
(the first person ) commits an offence of trafficking in persons if:
(a) the first person organises or facilitates the entry or proposed
entry, or the receipt, of another person into Australia; and
(b) in organising or facilitating that entry or proposed entry, or that
receipt, the first person is reckless as to whether the other person will be
exploited, either by the first person or another, after that entry or receipt.
Penalty: Imprisonment for 12 years.
(1C) A person
(the first person ) commits an offence of trafficking in persons if:
(a) the first person organises or facilitates the exit or proposed exit
of another person from Australia; and
(b) in organising or facilitating that exit or proposed exit, the first
person is reckless as to whether the other person will be exploited, either by
the first person or another, after that exit.
Penalty: Imprisonment
for 12 years.
(2) A person (the first person ) commits an offence of trafficking in
persons if:
(a) the first person organises or facilitates the entry or proposed
entry, or the receipt, of another person into Australia; and
(b) the first person deceives the other person about the fact that the
other person's entry or proposed entry, the other person's receipt or any
arrangements for the other person's stay in Australia, will involve the
provision by the other person of sexual services or will involve the other
person's exploitation or the confiscation of the other person's travel or
identity documents.
Penalty: Imprisonment for 12 years.
(2A) A person
(the first person ) commits an offence of trafficking in persons if:
(a) the first person organises or facilitates the exit or proposed exit
of another person from Australia; and
(b) the first person deceives the other person about the fact that the
other person's exit or proposed exit is for purposes that involve the
provision by the other person of sexual services outside Australia or will
involve the other person's exploitation or the confiscation of the other
person's travel or identity documents.
Penalty: Imprisonment for 12
years.
(2B) A
person (the first person ) commits an offence of trafficking in persons if:
(a) the first person organises or facilitates the entry or proposed
entry, or the receipt, of another person into Australia; and
(b) there is an arrangement for the other person to provide sexual
services in Australia; and
(c) the first person deceives the other person about any of the
following:
(i) the nature of the sexual services to be provided;
(ii) the extent to which the other person will be free to leave the
place or area where the other person provides sexual services;
(iii) the extent to which the other person will be free to cease
providing sexual services;
(iv) the extent to which the other person will be free to leave his or
her place of residence;
(v) if there is a debt owed or claimed to be owed by the other person in
connection with the arrangement for the other person to provide sexual
services--the quantum, or the existence, of the debt owed or claimed to be
owed.
Penalty: Imprisonment for 12 years.
(2C) A person
(the first person ) commits an offence of trafficking in persons if:
(a) the first person organises or facilitates the exit or proposed exit
of another person from Australia; and
(b) there is an arrangement for the other person to provide sexual
services outside Australia; and
(c) the first person deceives the other person about any of the
following:
(i) the nature of the sexual services to be provided;
(ii) the extent to which the other person will be free to leave the
place or area where the other person provides sexual services;
(iii) the extent to which the other person will be free to cease
providing sexual services;
(iv) the extent to which the other person will be free to leave his or
her place of residence;
(v) if there is a debt owed or claimed to be owed by the other person in
connection with the arrangement for the other person to provide sexual
services--the quantum, or the existence, of the debt owed or claimed to be
owed.
Penalty: Imprisonment for 12 years.
(3) Absolute liability applies to paragraphs (1)(c) and (1A)(c).
(1) A person (the first person ) commits an aggravated offence of
trafficking in persons if the first person commits the offence of trafficking
in persons in relation to another person (the victim ) and any of the
following applies:
(a) the first person commits the offence intending that the victim will
be exploited, either by the first person or another:
(i) if the offence of trafficking in persons is an offence against
subsection 271.2(1), (1B), (2) or (2B)--after entry into Australia; or
(ii) if the offence of trafficking in persons is an offence against
subsection 271.2(1A), (1C), (2A) or (2C)--after exit from Australia;
(b) the first person, in committing the offence, subjects the victim to
cruel, inhuman or degrading treatment;
(c) the first person, in committing the offence:
(i) engages in conduct that gives rise to a danger of death or serious
harm to the victim or another person; and
(ii) is reckless as to that danger.
Penalty: Imprisonment for 20
years.
(2) If, on a trial for an offence against this section, the court, or if
the trial is before a jury, the jury, is not satisfied that the defendant is
guilty of the aggravated offence, but is satisfied that he or she is guilty of
an offence against section 271.2, it may find the defendant not guilty of
the aggravated offence but guilty of an offence against that section.
(3) Subsection (2) only applies if the defendant has been afforded
procedural fairness in relation to the finding of guilt for the offence
against section 271.2.
Note: Section 271.2
provides for offences of trafficking in persons.
(1) A person (the first person ) commits an offence of trafficking in
children if:
(a) the first person organises or facilitates the entry or proposed
entry into Australia, or the receipt in Australia, of another person; and
(b) the other person is under the age of 18; and
(c) in organising or facilitating that entry or proposed entry, or that
receipt, the first person:
(i) intends that the other person will be used to provide sexual
services or will be otherwise exploited, either by the first person or
another, after that entry or receipt; or
(ii) is reckless as to whether the other person will be used to provide
sexual services or will be otherwise exploited, either by the first person or
another, after that entry or receipt.
Penalty: Imprisonment for 25
years.
(2) A person (the first person ) commits an offence of trafficking in
children if:
(a) the first person organises or facilitates the exit or proposed exit
from Australia of another person; and
(b) the other person is under the age of 18; and
(c) in organising or facilitating that exit or proposed exit, the first
person:
(i) intends that the other person will be used to provide sexual
services or will be otherwise exploited, either by the first person or
another, after that exit; or
(ii) is reckless as to whether the other person will be used to provide
sexual services or will be otherwise exploited, either by the first person or
another, after that exit.
(1) A person (the first person ) commits an offence of domestic
trafficking in persons if:
(a) the first person organises or facilitates the transportation or
proposed transportation of another person from one place in Australia to
another place in Australia; and
(b) the first person uses coercion, threat or deception; and
(c) that use of coercion, threat or deception results in the first
person obtaining the other person's compliance in respect of that
transportation or proposed transportation.
Penalty: Imprisonment for
12 years.
(2) A person (the first person ) commits an offence of domestic
trafficking in persons if:
(a) the first person organises or facilitates the transportation or
proposed transportation of another person from one place in Australia to
another place in Australia; and
(b) in organising or facilitating that transportation or proposed
transportation, the first person is reckless as to whether the other person
will be exploited, either by the first person or another, after that
transportation.
Penalty: Imprisonment for 12 years.
(2A) A person
(the first person ) commits an offence of domestic trafficking in persons if:
(a) the first person organises or facilitates the transportation of
another person from one place in Australia to another place in Australia; and
(b) the first person deceives the other person about the fact that the
transportation, or any arrangements the first person has made for the other
person following the transportation, will involve the provision by the other
person of sexual services or will involve the other person's exploitation or
the confiscation of the other person's travel or identity documents.
Penalty: Imprisonment for 12 years.
(2B) A person
(the first person ) commits an offence of domestic trafficking in persons if:
(a) the first person organises or facilitates the transportation of
another person from one place in Australia to another place in Australia; and
(b) there is an arrangement for the other person to provide sexual
services; and
(c) the first person deceives the other person about any of the
following:
(i) the nature of the sexual services to be provided;
(ii) the extent to which the other person will be free to leave the
place or area where the other person provides sexual services;
(iii) the extent to which the other person will be free to cease
providing sexual services;
(iv) the extent to which the other person will be free to leave his or
her place of residence;
(v) if there is a debt owed or claimed to be owed by the other person in
connection with the arrangement for the other person to provide sexual
services--the quantum, or the existence, of the debt owed or claimed to be
owed.
Penalty: Imprisonment for 12 years.
(3) Absolute liability applies to paragraph (1)(c).
(1) A person (the first person ) commits an aggravated offence of
domestic trafficking in persons if the first person commits the offence of
domestic trafficking in persons in relation to another person (the victim )
and any of the following applies:
(a) the first person commits the offence intending that the victim will
be exploited, either by the first person or by another, after arrival at the
place to which the person has been transported;
(b) the first person, in committing the offence, subjects the victim to
cruel, inhuman or degrading treatment;
(c) the first person, in committing the offence:
(i) engages in conduct that gives rise to a danger of death or serious
harm to the victim or another person; and
(ii) is reckless as to that danger.
Penalty: Imprisonment for 20
years.
(2) If, on a trial for an offence against this section, the court, or if
the trial is before a jury, the jury, is not satisfied that the defendant is
guilty of the aggravated offence, but is satisfied that he or she is guilty of
an offence against section 271.5, it may find the defendant not guilty of
the aggravated offence, but guilty of an offence against that section.
(3) Subsection (2) only applies if the defendant has been afforded
procedural fairness in relation to the finding of guilt for the offence
against section 271.5.
Note: Section 271.5
provides for offences of domestic trafficking in persons.
A person commits an offence of domestic trafficking in children if:
(a) the first-mentioned person organises or facilitates the
transportation of another person from one place in Australia to another place
in Australia; and
(b) the other person is under the age of 18; and
(c) in organising or facilitating that transportation, the
first-mentioned person:
(i) intends that the other person will be used to provide sexual
services or will be otherwise exploited, either by the first-mentioned person
or another, during or following the transportation to that other place; or
(ii) is reckless as to whether the other person will be used to provide
sexual services or will be otherwise exploited, either by the first-mentioned
person or another, during or following the transportation to that other place.
The removal of a person's organ is contrary to this Subdivision if:
(a) the removal, or entering into an agreement for the removal, would be
contrary to the law of the State or Territory where it is, or is to be,
carried out; or
(b) neither the victim, nor the victim's guardian, consents to the
removal, and it would not meet a medical or therapeutic need of the victim.
(1) A person (the offender ) commits an offence of organ trafficking if:
(a) the offender engages in conduct consisting of the organisation or
facilitation of the entry or proposed entry, or the receipt, of another person
(the victim ) into Australia; and
(b) the offender is reckless as to whether the conduct will result in
the removal of an organ of the victim contrary to this Subdivision, by the
offender or another person, after or in the course of that entry or receipt.
Penalty: Imprisonment for 12 years.
Note: For when the
removal of an organ is contrary to this Subdivision, see section 271.7A.
Exit from Australia
(2) A person (the offender ) commits an offence of organ trafficking if:
(a) the offender engages in conduct consisting of the organisation or
facilitation of the exit or proposed exit of another person (the victim ) from
Australia; and
(b) the offender is reckless as to whether the conduct will result in
the removal of an organ of the victim contrary to this Subdivision, by the
offender or another person, after or in the course of that exit.
Penalty: Imprisonment for 12 years.
Note: For when the
removal of an organ is contrary to this Subdivision, see section 271.7A.
(1) A person (the offender ) commits an aggravated offence of organ
trafficking if the offender commits an offence of organ trafficking in
relation to another person (the victim ) and any of the following applies:
(a) the victim is under 18;
(b) the offender commits the offence intending that an organ of the
victim will be removed contrary to this Subdivision, either by the offender or
another person:
(i) if the offence of organ trafficking is an offence against
subsection 271.7B(1)--after or in the course of entry into Australia; or
(ii) if the offence of organ trafficking is an offence against
subsection 271.7B(2)--after or in the course of exit from Australia;
(c) the offender, in committing the offence, subjects the victim to
cruel, inhuman or degrading treatment;
(d) the offender, in committing the offence:
(i) engages in conduct that gives rise to a danger of death or serious
harm to the victim or another person; and
(ii) is reckless as to that danger.
Penalty:
(a) if this subsection applies because the victim is under
18--imprisonment for 25 years; or
(b) in any other case--imprisonment for 20 years.
Note: For when the
removal of an organ is contrary to this Subdivision, see section 271.7A.
(2) If, on a trial for an offence against this section, the court, or if
the trial is before a jury, the jury, is not satisfied that the defendant is
guilty of the aggravated offence, but is satisfied that he or she is guilty of
an offence against section 271.7B, it may find the defendant not guilty
of the aggravated offence but guilty of an offence against that section.
(3) Subsection (2) only applies if the defendant has been afforded
procedural fairness in relation to the finding of guilt for the offence
against section 271.7B.
Note:
Section 271.7B provides for offences of organ trafficking.
A person (the offender ) commits an offence of domestic organ trafficking if:
(a) the offender engages in conduct consisting of the organisation, or
facilitation, of the transportation or proposed transportation of another
person (the victim ) from one place in Australia to another place in
Australia; and
(b) the offender is reckless as to whether the conduct will result in
the removal of an organ of the victim contrary to this Subdivision, by the
offender or another person, after or in the course of that transportation.
Penalty: Imprisonment for 12 years.
Note: For when the
removal of an organ is contrary to this Subdivision, see section 271.7A.
(1) A person (the offender ) commits an aggravated offence of domestic
organ trafficking if the offender commits an offence of domestic organ
trafficking in relation to another person (the victim ) and any of the
following applies:
(a) the victim is under 18;
(b) the offender commits the offence intending that an organ of the
victim will be removed contrary to this Subdivision, either by the offender or
another person, after arrival at the place to which the person has been
transported, or in the course of transportation;
(c) the offender, in committing the offence, subjects the victim to
cruel, inhuman or degrading treatment;
(d) the offender, in committing the offence:
(i) engages in conduct that gives rise to a danger of death or serious
harm to the victim or another person; and
(ii) is reckless as to that danger.
Penalty:
(a) if this subsection applies because the victim is under
18--imprisonment for 25 years; or
(b) in any other case--imprisonment for 20 years.
Note: For when the
removal of an organ is contrary to this Subdivision, see section 271.7A.
(2) If, on a trial for an offence against this section, the court, or if
the trial is before a jury, the jury, is not satisfied that the defendant is
guilty of the aggravated offence, but is satisfied that he or she is guilty of
an offence against section 271.7D, it may find the defendant not guilty
of the aggravated offence, but guilty of an offence against that section.
(3) Subsection (2) only applies if the defendant has been afforded
procedural fairness in relation to the finding of guilt for the offence
against section 271.7D.
Note:
Section 271.7D provides for offences of domestic organ trafficking.
(1) A person (the offender ) commits an offence of harbouring a victim
if:
(a) the offender harbours, receives or conceals another person (the
victim ); and
(b) the harbouring, receipt or concealing of the victim:
(i) assists a third person in connection with any offence committed by
the third person (the third person offence ); or
(ii) furthers a third person's purpose in relation to any offence
committed by the third person (the third person offence ); and
(c) the third person offence is an offence against this Division (apart
from this section) or Division 270.
Penalty: Imprisonment for 4
years.
(2) Recklessness applies in relation to paragraph (1)(b).
(3) Absolute liability applies in relation to paragraph (1)(c).
(4) A person may be found guilty of an offence against
subsection (1) even if the third person has not been prosecuted for, or
has not been found guilty, of any other offence.
(1) A person (the offender ) commits an aggravated offence of harbouring
a victim if:
(a) the offender commits an offence of harbouring a victim in relation
to another person (the victim ); and
(b) the victim is under 18.
Penalty: Imprisonment for 7 years.
(2) If, on a trial for an offence against this section, the trier of
fact is not satisfied that the defendant is guilty of the aggravated offence,
but is satisfied that the defendant is guilty of an offence against
section 271.7F, it may find the defendant not guilty of the aggravated
offence, but guilty of an offence against that section.
(3) Subsection (2) only applies if the defendant has been afforded
procedural fairness in relation to the finding of guilt for the offence
against section 271.7F.
Note:
Section 271.7F provides for the offence of harbouring a victim.
Section 15.2 (extended geographical jurisdiction--category B) applies to
an offence against section 271.2, 271.3, 271.4, 271.7B, 271.7C, 271.7F or
271.7G.
A person commits an offence against section 271.5, 271.6, 271.7, 271.7D
or 271.7E only if one or more of the following paragraphs applies:
(a) the conduct constituting the offence occurs to any extent outside
Australia;
(b) the conduct constituting the offence involves transportation across
State borders, either for reward or in connection with a commercial
arrangement;
(c) the conduct constituting the offence occurs within a Territory or
involves transportation to or from a Territory;
(d) the conduct constituting the offence is engaged in by, or on behalf
of, a constitutional corporation, or in circumstances where the victims of the
trafficking conduct were intended to be employed by a constitutional
corporation;
(e) some of the conduct constituting the offence is engaged in by
communication using a postal, telegraphic or telephonic service within the
meaning of paragraph 51(v) of the Constitution;
(f) the victim of the conduct constituting the offence is an alien for
the purposes of paragraph 51(xix) of the Constitution.
(1) For the purposes of proceedings for an offence against this
Division, the trier of fact may have regard to any of the matters covered by
subsection (2) in determining whether, in relation to a person (the
alleged victim ) against whom the offence is alleged to have been committed:
(a) in the case of an offence against Subdivision B--the alleged victim
has been coerced, threatened or deceived; or
(b) in the case of an offence against Subdivision BA--the alleged
victim, or the alleged victim's guardian, has consented to the removal of an
organ of the alleged victim.
(2) The following matters are covered by this subsection:
(a) the economic relationship between the alleged victim, the alleged
offender or a family member of the alleged victim or alleged offender, and any
other person;
(b) the terms of any written or oral contract or agreement between the
alleged victim, the alleged offender or a family member of the alleged victim
or alleged offender, and any other person;
(c) the personal circumstances of the alleged victim, including but not
limited to:
(i) whether he or she is entitled to be in Australia under the
Migration Act 1958; and
(ii) his or her ability to speak, write and understand English or
another language; and
(iii) the extent of his or her social and physical dependence on the
alleged offender or any other person.
(3) If subsection (1) applies in relation to the consent of an
alleged victim's guardian to the removal of an organ of the alleged victim, a
reference in subsection (2) to the alleged victim is taken to include a
reference to the alleged victim's guardian.
(4) Subsection (1) does not:
(a) prevent the leading of any other evidence in the relevant
proceedings; or
(b) limit the manner in which evidence may be given or the admissibility
of evidence.
(5) In this section:
"family member" of a person means:
(a) the person's spouse or de facto partner; or
(b) a parent, step-parent or grandparent of the person; or
(c) a child, step-child or grandchild of the person; or
(d) a brother, sister, step-brother or step-sister of the person; or
(e) a guardian or carer of the person.
(6) For the purposes of this section, the family members of a person are
taken to include the following (without limitation):
(a) a de facto partner of the person;
(b) someone who is the child of the person, or of whom the person is the
child, because of the definition of child in the Dictionary;
(c) anyone else who would be a member of the person's family if someone
mentioned in paragraph (a) or (b) is taken to be a family member of the
person.
To avoid doubt, it is not a defence in a proceeding for an offence against
this Division that a person against whom the offence is alleged to have been
committed consented to, or acquiesced in, conduct constituting any element of
the offence.
(1) This Division is not intended to exclude or limit the operation of
any other law of the Commonwealth or any law of a State or Territory.
Note: Division 279
(video link evidence) applies to a proceeding for an offence against this
Division.
(2) Without limiting subsection (1), this Division is not intended
to exclude or limit the concurrent operation of any other law of the
Commonwealth, or a law of a State or Territory, that makes:
(a) an act or omission that is an offence against a provision of this
Division; or
(b) a similar act or omission;
an offence against the law of the
Commonwealth, State or Territory.
(3) Subsection (2) applies even if the other law of the
Commonwealth, or the law of the State or Territory, does any one or more of
the following:
(a) provides for a penalty for the offence that differs from the penalty
provided for in this Division;
(b) provides for a fault element in relation to the offence that differs
from the fault elements applicable to the offence under this Division;
(c) provides for a defence in relation to the offence that differs from
the defences applicable to the offence under this Division.
If a person has been convicted or acquitted in a country outside Australia of
an offence against the law of that country in respect of any conduct, the
person cannot be convicted of an offence against this Division in respect of
that conduct.
"cause" a person to engage in sexual intercourse or other
sexual activity has the meaning given by section 272.2.
"offence" , in
the case of a reference to an offence against this Division or against a
particular provision of it, has a meaning affected by section 272.5.
"position of trust or authority" has the meaning given by
subsection 272.3(1).
"sexual intercourse" has the meaning given by
section 272.4.
For the purposes of this Division, a person's conduct causes another person to
engage in sexual intercourse or other sexual activity if it substantially
contributes to the other person engaging in sexual intercourse or other sexual
activity.
(1) For the purposes of this Code, a person is in a position of trust or
authority in relation to another person if:
(a) the person is the other person's parent, step-parent, or
grandparent; or
(b) the person is the other person's foster parent, guardian or carer;
or
(c) the person is a teacher engaged in the education of the other
person; or
(d) the person is a religious official or spiritual leader (however
described) providing pastoral care or religious instruction to the other
person; or
(e) the person is the other person's sports coach; or
(f) the person is a medical practitioner, nurse, psychologist, other
health professional (however described), counsellor or social worker providing
professional services to the other person; or
(g) the person is a member of a police force or police service, or a
person employed or providing services in a correctional institution (however
described), performing duties in relation to the other person; or
(h) the person:
(i) is an employer of the other person; or
(ii) has the authority to determine significant aspects of the other
person's terms and conditions of employment; or
(iii) has the authority to terminate the other person's employment
(whether the other person is being paid in respect of that employment or is
working in a voluntary capacity).
(2) Without limiting who is a grandparent of a person for the purposes
of this section, a person (the first person ) is the grandparent of another
person if the first person is a parent or step-parent of a parent or
step-parent of the other person.
(1) A reference in this Division (except section 272.19, which
deals with encouraging an offence against this Division) to an offence against
this Division, or against a particular provision of it, includes:
(ii) an offence against section 11.1 (attempt), 11.5 (conspiracy)
or 272.19 of this Code;
that relates to an offence against this Division or against that provision of
it; and
(b) a reference to an offence against this Division, or against that
provision of it, because of section 11.2 (complicity and common purpose),
11.2A (joint commission) or 11.3 (commission by proxy).
(2) A reference in section 272.19 (encouraging offence against this
Division) to an offence against this Division or against a particular
provision of it does not include a reference to such an offence because of
section 11.2 (complicity and common purpose) or 11.2A (joint commission).
(3) Section 11.1 (attempt) does not apply to an offence against:
(a) section 272.14 (procuring child to engage in sexual activity
outside Australia); or
(b) section 272.15 ("grooming" child to engage in sexual activity
outside Australia); or
(ba) section 272.15A ("grooming" person to make it easier to engage
in sexual activity with a child outside Australia); or
(c) section 272.20 (preparing for or planning offence against this
Division).
(4) Section 11.4 (incitement) does not apply to an offence against
this Division.
(5) Section 11.5 (conspiracy) does not apply to an offence against
section 272.19 (encouraging offence against this Division).
A person must not be charged with an offence against this Division that the
person allegedly committed wholly outside Australia unless, at the time of the
offence, the person was:
(a) an Australian citizen; or
(b) a resident of Australia; or
(c) a body corporate incorporated by or under a law of the Commonwealth
or of a State or Territory; or
(d) any other body corporate that carries on its activities principally
in Australia.
(a) the person engages in sexual activity (other than sexual
intercourse) with another person (the child ); and
(b) the child is under 16; and
(c) the sexual activity is engaged in outside Australia.
Note: A person is taken
to engage in sexual activity if the person is in the presence of another
person (including by a means of communication that allows the person to see or
hear the other person) while the other person engages in sexual activity: see
the definition of engage in sexual activity in the Dictionary.
Penalty: Imprisonment for 20 years.
Causing child to engage in sexual
activity in presence of defendant
(2) A person commits an offence if:
(a) the person engages in conduct in relation to another person (the
child ); and
(b) that conduct causes the child to engage in sexual activity (other
than sexual intercourse) in the presence of the person; and
(c) the child is under 16 when the sexual activity is engaged in; and
(d) the sexual activity is engaged in outside Australia.
Penalty: Imprisonment for 20 years.
(3) The fault element for paragraph (2)(b) is intention.
(4) Absolute liability applies to paragraphs (1)(b) and (c) and
(2)(c) and (d).
Note:
For absolute liability, see section 6.2.
Defence--child present but
defendant does not intend to derive gratification
(5) It is a defence to a prosecution for an offence against
subsection (1) or (2) if:
(a) the conduct constituting the offence consists only of the child
being in the presence of the defendant while sexual activity is engaged in;
and
(b) the defendant proves that he or she did not intend to derive
gratification from the presence of the child during that activity.
Note
1: A defendant bears a legal burden in
relation to the matter in this subsection, see section 13.4.
Note
2: For a defence based on belief about
age, see section 272.16.
(1) A person commits an offence against this section (the aggravated
offence ) if:
(a) the person commits an offence (the underlying offence ) against one
of the following provisions in relation to another person (the child ):
(i) subsection 272.8(1) (engaging in sexual intercourse with child
outside Australia);
(ii) subsection 272.8(2) (causing child to engage in sexual
intercourse in presence of defendant outside Australia);
(iii) subsection 272.9(1) (engaging in sexual activity (other than
sexual intercourse) with child outside Australia);
(iv) subsection 272.9(2) (causing child to engage in sexual
activity (other than sexual intercourse) in presence of defendant outside
Australia); and
(b) one or more of the following apply:
(i) the child has a mental impairment at the time the person commits the
underlying offence;
(ii) the person is in a position of trust or authority in relation to
the child, or the child is otherwise under the care, supervision or authority
of the person, at the time the person commits the underlying offence;
(iii) the child is subjected to cruel, inhuman or degrading treatment in
connection with the sexual activity referred to in subsection 272.8(1) or
(2) or 272.9(1) or (2);
(iv) the child dies as a result of physical harm suffered in connection
with the sexual activity referred to in subsection 272.8(1) or (2) or
272.9(1) or (2).
Penalty: Imprisonment for life.
(2) There is no fault element for the physical element described in
paragraph (1)(a) other than the fault elements (however described), if
any, for the underlying offence.
(3) To avoid doubt, a person does not commit the underlying offence for
the purposes of paragraph (1)(a) if the person has a defence to the
underlying offence.
(4) Absolute liability applies to subparagraph (1)(b)(i).
Note: For absolute
liability, see section 6.2.
(5) Strict liability applies to subparagraph (1)(b)(ii).
Note: For strict
liability, see section 6.1.
Defence--belief that child did not have
mental impairment
(6) Subparagraph (1)(b)(i) does not apply if the defendant proves
that, at the time he or she committed the underlying offence, he or she
believed that the child did not have a mental impairment.
Note: A defendant bears
a legal burden in relation to the matter in this subsection, see
section 13.4.
(7) In determining whether the defendant had the belief mentioned in
subsection (6), the trier of fact may take into account whether the
alleged belief was reasonable in the circumstances.
(1) A person commits an offence against this section if the person
commits an offence (the underlying offence ) against one or more of the
following provisions in relation to the same person (the child ) on 2 or more
separate occasions during any period:
(a) subsection 272.8(1) (engaging in sexual intercourse with child
outside Australia);
(b) subsection 272.8(2) (causing child to engage in sexual
intercourse in presence of defendant outside Australia);
(c) subsection 272.9(1) (engaging in sexual activity (other than
sexual intercourse) with child outside Australia);
(d) subsection 272.9(2) (causing child to engage in sexual activity
(other than sexual intercourse) in presence of defendant outside Australia).
Penalty: Imprisonment for 30 years.
(2) There is no fault element for any of the physical elements described
in subsection (1) other than the fault elements (however described), if
any, for the underlying
offence.
(3) To avoid doubt, a person does not commit the underlying offence for
the purposes of subsection (1) if the person has a defence to the
underlying offence.
Offence or conduct need not be the same
(4) For the purposes of subsection (1), it is immaterial whether
the underlying offence, or the conduct constituting the underlying offence, is
the same on each occasion.
Certain matters need not be proved
(5) In proceedings for an offence against this section, it is not
necessary to specify or to prove the dates or exact circumstances of the
occasions on which the conduct constituting the offence against this section
occurred.
Content of charge
(6) A charge of an offence against this section:
(a) must specify with reasonable particularity the period during which
the offence against this section occurred; and
(b) must describe the nature of the separate offences alleged to have
been committed by the person during that period.
Trier of fact to be
satisfied of certain matters
(7) In order for the person to be found guilty of an offence against
this section:
(a) the trier of fact must be satisfied beyond reasonable doubt that the
evidence establishes at least 2 separate occasions during the period concerned
on which the person engaged in conduct constituting an offence against
subsection 272.8(1) or (2) or 272.9(1) or (2), of a nature described in
the charge, in relation to the child; and
(b) the trier of fact must be so satisfied about the material facts of
the 2 such occasions, although the trier of fact need not be so satisfied
about the dates or the order of those occasions; and
(c) if the trier of fact is a jury and more than 2 such occasions are
relied on as evidence of the commission of an offence against this
section--all the members of the jury must be so satisfied about the same 2
occasions.
(8) In proceedings for an offence against this section, the judge must
warn the jury (if any) of the requirements of subsection (7).
Double
jeopardy etc.
(9) A person who has been convicted or acquitted of an offence against
this section may not be convicted of another offence against
section 272.8, 272.9 or 272.10 that is alleged to have been committed in
relation to the child in the period during which the person was alleged to
have committed the offence against this section.
(10)
However, subsection (9) does not prevent an alternative verdict under
section 272.28.
(11) A
person who has been convicted or acquitted of an offence against
section 272.8, 272.9 or 272.10 in relation to a person (the child ) may
not be convicted of an offence against this section in relation to the child
if any of the occasions relied on as evidence of the commission of the offence
against this section includes the conduct that constituted the offence of
which the person was convicted or acquitted.
(a) the person engages in sexual activity (other than sexual
intercourse) with another person (the young person ); and
(b) the young person is at least 16 but under 18; and
(c) the person is in a position of trust or authority in relation to the
young person; and
(d) the sexual activity is engaged in outside Australia.
Note: A person is taken
to engage in sexual activity if the person is in the presence of another
person (including by a means of communication that allows the person to see or
hear the other person) while the other person engages in sexual activity: see
the definition of engage in sexual activity in the Dictionary.
Penalty: Imprisonment for 7 years.
Causing young person to engage in
sexual activity in presence of defendant
(2) A person commits an offence if:
(a) the person engages in conduct in relation to another person (the
young person ); and
(b) that conduct causes the young person to engage in sexual activity
(other than sexual intercourse) in the presence of the person; and
(c) the young person is at least 16 but under 18 when the sexual
activity is engaged in; and
(d) the person is in a position of trust or authority in relation to the
young person; and
(e) the sexual activity is engaged in outside Australia.
Penalty: Imprisonment for 7 years.
(3) The fault element for paragraph (2)(b) is intention.
(4) Absolute liability applies to paragraphs (1)(b) and (d) and
(2)(c) and (e).
Note 1: For absolute
liability, see section 6.2.
Note 2:
For a defence based on belief about age, see section 272.16.
(5) Strict liability applies to paragraphs (1)(c) and (2)(d).
Note: For strict
liability, see section 6.1.
Defence--young person present but defendant
does not intend to derive gratification
(6) It is a defence to a prosecution for an offence against
subsection (1) or (2) if:
(a) the conduct constituting the offence consists only of the young
person being in the presence of the defendant while sexual activity is engaged
in; and
(b) the defendant proves that he or she did not intend to derive
gratification from the presence of the young person during that activity.
Note 1: A defendant bears a legal burden
in relation to the matter in this subsection, see section 13.4.
Note
2: For a defence based on belief about
age, see section 272.16.
(a) the person engages in conduct in relation to another person (the
child ); and
(b) the person does so with the intention of procuring the child to
engage in sexual activity (whether or not with the person) outside Australia;
and
(c) the child is someone:
(i) who is under 16; or
(ii) who the person believes to be under 16; and
(d) one or more of the following apply:
(i) the conduct referred to in paragraph (a) occurs wholly or
partly outside Australia;
(ii) the child is outside Australia when the conduct referred to in
paragraph (a) occurs;
(iii) the conduct referred to in paragraph (a) occurs wholly in
Australia and the child is in Australia when that conduct occurs.
Penalty: Imprisonment for 15 years.
(2) Absolute liability applies to subparagraph (1)(c)(i) and
paragraph (1)(d).
Note 1: For
absolute liability, see section 6.2.
Note
2: For a defence based on belief about
age, see section 272.16.
(3) A person may be found guilty of an offence against
subsection (1) even if it is impossible for the sexual activity referred
to in that subsection to take place.
(4) For the purposes of subsection (1), it does not matter that the
child is a fictitious person represented to the person as a real person.
(a) the person engages in conduct in relation to another person (the
child ); and
(b) the person does so with the intention of making it easier to procure
the child to engage in sexual activity (whether or not with the person)
outside Australia; and
(c) the child is someone:
(i) who is under 16; or
(ii) who the person believes to be under 16; and
(d) one or more of the following apply:
(i) the conduct referred to in paragraph (a) occurs wholly or
partly outside Australia;
(ii) the child is outside Australia when the conduct referred to in
paragraph (a) occurs;
(iii) the conduct referred to in paragraph (a) occurs wholly in
Australia and the child is in Australia when that conduct occurs.
Penalty: Imprisonment for 15 years.
(2) Absolute liability applies to subparagraph (1)(c)(i) and
paragraph (1)(d).
Note 1: For
absolute liability, see section 6.2.
Note
2: For a defence based on belief about
age, see section 272.16.
(3) A person may be found guilty of an offence against
subsection (1) even if it is impossible for the sexual activity referred
to in that subsection to take place.
(4) For the purposes of subsection (1), it does not matter that the
child is a fictitious person represented to the person as a real person.
(1) A person (the defendant ) commits an offence if:
(a) the defendant engages in conduct in relation to another person (the
third party ); and
(b) the defendant does so with the intention of making it easier to
procure a person (the child ) to engage in sexual activity (whether or not
with the defendant) outside Australia; and
(c) the child is someone:
(i) who is under 16; or
(ii) who the defendant believes to be under 16; and
(d) one or more of the following apply:
(i) the conduct referred to in paragraph (a) occurs wholly or
partly outside Australia;
(ii) the third party or the child (or both) is outside Australia when
the conduct referred to in paragraph (a) occurs;
(iii) the conduct referred to in paragraph (a) occurs wholly in
Australia and both the third party and the child are in Australia when that
conduct occurs.
Penalty: Imprisonment for 15 years.
(2) Absolute liability applies to subparagraph (1)(c)(i) and
paragraph (1)(d).
Note 1: For
absolute liability, see section 6.2.
Note
2: For a defence based on belief about
age, see section 272.16.
(3) A person may be found guilty of an offence against
subsection (1) even if it is impossible for the sexual activity referred
to in that subsection to take place.
(4) For the purposes of subsection (1), it does not matter that the
third party or the child is a fictitious person represented to the person as a
real person.
Offences
involving sexual intercourse or other sexual activity with a child--belief
that child at least 16
(1) It is a defence to a prosecution for an offence against
section 272.8 or 272.9 if the defendant proves that, at the time of the
sexual intercourse or sexual activity, he or she believed that the child was
at least 16.
Note: A
defendant bears a legal burden in relation to the matter in this subsection,
see section 13.4.
Offences involving sexual intercourse or other sexual
activity with young person--belief that young person at least 18
(2) It is a defence to a prosecution for an offence against
section 272.12 or 272.13 if the defendant proves that, at the time of the
sexual intercourse or sexual activity, he or she believed that the young
person was at least 18.
Note: A defendant bears
a legal burden in relation to the matter in this subsection, see
section 13.4.
Procuring and "grooming" offences--belief that child at
least 16
(3) It is a defence to a prosecution for an offence against
section 272.14, 272.15 or 272.15A if the defendant proves that, at the
time the defendant engaged in the conduct constituting the offence, he or she
believed that the child was at least 16.
Note: A defendant bears
a legal burden in relation to the matter in this subsection, see
section 13.4.
Trier of fact may take into account whether belief
reasonable
(4) In determining whether the defendant had the belief mentioned in
subsection (1), (2) or (3), the trier of fact may take into account
whether the alleged belief was reasonable in the circumstances.
It is a defence to a prosecution for an offence against
subsection 272.12(1) or 272.13(1) if the defendant proves that:
(a) at the time of the sexual intercourse or sexual activity, there
existed between the defendant and the young person a marriage that was valid,
or recognised as valid, under the law of:
(i) the place where the marriage was solemnised; or
(ii) the place where the sexual intercourse or sexual activity is
alleged to have taken place; or
(iii) the place of the defendant's residence or domicile; and
(b) when the marriage was solemnised:
(i) the marriage was genuine; and
(ii) the young person had attained the age of 16 years.
Note
1: A defendant bears a legal burden in
relation to the matter in this section: see section 13.4.
Note
2: Subsection 272.12(1) deals with
engaging in sexual intercourse with a young person outside Australia.
Subsection 272.13(1) deals with engaging in sexual activity (other than
sexual intercourse) with a young person outside Australia. Both offences apply
to defendants in a position of trust or authority in relation to the young
person concerned.
Offences
involving sexual intercourse or other sexual activity with child, and
benefiting offence
(1) A person commits an offence if:
(a) the person does an act; and
(b) the person does so with the intention of preparing for, or planning,
an offence against section 272.8, 272.9, 272.10, 272.11 or 272.18.
Penalty: Imprisonment for 10 years.
Offences involving sexual
intercourse or other sexual activity with young person
(2) A person commits an offence if:
(a) the person does an act; and
(b) the person does so with the intention of preparing for, or planning,
an offence against section 272.12 or 272.13.
Penalty:
Imprisonment for 5 years.
(3) Subsections (1) and (2) apply:
(a) whether the act is done within or outside Australia; and
(b)
whether or not an offence against a provision referred to in
paragraph (1)(b) or (2)(b) is in fact committed; and
(c) whether or not the act is done in preparation for, or planning, a
specific offence against
a provision referred to in paragraph (1)(b) or (2)(b) ; and
(d) whether or not the act is done in preparation for, or planning, more
than one offence against
a provision referred to in paragraph (1)(b) or (2)(b) .
(1) For the purposes of this Division, evidence that a person was
represented to the defendant as being under or of a particular age is, in the
absence of evidence to the contrary, proof that the defendant believed that
person to be under or of that age.
(2) In determining for the purposes of this Division how old a person is
or was at a particular time, a jury or court may treat any of the following as
admissible evidence:
(a) the person's appearance;
(b) medical or other scientific opinion;
(c) a document that is or appears to be an official or medical record
from a country outside Australia;
(d) a document that is or appears to be a copy of such a record.
(3) Subsection (2) does not make any other kind of evidence
inadmissible, and does not affect a prosecutor's duty to do all he or she can
to adduce the best possible evidence for determining the question.
(4) If, on a trial for an offence against this Division, evidence may be
treated as admissible because of subsection (2), the court must warn the
jury that it must be satisfied beyond reasonable doubt in determining the
question.
If, on a trial for an offence (the column 1 offence ) against a provision
referred to in column 1 of an item in the following table, the trier of fact:
(a) is not satisfied that the defendant is guilty of the column 1
offence; but
(b) is satisfied beyond reasonable doubt that he or she is guilty of an
offence (the column 2 offence ) against a provision referred to in column 2 of
that item;
it may find the defendant not guilty of the column 1 offence but
guilty of the column 2 offence, so long as the defendant has been accorded
procedural fairness in relation to that finding of guilt.
Alternative verdicts
Item
Column 1
Column 2
1
subsection 272.8(1)
subsection 272.9(1)
2
subsection 272.8(2)
subsection 272.9(2)
3
subsection 272.9(1)
subsection 272.8(1)
4
subsection 272.9(2)
subsection 272.8(2)
5
subsection 272.10(1)
subsection 272.8(1), 272.8(2), 272.9(1) or
272.9(2)
6
subsection 272.11(1)
subsection 272.8(1),
272.8(2), 272.9(1), 272.9(2) or 272.10(1)
If a person has been convicted or acquitted in a country outside Australia of
an offence against the law of that country in respect of any conduct, the
person cannot be convicted of an offence against this Division in respect of
that conduct.
(1) In determining the sentence to be passed, or the order to be made,
in respect of a person for an offence against Subdivision B of this Division,
the court must take into account the following matters:
(a) the age and maturity of the person in relation to whom the offence
was committed;
(b) if that person was under 10 when the offence was committed--that
fact as a reason for aggravating the seriousness of the criminal behaviour to
which the offence relates;
(c) the number of people involved in the commission of the offence.
(1A) However, the
court need only take into account a matter mentioned in subsection (1) so
far as the matter is known to the court and, for a matter mentioned in
paragraph (1)(a) or (c), relevant.
(2) The matters mentioned in subsection (1) are in addition to any
other matters the court must take into account (for example, the matters
mentioned in section 16A of the Crimes Act 1914).
(1) Proceedings for an offence against this Division must not be
commenced without the consent of the Attorney-General if the defendant was
under 18 at the time he or she allegedly engaged in the conduct constituting
the offence.
(2) However, a person may be arrested for, charged with, or remanded in
custody or on bail in connection with, such an offence before the necessary
consent has been given.
Division 273 -- Offences involving child abuse
material outside Australia
(1) Subject to subsections (2) and (3), an expression used in this
Division that is defined in Part 10.6 has the same meaning in this
Division as it has in that Part.
Note: One of those
expressions is child abuse material .
(2) A reference in this Division to a person having possession or
control of material includes a reference to the person:
(a) having possession of a computer or data storage device that holds or
contains the material; or
(b) having possession of a document in which the material is recorded;
or
(c) having control of material held in a computer that is in the
possession of another person (whether inside or outside Australia).
(3) A reference in this Division to a person producing, distributing or
obtaining material includes a reference to the person:
(a) producing, distributing or obtaining material held or contained in a
computer or data storage device; or
(b) producing, distributing or obtaining a document in which the
material is recorded.
(4) Section 473.4 applies in relation to this Division as if the
reference in that section to Part 10.6 were a reference to this Division.
Note: Section 473.4
sets out matters that may be taken into account in deciding whether particular
material is offensive.
A person must not be charged with an offence against this Division that the
person allegedly committed outside Australia unless, at the time of the
offence, the person was:
(a) an Australian citizen; or
(b) a resident of Australia; or
(c) a body corporate incorporated by or under a law of the Commonwealth
or of a State or Territory; or
(d) any other body corporate that carries on its activities principally
in Australia.
(1) Proceedings for an offence against this Division must not be
commenced without the consent of the Attorney-General if the defendant was
under 18 at the time he or she allegedly engaged in the conduct constituting
the offence.
(2) However, a person may be arrested for, charged with, or remanded in
custody or on bail in connection with, such an offence before the necessary
consent has been given.
If a person has been convicted or acquitted in a country outside Australia of
an offence against the law of that country in respect of any conduct, the
person cannot be convicted of an offence against this Division in respect of
that conduct.
(1) A person commits an offence against this section if:
(a) the person commits an offence against section 273.6 (possessing
etc. child abuse material outside Australia) on 3 or more separate occasions;
and
(b) the commission of each such offence involves 2 or more people.
Penalty: Imprisonment for 30 years.
(2) There is no fault element for any of the physical elements described
in paragraph (1)(a) other than the fault elements (however described), if
any, for the offence against section 273.6.
(3) To avoid doubt, a person does not commit an offence against
section 273.6 for the purposes of paragraph (1)(a) if the person has
a defence to that offence.
Offence or conduct need not be the same
(4) For the purposes of subsection (1), it is immaterial whether
the offence, or the conduct constituting the offence, is the same on each
occasion.
Double jeopardy etc.
(5) A person who has been convicted or acquitted of an offence (the
aggravated offence ) against this section may not be convicted of an offence
against section 273.6 in relation to the conduct that constituted the
aggravated offence.
(6) Subsection (5) does not prevent an alternative verdict under
section 273.8.
(7) A person who has been convicted or acquitted of an offence (the
underlying offence ) against section 273.6 may not be convicted of an
offence against this section in relation to the conduct that constituted the
underlying offence.
If, on a trial for an offence (the aggravated offence ) against
subsection 273.7(1), the trier of fact:
(a) is not satisfied that the defendant is guilty of the aggravated
offence; but
(b) is satisfied beyond reasonable doubt that he or she is guilty of an
offence against section 273.6 ;
it may find the defendant not guilty
of the aggravated offence but guilty of the offence against section
273.6, so long as the defendant has been accorded procedural fairness in
relation to that finding of guilt.
(1) A person is not criminally responsible for an offence against
section 273.6 because of engaging in particular conduct if the conduct:
(a) is of public benefit; and
(b) does not extend beyond what is of public benefit.
In determining
whether the person is, under this subsection, not criminally responsible for
the offence, the question whether the conduct is of public benefit is a
question of fact and the person's motives in engaging in the conduct are
irrelevant.
Note: A
defendant bears an evidential burden in relation to the matter in this
subsection, see subsection 13.3(3).
(2) For the purposes of subsection (1), conduct is of public
benefit if, and only if, the conduct is necessary for or of assistance in:
(a) enforcing a law of the Commonwealth, a State or Territory, or a
foreign country; or
(b) monitoring compliance with, or investigating a contravention of, a
law of the Commonwealth, a State or Territory or a foreign country; or
(c) the administration of justice (whether within or outside Australia);
or
(d) conducting scientific, medical or educational research.
(3) Paragraph (2)(d) only applies if the person's conduct was, in
all the circumstances, reasonable having regard to the purpose mentioned in
that paragraph.
(4) A person is not criminally responsible for an offence against
section 273.6 if:
(a) the person is, at the time of the offence:
(i) a law enforcement officer; or
(ii) an intelligence or security officer; or
(iii) an officer or employee of the government of a foreign country
performing similar duties to an intelligence or security officer; and
(b) the person is acting in the course of his or her duties; and
(c) the conduct of the person is reasonable in the circumstances for the
purpose of performing that duty.
Note: A defendant bears
an evidential burden in relation to the matter in this subsection, see
subsection 13.3(3).
(5) A person is not criminally responsible for an offence against
section 273.6 if the person engages in the conduct in good faith for the
sole purpose of:
(1) A person is not criminally responsible for an offence against this
Division because of engaging in particular conduct if the conduct:
(a) is of public benefit; and
(b) does not extend beyond what is of public benefit.
In determining
whether the person is, under this subsection, not criminally responsible for
the offence, the question whether the conduct is of public benefit is a
question of fact and the person's motives in engaging in the conduct are
irrelevant.
Note: A
defendant bears an evidential burden in relation to the matter in this
subsection: see subsection 13.3(3).
(2) For the purposes of subsection (1), conduct is of public
benefit if, and only if, the conduct is necessary for or of assistance in:
(a) enforcing a law of the Commonwealth, a State or a Territory; or
(b) monitoring compliance with, or investigating a contravention of, a
law of the Commonwealth, a State or a Territory; or
(c) the administration of justice; or
(d) conducting scientific, medical or educational research that has been
approved by the AFP Minister in writing for the purposes of this section.
(3) A person is not criminally responsible for an offence against this
Division if:
(a) the person is, at the time of the offence, a law enforcement
officer, or an intelligence or security officer, acting in the course of the
officer's duties; and
(b) the conduct of the person is reasonable in the circumstances for the
purpose of performing that duty.
Note: A defendant bears
an evidential burden in relation to the matter in this subsection: see
subsection 13.3(3).
(4) An expression used in this section that is defined in Part 10.6
has the same meaning in this section as it has in that Part.
Note: These expressions
include AFP Minister , intelligence or security officer and law enforcement
officer .
(a) a Commonwealth child sex offence within the meaning of the
Crimes Act 1914; or
(b) a State or Territory registrable child sex offence.
"Commonwealth
officer " means any of the following:
(a) a Minister;
(b) a Parliamentary Secretary;
(c) an individual who holds an appointment under section 67 of the
Constitution;
(d) an APS employee;
(e) an individual employed by the Commonwealth otherwise than under the
Public Service Act 1999 ;
(f) a member of the Australian Defence Force;
(g) a member or special member of the Australian Federal Police;
(h) an individual (other than an official of a registered industrial
organisation) who holds or performs the duties of an office established by or
under a law of the Commonwealth, other than:
(i) an officer or employee of a Commonwealth authority;
(j) an individual who is:
(i) a contractor or subcontractor of the Commonwealth or a Commonwealth
authority; or
(ii) an officer or employee of a contractor or subcontractor of the
Commonwealth or a Commonwealth authority; or
(iii) assigned to work for the Commonwealth or a Commonwealth authority
under a labour hire arrangement;
(k) an individual (other than an official of a registered industrial
organisation) who exercises powers, or performs functions, conferred on the
person by or under a law of the Commonwealth, other than:
(l) an individual who exercises powers, or performs functions, conferred
on the individual by or under a law in force in Norfolk Island, the Territory
of Christmas Island or the Territory of Cocos (Keeling) Islands (whether the
law is a law of the Commonwealth or a law of the Territory concerned).
"State or Territory registrable child sex offence" means an offence:
(a) that a person becomes, or may at any time have become, a person
whose name is entered on a child protection offender register (however
described) of a State or Territory for committing; and
(b) in respect of which:
(i) a person under 18 was a victim or an intended victim; or
If a person has been convicted or acquitted in a country outside Australia of
an offence against the law of that country in respect of any conduct, the
person cannot be convicted of an offence against this Division in respect of
that conduct.
Failing to protect child at risk of child sexual abuse offence
(1) A person (the defendant ) commits an offence if:
(a) the defendant is a Commonwealth officer; and
(b) there is another person aged under 18 (the child ) under the
defendant's care, supervision or authority, in the defendant's capacity as a
Commonwealth officer; and
(c) the defendant knows there is a substantial risk that a person (the
potential offender ) will engage in conduct in relation to the child; and
(d) such conduct, if engaged in, would constitute a child sexual abuse
offence; and
(e) the defendant, because of the defendant's position as a Commonwealth
officer, has the actual or effective responsibility to reduce or remove the
risk mentioned in paragraph (c); and
(f) the defendant negligently fails to reduce or remove that risk.
Penalty: Imprisonment for 5 years.
Absolute liability
(2) Absolute liability applies to paragraph (1)(d).
Note: For absolute
liability, see section 6.2.
Certain matters not required to be proved
(3) Subsection (1) applies:
(a) whether or not the child can be identified as a specific person; and
(b) whether or not the potential offender can be identified as a
specific person; and
(c) whether or not a child sexual abuse offence is or was actually
committed in relation to the child.
(1) A person (the defendant ) commits an offence if:
(a) the defendant is a Commonwealth officer; and
(b) there is another person aged under 18 (the child ) under the care or
supervision of the defendant, in the defendant's capacity as a Commonwealth
officer; and
(c) the defendant knows of information that would lead a reasonable
person to believe that a person (the potential offender ):
(i) has engaged in conduct in relation to the child; or
(ii) will engage in conduct in relation to the child; and
(d) such conduct, if engaged in, would constitute a child sexual abuse
offence; and
(e) the defendant fails to disclose the information, as soon as
practicable after coming to know it, to:
(i) the police force or police service of a State or Territory; or
(ii) the Australian Federal Police.
Penalty: Imprisonment for 3
years.
Offence based on reasonable suspicion
(2) A person (the defendant ) commits an offence if:
(a) the defendant is a Commonwealth officer; and
(b) there is another person aged under 18 (the child ) under the care or
supervision of the defendant, in the defendant's capacity as a Commonwealth
officer; and
(c) the defendant knows of information that would lead a reasonable
person to suspect that a person (the potential offender ):
(i) has engaged in conduct in relation to the child; or
(ii) will engage in conduct in relation to the child; and
(d) such conduct, if engaged in, would constitute a child sexual abuse
offence; and
(e) the defendant fails to disclose the information, as soon as
practicable after coming to know it, to:
(i) the police force or police service of a State or Territory; or
(ii) the Australian Federal Police.
Penalty: Imprisonment for 2
years.
Absolute liability
(3) Absolute liability applies to paragraphs (1)(d) and (2)(d).
Note: For absolute
liability, see section 6.2.
Defences
(4) Subsection (1) or (2) does not apply if:
(a) the defendant reasonably believes that the information is already
known:
(i) to the police force or police service of a State or Territory; or
(ii) to the Australian Federal Police; or
(iii) to a person or body to which disclosure of such information is
required by a scheme established under, or for the purposes of, a law of a
State or Territory, or of a foreign country (or part of a foreign country); or
(b) the defendant has disclosed the information to a person or body for
the purposes of a scheme mentioned in subparagraph (a)(iii); or
(c) the defendant reasonably believes that the disclosure of the
information would put at risk the safety of any person, other than the
potential offender; or
(d) the information is in the public domain.
Note: A defendant bears
an evidential burden in relation to a matter in this subsection: see
subsection 13.3(3).
(5) An individual is not excused from failing to disclose information as
mentioned in paragraph (1)(e) or (2)(e) on the ground that disclosing the
information might tend to incriminate the individual or otherwise expose the
individual to a penalty or other liability.
Note: For the
admissibility in evidence of such information if disclosed in the course of
protected conduct, and any information obtained as an indirect consequence,
see subsections 273B.9(10) and (11).
Certain matters not required to be
proved
(6) Subsection (1) or (2) applies:
(a) whether or not the child can be identified as a specific person; and
(b) whether or not any person actually believes or suspects the matter
mentioned in paragraph (1)(c) or (2)(c); and
(c) whether or not the potential offender can be identified as a
specific person; and
(d) whether or not a child sexual abuse offence is or was actually
committed in relation to the child.
Alternative verdict
(7) If, on a trial of a person for an offence against
subsection (1), the trier of fact:
(a) is not satisfied that the person is guilty of the offence against
that subsection; and
(b) is satisfied beyond reasonable doubt that the person is guilty of an
offence against subsection (2);
it may find the person not guilty of
the offence against subsection (1) but guilty of the offence against
subsection (2).
(8) Subsection (7) only applies if the person has been accorded
procedural fairness in relation to the finding of guilt for the offence
against subsection (2).
(1) Proceedings for an offence against this Division must not be
commenced without the consent of the Attorney-General.
(2) However, a person may be arrested for, charged with, or remanded in
custody or on bail in connection with, such an offence before the necessary
consent has been given.
(1) In determining for the purposes of this Division how old a person is
or was at a particular time, the trier of fact may have regard to any of the
following matters:
(a) the person's appearance;
(b) medical or other scientific opinion;
(c) a document that is or appears to be an official or medical record
from a country outside Australia;
(d) a document that is or appears to be a copy of such a record.
(2) Subsection (1) does not make any other kind of evidence
inadmissible, and does not affect a prosecutor's duty to do all the prosecutor
can to adduce the best possible evidence for determining the question.
(3) If, on a trial by jury for an offence against this Division, regard
may be had to a matter because of subsection (1), the court must warn the
jury that it must be satisfied beyond reasonable doubt in determining the
question.
This Division applies to the exclusion of a law, or a provision of a law, of a
State or Territory that has the effect of making a person liable to be
prosecuted for an offence against any law for failing to:
(a) reduce or remove a risk of a child being subjected to conduct
constituting a child sexual abuse offence; or
(b) disclose to a police force or a police service information relating
to whether a person has engaged, or will engage, in conduct constituting a
child sexual abuse offence;
to the extent that the law or provision would
otherwise apply in relation to conduct in which the person engages in the
person's capacity as a Commonwealth officer.
(1) A person engages in protected conduct if the person:
(a) engages in conduct in avoidance, or purported avoidance, of
liability for an offence against this Division; and
(b) the conduct is genuine and proportionate for that purpose.
(2) This section does not apply to liability in any civil, criminal or
administrative proceedings (including disciplinary proceedings) ( relevant
proceedings ) for knowingly making a statement that is false or misleading.
(3) Without limiting subsection (2), this section does not apply to
liability for an offence against any of the following provisions:
(a) section 137.1 (false or misleading information);
(b) section 137.2 (false or misleading documents);
(c) section 144.1 (forgery);
(d) section 145.1 (using forged document).
(4) This section does not prevent a person from being liable in any
relevant proceedings for conduct of the person that is revealed by a
disclosure of information.
Protection against liability for engaging in
protected conduct
(5) If a person engages in protected conduct:
(a) the person is not subject to any liability in relevant proceedings
for engaging in the protected conduct; and
(b) no contractual or other remedy may be enforced, and no contractual
or other right may be exercised, against the person on the basis of the
protected conduct being engaged in; and
(c) the person is not to be considered to have breached any professional
ethics in respect of the protected conduct.
(6) Professional ethics includes the following (without limitation):
(a) rules of professional conduct;
(b) rules of professional etiquette;
(c) a code of ethics;
(d) standards of professional conduct.
(7) Without limiting subsection (5):
(a) if the person engages in protected conduct by disclosing
information, the person:
(i) has qualified privilege in proceedings for defamation relating to
the disclosure; and
(ii) is not liable to an action for defamation at the suit of another
person relating to the disclosure; and
(b) a contract to which the person is a party may not be terminated on
the basis that the protected conduct constitutes a breach of the contract.
(8) Paragraphs (5)(a) and (7)(a) do not affect any other right,
privilege or immunity the person has as a defendant in proceedings, or an
action, for defamation.
(9) Without limiting paragraphs (5)(b) and (7)(b), if a court is
satisfied that:
(a) a person (the employee ) is employed in a particular position under
a contract of employment with another person (the employer ); and
(b) the employee engages in protected conduct; and
(c) the employer purports to terminate the contract of employment on the
basis of the person engaging in protected conduct being engaged in;
the
court may:
(d) order that the employee be reinstated in that position or a position
at a comparable level; or
(e) order the employer to pay the employee an amount instead of
reinstating the employee, if the court considers it appropriate to make the
order.
Admissibility of evidence
(10) If an
individual engages in protected conduct by disclosing information, the
information is not admissible in evidence against the individual in relation
to liability in any relevant proceedings.
(11) To
avoid doubt, this section does not affect the admissibility of evidence in any
relevant proceedings of any information obtained as an indirect consequence of
a disclosure of information that constitutes protected conduct.
"Convention" means the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted
by the General Assembly of the United Nations at New York on 10 December
1984.
Note: The text of
the Convention is set out in Australian Treaty Series 1989 No. 21 ([1989]
ATS 21). In 2010, the text of a Convention in the Australian Treaty Series was
accessible through the Australian Treaties Library on the AustLII website
(www.austlii.edu.au).
(2) An expression that is used both in this Division and in the
Convention (whether or not a particular meaning is given to it by the
Convention) has, in this Division, the same meaning as it has in the
Convention.
(1) A person (the perpetrator ) commits an offence if the perpetrator:
(a) engages in conduct that inflicts severe physical or mental pain or
suffering on a person (the victim ); and
(b) the conduct is engaged in:
(i) for the purpose of obtaining from the victim or from a third person
information or a confession; or
(ii) for the purpose of punishing the victim for an act which the victim
or a third person has committed or is suspected of having committed; or
(iii) for the purpose of intimidating or coercing the victim or a third
person; or
(iv) for a purpose related to a purpose mentioned in
subparagraph (i), (ii) or (iii); and
(c) the perpetrator engages in the conduct:
(i) in the capacity of a public official; or
(ii) acting in an official capacity; or
(iii) acting at the instigation, or with the consent or acquiescence, of
a public official or other person acting in an official capacity.
Penalty: Imprisonment for 20 years.
(2) A person (the perpetrator ) commits an offence if the perpetrator:
(a) engages in conduct that inflicts severe physical or mental pain or
suffering on a person; and
(b) the conduct is engaged in for any reason based on discrimination of
any kind; and
(c) the perpetrator engages in the conduct:
(i) in the capacity of a public official; or
(ii) acting in an official capacity; or
(iii) acting at the instigation, or with the consent or acquiescence, of
a public official or other person acting in an official capacity.
Penalty: Imprisonment for 20 years.
(3) Absolute liability applies to paragraphs (1)(c) and (2)(c).
Note: For absolute
liability, see section 6.2.
(4) Subsections (1) and (2) do not apply to conduct arising only
from, inherent in or incidental to lawful sanctions that are not inconsistent
with the Articles of the International Covenant on Civil and Political Rights
(a copy of the English text of which is set out in Schedule 2 to the
Australian Human Rights Commission Act 1986).
(5) Section 15.4 (extended geographical jurisdiction--category D)
applies to an offence against subsection (1) or (2).
(1) Proceedings for an offence against this Division, where the conduct
constituting the alleged offence occurs wholly outside Australia, must not
take place except with the consent in writing of the Attorney-General.
(2) Even though a consent in accordance with subsection (1) has not
been given in relation to an offence against this Division:
(a) a person may be arrested for the offence, and a warrant for the
arrest of a person for the offence may be issued and executed; and
(b) a person may be charged with the offence; and
(c) a person so charged may be remanded in custody or on bail;
but no
further step in proceedings referred to in subsection (1) is to be taken
until such a consent has been given.
(3) Subsection (2) does not prevent the discharge of the accused if
proceedings are not continued within a reasonable time.
It is not a defence in a proceeding for an offence under this Division that:
(a) the conduct constituting the offence was done out of necessity
arising from the existence of a state of war, a threat of war, internal
political instability, a public emergency or any other exceptional
circumstance; or
(b) in engaging in the conduct constituting the offence the accused
acted under orders of a superior officer or public authority;
but the
circumstances referred to in paragraphs (a) and (b) may, if the accused
is convicted of the offence, be taken into account in determining the proper
sentence.
For the purposes of section 38 of the Judiciary Act 1903, a matter
arising under this Division, including a question of interpretation of the
Convention, is taken not to be a matter arising directly under a treaty.
If a person has been convicted or acquitted in a country outside Australia of
an offence against the law of that country in respect of any conduct, the
person cannot be convicted of an offence under this Division in respect of
that conduct.
An oath or affirmation to be sworn or made by a witness who is to give
evidence under a direction may be administered either:
(a) by means of the video link, in as nearly as practicable the same way
as if the witness were to give the evidence at the courtroom or other place in
Australia where the court is sitting; or
(b) as follows:
(i) on behalf of the court and as directed by it;
(ii) by a person (whether an Australian official or not) authorised by
the court;
(iii) at the place where the witness is to give the evidence.
A court may make such orders as are just for payment of expenses incurred in
connection with giving evidence under a direction by the court under this
Division.
(1) The purpose of this Part is to create offences relating to drug
trafficking and to give effect to the United Nations Convention against
Illicit Traffic in Narcotic Drugs and Psychotropic Substances, done at Vienna
on 20 December 1988 (the TINDAPS Convention ).
Note: The text of the
Convention is set out in Australian Treaty Series 1993 No. 4. In 2005
this was available in the Australian Treaties Library of the Department of
Foreign Affairs and Trade, accessible through that Department's website.
(2) Subsection (1) does not limit the legislative powers of the
Parliament in relation to this Part.
(1) This Part is not intended to exclude or limit the concurrent
operation of any law of a State or Territory.
(2) Without limiting subsection (1), this Part is not intended
to exclude or limit the concurrent operation of a law of a State or Territory
that makes:
(a) an act or omission that is an offence against a provision of this
Part; or
(b) a similar act or omission;
an offence against the law of the State
or Territory.
(3) Subsection (2) applies even if the law of the State or
Territory does any one or more of the following:
(a) provides for a penalty for the offence that differs from the penalty
provided for in this Part;
(b) provides for a fault element in relation to the offence that differs
from the fault elements applicable to the offence under this Part;
(c) provides for a defence in relation to the offence that differs from
the defences applicable to the offence under this Part.
If, in a prosecution for an offence against this Part, it is necessary for the
prosecution to prove that a person knew, or was reckless as to whether, a
substance or plant was a controlled drug, controlled plant, controlled
precursor, border controlled drug, border controlled plant or border
controlled precursor, it is not necessary for the prosecution to prove that
the person knew, or was reckless as to, the particular identity of the
controlled drug, controlled plant, controlled precursor, border controlled
drug, border controlled plant or border controlled precursor.
Note: This section
applies to a prosecution of an ancillary offence relating to this Part as well
as to prosecution of a primary offence against this Part. This is because of:
(a) sections 11.2, 11.2A and 11.3 (which treat certain
combinations of physical and fault elements relating to this Part as being
offences against this Part); and
(b) section 11.6
(which has the effect that a reference to an offence against this
Part includes a reference to an offence against section 11.1
(attempt), 11.4 (incitement) or 11.5 (conspiracy) that relates to this Part).
Despite subsection 11.1(3), for the offence of attempting to commit an
offence against this Part, recklessness is the fault element in relation to
any of the following physical elements of the offence attempted:
(a) that a substance is a controlled drug (a physical element of an
offence against Division 302 or 305 or section 308.1, 309.2, 309.3,
309.4, 309.7 or 309.8);
(b) that a plant is a controlled plant (a physical element of an offence
against Division 303 or 304);
(c) that a substance is a controlled precursor (a physical element of an
offence against Division 306 or section 308.2, 309.10 or 309.11);
(d) that a substance is a border controlled drug or border controlled
plant (a physical element of an offence against Subdivision A, B or C of
Division 307 or section 309.12 or 309.13);
(e) that a substance is a border controlled precursor (a physical
element of an offence against Subdivision D of Division 307 or
section 309.14 or 309.15).
Note: Proof of
intention, knowledge or recklessness will satisfy a fault element of
recklessness: see subsection 5.4(4).
(1) For the purposes of this Part, a controlled drug is a substance,
other than a growing plant, that is:
(a) listed by a regulation as a controlled drug; or
(b) a drug analogue of a listed controlled drug; or
(c) determined by the AFP Minister as a controlled drug under
section 301.13 (which deals with emergency determinations of serious
drugs).
Note: Some
conditions must be satisfied before:
(a) a regulation can
be made for paragraph (1)(a) (see section 301.7); or
(b) a determination can be made for paragraph (1)(c)
(see subsection 301.13(2)).
(2) The purpose of subsection (1) is to permit certain substances
that are covered by the TINDAPS Convention, or drug analogues of such
substances, to be treated as controlled drugs for the purposes of this Part
(see also section 300.1).
Note: For the meaning of
drug analogue , see section 301.9.
(1) For the purposes of this Part, a controlled plant is a growing plant
that is:
(a) listed by a regulation as a controlled plant; or
(b) determined by the AFP Minister as a controlled plant under
section 301.13 (which deals with emergency determinations of serious
drugs).
Note: Some
conditions must be satisfied before:
(a) a regulation can
be made for paragraph (1)(a) (see section 301.7); or
(b) a determination can be made for paragraph (1)(b)
(see subsection 301.13(2)).
(2) The purpose of subsection (1) is to permit growing plants that
are covered by the TINDAPS Convention to be treated as controlled plants for
the purposes of this Part (see also section 300.1).
(1) For the purposes of this Part, a controlled precursor is a substance
(including a growing plant) that is:
(a) listed by a regulation as a controlled precursor; or
(b) a salt or ester of a controlled precursor that is so listed; or
(c) determined by the AFP Minister as a controlled precursor under
section 301.14 (which deals with emergency determinations of serious drug
precursors).
Note:
Some conditions must be satisfied before:
(a) a regulation
can be made for paragraph (a) (see section 301.8); or
(b) a determination can be made for paragraph (c) (see
subsection 301.14(2)).
(2) The purpose of subsection (1) is to permit certain substances
that are covered by the TINDAPS Convention, or salts or esters of such
substances, to be treated as controlled precursors for the purposes of this
Part (see also section 300.1).
(1) For the purposes of this Part, a border controlled precursor is a
substance (including a growing plant) that is:
(a) listed by a regulation as a border controlled precursor; or
(b) a salt or ester of a precursor that is so listed; or
(c) an immediate precursor of a precursor that is so listed; or
(d) determined by the AFP Minister as a border controlled precursor
under section 301.14 (which deals with emergency determinations of
serious drug precursors).
Note: Some conditions
must be satisfied before:
(a) a regulation can be made for
paragraph (a) (see section 301.8); or
(b) a
determination can be made for paragraph (d) (see
subsection 301.14(2)).
(2) In this section:
"immediate precursor" of a precursor listed for
the purposes of paragraph (1)(a) means a chemical or compound (other than
another precursor that is so listed) that is an immediate precursor in the
manufacture by a chemical process of the listed precursor.
Before a regulation is made listing a substance or plant as a serious drug for
the purposes of this Part, the AFP Minister must be satisfied that:
(a) the substance or plant is likely to be taken without appropriate
medical supervision; and
(b) one or more of the following conditions is met:
(i) taking the substance or plant would create a risk of death or
serious harm;
(ii) taking the substance or plant would have a physical or mental
effect substantially similar to that caused by taking a serious drug that is
already listed;
(iii) the substance or plant has the capacity to cause physiological
dependence;
(iv) possession or conduct in relation to the substance or plant is
proscribed under a law of a State, a Territory or a foreign country that has
purposes similar to those of this Part;
(v) the substance or plant poses a substantial risk to the health or
safety of the public.
Before a regulation is made listing a substance as a controlled precursor or a
border controlled precursor, the AFP Minister must be satisfied that there is
a risk that the substance will be used to unlawfully manufacture a controlled
drug (other than a determined controlled drug).
(1) For the purposes of this Part, a substance is a drug analogue of a
listed controlled drug, or a listed border controlled drug, if the substance
is any of the following in relation to the listed drug (or in relation to a
primary analogue of the listed drug), however the substance is obtained:
(a) one of the following (a primary analogue ):
(i) a stereoisomer;
(ii) a structural isomer having the same constituent groups;
(iii) an alkaloid;
(c) a structural modification obtained in one or more of the following
ways:
(i) by the replacement of up to 2 carbocyclic or heterocyclic ring
structures with different carbocyclic or heterocyclic ring structures;
(ii) by the addition of hydrogen atoms to one or more unsaturated bonds;
(iii) by the replacement of one or more of the groups or atoms specified
in subsection (2) with one or more of the other groups or atoms specified
in that subsection;
(iv) by the conversion of a carboxyl or an ester group into an amide
group;
(d) any other homologue, analogue, chemical derivative or substance
substantially similar in chemical structure.
(2) The following groups and atoms are specified:
(a) alkoxy, cyclic diether, acyl, acyloxy, mono-amino or dialkylamino
groups with up to 6 carbon atoms in any alkyl residue;
(b) alkyl, alkenyl or alkynyl groups with up to 6 carbon atoms in the
group, where the group is attached to oxygen (for example, an ester or an
ether group), nitrogen, sulphur or carbon;
(c) halogen, hydroxy, nitro or amino groups;
(d) hydrogen atoms.
(3) However:
(a) a drug analogue of a listed controlled drug does not include a
substance that is itself a listed controlled drug; and
(b) a drug analogue of a listed border controlled drug does not include
a substance that is itself a listed border controlled drug.
For the purposes of this Part, a commercial quantity of a serious drug,
controlled precursor or border controlled precursor is a quantity not less
than that provided by the following table:
Commercial
quantities of serious drugs and precursors
Item
Serious drug or
precursor
Commercial quantity (minimum)
1
A serious drug (other
than a drug analogue), controlled precursor or border controlled precursor
Either:
(a) the quantity listed as a commercial quantity of the drug or
precursor in a regulation made for the purposes of this section; or
(b) the
quantity determined as a commercial quantity of the drug or precursor by the
AFP Minister under section 301.15 (which deals with emergency
determinations of quantities).
2
A drug analogue of 1 or more listed
controlled drugs
Either:
(a) for a drug analogue of a single listed
controlled drug--the commercial quantity of the listed drug; or
(b) for a
drug analogue of 2 or more listed controlled drugs--the smallest commercial
quantity of any of the listed drugs.
3
A drug analogue of 1 or more
listed border controlled drugs
Either:
(a) for a drug analogue of a
single listed border controlled drug--the commercial quantity of the listed
drug; or
(b) for a drug analogue of 2 or more listed border controlled
drugs--the smallest commercial quantity of any of the listed drugs.
Note: A drug analogue of
a listed controlled drug, or a listed border controlled drug, is itself a
controlled drug or border controlled drug (see paragraphs 301.1(b) and
301.4(b), and the definition of drug analogue in section 301.9).
For the purposes of this Part, a marketable quantity of a serious drug,
controlled precursor or border controlled precursor is a quantity not less
than that provided by the following table:
Marketable
quantities of serious drugs and precursors
Item
Serious drug or
precursor
Marketable quantity (minimum)
1
A serious drug (other
than a drug analogue), controlled precursor or border controlled precursor
Either:
(a) the quantity listed as a marketable quantity of the drug or
precursor in a regulation made for the purposes of this section; or
(b) the
quantity determined as a marketable quantity of the drug or precursor by the
AFP Minister under section 301.15 (which deals with emergency
determinations of quantities).
2
A drug analogue of 1 or more listed
controlled drugs
Either:
(a) for a drug analogue of a single listed
controlled drug--the marketable quantity of the listed drug; or
(b) for a
drug analogue of 2 or more listed controlled drugs--the smallest marketable
quantity of any of the listed drugs.
3
A drug analogue of 1 or more
listed border controlled drugs
Either:
(a) for a drug analogue of a
single listed border controlled drug--the marketable quantity of the listed
drug; or
(b) for a drug analogue of 2 or more listed border controlled
drugs--the smallest marketable quantity of any of the listed drugs.
Note: A drug analogue of
a listed controlled drug, or a listed border controlled drug, is itself a
controlled drug or border controlled drug (see paragraphs 301.1(b) and
301.4(b), and the definition of drug analogue in section 301.9).
For the purposes of this Part, a trafficable quantity of a controlled drug or
a controlled plant is a quantity not less than that provided by the following
table:
Trafficable quantities of controlled drugs and plants
Item
Controlled drug or plant
Trafficable quantity (minimum)
1
A controlled drug (other than a drug analogue) or a controlled plant
Either:
(a) the quantity listed as a trafficable quantity of the drug or
plant in a regulation made for the purposes of this section; or
(b) the
quantity determined as a trafficable quantity of the drug or plant by the AFP
Minister under section 301.15 (which deals with emergency determinations
of quantities).
2
A drug analogue of 1 or more listed controlled
drugs
Either:
(a) for a drug analogue of a single listed controlled
drug--the trafficable quantity of the listed drug; or
(b) for a drug
analogue of 2 or more listed controlled drugs--the smallest trafficable
quantity of any of the listed drugs.
Note: A drug analogue of
a listed controlled drug is itself a controlled drug (see
paragraph 301.1(b) and the definition of drug analogue in
section 301.9).
(1) The AFP Minister may, by legislative instrument, determine that:
(a) a substance, other than a growing plant, is a controlled drug or a
border controlled drug; or
(b) a growing plant is a controlled plant or a border controlled plant.
(2) The AFP Minister must not make a determination under
subsection (1) unless he or she is satisfied:
(a) that there is an imminent and substantial risk that the substance or
plant will be taken without appropriate medical supervision; and
(b) one or more of the following conditions is met:
(i) taking the substance or plant may create a risk of death or serious
harm;
(ii) taking the substance or plant may have a physical or mental effect
substantially similar to that caused by taking a listed serious drug;
(iii) there is limited or no known lawful use of the substance or plant
in Australia, and the substance or plant has been found by a public official
in the course of the performance of the official's duties;
(iv) the substance or plant may pose a substantial risk to the health or
safety of the public.
(3) The AFP Minister must not make more than one determination under
this section in relation to a particular substance or plant.
(1) The AFP Minister may, by legislative instrument, determine that a
substance (including a growing plant) is a controlled precursor or a border
controlled precursor.
(2) The AFP Minister must not make a determination under
subsection (1) unless he or she is satisfied that there is an imminent
and substantial risk that the substance will be used to unlawfully manufacture
a controlled drug.
(3) The AFP Minister must not make more than one determination under
this section in relation to a particular substance or plant.
(1) The AFP Minister may, by legislative instrument, determine:
(a) a quantity of a serious drug as a commercial or marketable quantity
of the drug; or
(b) a quantity of a controlled drug or a controlled plant as a
trafficable quantity of the drug or plant; or
(c) a quantity of a controlled precursor or a border controlled
precursor as a commercial or marketable quantity of the precursor.
(2) However, the AFP Minister may only make a determination of a
commercial, marketable or trafficable quantity of a serious drug, controlled
precursor or border controlled precursor under subsection (1) if there is
no regulation currently in force listing such a quantity of the drug or
precursor.
Note: The
definitions of commercial quantity , marketable quantity and trafficable
quantity in Subdivision B allow for regulations to list such quantities of
serious drugs and precursors.
(1) A determination under this Subdivision in relation to a substance
(including a growing plant) or a quantity of such a substance has effect:
(a) from the time the determination is registered (within the meaning of
the Legislation Act 2003); and
(b) for the period of 12 months from that registration, or such shorter
period as is specified in the determination, as extended (if at all) under
subsection (2).
(2) If exceptional circumstances prevent the listing (by regulation) of
the substance or quantity, to the same effect, the AFP Minister may, by
legislative instrument, extend the period during which the determination is in
force by a further period or periods.
(3) The AFP Minister must not extend the period under
subsection (2) with the effect that the determination would stay in force
for longer than 18 months after the time the determination is registered
(within the meaning of the Legislation Act 2003).
(4) A determination made under this Subdivision has no effect to the
extent that it is inconsistent with a regulation made for the purposes of
Subdivision A.
(1) The AFP Minister must, on or before the day on which a determination
under this Subdivision is registered (within the meaning of the
Legislation Act 2003):
(a) make a public announcement of the determination; and
(b) cause a copy of the announcement to be published:
(i) on the internet; and
(ii) in a newspaper circulating in each State, the Australian Capital
Territory and the Northern Territory.
(2) An announcement made under subsection (1) is not a legislative
instrument.
(1) For the purposes of this Part, a person traffics in a substance if:
(a) the person sells the substance; or
(b) the person prepares the substance for supply with the intention of
selling any of it or believing that another person intends to sell any of it;
or
(c) the person transports the substance with the intention of selling
any of it or believing that another person intends to sell any of it; or
(d) the person guards or conceals the substance with the intention of
selling any of it or assisting another person to sell any of it; or
(e) the person possesses the substance with the intention of selling any
of it.
(2) For the purposes of paragraph (1)(b), preparing a substance for
supply includes packaging the substance or separating the substance into
discrete units.
(1) For the purposes of proving an offence against this Division, if a
person has cultivated a trafficable quantity of a plant, the person is taken
to have had the necessary intention or belief concerning the sale of the plant
to have been cultivating the plant for a commercial purpose.
(2) Subsection (1) does not apply if the person proves that he or
she had neither that intention nor belief.
Note: A defendant bears
a legal burden in relation to the matters in subsection (2) (see
section 13.4).
(1) For the purposes of proving an offence against this Division, if a
person has manufactured a trafficable quantity of a substance, the person is
taken to have had the necessary intention or belief concerning the sale of the
substance to have been manufacturing the substance for a commercial purpose.
(2) Subsection (1) does not apply if the person proves that he or
she had neither that intention nor belief.
Note: A defendant bears
a legal burden in relation to the matters in subsection (2) (see
section 13.4).
For the purposes of this Part, a person pre-traffics in a substance if the
person:
(a) sells the substance believing that the person to whom it is sold, or
another person, intends to use any of the substance to manufacture a
controlled drug; or
(b) manufactures the substance:
(i) with the intention of using any of it to manufacture a controlled
drug; and
(ii) with the intention of selling any of the drug so manufactured, or
believing that another person intends to sell any of the drug so manufactured;
or
(c) manufactures the substance:
(i) with the intention of selling any of it to another person; and
(ii) believing that the other person intends to use any of the substance
to manufacture a controlled drug; or
(d) possesses the substance:
(i) with the intention of using any of it to manufacture a controlled
drug; and
(ii) with the intention of selling any of the drug so manufactured, or
believing that another person intends to sell any of the drug so manufactured.
(1) For the purposes of proving an offence against
subsection 306.4(1), if:
(a) a person has sold a substance; and
(b) a law of the Commonwealth or of a State or Territory required the
sale to be authorised (however described); and
(c) the sale was not so authorised;
the person is taken to have sold
the substance believing that the person to whom it was sold, or another
person, intended to use some or all of the substance to manufacture a
controlled drug.
(2) Subsection (1) does not apply if the person proves that he or
she did not have that belief.
Note: A defendant bears
a legal burden in relation to the matter in subsection (2) (see
section 13.4).
(1) For the purposes of proving an offence against
subsection 306.4(1), if:
(a) a person has manufactured a substance; and
(b) a law of the Commonwealth or of a State or Territory required the
manufacture to be authorised (however described); and
(c) the manufacture was not so authorised;
the person is taken to have
manufactured the substance with the intention of using some or all of it to
manufacture a controlled drug.
(2) Subsection (1) does not apply if the person proves that he or
she did not have that intention.
Note: A defendant bears
a legal burden in relation to the matter in subsection (2) (see
section 13.4).
(3) For the purposes of proving an offence against
subsection 306.4(1), if a person has manufactured a marketable quantity
of a substance with the intention of using some or all of it to manufacture a
controlled drug, the person is taken to have done so with the intention of
selling some or all of the drug so manufactured, or believing that another
person intended to sell some or all of the drug so manufactured.
(4) Subsection (3) does not apply if the person proves that he or
she had neither that intention nor belief.
Note: A defendant bears
a legal burden in relation to the matters in subsection (4) (see
section 13.4).
(1) For the purposes of proving an offence against
subsection 306.4(1), if a person has manufactured a marketable quantity
of a substance, the person is taken to have done so with the intention of
selling some or all of it to another person.
(2) Subsection (1) does not apply if the person proves that he or
she did not have that intention.
Note: A defendant bears
a legal burden in relation to the matter in subsection (2) (see
section 13.4).
(3) For the purposes of proving an offence against
subsection 306.4(1), if:
(a) a person has manufactured a substance with the intention of selling
some or all of it to another person; and
(b) a law of the Commonwealth or of a State or Territory required the
manufacture to be authorised (however described); and
(c) the manufacture was not so authorised;
the person is taken to have
manufactured the substance believing that the other person intended to use
some or all of the substance to manufacture a controlled drug.
(4) Subsection (3) does not apply if the person proves that he or
she did not have that belief.
Note: A defendant bears
a legal burden in relation to the matter in subsection (4) (see
section 13.4).
(1) For the purposes of proving an offence against
subsection 306.4(1), if:
(a) a person possessed a substance; and
(b) a law of the Commonwealth or of a State or Territory required the
possession to be authorised (however described); and
(c) the possession was not so authorised;
the person is taken to have
possessed the substance with the intention of using some or all of it to
manufacture a controlled drug.
(2) Subsection (1) does not apply if the person proves that he or
she did not have that intention.
Note: A defendant bears
a legal burden in relation to the matter in subsection (2) (see
section 13.4).
(3) For the purposes of proving an offence against
subsection 306.4(1), if a person possessed a marketable quantity of a
substance with the intention of using some or all of it to manufacture a
controlled drug, the person is taken to have done so with the intention of
selling some or all of the drug so manufactured, or believing that another
person intended to sell some or all of the drug so manufactured.
(4) Subsection (3) does not apply if the person proves that he or
she had neither that intention nor belief.
Note: A defendant bears
a legal burden in relation to the matters in subsection (4) (see
section 13.4).
(a) the person imports or exports a substance; and
(b) the substance is a border controlled drug or border controlled
plant; and
(c) the quantity imported or exported is a marketable quantity.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or both.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
(4) Subsection (1) does not apply if the person proves that he or
she neither intended, nor believed that another person intended, to sell any
of the border controlled drug or any of the border controlled plant or its
products.
Note: A
defendant bears a legal burden in relation to the matters in
subsection (4) (see section 13.4).
(a) the person imports or exports a substance; and
(b) the substance is a border controlled drug or border controlled
plant.
Penalty: Imprisonment for 10 years or 2,000 penalty units, or
both.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Subsection (1) does not apply if the person proves that he or
she neither intended, nor believed that another person intended, to sell any
of the border controlled drug or any of the border controlled plant or its
products.
Note: A
defendant bears a legal burden in relation to the matters in
subsection (3) (see section 13.4).
(a) the person imports or exports a substance; and
(b) the substance is a border controlled drug or border controlled
plant, other than a determined border controlled drug or a determined border
controlled plant.
Penalty: Imprisonment for 2 years, or 400 penalty
units, or both.
(2) The fault element for paragraph (1)(b) is recklessness.
(c) the substance is a border controlled drug or border controlled
plant; and
(d) the quantity possessed is a commercial quantity.
Penalty:
Imprisonment for life or 7,500 penalty units, or both.
(2) Absolute liability applies to paragraphs (1)(b) and (d).
(3) The fault element for paragraph (1)(c) is recklessness.
(4) Subsection (1) does not apply if the person proves that he or
she did not know that the border controlled drug or border controlled plant
was unlawfully imported.
Note: A defendant bears
a legal burden in relation to the matter in subsection (4) (see
section 13.4).
(c) the substance is a border controlled drug or border controlled
plant; and
(d) the quantity possessed is a marketable quantity.
Penalty:
Imprisonment for 25 years or 5,000 penalty units, or both.
(2) Absolute liability applies to paragraphs (1)(b) and (d).
(3) The fault element for paragraph (1)(c) is recklessness.
(4) Subsection (1) does not apply if the person proves that he or
she neither intended, nor believed that another person intended, to sell any
of the border controlled drug or any of the border controlled plant or its
products.
(5) Subsection (1) does not apply if the person proves that he or
she did not know that the border controlled drug or border controlled plant
was unlawfully imported.
Note: A defendant bears
a legal burden in relation to the matters in subsections (4) and (5) (see
section 13.4).
(c) the substance is a border controlled drug or border controlled
plant, other than a determined border controlled drug or a determined border
controlled plant.
Penalty: Imprisonment for 2 years or 400 penalty
units, or both.
(2) Absolute liability applies to paragraph (1)(b).
(3) The fault element for paragraph (1)(c) is recklessness.
(4) Subsection (1) does not apply if the person proves that he or
she did not know that the border controlled drug or border controlled plant
was unlawfully imported.
Note: A defendant bears
a legal burden in relation to the matter in subsection (4) (see
section 13.4).
(b) the substance is reasonably suspected of having been unlawfully
imported; and
(c) the substance is a border controlled drug or border controlled
plant; and
(d) the quantity possessed is a marketable quantity.
Penalty:
Imprisonment for 25 years or 5,000 penalty units, or both.
(2) Absolute liability applies to paragraphs (1)(b) and (d).
(3) The fault element for paragraph (1)(c) is recklessness.
(4) Subsection (1) does not apply if the person proves that he or
she neither intended, nor believed that another person intended, to sell any
of the border controlled drug or any of the border controlled plant or its
products.
(5) Subsection (1) does not apply if the person proves that the
border controlled drug or border controlled plant was not unlawfully imported.
Note: A defendant bears
a legal burden in relation to the matters in subsections (4) and (5) (see
section 13.4).
(b) the substance is reasonably suspected of having been unlawfully
imported; and
(c) the substance is a border controlled drug or border controlled
plant, other than a determined border controlled drug or a determined border
controlled plant.
Penalty: Imprisonment for 2 years or 400 penalty
units, or both.
(2) Absolute liability applies to paragraph (1)(b).
(3) The fault element for paragraph (1)(c) is recklessness.
(4) Subsection (1) does not apply if the person proves that the
border controlled drug or border controlled plant was not unlawfully imported.
Note: A defendant bears
a legal burden in relation to the matter in subsection (4) (see
section 13.4).
(b) the substance is a controlled drug, other than a determined
controlled drug.
Penalty: Imprisonment for 2 years or 400 penalty
units, or both.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) If:
(a) a person is charged with, or convicted of, an offence against
subsection (1); and
(b) the offence is alleged to have been, or was, committed in a State or
Territory;
the person may be tried, punished or otherwise dealt with as if
the offence were an offence against the law of the State or Territory that
involved the possession or use of a controlled drug (however described).
Note:
Subsection (3) allows for drug users to be diverted from the criminal
justice system to receive the same education, treatment and support that is
available in relation to drug offences under State and Territory laws.
(4) However, a person punished under subsection (3) must not be:
(a) sentenced to a period of imprisonment that exceeds the period set
out in subsection (1); or
(b) fined an amount that exceeds the amount set out in
subsection (1).
(a) the person possesses any substance (other than a controlled
precursor), any equipment or any document containing instructions for
manufacturing a controlled drug; and
(b) the person intends to use the substance, equipment or document to
manufacture a controlled drug; and
(c) the person intends to sell, or believes that another person intends
to sell, any of the drug so manufactured.
Penalty: Imprisonment for 7
years or 1,400 penalty units, or both.
(2) For the purposes of proving an offence against subsection (1),
if:
(a) a person possessed a tablet press; and
(b) a law of the Commonwealth or of a State or Territory required the
possession to be authorised (however described); and
(c) the possession was not so authorised;
the person is taken to have
possessed the tablet press with the intention of using it to manufacture a
controlled drug.
(3) Subsection (2) does not apply if the person proves that he or
she did not have that intention.
Note: A defendant bears
a legal burden in relation to the matter in subsection (3) (see
section 13.4).
(1) For the purposes of proving an offence against section 309.3 or
309.4, if a person has supplied a trafficable quantity of a substance to a
child, the person is taken to have done so believing that the child intended
to sell some or all of it.
(2) Subsection (1) does not apply if the person proves that he or
she did not have that belief.
Note: A defendant bears
a legal burden in relation to the matter in subsection (2) (see
section 13.4).
(1) For the purposes of this Part, a person procures an individual to
traffic in a substance if:
(a) the person procures the individual to sell the substance; or
(b) the person, with the intention of selling any of the substance or
believing that another person intends to sell any of the substance, procures
the individual to prepare the substance for supply or to transport the
substance; or
(c) the person, with the intention of selling any of the substance or
assisting another person to sell any of the substance, procures the individual
to guard or conceal the substance.
(2) For the purposes of paragraph (1)(b), preparing a substance for
supply includes packaging the substance or separating the substance into
discrete units.
For the purposes of this Part, a person procures an individual to pre-traffic
in a substance if the person procures the individual to sell the substance
believing that the person to whom the substance is sold intends to use any of
the substance to manufacture a controlled drug.
(a) the person procures an individual to import or export a substance;
and
(b) the individual is a child; and
(c) the substance is a border controlled drug or border controlled
plant; and
(d) the quantity imported or exported is a marketable quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or both.
(2) Strict liability applies to paragraph (1)(b).
(3) The fault element for paragraph (1)(c) is recklessness.
(4) Absolute liability applies to paragraph (1)(d).
Note: Section 313.4
provides a partial defence in relation to the matter in paragraph (1)(d).
(5) Subsection (1) does not apply if the person proves that he or
she neither intended, nor believed that another person intended, to sell any
of the border controlled drug or any of the border controlled plant or its
products.
Note 1: A defendant bears a
legal burden in relation to the matters in subsection (5) (see
section 13.4).
Note 2: A person who
does not commit an offence against this section because he or she proves the
matters in subsection (5) may, however, have committed an offence against
section 309.2 (supplying controlled drugs to children).
(a) the person procures an individual to import or export a substance;
and
(b) the individual is a child; and
(c) the substance is a border controlled drug or border controlled
plant.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or
both.
(2) Strict liability applies to paragraph (1)(b).
(3) The fault element for paragraph (1)(c) is recklessness.
(4) Subsection (1) does not apply if the person proves that he or
she neither intended, nor believed that another person intended, to sell any
of the border controlled drug or any of the border controlled plant or its
products.
Note 1: A defendant bears a
legal burden in relation to the matters in subsection (4) (see
section 13.4).
Note 2: A person who
does not commit an offence against this section because he or she proves the
matters in subsection (4) may, however, have committed an offence against
section 309.2 (supplying controlled drugs to children).
(a) the person procures an individual to import or export a substance;
and
(b) either or both of the following apply:
(i) the person intends to use any of the substance to manufacture a
controlled drug;
(ii) the person believes that another person intends to use any of the
substance to manufacture a controlled drug; and
(c) the individual is a child; and
(d) the substance is a border controlled precursor; and
(e) the quantity imported or exported is a marketable quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or both.
(2) Strict liability applies to paragraph (1)(c).
(3) The fault element for paragraph (1)(d) is recklessness.
(4) Absolute liability applies to paragraph (1)(e).
Note: Section 313.4
provides a partial defence in relation to the matter in paragraph (1)(e).
(5) Subsection (1) does not apply if:
(a) in relation to conduct covered by subparagraph (1)(b)(i)--the
person proves that he or she neither intended, nor believed that another
person intended, to sell any of the controlled drug so manufactured; or
(b) in relation to conduct covered by subparagraph (1)(b)(ii)--the
person proves that, although he or she believed that the other person intended
to use the substance to manufacture a controlled drug, he or she did not
intend to sell any of the substance to the other person.
Note: A defendant bears
a legal burden in relation to the matters in subsection (5) (see
section 13.4).
(a) the person procures an individual to import or export a substance;
and
(b) either or both of the following apply:
(i) the person intends to use any of the substance to manufacture a
controlled drug;
(ii) the person believes that another person intends to use any of the
substance to manufacture a controlled drug; and
(c) the individual is a child; and
(d) the substance is a border controlled precursor.
Penalty:
Imprisonment for 25 years or 5,000 penalty units, or both.
(2) Strict liability applies to paragraph (1)(c).
(3) The fault element for paragraph (1)(d) is recklessness.
(4) Subsection (1) does not apply if:
(a) in relation to conduct covered by subparagraph (1)(b)(i)--the
person proves that he or she neither intended, nor believed that another
person intended, to sell any of the controlled drug so manufactured; or
(b) in relation to conduct covered by subparagraph (1)(b)(ii)--the
person proves that, although he or she believed that the other person intended
to use the substance to manufacture a controlled drug, he or she did not
intend to sell any of the substance to the other person.
Note: A defendant bears
a legal burden in relation to the matters in subsection (4) (see
section 13.4).
(b) the conduct gives rise to a danger of serious harm to an individual;
and
(c) the individual is under 14 years of age; and
(d) the danger exists because the individual is exposed to the
manufacture of a controlled drug or a controlled precursor; and
(e) the manufacture is an offence against this Part, or would be an
offence against this Part if the manufacture were for a commercial
purpose (see section 305.2).
Penalty: Imprisonment for 9 years or
1,800 penalty units, or both.
Note: A person can
commit an offence against subsection (1) without being involved in the
unlawful manufacture of controlled drugs or controlled precursors. The person
need only expose a child under 14 to the danger of serious harm from such
manufacture.
(2) Strict liability applies to paragraphs (1)(c) and (e).
(3) For the purposes of subsection (1), if a person's conduct
exposes another person to the risk of catching a disease that may give rise to
a danger of serious harm to the other person, the conduct is taken to give
rise to a danger of serious harm to the other person.
(4) For the purposes of subsection (1), a person's conduct gives
rise to a danger of serious harm if the conduct is ordinarily capable of
creating a real, and not merely a theoretical, danger of serious harm.
(5) For the purposes of subsection (1), a person's conduct may give
rise to a danger of serious harm whatever the statistical or arithmetical
calculation of the degree of risk of serious harm involved.
(6) In a prosecution for an offence against subsection (1), it is
not necessary to prove:
(a) that a person was actually placed in danger of serious harm by the
conduct concerned; or
(b) that a particular person committed the offence mentioned in
paragraph (1)(e).
(7) If, in a prosecution for an offence against subsection (1), the
conduct of the defendant for the purposes of paragraph (1)(a) is alleged
to be an omission, the fault element for that omission is recklessness.
(d) the harm is caused because the individual is exposed to the
manufacture of a controlled drug or a controlled precursor; and
(e) the manufacture is an offence against this Part, or would be an
offence against this Part if the manufacture were for a commercial
purpose (see section 305.2).
Penalty: Imprisonment for 9 years or
1,800 penalty units, or both.
Note: A person can
commit an offence against this section without being involved in the unlawful
manufacture of controlled drugs or controlled precursors. The person need only
cause harm to a child under 14 by exposing the child to such manufacture.
(2) Strict liability applies to paragraphs (1)(c) and (e).
(3) In a prosecution for an offence against subsection (1), it is
not necessary to prove that a particular person committed the offence
mentioned in paragraph (1)(e).
(4) If, in a prosecution for an offence against subsection (1), the
conduct of the defendant for the purposes of paragraph (1)(a) is alleged
to be an omission, the fault element for that omission is recklessness.
(1) If the prosecution intends to prove an aggravated offence, the
charge must allege the relevant aggravated offence.
(2) For the purposes of this Part, an offence against section 305.4
or 305.5 is an aggravated offence if:
(a) the commission of the offence exposes an individual to the
manufacture of a controlled drug; and
(b) the individual is under 14 years of age.
(3) For the purposes of this Part, an offence against
section 306.2, 306.3 or 306.4 is an aggravated offence if:
(a) the commission of the offence exposes an individual to:
(i) a controlled precursor intended to be used for the manufacture of a
controlled drug; or
(ii) the manufacture of a controlled precursor; and
(b) the individual is under 14 years of age.
(4) The fault element for paragraphs (2)(a) and (3)(a) is
recklessness.
(5) Strict liability applies to paragraphs (2)(b) and (3)(b).
(6) Subsections (2) and (3) do not apply if the commission of the
offence does not give rise to a danger of harm to the individual.
Note: A defendant bears
an evidential burden in relation to the matter in subsection (6) (see
subsection 13.3(3)).
(7) For the purposes of this section, if the commission of an offence
exposes a person to the risk of catching a disease that may give rise to a
danger of harm to the person, the commission of the offence is taken to give
rise to a danger of harm to the person.
(8) For the purposes of this section, the commission of an offence gives
rise to a danger of harm if the commission of the offence is ordinarily
capable of creating a real, and not merely a theoretical, danger of harm.
(9) For the purposes of this section, the commission of an offence may
give rise to a danger of harm whatever the statistical or arithmetical
calculation of the degree of risk of harm involved.
(a) traffics in different parcels of controlled drugs
(Division 302); or
(b) cultivates different parcels of controlled plants
(Division 303); or
(c) sells different parcels of controlled plants (Division 304); or
(d) manufactures different parcels of controlled drugs
(Division 305); or
(e) pre-traffics in different parcels of controlled precursors
(Division 306); or
(f) imports or exports different parcels of border controlled drugs or
border controlled plants (Subdivision A of Division 307); or
(g) possesses different parcels of unlawfully imported border controlled
drugs or border controlled plants (Subdivision B of Division 307); or
(h) possesses different parcels of border controlled drugs or border
controlled plants reasonably suspected of having been unlawfully imported
(Subdivision C of Division 307); or
(i) imports or exports different parcels of border controlled precursors
(Subdivision D of Division 307); or
(j) supplies different parcels of controlled drugs to a child for
trafficking (sections 309.3 and 309.4); or
(k) procures a child to traffic in different parcels of controlled drugs
(sections 309.7 and 309.8); or
(l) procures a child to pre-traffic in different parcels of controlled
precursors (sections 309.10 and 309.11); or
(m) procures a child to import or export different parcels of border
controlled drugs or border controlled plants (sections 309.12 and
309.13); or
(n) procures a child to import or export different parcels of border
controlled precursors (sections 309.14 and 309.15);
the person may be
charged with a single offence against this Part in respect of all or any
of the different parcels of drugs, plants or precursors.
(2) The quantity of the drugs, plants or precursors for the purposes of
the offence is the sum of the quantities of the drugs, plants or precursors in
the different parcels.
Note: See
section 312.2 for working out quantities where different kinds of
controlled or border controlled drugs, plants or precursors are involved.
(3) If the prosecution intends to rely on this Subdivision, particulars
of each parcel of drugs, plants or precursors must be set out in the charge.
(4) This Subdivision does not prevent a person being charged with
separate offences in respect of different parcels of drugs, plants or
precursors.
(a) section 306.2 (pre-trafficking commercial quantities of
controlled precursors); or
(b) section 306.3 (pre-trafficking marketable quantities of
controlled precursors);
where the alleged conduct of the defendant involves
pre-trafficking by selling controlled precursors, the prosecution may prove
the element of the offence relating to the quantity of controlled precursor by
proving:
(c) that the defendant was engaged in an organised commercial activity
that involved repeated pre-trafficking by selling controlled precursors; and
(d) that the relevant quantity of a controlled precursor, or of a
combination of controlled precursors, was pre-trafficked by sale in the course
of that activity.
Note 1: See
section 312.2 for working out quantities where different kinds of
controlled precursors are involved.
Note
2: Section 313.4 provides a partial
defence in relation to the matter in paragraph (1)(d).
(2) For the purposes of subsection (1) it is not necessary for the
prosecution to specify or prove:
(a) the exact date of each occasion of pre-trafficking; or
(b) the exact quantity pre-trafficked on each occasion.
(a) section 307.1 (importing and exporting commercial quantities of
border controlled drugs or border controlled plants); or
(b) section 307.2 (importing and exporting marketable quantities of
border controlled drugs or border controlled plants);
the prosecution may
prove the element of the offence relating to the quantity of border controlled
drug or border controlled plant by proving:
(c) that the defendant was engaged in an organised commercial activity
that involved repeated importing or exporting of border controlled drugs or
border controlled plants, or both; and
(d) that the relevant quantity of a border controlled drug or border
controlled plant or both, or of a combination of border controlled drugs or
border controlled plants or both, was imported or exported in the course of
that activity.
Note:
See section 312.2 for working out quantities where different kinds of
border controlled drugs or border controlled plants are involved.
(2) For the purposes of subsection (1) it is not necessary for the
prosecution to specify or prove:
(a) the exact date of each occasion of import or export; or
(b) the exact quantity imported or exported on each occasion.
(a) section 307.11 (importing and exporting commercial quantities
of border controlled precursors); or
(b) section 307.12 (importing and exporting marketable quantities
of border controlled precursors);
the prosecution may prove the element of
the offence relating to the quantity of border controlled precursor by
proving:
(c) that the defendant was engaged in an organised commercial activity
that involved repeated importing or exporting of border controlled precursors;
and
(d) that the relevant quantity of a border controlled precursor, or of a
combination of border controlled precursors, was imported or exported in the
course of that activity.
Note: See
section 312.2 for working out quantities where different kinds of border
controlled precursors are involved.
(2) For the purposes of subsection (1) it is not necessary for the
prosecution to specify or prove:
(a) the exact date of each occasion of import or export; or
(b) the exact quantity imported or exported on each occasion.
(1) In proceedings for an offence against section 309.3 (supplying
marketable quantities of controlled drugs to children for trafficking), the
prosecution may prove the element of the offence relating to the quantity of
controlled drug by proving:
(a) that the defendant was engaged in an organised commercial activity
that involved repeated supplying of drugs to children for trafficking; and
(b) that the relevant quantity of a controlled drug, or of a combination
of controlled drugs, was supplied to children in the course of that activity.
Note 1: See section 312.2 for working
out quantities where different kinds of controlled drugs are involved.
Note
2: Section 313.4 provides a partial
defence in relation to the matter in paragraph (1)(b).
(2) For the purposes of subsection (1) it is not necessary for the
prosecution to specify or prove:
(a) the exact date of each occasion of supply; or
(b) the exact quantity supplied on each occasion.
(3) Section 309.5 (presumption where trafficable quantities are
involved) does not apply to an offence prosecuted in accordance with
subsection (1).
(1) If, in proceedings for an offence, the prosecution intends to rely
on section 311.2, 311.3, 311.4, 311.5 or 311.6:
(a) the fact that it intends to do so must be set out in the charge; and
(b) a description of the conduct alleged for the purposes of that
section must be set out in the charge or provided to the accused within a
reasonable time before the proceedings.
(2) If:
(a) an occasion of trafficking, pre-trafficking, importing or exporting
or supplying is alleged in proceedings against a person for an offence
prosecuted in accordance with section 311.2, 311.3, 311.4, 311.5 or
311.6; and
(b) the person is convicted or acquitted of the offence;
that occasion
must not be alleged in proceedings against the person for another offence
against this Part.
(3) If:
(a) an occasion of trafficking, pre-trafficking, importing or exporting
or supplying is alleged in proceedings against a person for an offence against
this Part; and
(b) the person is convicted or acquitted of the offence;
that occasion
must not be alleged in proceedings against the person for an offence
prosecuted in accordance with section 311.2, 311.3, 311.4, 311.5 or
311.6.
(4) Subject to subsections (2) and (3), this Subdivision does not
prevent a person being charged with separate offences in respect of conduct on
different occasions.
The prosecution may prove an offence against Division 302 (trafficking
controlled drugs) by proving:
(a) that the defendant committed offences against that Division on
different occasions; and
(b) that each of those offences was committed within a period of not
more than 7 days from another of those offences; and
(c) that the relevant quantity (in sum) of a controlled drug, or of a
combination of controlled drugs, was trafficked during the commission of those
offences.
Note 1: See section 312.2
for working out quantities where different kinds of controlled drugs are
involved.
Note 2: Section 313.4
provides a partial defence in relation to the matter in paragraph (c).
The prosecution may prove an offence against Division 303 (commercial
cultivation of controlled plants) by proving:
(a) that the defendant committed offences against that Division on
different occasions; and
(b) that each of those offences was committed within a period of not
more than 7 days from another of those offences; and
(c) that the relevant quantity (in sum) of a controlled plant, or of a
combination of controlled plants, was cultivated during the commission of
those offences.
Note 1: See
section 312.2 for working out quantities where different kinds of
controlled plants are involved.
Note 2:
Section 313.4 provides a partial defence in relation to the matter in
paragraph (c).
The prosecution may prove an offence against Division 304 (selling
controlled plants) by proving:
(a) that the defendant committed offences against that Division on
different occasions; and
(b) that each of those offences was committed within a period of not
more than 7 days from another of those offences; and
(c) that the relevant quantity (in sum) of a controlled plant, or of a
combination of controlled plants, was sold during the commission of those
offences.
Note 1: See section 312.2
for working out quantities where different kinds of controlled plants are
involved.
Note 2: Section 313.4
provides a partial defence in relation to the matter in paragraph (c).
The prosecution may prove an offence against Division 305 (commercial
manufacture of controlled drugs) by proving:
(a) that the defendant committed offences against that Division on
different occasions; and
(b) that each of those offences was committed within a period of not
more than 7 days from another of those offences; and
(c) that the relevant quantity (in sum) of a controlled drug, or of a
combination of controlled drugs, was manufactured during the commission of
those offences.
Note 1: See
section 312.2 for working out quantities where different kinds of
controlled drugs are involved.
Note 2:
Section 313.4 provides a partial defence in relation to the matter in
paragraph (c).
The prosecution may prove an offence against Division 306
(pre-trafficking controlled precursors) by proving:
(a) that the defendant committed offences against that Division on
different occasions; and
(b) that each of those offences was committed within a period of not
more than 7 days from another of those offences; and
(c) that the relevant quantity (in sum) of a controlled precursor, or of
a combination of controlled precursors, was pre-trafficked during the
commission of those offences.
Note 1:
See section 312.2 for working out quantities where different kinds of
controlled precursors are involved.
Note
2: Section 313.4 provides a partial
defence in relation to the matter in paragraph (c).
The prosecution may prove an offence against Subdivision A of
Division 307 (importing and exporting border controlled drugs or border
controlled plants) by proving:
(a) that the defendant committed offences against that Subdivision on
different occasions; and
(b) that each of those offences was committed within a period of not
more than 30 days from another of those offences; and
(c) that the relevant quantity (in sum) of a border controlled drug or
border controlled plant or both, or of a combination of border controlled
drugs or border controlled plants or both, was imported or exported during the
commission of those offences.
Note: See
section 312.2 for working out quantities where different kinds of border
controlled drugs or border controlled plants are involved.
The prosecution may prove an offence against Subdivision B of
Division 307 (possessing unlawfully imported border controlled drugs or
border controlled plants) by proving:
(a) that the defendant committed offences against that Subdivision on
different occasions; and
(b) that each of those offences was committed within a period of not
more than 7 days from another of those offences; and
(c) that the relevant quantity (in sum) of a border controlled drug or
border controlled plant or both, or of a combination of border controlled
drugs or border controlled plants or both, was possessed by the defendant
during the commission of those offences.
Note: See
section 312.2 for working out quantities where different kinds of border
controlled drugs or border controlled plants are involved.
The prosecution may prove an offence against Subdivision C of
Division 307 (possessing border controlled drugs or border controlled
plants reasonably suspected of having been unlawfully imported) by proving:
(a) that the defendant committed offences against that Subdivision on
different occasions; and
(b) that each of those offences was committed within a period of not
more than 7 days from another of those offences; and
(c) that the relevant quantity (in sum) of a border controlled drug or
border controlled plant or both, or of a combination of border controlled
drugs or border controlled plants or both, was possessed by the defendant
during the commission of those offences.
Note: See
section 312.2 for working out quantities where different kinds of border
controlled drugs or border controlled plants are involved.
The prosecution may prove an offence against Subdivision D of
Division 307 (importing and exporting border controlled precursors) by
proving:
(a) that the defendant committed offences against that Subdivision on
different occasions; and
(b) that each of those offences was committed within a period of not
more than 30 days from another of those offences; and
(c) that the relevant quantity (in sum) of a border controlled
precursor, or of a combination of border controlled precursors, was imported
or exported during the commission of those offences.
Note: See
section 312.2 for working out quantities where different kinds of border
controlled precursors are involved.
The prosecution may prove an offence against section 309.3 (supplying
marketable quantities of controlled drugs to children for trafficking) by
proving:
(a) that the defendant committed offences against section 309.4
(supplying controlled drugs to children for trafficking) on different
occasions; and
(b) that each of those offences was committed within a period of not
more than 7 days from another of those offences; and
(c) that the relevant quantity (in sum) of a controlled drug, or of a
combination of controlled drugs, was supplied during the commission of those
offences.
Note 1: See section 312.2
for working out quantities where different kinds of controlled drugs are
involved.
Note 2: Section 313.4
provides a partial defence in relation to the matter in paragraph (c).
The prosecution may prove an offence against section 309.7 (procuring
children for trafficking marketable quantities of controlled drugs) by
proving:
(a) that the defendant committed offences against section 309.8
(procuring children for trafficking controlled drugs) on different occasions;
and
(b) that each of those offences was committed within a period of not
more than 7 days from another of those offences; and
(c) that the relevant quantity (in sum) of a controlled drug, or of a
combination of controlled drugs, was trafficked during the commission of those
offences.
Note 1: See section 312.2
for working out quantities where different kinds of controlled drugs are
involved.
Note 2: Section 313.4
provides a partial defence in relation to the matter in paragraph (c).
The prosecution may prove an offence against section 309.10 (procuring
children for pre-trafficking marketable quantities of controlled precursors)
by proving:
(a) that the defendant committed offences against section 309.11
(procuring children for pre-trafficking controlled precursors) on different
occasions; and
(b) that each of those offences was committed within a period of not
more than 7 days from another of those offences; and
(c) that the relevant quantity (in sum) of a controlled precursor, or of
a combination of controlled precursors, was pre-trafficked during the
commission of those offences.
Note 1:
See section 312.2 for working out quantities where different kinds of
controlled precursors are involved.
Note
2: Section 313.4 provides a partial
defence in relation to the matter in paragraph (c).
The prosecution may prove an offence against section 309.12 (procuring
children for importing or exporting marketable quantities of border controlled
drugs or border controlled plants) by proving:
(a) that the defendant committed offences against section 309.13
(procuring children for importing or exporting border controlled drugs or
border controlled plants) on different occasions; and
(b) that each of those offences was committed within a period of not
more than 30 days from another of those offences; and
(c) that the relevant quantity (in sum) of a border controlled drug or
border controlled plant or both, or of a combination of border controlled
drugs or border controlled plants or both, was imported or exported during the
commission of those offences.
Note 1:
See section 312.2 for working out quantities where different kinds of
border controlled drugs or border controlled plants are involved.
Note
2: Section 313.4 provides a partial
defence in relation to the matter in paragraph (c).
The prosecution may prove an offence against section 309.14 (procuring
children for importing or exporting marketable quantities of border controlled
precursors) by proving:
(a) that the defendant committed offences against section 309.15
(procuring children for importing or exporting border controlled precursors)
on different occasions; and
(b) that each of those offences was committed within a period of not
more than 30 days from another of those offences; and
(c) that the relevant quantity (in sum) of a border controlled
precursor, or of a combination of border controlled precursors, was imported
or exported during the commission of those offences.
Note
1: See section 312.2 for working out
quantities where different kinds of border controlled precursors are involved.
Note 2: Section 313.4 provides a
partial defence in relation to the matter in paragraph (c).
(1) If the prosecution intends to rely on a section of this Subdivision,
the particulars of the offences alleged to have been committed on the
different occasions must be set out in the charge.
(2) The same parcel of controlled drugs, controlled plants, controlled
precursors, border controlled drugs, border controlled plants or border
controlled precursors must not be counted more than once for the purposes of
this Subdivision.
Example: A person is in possession of a
quantity of a controlled drug for sale on one day (the first occasion) and
sells that particular quantity the next day (the second occasion). Only the
quantity trafficked on one of those occasions may be counted.
(3) This Subdivision does not prevent a person being charged with
separate offences in respect of conduct on different occasions.
(1) If an alleged offence against this Part involves a quantity of
a controlled drug in a mixture of substances, the prosecution may prove the
quantity of the controlled drug involved:
(a) by proving that the mixture contains that quantity of the pure form
of the controlled drug; or
(b) if such a quantity is specified, in regulations made for the
purposes of item 1 of the table in section 301.10, 301.11 or 301.12,
for the controlled drug in a mixture--by proving that quantity of the mixture.
(2) If an alleged offence against this Part involves a quantity of
a controlled precursor in a mixture of substances, the prosecution may prove
the quantity of the controlled precursor involved by proving that the mixture
contains that quantity of the pure form of the controlled precursor.
(3) If an alleged offence against this Part involves a quantity of
a border controlled drug in a mixture of substances, the prosecution may prove
the quantity of the border controlled drug involved:
(a) by proving that the mixture contains that quantity of the pure form
of the border controlled drug; or
(b) if such a quantity is specified, in regulations made for the
purposes of item 1 of the table in section 301.10 or 301.11, for the
border controlled drug in a mixture--by proving that quantity of the mixture.
(4) If an alleged offence against this Part involves a quantity of
a border controlled precursor in a mixture of substances, the prosecution may
prove the quantity of the border controlled precursor involved by proving that
the mixture contains that quantity of the pure form of the border controlled
precursor.
(1) This section applies if a person is charged with a single offence
against this Part that involves:
(a) trafficking in more than one kind of controlled drug; or
(b) cultivating more than one kind of controlled plant; or
(c) selling more than one kind of controlled plant; or
(d) manufacturing more than one kind of controlled drug; or
(e) pre-trafficking in more than one kind of controlled precursor; or
(f) importing or exporting more than one kind of border controlled drug
or border controlled plant; or
(g) possessing more than one kind of unlawfully imported border
controlled drug or border controlled plant; or
(h) possessing more than one kind of border controlled drug or border
controlled plant reasonably suspected of having been unlawfully imported; or
(i) importing or exporting more than one kind of border controlled
precursor; or
(j) supplying more than one kind of controlled drug to a child for
trafficking; or
(k) procuring a child to traffic in more than one kind of controlled
drug; or
(l) procuring a child to pre-traffic in more than one kind of controlled
precursor; or
(m) procuring a child to import or export more than one kind of border
controlled drug or border controlled plant; or
(n) procuring a child to import or export more than one kind of border
controlled precursor.
(2) The following apply for the purposes of working out the quantity of
controlled drugs, controlled plants, controlled precursors, border controlled
drugs, border controlled plants or border controlled precursors involved in
the offence:
(a) the quantity of the drugs or plants is a trafficable quantity if the
sum of the requisite fractions of the trafficable quantity of each of those
drugs or plants is equal to or greater than one;
(b) the quantity of drugs, plants or precursors is a marketable quantity
if the sum of the requisite fractions of the marketable quantity of each of
those drugs, plants or precursors is equal to or greater than one;
(c) the quantity of drugs, plants or precursors is a commercial quantity
if the sum of the requisite fractions of the commercial quantity of each of
those drugs, plants or precursors is equal to or greater than one.
(3) For the purposes of this Part, requisite fraction means:
(a) in relation to a trafficable quantity of a controlled drug or
controlled plant, the actual quantity of the drug or plant divided by the
smallest trafficable quantity of the drug or plant; or
(b) in relation to a marketable quantity of a controlled drug,
controlled plant, controlled precursor, border controlled drug, border
controlled plant or border controlled precursor, the actual quantity of the
drug, plant or precursor divided by the smallest marketable quantity of the
drug, plant or precursor; or
(c) in relation to a commercial quantity of a controlled drug,
controlled plant, controlled precursor, border controlled drug, border
controlled plant or border controlled precursor, the actual quantity of the
drug, plant or precursor divided by the smallest commercial quantity of the
drug, plant or precursor.
(4) If this section applies in relation to a controlled drug in a
mixture of substances, the requisite fraction of a trafficable, marketable or
commercial quantity of the controlled drug may be calculated:
(a) on the basis of the quantity of the controlled drug in pure form; or
(b) if such a quantity is specified, in regulations made for the
purposes of item 1 of the table in section 301.10, 301.11 or 301.12,
for the controlled drug in a mixture--on the basis of the quantity of the
mixture.
(5) If this section applies in relation to a border controlled drug in a
mixture of substances, the requisite fraction of a marketable or commercial
quantity of the border controlled drug may be calculated:
(a) on the basis of the quantity of the border controlled drug in pure
form; or
(b) if such a quantity is specified, in regulations made for the
purposes of item 1 of the table in section 301.10 or 301.11, for the
border controlled drug in a mixture--on the basis of the quantity of the
mixture.
This Part, other than Division 307, does not apply in relation to conduct
if:
(a) a person engages in the conduct in a State or Territory; and
(b) the conduct is justified or excused by or under a law of that State
or Territory.
Note 1: A defendant bears
an evidential burden in relation to the matters in this section (see
subsection 13.3(3)).
Note 2: A
person is not criminally responsible for an offence against this Part if
the person's conduct is justified or excused by or under another Commonwealth
law (see section 10.5). In 2005, Commonwealth laws that authorised
importation, possession or use of controlled drugs, controlled plants,
controlled precursors, border controlled drugs, border controlled plants or
border controlled precursors included the Customs Act 1901, the
Narcotic Drugs Act 1967and the Crimes Act 1914.
A person is not criminally responsible for an offence against this
Part if:
(a) at the time of the conduct constituting the offence, the person was
under a mistaken but reasonable belief that the conduct was justified or
excused by or under a law of the Commonwealth or of a State or Territory; and
(b) had the conduct been so justified or excused--the conduct would not
have constituted the offence.
Note: A defendant bears
an evidential burden in relation to the matter in paragraph (a) (see
subsection 13.3(3)).
(a) in a prosecution for an offence against this Part, the trier of
fact:
(i) is not satisfied that the defendant is guilty of the alleged
offence; but
(ii) is satisfied, beyond reasonable doubt, that the defendant is guilty
of another offence against this Part; and
(b) the maximum penalty for the other offence is not greater than the
maximum penalty for the alleged offence;
the trier of fact may find the
defendant not guilty of the alleged offence but guilty of the other offence,
so long as the defendant has been accorded procedural fairness in relation to
that finding of guilt.
(a) an offence against this Part (other than Division 307) is
prosecuted; and
(b) the offence involves a commercial quantity or a marketable quantity
of a controlled drug, controlled plant, controlled precursor, border
controlled drug, border controlled plant or border controlled precursor; and
(c) the trier of fact would, apart from this section, have found the
defendant guilty of the offence.
(2) If:
(a) the defendant proves that, at the time of the alleged offence, he or
she was under a mistaken belief about the quantity of the drug, plant or
precursor; and
(b) if the mistaken belief had been correct, the defendant would have
been guilty of another offence against this Part; and
(c) the maximum penalty for the other offence is less than the maximum
penalty for the alleged offence;
the trier of fact may find the defendant:
(d) not guilty of the alleged offence; but
(e) guilty of the other offence.
Note: A defendant bears
a legal burden in relation to the matter in paragraph (2)(a) (see
section 13.4).
(a) an offence against this Part (other than Division 307) is
prosecuted; and
(b) the offence involves a controlled drug, controlled plant, controlled
precursor, border controlled drug, border controlled plant or border
controlled precursor; and
(c) the trier of fact would, apart from this section, have found the
defendant guilty of the offence.
(2) If:
(a) the defendant proves that, at the time of the alleged offence, he or
she was under a mistaken belief about the identity of the drug, plant or
precursor; and
(b) if the mistaken belief had been correct, the defendant would have
been guilty of another offence against this Part; and
(c) the maximum penalty for the other offence is less than the maximum
penalty for the alleged offence;
the trier of fact may find the defendant:
(d) not guilty of the alleged offence; but
(e) guilty of the other offence.
Note: A defendant bears
a legal burden in relation to the matter in paragraph (2)(a) (see
section 13.4).
(d) smoke the substance, or inhale fumes caused by heating or burning
the substance; and
(e) apply the substance externally to the body of a person; and
(f) by any other means introduce the substance into any part of the body
of a person.
"psychoactive effect" , in relation to a person, means:
(a) stimulation or depression of the person's central nervous system,
resulting in hallucinations or in a significant disturbance in, or significant
change to, motor function, thinking, behaviour, perception, awareness or mood;
or
(b) causing a state of dependence, including physical or psychological
addiction.
"psychoactive substance" means any substance that, when a person
consumes it, has the capacity to induce a psychoactive effect.
"serious drug
alternative" means a substance that:
(a) has a psychoactive effect that is the same as, or is substantially
similar to, the psychoactive effect of a serious drug; or
(b) is a lawful alternative to a serious drug.
(2) Expressions used in this Part that are defined for the purposes of
Part 9.1 have the same meaning as in that Part.
(c) goods that are listed goods, or registered goods, within the meaning
of the Therapeutic Goods Act 1989; or
(d) goods that are represented in any way to be:
(i) for therapeutic use (within the meaning of that Act); or
(ii) for use as an ingredient or component in the manufacture of
therapeutic goods (within the meaning of that Act);
other than goods that are represented as a serious drug alternative; or
(e) therapeutic goods that are:
(i) exempt goods (within the meaning of that Act); or
(ii) exempt under section 18A of that Act; or
(iii) the subject of an approval or authority under section 19 of
that Act; or
(iv) the subject of an approval under section 19A of that Act; or
(f) a substance or mixture of substances:
(i) that is an agricultural chemical product (within the meaning of the
Agricultural and Veterinary Chemicals Code set out in the Schedule to the
Agricultural and Veterinary Chemicals Code Act 1994 ); or
(ii) that would be such an agricultural chemical product, apart from
regulations made for the purposes of paragraph 4(4)(b) of that Code; or
(g) a substance or mixture of substances:
(i) that is a veterinary chemical product (within the meaning of that
Code); or
(ii) to which paragraph 5(4)(a) of that Code applies; or
(iii) that would be such a veterinary chemical product, apart from
regulations made for the purposes of paragraph 5(4)(b) of that Code; or
(h) a substance or mixture of substances that is an active constituent
(within the meaning of that Code) for a proposed or existing chemical product
(within the meaning of that Code), and that:
(i) is an approved active constituent (within the meaning of that Code);
or
(iii) is imported into Australia with the written consent of the
Australian Pesticides and Veterinary Medicines Authority under
subsection 69B(1B) of that Act; or
(ia) a plant or fungus, or an extract from a plant or fungus; or
(j) a controlled drug, controlled plant, controlled precursor, border
controlled drug, border controlled plant or border controlled precursor; or
(k) a prohibited import within the meaning of the Customs Act 1901; or
(l) prescribed by, or included in a class of substances prescribed by,
the regulations.
Note:
A defendant bears an evidential burden in relation to the matters in this
subsection (see subsection 13.3(3)).
(3) Subsection (2) does not apply to a substance that contains any
psychoactive substance that is not of a kind specified in any of
paragraphs (2)(a) to (l).
(4) In a prosecution for an offence under subsection (1), it is not
necessary to prove that the defendant was reckless as to:
(a) the particular identity of the substance; or
(b) whether the substance had a particular psychoactive effect.
(b) at the time of the importation, the presentation of the substance
includes an express or implied representation that the substance is a serious
drug alternative.
Penalty: Imprisonment for 2 years, or 120 penalty
units, or both.
(2) For the purposes of paragraph (1)(b), the presentation of a
substance includes, but is not limited to, matters relating to:
(a) the name of the substance; and
(b) the labelling and packaging of the substance and
(c) any advertising or other informational material associated with the
substance.
(3) This section does not apply to a substance if it is:
(i) there is a standard (within the meaning of that Act); or
(ii) in the form in which the substance is presented, there is a
tradition in Australia and New Zealand of using the substance as food for
humans; or
(b) goods that are listed goods, or registered goods, within the meaning
of the Therapeutic Goods Act 1989; or
(c) therapeutic goods that are:
(i) exempt goods (within the meaning of that Act); or
(ii) exempt under section 18A of that Act; or
(iii) the subject of an approval or authority under section 19 of
that Act; or
(iv) the subject of an approval under section 19A of that Act; or
(d) a substance or mixture of substances that is a chemical product
(within the meaning of the Agricultural and Veterinary Chemicals Code set out
in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994 ),
and that:
(i) is a registered chemical product (within the meaning of that Code);
or
(ii) is a reserved chemical product (within the meaning of that Code);
or
(iv) is imported into Australia with the written consent of the
Australian Pesticides and Veterinary Medicines Authority under
subsection 69B(1B) of that Act; or
(e) a substance or mixture of substances that is an active constituent
(within the meaning of that Code) for a proposed or existing chemical product
(within the meaning of that Code), and that:
(i) is an approved active constituent (within the meaning of that Code);
or
(iii) is imported into Australia with the written consent of the
Australian Pesticides and Veterinary Medicines Authority under
subsection 69B(1B) of that Act; or
(f) prescribed by, or included in a class of substances prescribed by,
the regulations.
Note:
A defendant bears an evidential burden in relation to the matters in this
subsection (see subsection 13.3(3)).
(4) In a prosecution for an offence under subsection (1), it is not
necessary to prove that:
(a) the representation of the substance to be a serious drug alternative
related to a particular serious drug; or
(b) the defendant intended to cause any person to believe that the
substance:
(i) was a particular serious drug; or
(ii) has a psychoactive effect that is the same as or similar to a
particular serious drug; or
(iii) is a lawful alternative to a particular serious drug; or
(c) the defendant knew, or was reckless as to:
(i) the particular identity of the substance, or
(ii) whether the substance has a particular psychoactive effect.
(1) For the purposes of this Division, and without limitation, a person
disposes of a firearm or a firearm part if any of the following applies:
(a) the person sells the firearm or part (whether or not the person to
whom the firearm or part is sold also acquires physical control of the
firearm or part);
(b) the person hires, leases or rents the firearm or part to another
person;
(c) the person passes physical control of the firearm or part to another
person (whether or not the person to whom physical control is passed also
acquires ownership of the firearm or part).
(2) For the purposes of this Division, and without limitation, a person
acquires a firearm or a firearm part if any of the following applies:
(a) the person purchases the firearm or part (whether or not the person
also acquires physical control of the firearm or part);
(b) the person hires, leases or rents the firearm or part from another
person;
(c) the person obtains physical control of the firearm or part (whether
or not the person also acquires ownership of the firearm or part).
(a) in the course of trade or commerce among the States, between
Territories or between a Territory and a State, the person engages in conduct
that constitutes an offence against a firearm law; and
(b) the primary element of the offence is:
(i) the disposal of a firearm or a firearm part by the person; or
(ii) the acquisition of a firearm or a firearm part by the person.
Penalty: Imprisonment for 10 years or a fine of 2,500 penalty units, or
both.
(2) Absolute liability applies to the paragraph (1)(a) element of
the offence.
(3) In this section:
"firearm" means a firearm within the meaning of
the firearm law concerned.
"firearm law" means a law of a State or Territory
which is prescribed by the regulations for the purposes of this Division.
"firearm part" means either of the following within the meaning of the firearm
law concerned:
(a) in the course of trade or commerce among the States, between
Territories or between a Territory and a State, the person takes or sends a
firearm or a firearm part from one State or Territory to another State or
Territory; and
(b) the person does so intending that the firearm or firearm part will
be disposed of in the other State or Territory (whether by the person or
another); and
(c) the person knows that, or is reckless as to whether:
(i) the disposal of the firearm or firearm part; or
(ii) any acquisition of the firearm or firearm part that results from
the disposal;
would happen in circumstances that would constitute an offence against the
firearm law of that other State or Territory.
Penalty: Imprisonment
for 10 years or a fine of 2,500 penalty units, or both.
(2) In this section:
"firearm" means a firearm within the meaning of
the firearm law mentioned in paragraph (1)(c).
"firearm law" means a
law of a State or Territory which is prescribed by the regulations for the
purposes of this Division.
"firearm part" means either of the following
within the meaning of the firearm law mentioned in paragraph (1)(c):
(1) This Division is not intended to exclude or limit the concurrent
operation of any law of a State or Territory.
(2) Without limiting subsection (1), this Division is not intended
to exclude or limit the concurrent operation of a law of a State or Territory
that makes:
(a) an act or omission that is an offence against this Division; or
(b) a similar act or omission;
an offence against the law of the State
or Territory.
(3) Subsection (2) applies even if the law of the State or
Territory does any one or more of the following:
(a) provides for a penalty for the offence that differs from the penalty
provided for in this Division;
(b) provides for a fault element in relation to the offence that differs
from the fault elements applicable to the offence against this Division;
(c) provides for a defence in relation to the offence that differs from
the defences applicable to the offence against this Division.
(4) A person punished for an offence against a law of a State or
Territory referred to in subsection (2) in respect of particular conduct
cannot be punished for an offence against this Division in respect of that
conduct.
(a) the person exports a thing, or enters a thing for export from
Australia; and
(b) the thing is a firearm or firearm part; and
(c) the person exports, or enters for export, the firearm or part with
the intention of trafficking in the firearm or part; and
(d) exporting the firearm or part was prohibited under the
Customs Act 1901 absolutely.
Penalty: Imprisonment for 10 years or a
fine of 2,500 penalty units, or both.
(2) Absolute liability applies to paragraph (1)(d).
Note: For absolute
liability, see section 6.2.
Customs Act prohibits exports if
requirements not met
(3) A person commits an offence if:
(a) the person exports a thing; and
(b) the thing is a firearm or firearm part; and
(c) the person exports the firearm or part with the intention of
trafficking in the firearm or part; and
(d) exporting the firearm or part, or entering the firearm or part for
export, was prohibited under the Customs Act 1901unless certain requirements
were met; and
(e) the person fails to meet any of those requirements.
Penalty:
Imprisonment for 10 years or a fine of 2,500 penalty units, or both.
(4) A person commits an offence if:
(a) the person enters a thing for export from Australia; and
(b) the thing is a firearm or firearm part; and
(c) the person enters the firearm or part for export with the intention
of trafficking in the firearm or part; and
(d) entering the firearm or part for export was prohibited under the
Customs Act 1901 unless certain requirements were met; and
(e) the person fails to meet any of those requirements.
Penalty:
Imprisonment for 10 years or a fine of 2,500 penalty units, or both.
(5) Absolute liability applies to paragraphs (3)(d) and (4)(d).
Note: For absolute
liability, see section 6.2.
(6) Strict liability applies to paragraphs (3)(e) and (4)(e).
A person is not criminally responsible for an offence against this Division
if:
(a) at the time of the conduct constituting the offence, the person was
under a mistaken but reasonable belief that the conduct was justified or
excused by or under a law of the Commonwealth or of a State or Territory; and
(b) had the conduct been so justified or excused--the conduct would not
have constituted the offence.
Note: A defendant bears
an evidential burden in relation to the matter in paragraph (a) (see
subsection 13.3(3)).
A person punished for an offence against this Division in respect of
particular conduct cannot be punished for an offence against
section 233BAB of the Customs Act 1901in respect of that conduct.
"deal" , in identification information, includes make, supply
or use any such information.
"identification documentation" means any
document or other thing that:
(a) contains or incorporates identification information; and
(b) is capable of being used by a person for the purpose of pretending
to be, or passing the person off as, another person (whether living, dead,
real or fictitious).
"identification information" means information, or a
document, relating to a person (whether living, dead, real or fictitious) that
is capable of being used (whether alone or in conjunction with other
information or documents) to identify or purportedly identify the person,
including any of the following:
(a) a name or address;
(b) a date or place of birth, whether the person is married or has
a de facto partner, relatives' identity or similar information;
(c) a driver's licence or driver's licence number;
(d) a passport or passport number;
(e) biometric data;
(f) a voice print;
(g) a credit or debit card, its number, or data stored or encrypted on
it;
(h) a financial account number, user name or password;
(i) a digital signature;
(j) a series of numbers or letters (or both) intended for use as a means
of personal identification;
"foreign indictable offence" means an offence against
a law of a foreign country or part of a foreign country that is constituted by
conduct that, if engaged in in Australia, would constitute an indictable
offence against a law of the Commonwealth.
(1) This Part is not intended to exclude or limit the concurrent
operation of any law of a State or Territory.
(2) Without limiting subsection (1), this Part is not intended
to exclude or limit the concurrent operation of a law of a State or Territory
that makes:
(a) an act or omission that is an offence against a provision of this
Part; or
(b) a similar act or omission;
an offence against the law of the State
or Territory.
(3) Subsection (2) applies even if the law of the State or
Territory does any one or more of the following:
(a) provides for a penalty for the offence that differs from the penalty
provided for in this Part;
(b) provides for a fault element in relation to the offence that differs
from the fault elements applicable to the offence under this Part;
(c) provides for a defence in relation to the offence that differs from
the defences applicable to the offence under this Part.
(1) A person (the first person ) commits an offence if:
(a) the first person deals in identification information; and
(b) the first person intends that any person (the user ) (whether or not
the first person) will use the identification information to pretend to be, or
to pass the user off as, another person (whether living, dead, real or
fictitious) for the purpose of:
(i) committing an offence; or
(ii) facilitating the commission of an offence; and
(c) the offence referred to in paragraph (b) is:
(i) an indictable offence against a law of the Commonwealth; or
(ii) a foreign indictable offence.
Penalty: Imprisonment for 5
years.
Note: Deal , in
identification information, includes make, supply or use any such information.
See section 370.1.
(2) Absolute liability applies to the paragraph (1)(c) element of
the offence.
Note: For
absolute liability, see section 6.2.
(3) This section applies:
(a) even if:
(i) committing the offence referred to in paragraph (1)(b) is
impossible; or
(ii) the offence referred to in paragraph (1)(b) is to be committed
at a later time; and
(b) whether or not the person to whom the identification information
concerned relates consented to the dealing in the identification information.
(4) This section does not apply to dealing in the first person's own
identification information.
Dealing in identification
information using a carriage service
(1) A person (the first person ) commits an offence if:
(a) the first person deals in identification information; and
(b) the first person does so using a carriage service; and
(c) the first person intends that any person (the user ) (whether or not
the first person) will use the identification information to pretend to be, or
to pass the user off as, another person (whether living, dead, real or
fictitious) for the purpose of:
(i) committing an offence; or
(ii) facilitating the commission of an offence; and
(d) the offence referred to in paragraph (c) is:
(i) an indictable offence against a law of the Commonwealth; or
(ii) an indictable offence against a law of a State or Territory; or
(iii) a foreign indictable offence.
Penalty: Imprisonment for 5
years.
Note: Deal , in
identification information, includes make, supply or use any such information.
See section 370.1.
(2) Absolute liability applies to the paragraphs (1)(b) and (d)
elements of the offence.
Note: For absolute
liability, see section 6.2.
Dealing in identification information
obtained using a carriage service
(3) A person (the first person ) commits an offence if:
(a) the first person obtains identification information; and
(b) the first person does so using a carriage service; and
(c) the first person deals in the identification information; and
(d) the first person intends that any person (the user ) (whether or not
the first person) will use the identification information to pretend to be, or
to pass the user off as, another person (whether living, dead, real or
fictitious) for the purpose of:
(i) committing an offence; or
(ii) facilitating the commission of an offence; and
(e) the offence referred to in paragraph (d) is:
(i) an indictable offence against a law of the Commonwealth; or
(ii) an indictable offence against a law of a State or Territory; or
(iii) a foreign indictable offence.
Penalty: Imprisonment for 5
years.
Note: Deal , in
identification information, includes make, supply or use any such information.
See section 370.1.
(4) Absolute liability applies to the paragraphs (3)(b) and (e)
elements of the offence.
Note: For absolute
liability, see section 6.2.
Presumption that conduct was engaged in
using carriage service
(5) If the prosecution proves beyond reasonable doubt that a person
engaged in the conduct referred to in paragraph (1)(a) or (3)(a), then it
is presumed, unless the person proves to the contrary, that the person used a
carriage service to engage in that conduct.
Note: A defendant bears
a legal burden in relation to the matter in this subsection. See
section 13.4.
Application of section
(6) This section applies:
(a) even if:
(i) committing the offence referred to in paragraph (1)(c) or
(3)(d) is impossible; or
(ii) the offence referred to in paragraph (1)(c) or (3)(d) is to be
committed at a later time; and
(b) whether or not the person to whom the identification information
concerned relates consented to the dealing in the identification information.
(7) This section does not apply to dealing in the first person's own
identification information.
(1) A person (the first person ) commits an offence if:
(a) the first person possesses identification information; and
(b) the first person intends that any person (whether or not the first
person) will use the identification information to engage in conduct; and
(c) the conduct referred to in paragraph (b) constitutes an offence
against section 372.1 or subsection 372.1A(1) or (3).
Penalty: Imprisonment for 3 years.
(2) Absolute liability applies to the paragraph (1)(c) element of
the offence.
Note: For
absolute liability, see section 6.2.
(3) This section applies whether or not the person to whom the
identification information concerned relates consented to the possession of
the identification information.
(4) This section does not apply to the possession of the first person's
own identification information.
(1) A person (the first person ) commits an offence if:
(a) the first person possesses equipment; and
(b) the first person intends that any person (whether or not the first
person) will use the equipment to make identification documentation; and
(c) the first person intends that any person (whether or not referred to
in paragraph (b)) will use the identification documentation to engage in
conduct; and
(d) the conduct referred to in paragraph (c) constitutes an offence
against section 372.1 or subsection 372.1A(1) or (3).
Penalty: Imprisonment for 3 years.
(2) Absolute liability applies to the paragraph (1)(d) element of
the offence.
(1) This section applies if, in a prosecution for an offence against
section 372.1 or subsection 372.1A(1) or (3), the trier of fact is
not satisfied that the defendant is guilty of the offence, but is satisfied
beyond reasonable doubt that the defendant is guilty of an offence against
section 372.2.
(2) The trier of fact may find the defendant not guilty of the offence
against section 372.1 or subsection 372.1A(1) or (3) (as the case
requires) but guilty of the offence against section 372.2, so long as the
defendant has been accorded procedural fairness in relation to that finding of
guilt.
(1) A magistrate may, on application by a person (the victim ), issue a
certificate under this section if the magistrate is satisfied, on the balance
of probabilities, that:
(a) another person (the dealer ) has dealt in identification
information; and
(b) the dealer intended that any person (the user ) (whether or not the
dealer) would use the identification information to pretend to be, or to pass
the user off as, another person (whether the victim or another person living,
dead, real or fictitious) for the purpose of:
(i) committing an offence; or
(ii) facilitating the commission of an offence; and
(c) the certificate may assist with any problems the dealing has caused
in relation to the victim's personal or business affairs; and
(d) the offence referred to in paragraph (b) is an indictable
offence against a law of the Commonwealth.
Note: Deal , in
identification information, includes make, supply or use any such information.
See section 370.1.
(2) This section applies:
(a) even if:
(i) committing the offence referred to in paragraph (1)(b) is
impossible; or
(ii) the offence referred to in paragraph (1)(b) is to be committed
at a later time; and
(b) whether or not the person to whom the identification information
concerned relates consented to the dealing in the identification information.
(1) The magistrate may issue a certificate under section 375.1
whether or not:
(a) the dealer is identifiable; or
(b) subject to subsection (2)--any proceedings (whether civil or
criminal) have been or can be taken against a person for or in relation to the
dealing, or are pending.
(2) The magistrate must not issue a certificate under section 375.1
if doing so would prejudice any proceedings.
(3) The certificate is not admissible in any proceedings.
(1) Power is conferred by this Division on a magistrate only in a
personal capacity and not as a court or a member of a court.
(2) The magistrate need not accept the power conferred.
(3) A magistrate exercising a power under this Division has the same
protection and immunity as if he or she were exercising that power as, or as a
member of, the court of which the magistrate is a member.
"air passenger ticket" , for a flight, means a ticket, or
electronic record, on the basis of which a person is treated as being entitled
to travel as a passenger on:
(a) the flight; or
(b) a journey that includes the flight.
"false" : identification
information relating to a person is false if it is false in a material
particular that affects the capacity of the information to be used (whether
alone or in conjunction with other information or documents) to identify the
person.
Note: For the
meaning of identification information , see section 370.1.
Carriage service offence--using information to obtain an air
passenger ticket
(1) A person (the defendant ) commits an offence if:
(a) the defendant uses information; and
(b) the defendant does so:
(i) with the result that an air passenger ticket for a flight is
obtained (whether by the defendant or another person); and
(ii) reckless as to whether the information is used to identify the
defendant, or another person, as a passenger on the flight; and
(c) the information is identification information; and
(d) the information is false in relation to the person who takes, or
intends to take, the flight using the ticket; and
(e) a carriage service is used (whether by the defendant or another
person) to obtain the ticket; and
(f) the flight starts or ends within Australia.
Penalty:
Imprisonment for 12 months.
Carriage service offence--taking a flight using
an air passenger ticket
(2) A person (the defendant ) commits an offence if:
(a) the defendant takes a flight using an air passenger ticket; and
(b) identification information was used (whether by the defendant or
another person) to obtain the ticket; and
(c) the information resulted in the identification of a person as a
passenger on the flight; and
(d) the information is false in relation to the defendant; and
(e) a carriage service was used (whether by the defendant or another
person) to obtain the ticket; and
(f) the flight starts or ends within Australia.
Penalty:
Imprisonment for 12 months.
General
(3) In a prosecution for an offence against subsection (1) or (2),
if the prosecution proves beyond reasonable doubt that an air passenger ticket
was obtained, then it is presumed, unless the defendant proves to the
contrary, that a carriage service was used to obtain the ticket.
Note: A defendant bears
a legal burden in relation to the matter in this subsection: see
section 13.4.
(4) Absolute liability applies to paragraphs (1)(e) and (f) and
(2)(e) and (f).
Constitutional flight offence--using information to obtain an air passenger
ticket
(1) A person (the defendant ) commits an offence if:
(a) the defendant uses information; and
(b) the defendant does so:
(i) with the result that an air passenger ticket for a flight is
obtained (whether by the defendant or another person); and
(ii) reckless as to whether the information is used to identify the
defendant, or another person, as a passenger on the flight; and
(c) the information is identification information; and
(d) the information is false in relation to the person who takes, or
intends to take, the flight using the ticket; and
(e) the flight is a constitutional flight.
Penalty: Imprisonment
for 12 months.
Constitutional flight offence--taking a flight using an air
passenger ticket
(2) A person (the defendant ) commits an offence if:
(a) the defendant takes a flight using an air passenger ticket; and
(b) identification information was used (whether by the defendant or
another person) to obtain the ticket; and
(c) the information resulted in the identification of a person as a
passenger on the flight; and
(d) the information is false in relation to the defendant; and
(e) the flight is a constitutional flight.
Penalty: Imprisonment
for 12 months.
General
(3) Absolute liability applies to paragraphs (1)(e) and (2)(e).
Note: For absolute
liability, see section 6.2.
(4) In this section:
"constitutional flight" means:
(a) a flight that starts or ends in a Territory; or
(b) a flight between Australia and a foreign country in which an
aircraft is used in the course of trade or commerce, for the carriage of
passengers; or
(c) a flight between one State and another State in which an aircraft is
used in the course of trade or commerce, for the carriage of passengers.
"constitutional trade and commerce" means trade and
commerce:
(a) with other countries; or
(b) among the States; or
(c) between a State and a Territory; or
(d) between 2 Territories.
"contaminate" goods includes:
(a) interfere with the goods; or
(b) make it appear that the goods have been contaminated or interfered
with.
"goods" includes any substance:
(a) whether or not for human consumption; and
(b) whether natural or manufactured; and
(c) whether or not incorporated or mixed with other goods.
(2) A reference in this Part to economic loss caused through public
awareness of the contamination of goods includes a reference to economic loss
caused through:
(a) members of the public not purchasing or using those goods or similar
things; or
(b) steps taken to avoid public alarm or anxiety or to avoid harm to
members of the public.
(i) to cause public alarm or anxiety in Australia; or
(ii) to cause widespread, or nationally significant, economic loss in
Australia through public awareness of the contamination, or possible
contamination, of the goods; or
(iii) to cause harm to, or create a risk of harm to, public health in
Australia.
Penalty: Imprisonment for 15 years.
(1A) A person
commits an offence if:
(a) the person contaminates goods; and
(b) the person does so reckless as to:
(i) causing public alarm or anxiety in Australia; or
(ii) causing widespread, or nationally significant, economic loss in
Australia through public awareness of the contamination, or possible
contamination, of the goods; or
(iii) causing harm to, or creating a risk of harm to, public health in
Australia.
Penalty: Imprisonment for 10 years.
Offences based on
other constitutional powers
(2) A person commits an offence if:
(a) the person contaminates goods; and
(b) the person does so with intent to cause:
(i) public alarm or anxiety; or
(ii) economic loss through public awareness of the contamination, or
possible contamination, of the goods; and
(c) any of the following subparagraphs applies:
(i) the loss is a loss to a constitutional corporation (other than a
foreign corporation within the meaning of paragraph 51(xx) of the
Constitution);
(ii) the loss is a loss to a constitutional corporation that is a
foreign corporation within the meaning of paragraph 51(xx) of the
Constitution and the goods have been produced, manufactured, assembled or
otherwise processed in Australia;
(iii) the goods belong to a constitutional corporation (other than a
foreign corporation within the meaning of paragraph 51(xx) of the
Constitution);
(iv) the goods belong to a constitutional corporation that is a foreign
corporation within the meaning of paragraph 51(xx) of the Constitution
and the goods have been produced, manufactured, assembled or otherwise
processed in Australia;
(v) the person is a constitutional corporation (other than a foreign
corporation within the meaning of paragraph 51(xx) of the Constitution);
(vi) the person is a constitutional corporation that is a foreign
corporation within the meaning of paragraph 51(xx) of the Constitution
and the goods have been produced, manufactured, assembled or otherwise
processed in Australia;
(vii) the loss takes the form of detriment to constitutional trade and
commerce;
(viii) the goods are in the course of, or intended for, constitutional
trade and commerce;
(ix) the contamination occurs outside Australia and the goods have been
produced, manufactured, assembled or otherwise processed in Australia;
(x) the loss is a loss to the Commonwealth or a Commonwealth authority.
Penalty: Imprisonment for 15 years.
(2A) A person
commits an offence if:
(a) the person contaminates goods; and
(b) the person does so reckless as to causing:
(i) public alarm or anxiety; or
(ii) economic loss through public awareness of the contamination, or
possible contamination, of the goods; and
(c) any of the following subparagraphs applies:
(i) the loss is a loss to a constitutional corporation (other than a
foreign corporation within the meaning of paragraph 51(xx) of the
Constitution);
(ii) the loss is a loss to a constitutional corporation that is a
foreign corporation within the meaning of paragraph 51(xx) of the
Constitution and the goods have been produced, manufactured, assembled or
otherwise processed in Australia;
(iii) the goods belong to a constitutional corporation (other than a
foreign corporation within the meaning of paragraph 51(xx) of the
Constitution);
(iv) the goods belong to a constitutional corporation that is a foreign
corporation within the meaning of paragraph 51(xx) of the Constitution
and the goods have been produced, manufactured, assembled or otherwise
processed in Australia;
(v) the person is a constitutional corporation (other than a foreign
corporation within the meaning of paragraph 51(xx) of the Constitution);
(vi) the person is a constitutional corporation that is a foreign
corporation within the meaning of paragraph 51(xx) of the Constitution
and the goods have been produced, manufactured, assembled or otherwise
processed in Australia;
(vii) the loss takes the form of detriment to constitutional trade and
commerce;
(viii) the goods are in the course of, or intended for, constitutional
trade and commerce;
(ix) the contamination occurs outside Australia and the goods have been
produced, manufactured, assembled or otherwise processed in Australia;
(x) the loss is a loss to the Commonwealth or a Commonwealth authority.
Penalty: Imprisonment for 10 years.
(3) Absolute liability applies to paragraphs (2)(c) and (2A)(c).
(a) the person makes a threat that goods will be contaminated; and
(b) the person does so with intent:
(i) to cause public alarm or anxiety in Australia; or
(ii) to cause widespread, or nationally significant, economic loss in
Australia through public awareness of the contamination, or possible
contamination, of the goods; or
(iii) to cause harm to, or create a risk of harm to, public health in
Australia.
Penalty: Imprisonment for 15 years.
(1A) A person
commits an offence if:
(a) the person makes a threat that goods will be contaminated; and
(b) the person does so reckless as to:
(i) causing public alarm or anxiety in Australia; or
(ii) causing widespread, or nationally significant, economic loss in
Australia through public awareness of the contamination, or possible
contamination, of the goods; or
(iii) causing harm to, or creating a risk of harm to, public health in
Australia.
Penalty: Imprisonment for 10 years.
Offences based on
other constitutional powers
(2) A person commits an offence if:
(a) the person makes a threat that goods will be contaminated; and
(b) the person does so with intent to cause:
(i) public alarm or anxiety; or
(ii) economic loss through public awareness of the contamination, or
possible contamination, of the goods; and
(c) any of the following subparagraphs applies:
(i) the loss is a loss to a constitutional corporation (other than a
foreign corporation within the meaning of paragraph 51(xx) of the
Constitution);
(ii) the loss is a loss to a constitutional corporation that is a
foreign corporation within the meaning of paragraph 51(xx) of the
Constitution and the goods have been produced, manufactured, assembled or
otherwise processed in Australia;
(iii) the goods belong to a constitutional corporation (other than a
foreign corporation within the meaning of paragraph 51(xx) of the
Constitution);
(iv) the goods belong to a constitutional corporation that is a foreign
corporation within the meaning of paragraph 51(xx) of the Constitution
and the goods have been produced, manufactured, assembled or otherwise
processed in Australia;
(v) the person is a constitutional corporation (other than a foreign
corporation within the meaning of paragraph 51(xx) of the Constitution);
(vi) the person is a constitutional corporation that is a foreign
corporation within the meaning of paragraph 51(xx) of the Constitution
and the goods have been produced, manufactured, assembled or otherwise
processed in Australia;
(vii) the loss takes the form of detriment to constitutional trade and
commerce;
(viii) the goods are in the course of, or intended for, constitutional
trade and commerce;
(ix) the person makes the threat in Australia using a postal or other
like service or an electronic communication;
(x) the person makes the threat outside Australia and the goods have
been produced, manufactured, assembled or otherwise processed in Australia;
(xi) the loss is a loss to the Commonwealth or a Commonwealth authority;
(xii) the threat is made to the Commonwealth or a Commonwealth
authority.
Penalty: Imprisonment for 15 years.
(2A) A person
commits an offence if:
(a) the person makes a threat that goods will be contaminated; and
(b) the person does so reckless as to causing:
(i) public alarm or anxiety; or
(ii) economic loss through public awareness of the contamination, or
possible contamination, of the goods; and
(c) any of the following subparagraphs applies:
(i) the loss is a loss to a constitutional corporation (other than a
foreign corporation within the meaning of paragraph 51(xx) of the
Constitution);
(ii) the loss is a loss to a constitutional corporation that is a
foreign corporation within the meaning of paragraph 51(xx) of the
Constitution and the goods have been produced, manufactured, assembled or
otherwise processed in Australia;
(iii) the goods belong to a constitutional corporation (other than a
foreign corporation within the meaning of paragraph 51(xx) of the
Constitution);
(iv) the goods belong to a constitutional corporation that is a foreign
corporation within the meaning of paragraph 51(xx) of the Constitution
and the goods have been produced, manufactured, assembled or otherwise
processed in Australia;
(v) the person is a constitutional corporation (other than a foreign
corporation within the meaning of paragraph 51(xx) of the Constitution);
(vi) the person is a constitutional corporation that is a foreign
corporation within the meaning of paragraph 51(xx) of the Constitution
and the goods have been produced, manufactured, assembled or otherwise
processed in Australia;
(vii) the loss takes the form of detriment to constitutional trade and
commerce;
(viii) the goods are in the course of, or intended for, constitutional
trade and commerce;
(ix) the person makes the threat in Australia using a postal or other
like service or an electronic communication;
(x) the person makes the threat outside Australia and the goods have
been produced, manufactured, assembled or otherwise processed in Australia;
(xi) the loss is a loss to the Commonwealth or a Commonwealth authority;
(xii) the threat is made to the Commonwealth or a Commonwealth
authority.
Penalty: Imprisonment for 10 years.
(3) Absolute liability applies to paragraphs (2)(c) and (2A)(c).
(a) the person makes a statement that the person believes to be false;
and
(b) the person does so with the intention of inducing the person to whom
the statement is made or others to believe that goods have been contaminated;
and
(c) the person does so with intent:
(i) to cause public alarm or anxiety in Australia; or
(ii) to cause widespread, or nationally significant, economic loss in
Australia through public awareness of the contamination, or possible
contamination, of the goods; or
(iii) to cause harm to, or create a risk of harm to, public health in
Australia.
Penalty: Imprisonment for 15 years.
(1A) A person
commits an offence if:
(a) the person makes a statement that the person believes to be false;
and
(b) the person does so with the intention of inducing the person to whom
the statement is made or others to believe that goods have been contaminated;
and
(c) the person does so reckless as to:
(i) causing public alarm or anxiety in Australia; or
(ii) causing widespread, or nationally significant, economic loss in
Australia through public awareness of the contamination, or possible
contamination, of the goods; or
(iii) causing harm to, or creating a risk of harm to, public health in
Australia.
Penalty: Imprisonment for 10 years.
Offences based on
other constitutional powers
(2) A person commits an offence if:
(a) the person makes a statement that the person believes to be false;
and
(b) the person does so with the intention of inducing the person to whom
the statement is made or others to believe that goods have been contaminated;
and
(c) the person does so with intent to cause:
(i) public alarm or anxiety; or
(ii) economic loss through public awareness of the contamination, or
possible contamination, of the goods; and
(d) any of the following subparagraphs applies:
(i) the loss is a loss to a constitutional corporation (other than a
foreign corporation within the meaning of paragraph 51(xx) of the
Constitution);
(ii) the loss is a loss to a constitutional corporation that is a
foreign corporation within the meaning of paragraph 51(xx) of the
Constitution and the goods have been produced, manufactured, assembled or
otherwise processed in Australia;
(iii) the goods belong to a constitutional corporation (other than a
foreign corporation within the meaning of paragraph 51(xx) of the
Constitution);
(iv) the goods belong to a constitutional corporation that is a foreign
corporation within the meaning of paragraph 51(xx) of the Constitution
and the goods have been produced, manufactured, assembled or otherwise
processed in Australia;
(v) the person is a constitutional corporation (other than a foreign
corporation within the meaning of paragraph 51(xx) of the Constitution);
(vi) the person is a constitutional corporation that is a foreign
corporation within the meaning of paragraph 51(xx) of the Constitution
and the goods have been produced, manufactured, assembled or otherwise
processed in Australia;
(vii) the loss takes the form of detriment to constitutional trade and
commerce;
(viii) the goods are in the course of, or intended for, constitutional
trade and commerce;
(ix) the person makes the statement in Australia using a postal or other
like service or an electronic communication;
(x) the person makes the statement outside Australia and the goods have
been produced, manufactured, assembled or otherwise processed in Australia;
(xi) the loss is a loss to the Commonwealth or a Commonwealth authority;
(xii) the statement is made to the Commonwealth or a Commonwealth
authority.
Penalty: Imprisonment for 15 years.
(2A) A person
commits an offence if:
(a) the person makes a statement that the person believes to be false;
and
(b) the person does so with the intention of inducing the person to whom
the statement is made or others to believe that goods have been contaminated;
and
(c) the person does so reckless as to causing:
(i) public alarm or anxiety; or
(ii) economic loss through public awareness of the contamination, or
possible contamination, of the goods; and
(d) any of the following subparagraphs applies:
(i) the loss is a loss to a constitutional corporation (other than a
foreign corporation within the meaning of paragraph 51(xx) of the
Constitution);
(ii) the loss is a loss to a constitutional corporation that is a
foreign corporation within the meaning of paragraph 51(xx) of the
Constitution and the goods have been produced, manufactured, assembled or
otherwise processed in Australia;
(iii) the goods belong to a constitutional corporation (other than a
foreign corporation within the meaning of paragraph 51(xx) of the
Constitution);
(iv) the goods belong to a constitutional corporation that is a foreign
corporation within the meaning of paragraph 51(xx) of the Constitution
and the goods have been produced, manufactured, assembled or otherwise
processed in Australia;
(v) the person is a constitutional corporation (other than a foreign
corporation within the meaning of paragraph 51(xx) of the Constitution);
(vi) the person is a constitutional corporation that is a foreign
corporation within the meaning of paragraph 51(xx) of the Constitution
and the goods have been produced, manufactured, assembled or otherwise
processed in Australia;
(vii) the loss takes the form of detriment to constitutional trade and
commerce;
(viii) the goods are in the course of, or intended for, constitutional
trade and commerce;
(ix) the person makes the statement in Australia using a postal or other
like service or an electronic communication;
(x) the person makes the statement outside Australia and the goods have
been produced, manufactured, assembled or otherwise processed in Australia;
(xi) the loss is a loss to the Commonwealth or a Commonwealth authority;
(xii) the statement is made to the Commonwealth or a Commonwealth
authority.
Penalty: Imprisonment for 10 years.
(3) Absolute liability applies to paragraphs (2)(d) and (2A)(d).
(4) For the purposes of this section, making a statement includes
conveying information by any means.
"ancillary offence , in relation to a State
offence (the primary offence" ), means:
(a) a State offence of conspiring to commit the primary offence; or
(b) a State offence of aiding, abetting, counselling or procuring, or
being in any way knowingly concerned in, the commission of the primary
offence; or
(c) a State offence of attempting to commit the primary offence.
"associate" means meet or communicate (by electronic communication or
otherwise).
"Australian offence" means an offence against a law of the
Commonwealth, a State or a Territory.
"close family member" of a person
means:
(a) the person's spouse or de facto partner; or
(b) a parent, step-parent or grandparent of the person; or
(c) a child, step-child or grandchild of the person; or
(d) a brother, sister, stepbrother or stepsister of the person; or
constitutionally covered offence punishable by imprisonment for at least 12
months means:
(a) any of the following offences that is punishable on conviction by
imprisonment for at least 12 months or for life:
(i) an offence against a law of the Commonwealth;
(ii) a State offence that has a federal aspect;
(iii) an offence against a law of a Territory; or
(b) a foreign offence that is constituted by conduct that, if engaged in
in Australia, would constitute an Australian offence punishable on conviction
by imprisonment for at least 12 months or for life.
constitutionally covered
offence punishable by imprisonment for at least 3 years means:
(a) any of the following offences that is punishable on conviction by
imprisonment for at least 3 years or for life:
(i) an offence against a law of the Commonwealth;
(ii) a State offence that has a federal aspect;
(iii) an offence against a law of a Territory; or
(b) a foreign offence that is constituted by conduct that, if engaged in
in Australia, would constitute an Australian offence punishable on conviction
by imprisonment for at least 3 years or for life.
"electronic
communication" means a communication of information:
(a) whether in the form of text; or
(b) whether in the form of data; or
(c) whether in the form of speech, music or other sounds; or
(d) whether in the form of visual images (animated or otherwise); or
(e) whether in any other form; or
(f) whether in any combination of forms;
by means of guided and/or
unguided electromagnetic energy.
"federal aspect" has the meaning given by
section 390.2.
"foreign offence" means an offence against a law of a
foreign country or part of a foreign country.
"for the benefit of" : an
offence against any law is, or would if committed be, for the benefit of an
organisation if the offence results or is likely to result in:
(a) the organisation receiving directly or indirectly a significant
benefit of any kind; or
(b) at least one member of the organisation receiving (in his or her
capacity as such a member) directly or indirectly a significant benefit of any
kind.
"offence against any law" means an Australian offence or a foreign
offence.
offence against any law punishable by imprisonment for at least 3
years means:
(a) an Australian offence punishable on conviction by imprisonment for
at least 3 years or for life; or
(b) a foreign offence punishable on conviction (however described) by
imprisonment for at least 3 years or for life or by death.
"State offence"
means an offence against a law of a State.
(2) For the purposes of the definition of close family member in
subsection (1), if one person is the child of another person because of
the definition of child in that subsection, relationships traced to or through
the person are to be determined on the basis that the person is the child of
the other person.
(3) To avoid doubt:
(a) a reference in this Division to an organisation is a reference to an
organisation however it is organised; and
(b) a reference in this Division to a person includes a reference to a
person outside Australia.
(1) The object of this section is to identify State offences that have a
federal aspect because:
(a) they potentially fall within Commonwealth legislative power because
of the elements of the State offence; or
(b) they potentially fall within Commonwealth legislative power because
of the circumstances in which the State offence is committed (whether or not
those circumstances are expressed to be acts or omissions involved in
committing the offence).
State offences that have a federal aspect
(2) For the purposes of this Act, a State offence has a federal aspect
if, and only if:
(a) both:
(i) the State offence is not an ancillary offence; and
(ii) assuming that the provision creating the State offence had been
enacted by the Parliament of the Commonwealth instead of by the Parliament of
the State--the provision would have been a valid law of the Commonwealth; or
(b) both:
(i) the State offence is an ancillary offence that relates to a
particular primary offence; and
(ii) assuming that the provision creating the primary offence had been
enacted by the Parliament of the Commonwealth instead of by the Parliament of
the State--the provision would have been a valid law of the Commonwealth; or
(c) assuming that the Parliament of the Commonwealth had enacted a
provision that created an offence penalising the specific acts or omissions
involved in committing the State offence--that provision would have been a
valid law of the Commonwealth.
Specificity of acts or omissions
(3) For the purposes of paragraph (2)(c), the specificity of the
acts or omissions involved in committing a State offence is to be determined
having regard to the circumstances in which the offence is committed (whether
or not those circumstances are expressed to be elements of the offence).
State offences covered by paragraph (2)(c)
(4) A State offence is taken to be covered by paragraph (2)(c) if
the conduct constituting the State offence:
(a) affects the interests of:
(i) the Commonwealth; or
(ii) an authority of the Commonwealth; or
(iii) a constitutional corporation; or
(b) was engaged in by a constitutional corporation; or
(c) was engaged in in a Commonwealth place; or
(d) involved the use of a postal service or other like service; or
(e) involved an electronic communication; or
(f) involved trade or commerce:
(i) between Australia and places outside Australia; or
(ii) among the States; or
(iii) within a Territory, between a State and a Territory or between 2
Territories; or
(g) involved:
(i) banking (other than State banking not extending beyond the limits of
the State concerned); or
(ii) insurance (other than State insurance not extending beyond the
limits of the State concerned); or
(h) relates to a matter outside Australia; or
(i) relates to a matter in respect of which an international agreement
to which Australia is a party imposes obligations to which effect could be
given by the creation of an offence against the domestic laws of the parties
to the agreement; or
(j) relates to a matter that affects the relations between Australia and
another country or countries or is otherwise a subject of international
concern.
(5) Subsection (4) does not limit paragraph (2)(c).
(1) A person (the first person ) commits an offence if:
(a) the first person associates on 2 or more occasions with another
person (the second person ); and
(b) the second person engages, or proposes to engage, in conduct (the
second person's conduct ) that constitutes, or is part of conduct
constituting, an offence against any law; and
(c) the associations facilitate the engagement or proposed engagement by
the second person in the second person's conduct; and
(d) the offence against any law mentioned in paragraph (b) involves
2 or more persons; and
(e) the offence against any law mentioned in paragraph (b) is a
constitutionally covered offence punishable by imprisonment for at least 3
years.
Penalty: Imprisonment for 3 years.
Repeat offence
(2) A person (the first person ) commits an offence if:
(a) the first person has previously been convicted of an offence against
subsection (1); and
(b) the first person associates with another person (the second person
); and
(c) the second person engages, or proposes to engage, in conduct (the
second person's conduct ) that constitutes, or is part of conduct
constituting, an offence against any law; and
(d) the association facilitates the engagement or proposed engagement by
the second person in the second person's conduct; and
(e) the offence against any law mentioned in paragraph (c) involves
2 or more persons; and
(f) the offence against any law mentioned in paragraph (c) is a
constitutionally covered offence punishable by imprisonment for at least 3
years.
Penalty: Imprisonment for 3 years.
Knowledge fault element
for paragraphs (1)(b) and (2)(c)
(3) The fault element for paragraphs (1)(b) and (2)(c) is knowledge
(by the first person).
Intention fault element for paragraphs (1)(c)
and (2)(d)
(3A)
The fault element for paragraphs (1)(c) and (2)(d) is intention (by the
first person).
Absolute liability
(4) Absolute liability applies to paragraphs (1)(e) and (2)(f).
Note: For absolute
liability, see section 6.2.
Prosecution need not prove identity of
certain persons
(5) In a prosecution for an offence against subsection (1) or (2),
it is not necessary to prove the identity of any of the persons mentioned in
paragraph (1)(d) or (2)(e).
Defence for certain kinds of associations
(6) This section does not apply to an association if:
(a) the association is with a close family member and relates only to a
matter that could reasonably be regarded (taking into account the person's
cultural background) as a matter of family or domestic concern; or
(b) the association is in a place being used for public religious
worship and takes place in the course of practising a religion; or
(c) the association is only for the purpose of providing aid of a
humanitarian nature; or
(d) the association is only for the purpose of providing legal advice or
legal representation in connection with judicial or administrative proceedings
under a law of the Commonwealth, a State, a Territory or a foreign country; or
(e) the association is reasonable in the circumstances.
Note: A defendant bears
an evidential burden in relation to the matters in subsection (6). See
subsection 13.3(3).
(6A)
Paragraphs (6)(a), (b), (c), (d) and (e) do not limit one another.
Other limits on this section
(7) A person who is convicted of an offence against subsection (1)
or (2) in relation to the person's conduct on 2 or more occasions is not
liable to be punished for an offence against subsection (1) or (2) for
other conduct of the person that takes place:
(a) at the same time as that conduct; or
(b) within 7 days before or after any of those occasions.
(8) This section does not apply to the extent (if any) that it would
infringe any constitutional doctrine of implied freedom of political
communication.
(a) the person provides material support or resources to an organisation
or a member of an organisation; and
(b) either:
(i) the provision of the support or resources aids; or
(ii) there is a risk that the provision of the support or resources will
aid;
the organisation to engage in conduct constituting an offence against any law;
and
(c) the organisation consists of 2 or more persons; and
(d) the organisation's aims or activities include facilitating the
engagement in conduct, or engaging in conduct, constituting an offence against
any law that is, or would if committed be, for the benefit of the
organisation; and
(e) the offence against any law mentioned in paragraph (d) is an
offence against any law punishable by imprisonment for at least 3 years; and
(f) the offence against any law mentioned in paragraph (b) is a
constitutionally covered offence punishable by imprisonment for at least 12
months.
Penalty: Imprisonment for 5 years.
(2) Absolute liability applies to paragraphs (1)(e) and (f).
Note: For absolute
liability, see section 6.2.
(3) To avoid doubt, a person may be convicted of an offence against
subsection (1) because of a risk that the provision of the support or
resources will aid the organisation as described in paragraph (1)(b) even
if the provision of the support or resources does not actually aid the
organisation in that way.
Offence committed
for the benefit of an organisation
(1) A person commits an offence if:
(a) the person commits an offence against any law (the underlying
offence ); and
(b) the underlying offence is for the benefit of an organisation; and
(c) the organisation consists of 2 or more persons; and
(d) the organisation's aims or activities include facilitating the
engagement in conduct, or engaging in conduct, constituting an offence against
any law that is, or would if committed be, for the benefit of the
organisation; and
(e) the offence against any law mentioned in paragraph (d) is an
offence against any law punishable by imprisonment for at least 3 years; and
(f) the underlying offence is a constitutionally covered offence
punishable by imprisonment for at least 12 months.
Penalty:
Imprisonment for 7 years.
Offence committed at the direction of an
organisation
(2) A person commits an offence if:
(a) the person commits an offence against any law (the underlying
offence ); and
(b) the person engaged in the conduct constituting the underlying
offence at the direction of an organisation or of a member of an organisation;
and
(c) the organisation consists of 2 or more persons; and
(d) the organisation's aims or activities include facilitating the
engagement in conduct, or engaging in conduct, constituting an offence against
any law that is, or would if committed be, for the benefit of the
organisation; and
(e) the offence against any law mentioned in paragraph (d) is an
offence against any law punishable by imprisonment for at least 3 years; and
(f) the underlying offence is a constitutionally covered offence
punishable by imprisonment for at least 12 months.
Penalty:
Imprisonment for 7 years.
Fault elements
(3) There is no fault element for the physical elements described in
paragraphs (1)(a) and (2)(a) other than the fault elements (however
described), if any, for the underlying offence.
Absolute liability
(4) Absolute liability applies to paragraphs (1)(e) and (f) and
(2)(e) and (f).
Note:
For absolute liability, see section 6.2.
Avoiding multiplicity of
proceedings and punishments
(5) To avoid doubt, the person may be convicted of an offence against
subsection (1) or (2) even if the person has not:
(a) been convicted of the underlying offence; or
(b) been the subject of an order under section 19B (Discharge of
offenders without proceeding to conviction) of the Crimes Act 1914, or a
corresponding law of a State, Territory or foreign country, relating to the
underlying offence.
(6) If a person has been convicted or acquitted of a foreign offence in
respect of conduct, the person cannot be convicted of an offence against this
section in respect of that conduct.
Note: If the underlying
offence is an Australian offence, section 4C of the Crimes Act 1914prevents the person from being punished twice under Australian law (once under
this section and once under the Commonwealth, State or Territory law creating
the underlying offence) for the act or omission constituting the underlying
offence.
Likely benefits
(7) To avoid doubt, the person may be convicted of an offence against
subsection (1) because the underlying offence is likely to result in the
organisation or at least one member receiving benefits as described in the
definition of for the benefit of in subsection 390.1(1), even if the
organisation or member does not actually receive such a benefit.
(a) the person directs one or more activities of an organisation; and
(b) either:
(i) the activity or activities directed aid; or
(ii) there is a risk that the activity or activities directed will aid;
the organisation to engage in conduct constituting an offence against any law;
and
(c) the organisation consists of 2 or more persons; and
(d) the organisation's aims or activities include facilitating the
engagement in conduct, or engaging in conduct, constituting an offence against
any law that is, or would if committed be, for the benefit of the
organisation; and
(e) the offence against any law mentioned in paragraph (d) is an
offence against any law punishable by imprisonment for at least 3 years; and
(f) the offence against any law mentioned in paragraph (b) is a
constitutionally covered offence punishable by imprisonment for at least 12
months.
Penalty: Imprisonment for 10 years.
(2) A person commits an offence if:
(a) the person directs one or more activities of an organisation; and
(b) the activity or activities directed constitute an offence against
any law; and
(c) the organisation consists of 2 or more persons; and
(d) the organisation's aims or activities include facilitating the
engagement in conduct, or engaging in conduct, constituting an offence against
any law that is, or would if committed be, for the benefit of the
organisation; and
(e) the offence against any law mentioned in paragraph (d) is an
offence against any law punishable by imprisonment for at least 3 years; and
(f) the offence against any law mentioned in paragraph (b) is a
constitutionally covered offence punishable by imprisonment for at least 12
months.
Penalty: Imprisonment for 15 years.
(3) Absolute liability applies to paragraphs (1)(e) and (f) and
(2)(e) and (f).
Note:
For absolute liability, see section 6.2.
(4) To avoid doubt, the person may be convicted of an offence against
subsection (1) because of a risk that the activity or activities directed
will aid the organisation as described in paragraph (1)(b) even if the
activity or activities do not actually aid the organisation in that way.
(a) a body corporate that is an ADI for the purposes of the
Banking Act 1959; or
(b) the Reserve Bank of Australia; or
(c) a person who carries on State banking within the meaning of
paragraph 51(xiii) of the Constitution.
"Australian Capital Territory
indictable offence" means an offence against a law of the Australian Capital
Territory that may be dealt with as an indictable offence (even if it may, in
some circumstances, be dealt with as a summary offence).
"banking
transaction" includes:
(a) any transaction made at an ADI; and
(b) any transaction involving a money order.
"Commonwealth indictable
offence" means an offence against a law of the Commonwealth, or a law of a
Territory (other than the Australian Capital Territory and the Northern
Territory), that may be dealt with as an indictable offence (even if it may,
in some circumstances, be dealt with as a summary offence).
"deals with
money or other property" has the meaning given by section 400.2.
"export money or other property" , from Australia, includes transfer money or
other property from Australia by an electronic communication.
"foreign
indictable offence" means an offence against a law of a foreign country
constituted by conduct that, if it had occurred in Australia, would have
constituted an offence against:
(a) a law of the Commonwealth; or
(b) a law of a State or Territory connected with the offence;
that may
be dealt with as an indictable offence (even if it may, in some circumstances,
be dealt with as a summary offence).
Note: See
subsection (3) for when a law of a State or Territory is connected with
the offence.
"import money or other property" , into Australia, includes
transfer money or other property to Australia by an electronic communication.
"instrument of crime" : money or other property is an instrument of crime if
it is used in the commission of, or used to facilitate the commission of, an
offence against a law of the Commonwealth, a State, a Territory or a foreign
country that may be dealt with as an indictable offence (even if it may, in
some circumstances, be dealt with as a summary offence).
"Northern Territory
indictable offence" means an offence against a law of the Northern Territory
that may be dealt with as an indictable offence (even if it may, in some
circumstances, be dealt with as a summary offence).
"proceeds of crime"
means any money or other property that is wholly or partly derived or
realised, directly or indirectly, by any person from the commission of an
offence against a law of the Commonwealth, a State, a Territory or a foreign
country that may be dealt with as an indictable offence (even if it may, in
some circumstances, be dealt with as a summary offence).
"property" means
real or personal property of every description, whether situated in Australia
or elsewhere and whether tangible or intangible, and includes an interest in
any such real or personal property.
"State indictable offence" means an
offence against a law of a State that may be dealt with as an indictable
offence (even if it may, in some circumstances, be dealt with as a summary
offence).
(2) To avoid doubt, a reference in this Division to money or other
property includes a reference to financial instruments, cards and other
objects that represent money or can be exchanged for money, whether or not
they have intrinsic value.
(3) For the purposes of the definition of foreign indictable offence in
subsection (1), a State or Territory is connected with the offence if:
(a) a dealing in money or property takes place in the State or
Territory; and
(b) the money or property would be proceeds of crime, or could become an
instrument of crime, in relation to the offence if the offence were a foreign
indictable offence.
(1) This section affects the application of sections 400.3, 400.4,
400.5, 400.6, 400.7 and 400.8 so far as they relate to a person dealing with
money or other property that:
(a) is intended by the person to become an instrument of crime; or
(b) is at risk of becoming an instrument of crime.
(2) Those sections apply if at least one of the circumstances described
in subsections (3) and (4) exists.
(3) One circumstance is that money or other property is intended to
become, or at risk of becoming, an instrument of crime in relation to an
offence that is:
(a) a Commonwealth indictable offence; or
(b) a foreign indictable offence; or
(c) a State indictable offence that has a federal aspect; or
(d) an Australian Capital Territory indictable offence; or
(e) a Northern Territory indictable offence.
Note: The prosecution
need not prove the existence of any fault element for the nature of the
offence: see section 400.11.
(4) Another circumstance is that the dealing with the money or other
property occurs:
(a) in the course of or for the purposes of importation of goods into,
or exportation of goods from, Australia; or
(b) by means of a communication using a postal, telegraphic, telephonic
or other like service within the meaning of paragraph 51(v) of the
Constitution; or
(c) in the course of banking (other than State banking that does not
extend beyond the limits of the State concerned); or
(d) outside Australia.
(5) Absolute liability applies to subsections (3) and (4).
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is, and the person believes it to be, proceeds
of crime; or
(ii) the person intends that the money or property will become an
instrument of crime; and
(c) at the time of the dealing, the value of the money and other
property is $1,000,000 or more.
Penalty: Imprisonment for 25 years, or
1500 penalty units, or both.
(2) A person commits an offence if:
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is proceeds of crime; or
(ii) there is a risk that the money or property will become an
instrument of crime; and
(c) the person is reckless as to the fact that the money or property is
proceeds of crime or the fact that there is a risk that it will become an
instrument of crime (as the case requires); and
(d) at the time of the dealing, the value of the money and other
property is $1,000,000 or more.
Penalty: Imprisonment for 12 years, or
720 penalty units, or both.
(3) A person commits an offence if:
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is proceeds of crime; or
(ii) there is a risk that the money or property will become an
instrument of crime; and
(c) the person is negligent as to the fact that the money or property is
proceeds of crime or the fact that there is a risk that it will become an
instrument of crime (as the case requires); and
(d) at the time of the dealing, the value of the money and other
property is $1,000,000 or more.
Penalty: Imprisonment for 5 years, or
300 penalty units, or both.
(4) Absolute liability applies to paragraphs (1)(c), (2)(d) and
(3)(d).
Note 1: Section 400.10
provides for a defence of mistake of fact in relation to these paragraphs.
Note 2: Section 400.2A affects the
application of this section so far as it relates to a person dealing with
money or other property that:
(a) is intended by the
person to become an instrument of crime; or
(b) is at risk
of becoming an instrument of crime.
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is, and the person believes it to be, proceeds
of crime; or
(ii) the person intends that the money or property will become an
instrument of crime; and
(c) at the time of the dealing, the value of the money and other
property is $100,000 or more.
Penalty: Imprisonment for 20 years, or
1200 penalty units, or both.
(2) A person commits an offence if:
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is proceeds of crime; or
(ii) there is a risk that the money or property will become an
instrument of crime; and
(c) the person is reckless as to the fact that the money or property is
proceeds of crime or the fact that there is a risk that it will become an
instrument of crime (as the case requires); and
(d) at the time of the dealing, the value of the money and other
property is $100,000 or more.
Penalty: Imprisonment for 10 years, or
600 penalty units, or both.
(3) A person commits an offence if:
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is proceeds of crime; or
(ii) there is a risk that the money or property will become an
instrument of crime; and
(c) the person is negligent as to the fact that the money or property is
proceeds of crime or the fact that there is a risk that it will become an
instrument of crime (as the case requires); and
(d) at the time of the dealing, the value of the money and other
property is $100,000 or more.
Penalty: Imprisonment for 4 years, or
240 penalty units, or both.
(4) Absolute liability applies to paragraphs (1)(c), (2)(d) and
(3)(d).
Note 1: Section 400.10
provides for a defence of mistake of fact in relation to these paragraphs.
Note 2: Section 400.2A affects the
application of this section so far as it relates to a person dealing with
money or other property that:
(a) is intended by the
person to become an instrument of crime; or
(b) is at risk
of becoming an instrument of crime.
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is, and the person believes it to be, proceeds
of crime; or
(ii) the person intends that the money or property will become an
instrument of crime; and
(c) at the time of the dealing, the value of the money and other
property is $50,000 or more.
Penalty: Imprisonment for 15 years, or
900 penalty units, or both.
(2) A person commits an offence if:
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is proceeds of crime; or
(ii) there is a risk that the money or property will become an
instrument of crime; and
(c) the person is reckless as to the fact that the money or property is
proceeds of crime or the fact that there is a risk that it will become an
instrument of crime (as the case requires); and
(d) at the time of the dealing, the value of the money and other
property is $50,000 or more.
Penalty: Imprisonment for 7 years, or 420
penalty units, or both.
(3) A person commits an offence if:
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is proceeds of crime; or
(ii) there is a risk that the money or property will become an
instrument of crime; and
(c) the person is negligent as to the fact that the money or property is
proceeds of crime or the fact that there is a risk that it will become an
instrument of crime (as the case requires); and
(d) at the time of the dealing, the value of the money and other
property is $50,000 or more.
Penalty: Imprisonment for 3 years, or 180
penalty units, or both.
(4) Absolute liability applies to paragraphs (1)(c), (2)(d) and
(3)(d).
Note 1: Section 400.10
provides for a defence of mistake of fact in relation to these paragraphs.
Note 2: Section 400.2A affects the
application of this section so far as it relates to a person dealing with
money or other property that:
(a) is intended by the
person to become an instrument of crime; or
(b) is at risk
of becoming an instrument of crime.
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is, and the person believes it to be, proceeds
of crime; or
(ii) the person intends that the money or property will become an
instrument of crime; and
(c) at the time of the dealing, the value of the money and other
property is $10,000 or more.
Penalty: Imprisonment for 10 years, or
600 penalty units, or both.
(2) A person commits an offence if:
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is proceeds of crime; or
(ii) there is a risk that the money or property will become an
instrument of crime; and
(c) the person is reckless as to the fact that the money or property is
proceeds of crime or the fact that there is a risk that it will become an
instrument of crime (as the case requires); and
(d) at the time of the dealing, the value of the money and other
property is $10,000 or more.
Penalty: Imprisonment for 5 years, or 300
penalty units, or both.
(3) A person commits an offence if:
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is proceeds of crime; or
(ii) there is a risk that the money or property will become an
instrument of crime; and
(c) the person is negligent as to the fact that the money or property is
proceeds of crime or the fact that there is a risk that it will become an
instrument of crime (as the case requires); and
(d) at the time of the dealing, the value of the money and other
property is $10,000 or more.
Penalty: Imprisonment for 2 years, or 120
penalty units, or both.
(4) Absolute liability applies to paragraphs (1)(c), (2)(d) and
(3)(d).
Note 1: Section 400.10
provides for a defence of mistake of fact in relation to these paragraphs.
Note 2: Section 400.2A affects the
application of this section so far as it relates to a person dealing with
money or other property that:
(a) is intended by the
person to become an instrument of crime; or
(b) is at risk
of becoming an instrument of crime.
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is, and the person believes it to be, proceeds
of crime; or
(ii) the person intends that the money or property will become an
instrument of crime; and
(c) at the time of the dealing, the value of the money and other
property is $1,000 or more.
Penalty: Imprisonment for 5 years, or 300
penalty units, or both.
(2) A person commits an offence if:
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is proceeds of crime; or
(ii) there is a risk that the money or property will become an
instrument of crime; and
(c) the person is reckless as to the fact that the money or property is
proceeds of crime or the fact that there is a risk that it will become an
instrument of crime (as the case requires); and
(d) at the time of the dealing, the value of the money and other
property is $1,000 or more.
Penalty: Imprisonment for 2 years, or 120
penalty units, or both.
(3) A person commits an offence if:
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is proceeds of crime; or
(ii) there is a risk that the money or property will become an
instrument of crime; and
(c) the person is negligent as to the fact that the money or property is
proceeds of crime or the fact that there is a risk that it will become an
instrument of crime (as the case requires); and
(d) at the time of the dealing, the value of the money and other
property is $1,000 or more.
Penalty: Imprisonment for 12 months, or 60
penalty units, or both.
(4) Absolute liability applies to paragraphs (1)(c), (2)(d) and
(3)(d).
Note 1: Section 400.10
provides for a defence of mistake of fact in relation to these paragraphs.
Note 2: Section 400.2A affects the
application of this section so far as it relates to a person dealing with
money or other property that:
(a) is intended by the
person to become an instrument of crime; or
(b) is at risk
of becoming an instrument of crime.
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is, and the person believes it to be, proceeds
of crime; or
(ii) the person intends that the money or property will become an
instrument of crime.
Penalty: Imprisonment for 12 months, or 60
penalty units, or both.
(2) A person commits an offence if:
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is proceeds of crime; or
(ii) there is a risk that the money or property will become an
instrument of crime; and
(c) the person is reckless as to the fact that the money or property is
proceeds of crime or the fact that there is a risk that it will become an
instrument of crime (as the case requires).
Penalty: Imprisonment for
6 months, or 30 penalty units, or both.
(3) A person commits an offence if:
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is proceeds of crime; or
(ii) there is a risk that the money or property will become an
instrument of crime; and
(c) the person is negligent as to the fact that the money or property is
proceeds of crime or the fact that there is a risk that it will become an
instrument of crime (as the case requires).
Penalty: 10 penalty units.
Note:
Section 400.2A affects the application of this section so far as it
relates to a person dealing with money or other property that:
(a) is intended by the person to become an instrument of
crime; or
(b) is at risk of becoming an instrument of
crime.
(a) the person deals with money or other property; and
(b) it is reasonable to suspect that the money or property is proceeds
of crime; and
(c) at the time of the dealing, the value of the money and other
property is $100,000 or more.
Penalty: Imprisonment for 3 years, or
180 penalty units, or both.
(1A) A person
commits an offence if:
(a) the person deals with money or other property; and
(b) it is reasonable to suspect that the money or property is proceeds
of crime; and
(c) at the time of the dealing, the value of the money and other
property is less than $100,000.
Penalty: Imprisonment for 2 years, or
120 penalty units, or both.
(2) Without limiting paragraph (1)(b) or (1A)(b), that paragraph is
taken to be satisfied if:
(a) the conduct referred to in paragraph (1)(a) involves a number
of transactions that are structured or arranged to avoid the reporting
requirements of the Financial Transaction Reports Act 1988that would
otherwise apply to the transactions; or
(c) the value of the money and property involved in the conduct is, in
the opinion of the trier of fact, grossly out of proportion to the defendant's
income and expenditure over a reasonable period within which the conduct
occurs; or
(i) has contravened the defendant's obligations under that Act relating
to reporting the transaction; or
(ii) has given false or misleading information in purported compliance
with those obligations; or
(e) the defendant:
(i) has stated that the conduct was engaged in on behalf of or at the
request of another person; and
(ii) has not provided information enabling the other person to be
identified and located.
(4) Absolute liability applies to paragraphs (1)(b) and (c) and
(1A)(b) and (c).
(5) This section does not apply if the defendant proves that he or she
had no reasonable grounds for suspecting that the money or property was
derived or realised, directly or indirectly, from some form of unlawful
activity.
Note: A
defendant bears a legal burden in relation to the matter in
subsection (5) (see section 13.4).
(1) A person is not criminally responsible for an offence against
section 400.3, 400.4, 400.5, 400.6, 400.7 or 400.9 in relation to money
or property if:
(a) at or before the time of dealing with the money or property, the
person considered what was the value of the money or property, and was under a
mistaken but reasonable belief about that value; and
(b) had the value been what the person believed it to be, the person's
conduct would have constituted another offence against this Division for which
the maximum penalty, in penalty units, is less than the maximum penalty, in
penalty units, for the offence charged.
Example: Assume
that a person deals with money or property that is the proceeds of crime.
While the person believes it to be proceeds of crime, he or she is under a
mistaken but reasonable belief that it is worth $90,000 when it is in fact
worth $120,000.
That belief is a defence to an offence against subsection 400.4(1) (which
deals with money or property of a value of $100,000 or more). However, the
person would commit an offence against subsection 400.5(1) (which deals
with money or property of a value of $10,000 or more). Section 400.14
allows for an alternative verdict of guilty of an offence against
subsection 400.5(1).
Note: A defendant bears
an evidential burden in relation to the matter in subsection (1) (see
subsection 13.3(3)).
(2) A person may be regarded as having considered what the value of the
money or property was if:
(a) he or she had considered, on a previous occasion, what the value of
the money or property was 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.
In a prosecution for an offence against a provision of this Division, it is
not necessary to prove the existence of any fault element in relation to any
of the following:
(a) whether an offence may be dealt with as an indictable offence;
(b) whether an offence is an indictable offence;
(c) whether an offence is a Commonwealth indictable offence;
(d) whether an offence is a foreign indictable offence;
(e) whether an offence is a State indictable offence;
(f) whether an offence is an Australian Capital Territory indictable
offence;
(g) whether an offence is a Northern Territory indictable offence.
(1) A single charge of an offence against a provision of this Division
may be about 2 or more instances of the defendant engaging in conduct (at the
same time or different times) that constitutes an offence against a provision
of this Division.
(2) If:
(a) a single charge is about 2 or more such instances; and
(b) the value of the money and other property dealt with is an element
of the offence in question;
that value is taken to be the sum of the values
of the money and other property dealt with in respect of each of those
instances.
(1) To avoid doubt, it is not necessary, in order to prove for the
purposes of this Division that money or property is proceeds of crime, to
establish:
(a) a particular offence was committed in relation to the money or
property; or
(b) a particular person committed an offence in relation to the money or
property.
(2) To avoid doubt, it is not necessary, in order to prove for the
purposes of this Division an intention or risk that money or property will be
an instrument of crime, to establish that:
(a) an intention or risk that a particular offence will be committed in
relation to the money or property; or
(b) an intention or risk that a particular person will commit an offence
in relation to the money or property.
If, on a trial for an offence against a provision of this Division (the
offence charged ), the trier of fact:
(a) is not satisfied that the defendant is guilty of the offence
charged; but
(b) is otherwise satisfied that the defendant is guilty of another
offence against this Division for which the maximum penalty, in penalty units,
is less than the maximum penalty, in penalty units, for the offence charged;
the trier of fact may find the defendant not guilty of the offence charged but
guilty of the other offence, so long as the person has been accorded
procedural fairness in relation to that finding of guilt.
(1) A person does not commit an offence against this Division 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 (but not on board an Australian aircraft or an Australian ship) and
the money or other property:
(i) is proceeds of crime; or
(ii) is intended to become an instrument of crime; or
(iii) is at risk of becoming an instrument of crime;
in relation to a Commonwealth indictable offence, a State indictable offence,
an Australian Capital Territory indictable offence or a Northern Territory
indictable offence; 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 occurs, or is intended by the person to occur,
wholly or partly in Australia or wholly or partly on board an Australian
aircraft or an Australian ship.
Note: The expression
offence is given an extended meaning by subsection 11.2(1),
section 11.3 and subsection 11.6(1).
Defence--primary offence
(2) A person does not commit an offence against this Division if:
(a) the alleged offence is a primary 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) paragraph (1)(b) of this section does not apply; 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 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 offence against this Division.
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) A person does not commit an offence against this Division 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 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) paragraph (1)(b) of this section does not apply (and would not
apply if the conduct described in paragraph (c) of this subsection
occurred as intended); and
(e) 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
(f) there is not in force in:
(i) the foreign country where the conduct constituting the primary
offence to which the ancillary offence relates 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 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.
Extended application of
sections 16.1, 16.2 and 16.3
(6) Section 16.1, except paragraph 16.1(1)(a), applies in
relation to an offence against this Division (in addition to the application
of that section apart from this subsection).
Note: Section 16.1
requires the Attorney-General's consent for prosecution of an offence if the
alleged conduct occurred wholly in a foreign country in certain circumstances.
(7) Sections 16.2 and 16.3 apply for the purposes of this Division
in the same way as they apply for the purposes of Part 2.7.
Note: Section 16.2
treats the sending of things and electronic communications into and out of
Australia as conduct occurring partly in Australia. Section 16.3 affects
the meaning of Australia .
"article in the course of post"
means an article that is being carried by post, and includes an article that
has been collected or received by or on behalf of Australia Post for carriage
by post, but has not been delivered by or on behalf of Australia Post.
"Australia Post" means the Australian Postal Corporation.
(a) a material record of an unwritten communication:
(i) carried by post; or
(ii) collected or received by Australia Post for carriage by post; or
(b) a material record issued by Australia Post as a record of an
unwritten communication:
(i) carried by post; or
(ii) collected or received by Australia Post for carriage by post.
"postal or similar service" means:
(a) a postal service (within the meaning of paragraph 51(v) of the
Constitution); or
(b) a courier service, to the extent to which the service is a postal or
other like service (within the meaning of paragraph 51(v) of the
Constitution); or
(c) a packet or parcel carrying service, to the extent to which the
service is a postal or other like service (within the meaning of
paragraph 51(v) of the Constitution); or
(d) any other service that is a postal or other like service (within the
meaning of paragraph 51(v) of the Constitution); or
(e) a courier service that is provided by a constitutional corporation;
or
(f) a packet or parcel carrying service that is provided by a
constitutional corporation; or
(g) a courier service that is provided in the course of, or in relation
to, trade or commerce:
(i) between Australia and a place outside Australia; or
(ii) among the States; or
(iii) between a State and a Territory or between 2 Territories; or
(h) a packet or parcel carrying service that is provided in the course
of, or in relation to, trade or commerce:
(i) between Australia and a place outside Australia; or
(ii) among the States; or
(iii) between a State and a Territory or between 2 Territories.
(1) Subject to subsections (2) and (3), an expression used in
Subdivision B or C of Division 471 that is defined in Part 10.6 has
the same meaning in that Subdivision as it has in that Part.
Note: One of those
expressions is child abuse material .
(2) A reference in Subdivision B or C of Division 471 to a person
having possession or control of material includes a reference to the person:
(a) having possession of a computer or data storage device that holds or
contains the material; or
(b) having possession of a document in which the material is recorded;
or
(c) having control of material held in a computer that is in the
possession of another person (whether inside or outside Australia).
(3) A reference in Subdivision B or C of Division 471 to a person
producing, supplying or obtaining material includes a reference to the person:
(a) producing, supplying or obtaining material held or contained in a
computer or data storage device; or
(b) producing, supplying or obtaining a document in which the material
is recorded.
(4) Section 473.4 applies in relation to Subdivisions B and C of
Division 471 as if the reference in that section to Part 10.6 were a
reference to those Subdivisions.
Note: Section 473.4
sets out matters that may be taken into account in deciding whether particular
material is offensive.
(ii) an article in the course of post (including an article that appears
to have been lost or wrongly delivered by or on behalf of Australia Post or
lost in the course of delivery to Australia Post); or
(iii) a postal message; and
(b) the person does so with the intention of permanently depriving
another person of the mail-receptacle, article or postal message.
Penalty: Imprisonment for 10 years.
Dishonesty
(2) For the purposes of this section, a person's appropriation of a
mail-receptacle, article or postal message may be dishonest even if the person
or another person is willing to pay for the mail-receptacle, article or postal
message.
Intention of permanently depriving a person of a mail-receptacle,
article or postal message
(3) For the purposes of this section, if:
(a) a person appropriates a mail-receptacle, article or postal message
without meaning another permanently to lose the thing itself; and
(b) the person's intention is to treat the thing as the person's own to
dispose of regardless of the other's rights;
the person has the intention of
permanently depriving the other of it.
(4) For the purposes of subsection (3), a borrowing or lending of a
thing amounts to treating the thing as the borrower's or lender's own to
dispose of regardless of another's rights if, and only if, the borrowing or
lending is for a period and in circumstances making it equivalent to an
outright taking or disposal.
(1) A person commits an offence if the person dishonestly receives
stolen property, knowing or believing the property to be stolen.
Penalty: Imprisonment for 10 years.
Stolen property
(2) For the purposes of this section, property is stolen property if,
and only if:
(a) it is original stolen property (as defined by subsection (3));
or
(b) it is tainted property (as defined by subsection (5)).
This
subsection has effect subject to subsection (4).
Original stolen
property
(3) For the purposes of this section, original stolen property is
property, or a part of property, that:
(a) was appropriated in the course of an offence against
section 471.1 (whether or not the property, or the part of the property,
is in the state it was in when it was so appropriated); and
(b) is in the possession or custody of the person who so appropriated
the property.
(4) For the purposes of this section, property ceases to be original
stolen property:
(a) after the property is restored:
(i) to the person from whom it was appropriated; or
(ii) to other lawful possession or custody; or
(b) after:
(i) the person from whom the property was appropriated ceases to have
any right to restitution in respect of the property; or
(ii) a person claiming through the person from whom the property was
appropriated ceases to have any right to restitution in respect of the
property.
Tainted property
(5) For the purposes of this section, tainted property is property that:
(a) is (in whole or in part) the proceeds of sale of, or property
exchanged for, original stolen property; and
(b) is in the possession or custody of the person who so appropriated
the original stolen property.
Alternative verdicts
(6) If, in a prosecution for an offence against section 471.1, the
trier of fact is not satisfied that the defendant is guilty of the offence,
but is satisfied beyond reasonable doubt that the defendant is guilty of an
offence against this section, the trier of fact may find the defendant not
guilty of the offence against section 471.1 but guilty of the offence
against this section, so long as the defendant has been accorded procedural
fairness in relation to that finding of guilt.
(7) If, in a prosecution for an offence against this section, the trier
of fact is not satisfied that the defendant is guilty of the offence, but is
satisfied beyond reasonable doubt that the defendant is guilty of an offence
against section 471.1, the trier of fact may find the defendant not
guilty of the offence against this section but guilty of the offence against
section 471.1, so long as the defendant has been accorded procedural
fairness in relation to that finding of guilt.
Receiving stolen property
before commencement
(8) For the purposes of this section:
(a) it is to be assumed that section 471.1 had been in force at all
times before the commencement of this section; and
(b) property that was appropriated at a time before the commencement of
this section does not become stolen property unless the property was
appropriated in circumstances that (apart from paragraph (a)) amounted to
an offence against a law of the Commonwealth in force at that time.
A person commits an offence if the person dishonestly takes or conceals:
(a) a mail-receptacle; or
(b) an article in the course of post (including an article that appears
to have been lost or wrongly delivered by or on behalf of Australia Post or
lost in the course of delivery to Australia Post); or
(1) A person commits an offence if the person dishonestly uses for
postal services a postage stamp:
(a) that has previously been used for postal services; or
(b) that has been obliterated; or
(c) that has been defaced.
Penalty: Imprisonment for 12 months.
(2) If, in proceedings for an offence against subsection (1), it is
proved that the defendant caused an article to or on which was affixed or
printed a postage stamp:
(a) that had previously been used for postal services; or
(b) that had been obliterated; or
(c) that had been defaced;
to be carried by post, it is presumed, in
the absence of evidence to the contrary, that the defendant used the stamp for
postal services.
(3) The burden of proof in respect of evidence to the contrary is an
evidential burden of proof.
(b) the person's conduct causes damage to, or the destruction of:
(i) a mail-receptacle; or
(ii) an article in the course of post (including an article that appears
to have been lost or wrongly delivered by or on behalf of Australia Post or
lost in the course of delivery to Australia Post); or
(iii) a postal message; and
(c) the person:
(i) intends that his or her conduct cause that damage; or
(ii) is reckless as to whether his or her conduct causes that damage.
Penalty: Imprisonment for 10 years.
(2) For the purposes of this section, a person's conduct is taken to
cause the destruction of a thing if the person's conduct causes the physical
loss of the thing by interfering with the thing (including by removing any
restraint over the thing or abandoning the thing).
(3) For the purposes of this section, a person's conduct is taken to
cause damage to a thing if:
(a) the person's conduct causes any loss of a use of the function of the
thing by interfering with the thing; or
(b) the person's conduct causes the thing to be defaced.
A person commits an offence if the person dishonestly obtains delivery of, or
receipt of, an article in the course of post that is not directed to the
person.
Section 15.3 (extended geographical jurisdiction--category C) applies to
an offence against section 471.1, 471.2, 471.3, 471.4, 471.5, 471.6,
471.7 or 471.8.
(1) A person (the first person ) commits an offence if:
(a) the first person uses a postal or similar service to make to another
person (the second person ) a threat to kill the second person or a third
person; and
(b) the first person intends the second person to fear that the threat
will be carried out.
Penalty: Imprisonment for 10 years.
Threat to
cause serious harm
(2) A person (the first person ) commits an offence if:
(a) the first person uses a postal or similar service to make to another
person (the second person ) a threat to cause serious harm to the second
person or a third person; and
(b) the first person intends the second person to fear that the threat
will be carried out.
Penalty: Imprisonment for 7 years.
Actual fear
not necessary
(3) In a prosecution for an offence against this section, it is not
necessary to prove that the person receiving the threat actually feared that
the threat would be carried out.
Definitions
(4) In this section:
"fear" includes apprehension.
"threat to cause
serious harm to a person" includes a threat to substantially contribute to
serious harm to the person.
(a) the person uses a postal or similar service; and
(b) the person does so in a way (whether by the method of use or the
content of a communication, or both) that reasonable persons would regard as
being, in all the circumstances, menacing, harassing or offensive.
(1) A person (the first person ) commits an offence if:
(a) the first person causes an article to be carried by a postal or
similar service; and
(b) the person does so in a way that gives rise to a danger of death or
serious harm to another person; and
(c) the first person is reckless as to the danger of death or serious
harm.
Penalty: Imprisonment for 10 years.
Danger of death or serious
harm
(2) For the purposes of this section, if a person's conduct exposes
another person to the risk of catching a disease that may give rise to a
danger of death or serious harm to the other person, the conduct is taken to
give rise to a danger of death or serious harm to the other person.
(3) For the purposes of this section, a person's conduct gives rise to a
danger of death or serious harm if the conduct is ordinarily capable of
creating a real, and not merely a theoretical, danger of death or serious
harm.
(4) For the purposes of this section, a person's conduct may give rise
to a danger of death or serious harm whatever the statistical or arithmetical
calculation of the degree of risk of death or serious harm involved.
(5) In a prosecution for an offence against subsection (1), it is
not necessary to prove that a specific person was actually placed in danger of
death or serious harm by the conduct concerned.
Definition
(6) To avoid doubt, the definition of carry by post in
section 470.1 does not apply to this section.
(c) the person has that possession or control, or engages in that
production, supply or obtaining, with the intention that the material be used:
(i) by that person; or
(ii) by another person;
in committing an offence against section 471.19 (using a postal or
similar service for child abuse material).
Penalty: Imprisonment for
15 years.
(2) A person may be found guilty of an offence against
subsection (1) even if committing the offence against section 471.19
(using a postal or similar service for child abuse material) is impossible.
(3) It is not an offence to attempt to commit an offence against
subsection (1).
(1) A person is not criminally responsible for an offence against
section 471.19 (using a postal or similar service for child abuse
material) or 471.20 (possessing etc. child abuse material for use through a
postal or similar service) because of engaging in particular conduct if the
conduct:
(a) is of public benefit; and
(b) does not extend beyond what is of public benefit.
In determining
whether the person is, under this subsection, not criminally responsible for
the offence, the question whether the conduct is of public benefit is a
question of fact and the person's motives in engaging in the conduct are
irrelevant.
Note: A
defendant bears an evidential burden in relation to the matter in this
subsection, see subsection 13.3(3).
(2) For the purposes of subsection (1), conduct is of public
benefit if, and only if, the conduct is necessary for or of assistance in:
(a) enforcing a law of the Commonwealth, a State or a Territory; or
(b) monitoring compliance with, or investigating a contravention of, a
law of the Commonwealth, a State or a Territory; or
(c) the administration of justice; or
(d) conducting scientific, medical or educational research that has been
approved by the AFP Minister in writing for the purposes of this section.
(3) A person is not criminally responsible for an offence against
section 471.19 (using a postal or similar service for child abuse
material) or 471.20 (possessing etc. child abuse material for use through a
postal or similar service) if:
(a) the person is, at the time of the offence, a law enforcement
officer, or an intelligence or security officer, acting in the course of his
or her duties; and
(b) the conduct of the person is reasonable in the circumstances for the
purpose of performing that duty.
Note: A defendant bears
an evidential burden in relation to the matter in this subsection, see
subsection 13.3(3).
(1) A person commits an offence against this section if:
(a) the person commits an offence against either of the following
provisions on 3 or more separate occasions:
(iii) section 471.19 (using a postal or similar service for child
abuse material);
(iv) section 471.20 (possessing etc. child abuse material for use
through a postal or similar service); and
(b)
the commission of each such offence involves 2 or more people.
Penalty: Imprisonment for 30 years.
(2) There is no fault element for any of the physical elements
described in paragraph (1)(a) other than the fault elements (however
described), if any, for the offence against section 471.19 or 471.20 .
(3) To avoid doubt, a person does not commit an offence against
section 471.19 or 471.20 for the purposes of paragraph (1)(a) if
the person has a defence to that offence.
Offence or conduct need not be the
same
(4) For the purposes of subsection (1), it is immaterial whether
the offence, or the conduct constituting the offence, is the same on each
occasion.
Double jeopardy etc.
(5) A person who has been convicted or acquitted of an offence (the
aggravated offence ) against this section may not be convicted of an offence
against section 471.19 or 471.20 in relation to the conduct that
constituted the aggravated offence.
(6) Subsection (5) does not prevent an alternative verdict under
section 471.23.
(7) A person who has been convicted or acquitted of an offence (the
underlying offence ) against section 471.19 or 471.20 may not be
convicted of an offence against this section in relation to the conduct that
constituted the underlying offence.
If, on a trial for an offence (the aggravated offence ) against
subsection 471.22(1), the trier of fact:
(a) is not satisfied that the defendant is guilty of the aggravated
offence; but
(b) is satisfied beyond reasonable doubt that he or she is guilty of an
offence (the underlying offence ) against section 471.19 or 471.20 ;
it may find the defendant not guilty of the aggravated offence but guilty of
the underlying offence, s o long as the defendant has been accorded
procedural fairness in relation to that finding of guilt.
(a) the sender causes an article to be carried by a postal or similar
service to another person (the recipient ); and
(b) the sender does this with the intention of making it easier to
procure the recipient to engage in sexual activity with the sender; and
(c) the recipient is someone who is, or who the sender believes to be,
under 16; and
(d) the sender is at least 18.
Penalty: Imprisonment for 15
years.
(2) A person (the sender ) commits an offence if:
(a) the sender causes an article to be carried by a postal or similar
service to another person (the recipient ); and
(b) the sender does this with the intention of making it easier to
procure the recipient to engage in sexual activity with another person (the
participant ); and
(c) the recipient is someone who is, or who the sender believes to be,
under 16; and
(d) the participant is someone who is, or who the sender believes to be,
at least 18.
Penalty: Imprisonment for 15 years.
(3) A person (the sender ) commits an offence if:
(a) the sender causes an article to be carried by a postal or similar
service to another person (the recipient ); and
(b) the sender does this with the intention of making it easier to
procure the recipient to engage in sexual activity with another person; and
(c) the recipient is someone who is, or who the sender believes to be,
under 16; and
(d) the other person referred to in paragraph (b) is someone who
is, or who the sender believes to be, under 18; and
(e) the sender intends that the sexual activity referred to in
paragraph (b) will take place in the presence of:
(i) the sender; or
(ii) another person (the participant ) who is, or who the sender
believes to be, at least 18.
(a) the sender causes an article to be carried by a postal or similar
service to another person (the recipient ); and
(b) the sender does this with the intention of making it easier to
procure a person (the child ) to engage in sexual activity with the sender;
and
(c) the child is someone who is, or who the sender believes to be, under
16; and
(d) the sender is at least 18.
Penalty: Imprisonment for 15
years.
(2) A person (the sender ) commits an offence if:
(a) the sender causes an article to be carried by a postal or similar
service to another person (the recipient ); and
(b) the sender does this with the intention of making it easier to
procure a person (the child ) to engage in sexual activity with another person
(the participant ); and
(c) the child is someone who is, or who the sender believes to be, under
16; and
(d) the participant is someone who is, or who the sender believes to be,
at least 18.
Penalty: Imprisonment for 15 years.
(3) A person (the sender ) commits an offence if:
(a) the sender causes an article to be carried by a postal or similar
service to another person (the recipient ); and
(b) the sender does this with the intention of making it easier to
procure a person (the child ) to engage in sexual activity with another
person; and
(c) the child is someone who is, or who the sender believes to be, under
16; and
(d) the other person referred to in paragraph (b) is someone who
is, or who the sender believes to be, under 18; and
(e) the sender intends that the sexual activity referred to in
paragraph (b) will take place in the presence of:
(i) the sender; or
(ii) another person (the participant ) who is, or who the sender
believes to be, at least 18.
(1) For the purposes of an offence against this Subdivision (other than
section 471.25A), absolute liability applies to the physical element of
circumstance of the offence that the recipient is someone who is under 16.
Note 1: For absolute liability, see
section 6.2.
Note 2: For a defence
based on belief about age, see section 471.29.
(1A) For the
purposes of an offence against section 471.25A, absolute liability
applies to the physical element of circumstance of the offence that the child
is someone who is under 16.
Note 1: For
absolute liability, see section 6.2.
Note
2: For a defence based on belief about
age, see section 471.29.
(2) For the purposes of an offence against subsection 471.24(2) or
(3), 471.25(2) or (3) or 471.25A(2) or (3), absolute liability applies to the
physical element of circumstance of the offence that the participant is at
least 18.
Note 1: For absolute
liability, see section 6.2.
Note 2:
For a defence based on belief about age, see section 471.29.
Proof of
belief about age--evidence of representation
(3) For the purposes of this Subdivision, evidence that a person was
represented to the defendant as being under, of, at least or over a particular
age is, in the absence of evidence to the contrary, proof that the defendant
believed the person to be under, of, at least or over that age (as the case
requires).
Determining age--admissible evidence
(5) In determining for the purposes of this Subdivision how old a person
is or was at a particular time, a jury or court may treat any of the following
as admissible evidence:
(a) the person's appearance;
(b) medical or other scientific opinion;
(c) a document that is or appears to be an official or medical record
from a country outside Australia;
(d) a document that is or appears to be a copy of such a record.
(6) Subsection (5) does not make any other kind of evidence
inadmissible, and does not affect a prosecutor's duty to do all he or she can
to adduce the best possible evidence for determining the question.
(7) If, on a trial for an offence against this Subdivision, evidence may
be treated as admissible because of subsection (5), the court must warn
the jury that it must be satisfied beyond reasonable doubt in determining the
question.
(1) A person may be found guilty of an offence against
section 471.24, 471.25 or 471.25A even if it is impossible for the sexual
activity referred to in that section to take place.
Fictitious persons
(2) For the purposes of an offence against this Subdivision, it does not
matter that the recipient to whom the sender believes the sender is causing an
article to be carried is a fictitious person represented to the sender as a
real person.
(2A) For the purposes of an offence against section 471.25A, it
does not matter that the child is a fictitious person represented to the
sender as a real person.
Attempt not offence
(3) It is not an offence to attempt to commit an offence against
section 471.24, 471.25 or 471.25A.
(1) It is a defence to a prosecution for an offence against this
Subdivision (other than section 471.25A) if the defendant proves that, at
the time he or she caused the article to be carried, the defendant believed
that the recipient was at least 16.
Note: A defendant bears
a legal burden in relation to the matter in this subsection, see
section 13.4.
(1A) It is a defence to a prosecution for an offence against
section 471.25A if the defendant proves that, at the time he or she
caused the article to be carried, the defendant believed that the child was at
least 16.
Note: A
defendant bears a legal burden in relation to the matter in this subsection,
see section 13.4.
Procuring and "grooming" offences involving child
engaging in sexual activity with other participant--belief that participant
under 18
(2) It is a defence to a prosecution for an offence against
subsection 471.24(2) or (3), 471.25(2) or (3) or 471.25A(2) or (3) if the
defendant proves that, at the time he or she caused the article to be carried,
the defendant believed that the participant was under 18.
Note: A defendant bears
a legal burden in relation to the matter in this subsection, see
section 13.4.
Trier of fact may take into account whether belief
reasonable
(3) In determining whether the defendant had the belief mentioned in
subsection (1), (1A) or (2), the trier of fact may take into account
whether the alleged belief was reasonable in the circumstances.
(1) In determining the sentence to be passed, or the order to be made,
in respect of a person for an offence against this Subdivision, the court must
take into account the following matters:
(a) the age and maturity of the person in relation to whom the offence
was committed;
(b) if that person was under 10 when the offence was committed--that
fact as a reason for aggravating the seriousness of the criminal behaviour to
which the offence relates;
(c) the number of people involved in the commission of the offence.
(2) However, the court need only take into account a matter mentioned in
subsection (1) so far as the matter is known to the court and, for a
matter mentioned in paragraph (1)(a) or (c), relevant.
(3) The matters mentioned in subsection (1) are in addition to any
other matters the court must take into account (for example, the matters
mentioned in section 16A of the Crimes Act 1914).
Note: See also
section 474.3 respecting persons who are taken to be carriers in relation
to certain matters.
"carry" includes transmit, switch and receive.
"child
abuse material" means:
(a) material that depicts a person, or a representation of a person,
who:
(i) is, or appears to be, under 18 years of age; and
(ii) is, or appears to be, a victim of torture, cruelty or physical
abuse;
and does this in a way that reasonable persons would regard as being, in all
the circumstances, offensive; or
(b) material that describes a person who:
(i) is, or is implied to be, under 18 years of age; and
(ii) is, or is implied to be, a victim of torture, cruelty or physical
abuse;
and does this in a way that reasonable persons would regard as being, in all
the circumstances, offensive; or
(c) material that depicts a person, or a representation of a person, who
is, or appears to be, under 18 years of age and who:
(i) is engaged in, or appears to be engaged in, a sexual pose or sexual
activity (whether or not in the presence of other persons); or
(ii) is in the presence of a person who is engaged in, or appears to be
engaged in, a sexual pose or sexual activity;
and does this in a way that reasonable persons would regard as being, in all
the circumstances, offensive; or
(d) material the dominant characteristic of which is the depiction, for
a sexual purpose, of:
(i) a sexual organ or the anal region of a person who is, or appears to
be, under 18 years of age; or
(ii) a representation of such a sexual organ or anal region; or
(iii) the breasts, or a representation of the breasts, of a female
person who is, or appears to be, under 18 years of age;
in a way that reasonable persons would regard as being, in all the
circumstances, offensive; or
(e) material that describes a person who is, or is implied to be, under
18 years of age and who:
(i) is engaged in, or is implied to be engaged in, a sexual pose or
sexual activity (whether or not in the presence of other persons); or
(ii) is in the presence of a person who is engaged in, or is implied to
be engaged in, a sexual pose or sexual activity;
and does this in a way that reasonable persons would regard as being, in all
the circumstances, offensive; or
(f) material that describes:
(i) a sexual organ or the anal region of a person who is, or is implied
to be, under 18 years of age; or
(ii) the breasts of a female person who is, or is implied to be, under
18 years of age;
and does this in a way that reasonable persons would regard as being, in all
the circumstances, offensive; or
(g) material that is a doll or other object that resembles:
(i) a person who is, or appears to be, under 18 years of age; or
(ii) a part of the body of such a person;
if a reasonable person would consider it likely that the material is intended
to be used by a person to simulate sexual intercourse.
"communication in
the course of telecommunications carriage" means a communication that is being
carried by a carrier or carriage service provider, and includes a
communication that has been collected or received by a carrier or carriage
service provider for carriage, but has not yet been delivered by the carrier
or carriage service provider.
"connected" , in relation to a
telecommunications network, includes connection otherwise than by means of
physical contact (for example, a connection by means of radiocommunication).
"control" of data, or material that is in the form of data, has the meaning
given by section 473.2.
"Crown land" means land that is the property
of:
(a) the Commonwealth, a State or a Territory; or
(b) a statutory authority;
but does not include land that is subject
to a lease to a person other than:
(c) the Commonwealth, a State or a Territory; or
(d) a statutory authority.
"Defence Department" means the Department
of State that deals with defence and that is administered by the Minister
administering section 1 of the Defence Act 1903.
"depict" includes
contain data from which a visual image (whether still or moving) can be
generated.
"describe" includes contain data from which text or sounds can be
generated.
(a) planting or tending trees in a plantation or forest that are
intended to be felled; or
(b) felling trees in a plantation or forest.
"intelligence or
security officer" means an officer or employee of:
(a) the Australian Security Intelligence Organisation; or
(b) the Australian Secret Intelligence Service; or
(ba) the Australian Signals Directorate; or
(c) the Office of National Intelligence; or
(e) that part of the Defence Department known as the Defence
Intelligence Organisation;
and includes a staff member (within the meaning
of the Intelligence Services Act 2001) of the Australian Security
Intelligence Organisation, the Australian Secret Intelligence Service or the
Australian Signals Directorate.
"interception device" means an apparatus or
device that:
(a) is of a kind that is capable of being used to enable a person to
intercept a communication passing over a telecommunications system; and
(b) could reasonably be regarded as having been designed:
(i) for the purpose of; or
(ii) for purposes including the purpose of;
using it in connection with the interception of communications passing over a
telecommunications system; and
(c) is not designed principally for the reception of communications
transmitted by radiocommunications.
"law
enforcement officer" means any of the following:
(a) the Commissioner of the Australian Federal Police, a Deputy
Commissioner of the Australian Federal Police, an AFP employee or a special
member of the Australian Federal Police (all within the meaning of the
Australian Federal Police Act 1979);
(b) a member, or employee, of the police force of a State or Territory;
(d) a member of a police force, or other law enforcement agency, of a
foreign country;
(e) the Director of Public Prosecutions or a person performing a similar
function under a law of a State or Territory;
(f) a member of the staff of the Office of the Director of Public
Prosecutions (within the meaning of the
Director of Public Prosecutions Act 1983) or of a similar body established
under a law of a State or Territory;
(g) a member of the New South Wales Crime Commission or a member of the
staff of that Commission;
(h) an officer of the Independent Commission Against Corruption of New
South Wales, being a person who is an officer as defined by the
Independent Commission Against Corruption Act 1988of New South Wales;
(i) any of the following:
(i) the Chief Commissioner of the Law Enforcement Conduct Commission of
New South Wales;
(ii) the Commissioner for Integrity of the Commission;
(iii) an Assistant Commissioner of the Commission;
(j) an officer of the Corruption and Crime Commission of Western
Australia within the meaning of the Corruption and Crime Commission Act 2003
of Western Australia;
(k) an authorised commission officer of the Crime and Corruption
Commission of Queensland within the meaning of the
Crime and Corruption Act 2001(Qld);
(l) the Independent Commissioner Against Corruption of South Australia,
the Deputy Commissioner, a member of the staff of the Commissioner , or an
examiner or investigator, within the meaning of the
Independent Commissioner Against Corruption Act 2012(SA).
"loss" means a
loss in property, whether temporary or permanent, and includes not getting
what one might get.
"material " includes material in any form, or
combination of forms, capable of constituting a communication.
"meat
by-product" includes skin, hide, tallow, meat meal and inedible offal.
"mobile telecommunications account" means an account with a carriage service
provider for the supply of a public mobile telecommunications service to an
end-user.
"mobile telecommunications device" means an item of customer
equipment (within the meaning of the Telecommunications Act 1997) that is
used, or is capable of being used, in connection with a public mobile
telecommunications service.
(ii) provides the whole or a part of the National Relay Service.
"obtaining" includes:
(a) obtaining for another person; and
(b) inducing a third person to do something that results in another
person obtaining.
"obtaining" data, or material that is in the form of
data, has the meaning given by section 473.3.
"possession" of data, or
material that is in the form of data, has the meaning given by
section 473.2.
"primary production business" means any of the
following:
(a) a business of grazing;
(b) a business of operating animal feedlots;
(c) a business of dairy farming;
(d) a business of farming animals for the purpose of producing meat or
meat by-products;
(e) a business of poultry farming;
(f) a business of aquaculture;
(g) a business of bee-keeping;
(h) a business of operating an abattoir;
(i) a business of operating livestock sale yards;
(j) a business of operating a registered establishment (within the
meaning of the Export Control Act 1982);
(k) a business of operating a fish processing facility;
(l) a business of growing fruit;
(m) a business of growing vegetables;
(n) a business of growing nuts;
(o) a business of growing crops;
(p) a business of viticulture;
(pa) a business of operating:
(i) a wood processing facility; or
(ii) a wood fibre processing facility;
(q) a business of forestry that is carried on on private land.
"private land" means land other than Crown land.
"private sexual material"
means:
(a) material that:
(i) depicts a person who is, or appears to be, 18 years of age or older
and who is engaged in, or appears to be engaged in, a sexual pose or sexual
activity (whether or not in the presence of other persons); and
(ii) does so in circumstances that reasonable persons would regard as
giving rise to an expectation of privacy; or
(b) material the dominant characteristic of which is the depiction of:
(i) a sexual organ or the anal region of a person who is, or appears to
be, 18 years of age or older; or
(ii) the breasts of a female person who is, or appears to be, 18 years
of age or older;
where the depiction is in circumstances that reasonable persons would regard
as giving rise to an expectation of privacy.
Note: For material that
rela tes to a person who is, or appears to be, under 18 years of age, see:
(a) the definition of child abuse material ; and
(b) the offences relating to child abuse material in
Subdivision D.
"producing" data, or material that is in the form of data,
has the meaning given by section 473.3.
"serious
offence against a foreign law" means an offence against a law of a foreign
country constituted by conduct that, if it had occurred in Australia, would
have constituted a serious offence against a law of the Commonwealth, a State
or a Territory.
"serious offence against a law of the Commonwealth, a State
or a Territory" means an offence against a law of the Commonwealth, a State or
a Territory that is punishable by imprisonment:
(a) for life; or
(b) for a period of 5 or more years.
"statutory authority" means a
body established for a public purpose by or under a law of the Commonwealth, a
State or a Territory.
"subject" of private sexual material means:
(a) if the material is covered by paragraph (a) of the definition
of private sexual material --the person first mentioned in that paragraph; or
(b) if the material is covered by paragraph (b) of the definition
of private sexual material --the person mentioned in whichever of
subparagraph (b)(i) or (ii) of that definition is applicable.
"subscription-specific secure data" means data that is used, or is capable of
being used, to:
(a) allow a carrier to identify a particular mobile telecommunications
account (whether an existing account or an account that may be set up in the
future); and
(b) allow a mobile telecommunications device in which an account
identifier that contains the data is installed to access the public mobile
telecommunication service to which that account relates.
"supplying" data,
or material that is in the form of data, has the meaning given by
section 473.3.
"telecommunications device identifier" means:
(a) an electronic identifier of a mobile telecommunications device that
is:
(i) installed in the device by the manufacturer; and
(ii) is capable of being used to distinguish that particular device from
other mobile telecommunications devices; or
(b) any other form of identifier that is prescribed by the regulations
as a telecommunications device identifier for the purposes of this Part.
Note:
Paragraph (a)--For example, GSM mobile phones use an industry-recognised
International Mobile Equipment Identity (IMEI) number. This number identifies
the particular phone, as compared to the SIM card number which identifies a
particular telecommunications account. Carriers are able to block service to
lost and stolen mobile phones based on their IMEI numbers.
A reference in this Part to a person having possession or control of data, or
material that is in the form of data, includes a reference to the person:
(a) having possession of a computer or data storage device that holds or
contains the data; or
(b) having possession of a document in which the data is recorded; or
(c) having control of data held in a computer that is in the possession
of another person (whether inside or outside Australia).
A reference in this Part to a person producing, supplying or obtaining data,
or material that is in the form of data, includes a reference to the person:
(a) producing, supplying or obtaining data held or contained in a
computer or data storage device; or
(b) producing, supplying or obtaining a document in which the data is
recorded.
(1) The matters to be taken into account in deciding for the purposes of
this Part whether reasonable persons would regard particular material, or a
particular use of a carriage service, as being, in all the circumstances,
offensive, include:
(a) the standards of morality, decency and propriety generally accepted
by reasonable adults; and
(b) the literary, artistic or educational merit (if any) of the
material; and
(c) the general character of the material (including whether it is of a
medical, legal or scientific character).
(2) If:
(a) a particular use of a carriage service involves the transmission,
making available, publication, distribution, advertisement or promotion of
material; and
(b) the material is private sexual material;
then, in deciding for the
purposes of this Part whether reasonable persons would regard the use of the
carriage service as being, in all the circumstances, offensive, regard must be
had to whether the subject, or each of the subjects, of the private sexual
material gave consent to the transmission, making available, publication,
distribution, advertisement or promotion of the material.
For the purposes of this Part, a person is taken not to use a carriage service
by engaging in particular conduct if:
(a) the person is a carrier and, in engaging in that conduct, is acting
solely in the person's capacity as a carrier; or
(b) the person is a carriage service provider and, in engaging in that
conduct, is acting solely in the person's capacity as a carriage service
provider; or
(c) the person is an internet service provider and, in engaging in that
conduct, is acting solely in the person's capacity as an internet service
provider; or
(d) the person is an internet content host and, in engaging in that
conduct, is acting solely in the person's capacity as an internet content
host.
(1) A person commits an offence if the person does anything with the
intention of dishonestly obtaining a gain from a carriage service provider by
way of the supply of a carriage service.
Penalty: Imprisonment for 5
years.
Causing a loss
(2) A person commits an offence if the person does anything with the
intention of dishonestly causing a loss to a carriage service provider in
connection with the supply of a carriage service.
Penalty:
Imprisonment for 5 years.
(3) A person commits an offence if:
(a) the person dishonestly causes a loss, or dishonestly causes a risk
of loss, to a carriage service provider in connection with the supply of a
carriage service; and
(b) the person knows or believes that the loss will occur or that there
is a substantial risk of the loss occurring.
(1) For the purposes of this Subdivision, a person who does any thing
for or on behalf of a carrier, or on behalf of persons at least one of whom is
a carrier, is, in respect of:
(a) the doing by that person of that thing; or
(b) any rental, fee or charge payable for or in relation to the doing by
that person of that thing; or
(c) the operation by that person of a facility in connection with the
doing of that thing; or
(d) a facility belonging to that person; or
(e) the operation by that person of a satellite;
taken to be a
carrier.
(2) For the purposes of this Subdivision, a person who does any thing
for or on behalf of a carriage service provider, or on behalf of persons at
least one of whom is a carriage service provider, is, in respect of:
(a) the doing by that person of that thing; or
(b) any rental, fee or charge payable for or in relation to the doing by
that person of that thing; or
(c) the operation by that person of a facility in connection with the
doing of that thing; or
an apparatus or device (whether in an assembled or unassembled form); and
(b) the apparatus or device is an interception device.
Penalty:
Imprisonment for 5 years.
(2) A person is not criminally responsible for an offence against
subsection (1) if the person possesses the interception device in the
course of the person's duties relating to the interception of communications
that does not constitute a contravention of subsection 7(1) of the
Telecommunications (Interception and Access) Act 1979.
Note: A defendant bears
an evidential burden in relation to the matter in this subsection, see
subsection 13.3(3).
(3) A person is not criminally responsible for an offence against
subsection (1) if the applicable conduct mentioned in
subparagraphs (1)(a)(i) to (iv) is in circumstances specified in
regulations made for the purposes of this subsection.
Note: A defendant bears
an evidential burden in relation to the matter in this subsection, see
subsection 13.3(3).
(a) a communication is in the course of telecommunications carriage; and
(b) the person causes the communication to be received by a person or
carriage service other than the person or service to whom it is directed.
Penalty: Imprisonment for 1 year.
(2) A person is not criminally responsible for an offence against
subsection (1) if the person engages in the conduct referred to in
paragraph (1)(b) with the consent or authorisation of the person to whom,
or the person operating the carriage service to which, the communication is
directed.
Note: A
defendant bears an evidential burden in relation to the matter in this
subsection, see subsection 13.3(3).
(1) A person commits an offence if the person tampers with, or
interferes with, a facility owned or operated by:
(a) a carrier; or
(b) a carriage service provider; or
(c) a nominated carrier.
Penalty: Imprisonment for 1 year.
(2) For the purposes of an offence against subsection (1), absolute
liability applies to the physical element of circumstance of the offence, that
the facility is owned or operated by a carrier, a carriage service provider or
a nominated carrier.
(3) A person commits an offence if:
(a) the person tampers with, or interferes with, a facility owned or
operated by:
(i) a carrier; or
(ii) a carriage service provider; or
(iii) a nominated carrier; and
(b) this conduct results in hindering the normal operation of a carriage
service supplied by a carriage service provider.
Penalty: Imprisonment
for 2 years.
(4) For the purposes of an offence against subsection (3), absolute
liability applies to the following physical elements of circumstance of the
offence:
(a) that the facility is owned or operated by a carrier, a carriage
service provider or a nominated carrier;
(b) that the carriage service is supplied by a carriage service
provider.
(5) A person commits an offence if:
(a) the person uses or operates any apparatus or device (whether or not
it is comprised in, connected to or used in connection with a
telecommunications network); and
(b) this conduct results in hindering the normal operation of a carriage
service supplied by a carriage service provider.
Penalty: Imprisonment
for 2 years.
(6) For the purposes of an offence against subsection (5), absolute
liability applies to the physical element of circumstance of the offence, that
the carriage service is supplied by a carriage service provider.
(7) A person is not criminally responsible for an offence against
subsection (5) if:
(a) the person is, at the time of the offence, a law enforcement
officer, or an intelligence or security officer, acting in good faith in the
course of his or her duties; and
(b) the conduct of the person is reasonable in the circumstances for the
purpose of performing that duty.
Note 1:
A defendant bears an evidential burden in relation to the matter in this
subsection, see subsection 13.3(3).
Note
2: See also subsection 475.1(2) for
the interaction between this defence and the Radiocommunications Act 1992.
(7A) A person is
not criminally responsible for an offence against subsection (5) if the
conduct of the person:
(a) is in accordance with a technical assistance request; or
(b) is in compliance with a technical assistance notice; or
(c) is in compliance with a technical capability notice.
(8) For the purposes of this section, a facility is taken to be owned or
operated by a nominated carrier if the Telecommunications Act 1997 applies,
under section 81A of that Act, as if that facility were owned or operated
by the nominated carrier.
(a) modifies a telecommunications device identifier; or
(b) interferes with the operation of a telecommunications device
identifier.
Penalty: Imprisonment for 2 years.
(2) A person is not criminally responsible for an offence against
subsection (1) if the person is:
(a) the manufacturer of the mobile telecommunications device in which
the telecommunications device identifier is installed; or
(b) an employee or agent of the manufacturer who is acting on behalf of
the manufacturer; or
(c) acting with the consent of the manufacturer.
Note: A defendant bears
an evidential burden in relation to the matter in this subsection, see
subsection 13.3(3).
(3) A person is not criminally responsible for an offence against
subsection (1) if:
(a) the person is, at the time of the offence, a law enforcement
officer, or an intelligence or security officer, acting in the course of his
or her duties; and
(b) the conduct of the person is reasonable in the circumstances for the
purpose of performing that duty.
Note 1:
A defendant bears an evidential burden in relation to the matter in this
subsection, see subsection 13.3(3).
Note
2: This subsection merely creates a
defence to an offence against subsection (1) and does not operate to
authorise any conduct that requires a warrant under some other law.
(a) the person has possession or control of any thing or data; and
(b) the person has that possession or control with the intention that
the thing or data be used:
(i) by the person; or
(ii) by another person;
in committing an offence against subsection 474.7(1) (modification of a
telecommunications device identifier).
Penalty: Imprisonment for 2
years.
(2) A person may be found guilty of an offence against
subsection (1) even if committing the offence against
subsection 474.7(1) (modification of a telecommunications device
identifier) is impossible.
(3) It is not an offence to attempt to commit an offence against
subsection (1).
(4) A person is not criminally responsible for an offence against
subsection (1) if the person is:
(a) the manufacturer of the mobile telecommunications device in which
the telecommunications device identifier is installed; or
(b) an employee or agent of the manufacturer who is acting on behalf of
the manufacturer; or
(c) acting with the consent of the manufacturer.
Note: A defendant bears
an evidential burden in relation to the matter in this subsection, see
subsection 13.3(3).
(5) A person is not criminally responsible for an offence against
subsection (1) if:
(a) the person is, at the time of the offence, a law enforcement
officer, or an intelligence or security officer, acting in the course of his
or her duties; and
(b) the conduct of the person is reasonable in the circumstances for the
purpose of performing that duty.
Note 1:
A defendant bears an evidential burden in relation to the matter in this
subsection, see subsection 13.3(3).
Note
2: This subsection merely creates a
defence to an offence against subsection (1) and does not operate to
authorise any conduct that requires a warrant under some other law.
(a) the person produces, supplies or obtains any thing or data; and
(b) the person does so with the intention that the thing or data be
used:
(i) by the person; or
(ii) by another person;
in committing an offence against subsection 474.7(1) (modification of a
telecommunications device identifier).
Penalty: Imprisonment for 2
years.
(2) A person may be found guilty of an offence against
subsection (1) even if committing the offence against
subsection 474.7(1) (modification of a telecommunications device
identifier) is impossible.
(3) It is not an offence to attempt to commit an offence against
subsection (1).
(4) A person is not criminally responsible for an offence against
subsection (1) if the person is:
(a) the manufacturer of the mobile telecommunications device in which
the telecommunications device identifier is installed; or
(b) an employee or agent of the manufacturer who is acting on behalf of
the manufacturer; or
(c) acting with the consent of the manufacturer.
Note: A defendant bears
an evidential burden in relation to the matter in this subsection, see
subsection 13.3(3).
(5) A person is not criminally responsible for an offence against
subsection (1) if:
(a) the person is, at the time of the offence, a law enforcement
officer, or an intelligence or security officer, acting in the course of his
or her duties; and
(b) the conduct of the person is reasonable in the circumstances for the
purpose of performing that duty.
Note 1:
A defendant bears an evidential burden in relation to the matter in this
subsection, see subsection 13.3(3).
Note
2: This subsection merely creates a
defence to an offence against subsection (1) and does not operate to
authorise any conduct that requires a warrant under some other law.
Copying
subscription-specific secure data from an existing account identifier
(1) A person commits an offence if the person:
(a) copies the subscription-specific secure data from an account
identifier; and
(b) does so with the intention that the data will be copied (whether by
the person or by someone else) onto something that:
(i) is an account identifier; or
(ii) will, once the data is copied onto it, be capable of operating as
an account identifier.
Penalty: Imprisonment for 2 years.
Copying
subscription-specific secure data onto a new account identifier
(2) A person commits an offence if:
(a) subscription-specific secure data is copied from an account
identifier (whether by the person or by someone else); and
(b) the person copies that data onto something that:
(i) is an account identifier; or
(ii) will, once the data is copied onto it, be capable of operating as
an account identifier.
This is so whether or not the person knows which
particular account identifier the subscription-specific secure data is copied
from.
Penalty: Imprisonment for 2 years.
Defences
(3) A person is not criminally responsible for an offence against
subsection (1) or (2) if the person is:
(a) the carrier who operates the facilities used, or to be used, in the
supply of the public mobile telecommunications service to which the
subscription-specific secure data relates; or
(b) an employee or agent of that carrier who is acting on behalf of that
carrier; or
(c) acting with the consent of that carrier.
Note: A defendant bears
an evidential burden in relation to the matter in this subsection, see
subsection 13.3(3).
(4) A person is not criminally responsible for an offence against
subsection (1) or (2) if:
(a) the person is, at the time of the offence, a law enforcement
officer, or an intelligence or security officer, acting in the course of his
or her duties; and
(b) the conduct of the person is reasonable in the circumstances for the
purpose of performing that duty.
Note 1:
A defendant bears an evidential burden in relation to the matter in this
subsection, see subsection 13.3(3).
Note
2: This subsection merely creates a
defence to an offence against subsection (1) or (2) and does not operate
to authorise any conduct that requires a warrant under some other law.
(a) the person has possession or control of any thing or data; and
(b) the person has that possession or control with the intention that
the thing or data be used:
(i) by the person; or
(ii) by another person;
in committing an offence against subsection 474.10(1) (copying
subscription-specific secure data from an account identifier) or 474.10(2)
(copying subscription-specific secure data onto an account identifier).
Penalty: Imprisonment for 2 years.
(2) A person may be found guilty of an offence against
subsection (1) even if committing the offence against
subsection 474.10(1) (copying subscription-specific secure data from an
account identifier) or 474.10(2) (copying subscription-specific secure data
onto an account identifier) is impossible.
(3) It is not an offence to attempt to commit an offence against
subsection (1).
Defences
(4) A person is not criminally responsible for an offence against
subsection (1) if the person is:
(a) the carrier who operates the facilities used, or to be used, in the
supply of the public mobile telecommunications service to which the
subscription-specific secure data relates; or
(b) an employee or agent of that carrier who is acting on behalf of that
carrier; or
(c) acting with the consent of that carrier.
Note: A defendant bears
an evidential burden in relation to the matter in this subsection, see
subsection 13.3(3).
(5) A person is not criminally responsible for an offence against
subsection (1) if:
(a) the person is, at the time of the offence, a law enforcement
officer, or an intelligence or security officer, acting in the course of his
or her duties; and
(b) the conduct of the person is reasonable in the circumstances for the
purpose of performing that duty.
Note 1:
A defendant bears an evidential burden in relation to the matter in this
subsection, see subsection 13.3(3).
Note
2: This subsection merely creates a
defence to an offence against subsection (1) and does not operate to
authorise any conduct that requires a warrant under some other law.
(a) the person produces, supplies or obtains any thing or data; and
(b) the person does so with the intention that the thing or data be
used:
(i) by the person; or
(ii) by another person;
in committing an offence against subsection 474.10(1) (copying
subscription-specific secure data from an account identifier) or 474.10(2)
(copying subscription-specific secure data onto an account identifier).
Penalty: Imprisonment for 2 years.
(2) A person may be found guilty of an offence against
subsection (1) even if committing the offence against
subsection 474.10(1) (copying subscription-specific secure data from an
account identifier) or 474.10(2) (copying subscription-specific secure data
onto an account identifier) is impossible.
(3) It is not an offence to attempt to commit an offence against
subsection (1).
Defences
(4) A person is not criminally responsible for an offence against
subsection (1) if the person is:
(a) the carrier who operates the facilities used, or to be used, in the
supply of the public mobile telecommunications service to which the
subscription-specific secure data relates; or
(b) an employee or agent of that carrier who is acting on behalf of that
carrier; or
(c) acting with the consent of that carrier.
Note: A defendant bears
an evidential burden in relation to the matter in this subsection, see
subsection 13.3(3).
(5) A person is not criminally responsible for an offence against
subsection (1) if:
(a) the person is, at the time of the offence, a law enforcement
officer, or an intelligence or security officer, acting in the course of his
or her duties; and
(b) the conduct of the person is reasonable in the circumstances for the
purpose of performing that duty.
Note 1:
A defendant bears an evidential burden in relation to the matter in this
subsection, see subsection 13.3(3).
Note
2: This subsection merely creates a
defence to an offence against subsection (1) and does not operate to
authorise any conduct that requires a warrant under some other law.
(i) connects equipment to a telecommunications network; and
(ii) intends by this to commit, or to facilitate the commission of, an
offence (whether by that person or another person); and
(b) the offence is:
(i) a serious offence against a law of the Commonwealth, a State or a
Territory; or
(ii) a serious offence against a foreign law.
(2) A person commits an offence if:
(a) the person uses equipment connected to a telecommunications network
in the commission of, or to facilitate the commission of, an offence (whether
by that person or another person); and
(b) the offence is:
(i) a serious offence against a law of the Commonwealth, a State or a
Territory; or
(ii) a serious offence against a foreign law.
(3) A person who commits an offence against subsection (1) or (2)
is punishable, on conviction, by a penalty not exceeding the penalty
applicable to the serious offence.
(4) Absolute liability applies to paragraphs (1)(b) and (2)(b).
Note: For absolute
liability , see section 6.2.
(5) A person may be found guilty of an offence against
subsection (1) or (2) even if committing the serious offence is
impossible.
(6) It is not an offence to attempt to commit an offence against
subsection (1) or (2).
(1) A person (the first person ) commits an offence if:
(a) the first person uses a carriage service to make to another person
(the second person ) a threat to kill the second person or a third person; and
(b) the first person intends the second person to fear that the threat
will be carried out.
Penalty: Imprisonment for 10 years.
Threat to
cause serious harm
(2) A person (the first person ) commits an offence if:
(a) the first person uses a
carriage service
to make to another person (the second person ) a threat to cause serious harm
to the second person or a third person; and
(b) the first person intends the second person to fear that the threat
will be carried out.
Penalty: Imprisonment for 7 years.
Actual fear
not necessary
(3) In a prosecution for an offence against this section, it is not
necessary to prove that the person receiving the threat actually feared that
the threat would be carried out.
Definitions
(4) In this section:
"fear" includes apprehension.
"threat to cause
serious harm to a person" includes a threat to substantially contribute to
serious harm to the person.
(a) the person uses a carriage service to send a communication; and
(b) the person does so with the intention of inducing a false belief
that an explosive, or a dangerous or harmful substance or thing, has been or
will be left in any place.
(b) the person does so in a way (whether by the method of use or the
content of a communication, or both) that reasonable persons would regard as
being, in all the circumstances, menacing, harassing or offensive.
Penalty: Imprisonment for 3 years.
(2) Without limiting subsection (1), that subsection applies to
menacing, harassing or causing offence to:
(a) an employee of an NRS provider; or
(b) an emergency call person; or
(c) an employee of an emergency service organisation; or
(d) an APS employee in the Department administered by the AFP Minister
acting as a National Security Hotline call taker.
(1) A person commits an offence against this subsection if:
(a) the person commits an offence (the underlying offence ) against
subsection 474.17(1); and
(b) the commission of the underlying offence involves the transmission,
making available, publication, distribution, advertisement or promotion of
material; and
(c) the material is private sexual material.
Penalty:
Imprisonment for 5 years.
(2) There is no fault element for the physical element described in
paragraph (1)(a) other than the fault elements (however described), if
any, for the underlying offence.
(3) To avoid doubt, a person does not commit the underlying offence for
the purposes of paragraph (1)(a) if the person has a defence to the
underlying offence.
Special aggravated offence
(4) A person commits an offence against this subsection if:
(a) the person commits an offence (the underlying offence ) against
subsection 474.17(1); and
(b) the commission of the underlying offence involves the transmission,
making available, publication, distribution, advertisement or promotion of
material; and
(5) There is no fault element for the physical element described in
paragraph (4)(a) other than the fault elements (however described), if
any, for the underlying offence.
(6) To avoid doubt, a person does not commit the underlying offence for
the purposes of paragraph (4)(a) if the person has a defence to the
underlying offence.
(7) Absolute liability applies to paragraph (4)(d).
Note: For absolute
liability, see section 6.2.
Double jeopardy etc.
(8) A person who has been convicted or acquitted of an offence (the
aggravated offence ) against subsection (1) may not be convicted of an
offence against subsection 474.17(1) or subsection (4) of this
section in relation to the conduct that constituted the aggravated offence.
(9) Subsection (8) does not prevent an alternative verdict under
section 474.17B.
(10) A
person who has been convicted or acquitted of an offence (the aggravated
offence ) against subsection (4) may not be convicted of an offence
against subsection 474.17(1) or subsection (1) of this section in
relation to the conduct that constituted the aggravated offence.
(11)
Subsection (10) does not prevent an alternative verdict under
section 474.17B.
(12) A
person who has been convicted or acquitted of an offence (the underlying
offence ) against subsection 474.17(1) may not be convicted of an offence
against subsection (1) or (4) of this section in relation to the conduct
that constituted the underlying offence.
(b) one or more of those civil penalty orders are set aside or reversed
on appeal; and
(c) if the civil penalty orders covered by paragraph (b) had never
been made, the person could not have been convicted of the offence; and
(d) the person applies to the court for the conviction to be set aside;
the court must set aside the conviction.
(14) If:
(a) a person has been convicted by a court of an offence (the aggravated
offence ) against subsection (4); and
(b) the court sets aside the conviction under subsection (13);
the setting aside of the conviction does not prevent proceedings from being
instituted against the person for an offence against subsection 474.17(1)
or subsection (1) of this section in relation to the conduct that
constituted the aggravated offence.
(1) If, on a trial for an offence (the aggravated offence ) against
subsection 474.17A(1), the trier of fact:
(a) is not satisfied that the defendant is guilty of the aggravated
offence; but
(b) is satisfied beyond reasonable doubt that the defendant is guilty of
an offence against subsection 474.17(1);
it may find the defendant not
guilty of the aggravated offence but guilty of the offence against
subsection 474.17(1), so long as the defendant has been accorded
procedural fairness in relation to that finding of guilt.
(2) If, on a trial for an offence (the aggravated offence ) against
subsection 474.17A(4), the trier of fact:
(a) is not satisfied that the defendant is guilty of the aggravated
offence; but
(b) is satisfied beyond reasonable doubt that the defendant is guilty of
an offence against subsection 474.17(1) or subsection 474.17A(1);
it may find the defendant not guilty of the aggravated offence but guilty of
the offence against subsection 474.17(1) or subsection 474.17A(1),
so long as the defendant has been accorded procedural fairness in relation to
that finding of guilt.
(a) makes a call to an emergency service number; and
(b) does so with the intention of inducing a false belief that an
emergency exists.
Penalty: Imprisonment for 3 years.
(2) A person commits an offence if:
(a) the person makes a call to an emergency service number; and
(b) the person makes the call otherwise than for the purpose of
reporting an emergency; and
(c) the call is a vexatious one.
Penalty: Imprisonment for 3
years.
(3) In determining whether a call by a person to an emergency service
number is a vexatious one, have regard to:
(a) the content of the call; and
(b) the number, frequency and content of previous calls the person has
made to emergency service numbers otherwise than for the purpose of reporting
emergencies; and
(a) the person has possession or control of material; and
(b) the material is in the form of data held in a computer or contained
in a data storage device; and
(c) the person used a carriage service to obtain or access the material;
and
(d) the material is child abuse material.
Penalty: Imprisonment
for 15 years.
(2) Absolute liability applies to paragraph (1)(c).
Note: For absolute
liability, see section 6.2.
(3) If the prosecution proves beyond reasonable doubt the matters
mentioned in paragraphs (1)(a), (b) and (d), then it is presumed, unless
the person proves to the contrary, that the person:
(a) obtained or accessed the material; and
(b) used a carriage service to obtain or access the material.
Note: A defendant bears
a legal burden in relation to the matters in this subsection: see
section 13.4.
(c) the person has that possession or control, or engages in that
production, supply or obtaining, with the intention that the material be used:
(i) by that person; or
(ii) by another person;
in committing an offence against section 474.22 (using a carriage service
for child abuse material).
Penalty: Imprisonment for 15 years.
(2) A person may be found guilty of an offence against
subsection (1) even if committing the offence against section 474.22
(using a carriage service for child abuse material) is impossible.
(3) It is not an offence to attempt to commit an offence against
subsection (1).
(a) the person engages in any of the following conduct:
(i) creating, developing, altering or maintaining an electronic service;
(ii) controlling or moderating an electronic service;
(iii) making available, advertising or promoting an electronic service;
(iv) assisting in doing anything covered by a preceding subparagraph;
and
(b) the person does so with the intention that the electronic service be
used:
(i) by that person; or
(ii) by another person;
in committing, or facilitating the commission of, an offence against
section 474.22, 474.22A or 474.23.
Penalty: Imprisonment for 20
years.
(2) A person may be found guilty of an offence against
subsection (1) even if:
(a) committing the offence against section 474.22, 474.22A or
474.23 is impossible; or
(b) the electronic service is incapable of being used as mentioned in
paragraph (1)(b):
(i) at the time the person engages in the conduct mentioned in
paragraph (1)(a); or
(ii) at any other time.
(3) It is not an offence to attempt to commit an offence against
subsection (1).
(4) In this Code:
"electronic service" means a service a purpose of
which is to:
(a) allow persons to access material using a carriage service; or
(b) deliver material to persons having equipment appropriate for
receiving that material, where the delivery of the service is by means of a
carriage service;
(1) A person is not criminally responsible for an offence against
section 474.22, 474.22A, 474.23 or 474.23A because of engaging in
particular conduct if the conduct:
(a) is of public benefit; and
(b) does not extend beyond what is of public benefit.
In determining
whether the person is, under this subsection, not criminally responsible for
the offence, the question whether the conduct is of public benefit is a
question of fact and the person's motives in engaging in the conduct are
irrelevant.
Note: A
defendant bears an evidential burden in relation to the matter in this
subsection, see subsection 13.3(3).
(2) For the purposes of subsection (1), conduct is of public
benefit if, and only if, the conduct is necessary for or of assistance in:
(a) enforcing a law of the Commonwealth, a State or a Territory; or
(b) monitoring compliance with, or investigating a contravention of, a
law of the Commonwealth, a State or a Territory; or
(c) the administration of justice; or
(d) conducting scientific, medical or educational research that has been
approved by the AFP Minister in writing for the purposes of this section.
(3) A person is not criminally responsible for an offence against
section 474.22, 474.22A, 474.23 or 474.23A if:
(a) the person is, at the time of the offence, a law enforcement
officer, or an intelligence or security officer, acting in the course of his
or her duties; and
(b) the conduct of the person is reasonable in the circumstances for the
purpose of performing that duty.
Note: A defendant bears
an evidential burden in relation to the matter in this subsection, see
subsection 13.3(3).
(4) A person is not criminally responsible for an offence against
section 474.22, 474.22A, 474.23 or 474.23A if the person engages in the
conduct in good faith for the sole purpose of:
(1) A person commits an offence against this section if:
(a) the person commits an offence against one or more of the following
provisions on 3 or more separate occasions:
(iii) section 474.22 (using a carriage service for child abuse
material);
(iiia) section 474.22A (possessing or controlling child abuse
material obtained or accessed using a carriage service);
(iv) section 474.23 (possessing etc. child abuse material for use
through a carriage service); and
(b) the commission of each such offence involves 2 or more people.
Penalty: Imprisonment for 30 years.
(2) There is no fault element for any of the physical elements
described in paragraph (1)(a) other than the fault elements (however
described), if any, for the offence against section 474.22, 474.22A or
474.23 .
(3) To avoid doubt, a person does not commit an offence against
section 474.22, 474.22A or 474.23
for the purposes of paragraph (1)(a) if the person has a defence to that
offence.
Offence or conduct need not be the same
(4) For the purposes of subsection (1), it is immaterial whether
the offence, or the conduct constituting the offence, is the same on each
occasion.
Double jeopardy etc.
(5) A person who has been convicted or acquitted of an offence (the
aggravated offence ) against this section may not be convicted of an offence
against section 474.22, 474.22A or 474.23 in relation to the conduct
that constituted the aggravated offence.
(6) Subsection (5) does not prevent an alternative verdict under
section 474.24B.
(7) A person who has been convicted or acquitted of an offence (the
underlying offence ) against section 474.22, 474.22A or 474.23 may not
be convicted of an offence against this section in relation to the conduct
that constituted the underlying offence.
If, on a trial for an offence (the aggravated offence ) against
subsection 474.24A(1), the trier of fact:
(a) is not satisfied that the defendant is guilty of the aggravated
offence; but
(b) is satisfied beyond reasonable doubt that he or she is guilty of an
offence (the underlying offence ) against section 474.22, 474.22A or
474.23 ;
it may find the defendant not guilty of the aggravated offence but
guilty of the underlying offence,
so long as the defendant has been accorded procedural fairness in relation to
that finding of guilt.
(1) Proceedings for an offence against this Subdivision must not be
commenced without the consent of the Attorney-General if the defendant was
under 18 at the time he or she allegedly engaged in the conduct constituting
the offence.
(2) However, a person may be arrested for, charged with, or remanded in
custody or on bail in connection with, such an offence before the necessary
consent has been given.
(a) is an internet service provider or an internet content host; and
(b) is aware that the service provided by the person can be used to
access particular material that the person has reasonable grounds to believe
is child abuse material; and
(c) does not refer details of the material to the Australian Federal
Police within a reasonable time after becoming aware of the existence of the
material.
(1) A person commits an offence against this section if:
(a) the person commits an offence (the underlying offence ) against
either of the following provisions in relation to another person (the child ):
(i) subsection 474.25A(1) (engaging in sexual activity with child
using a carriage service);
(ii) subsection 474.25A(2) (causing child to engage in sexual
activity with another person); and
(b) one or more of the following apply:
(i) the child has a mental impairment at the time the person commits the
underlying offence;
(ii) the person is in a position of trust or authority in relation to
the child, or the child is otherwise under the care, supervision or authority
of the person, at the time the person commits the underlying offence;
(iii) the child is subjected to cruel, inhuman or degrading treatment in
connection with the sexual activity referred to in subsection 474.25A(1)
or (2);
(iv) the child dies as a result of physical harm suffered in connection
with the sexual activity referred to in subsection 474.25A(1) or (2).
Penalty: Imprisonment for 30 years.
(2) To avoid doubt, a person does not commit the offence against
subsection 474.25A(1) or (2) for the purposes of paragraph (1)(a)
if the person has a defence to that offence.
Alternative verdicts
(3) If, on a trial for an offence (the aggravated offence ) against
subsection (1), the trier of fact:
(a) is not satisfied that the defendant is guilty of the aggravated
offence; but
(b) is satisfied beyond reasonable doubt that he or she is guilty of an
offence (the underlying offence ) against subsection 474.25A(1) or (2);
it may find the defendant not guilty of the aggravated offence but guilty of
the underlying offence, so long as the defendant has been accorded procedural
fairness in relation to that finding of guilt.
(a) the sender uses a carriage service to transmit a communication to
another person (the recipient ); and
(c) the sender does this with the intention of making it easier to
procure the recipient to engage in sexual activity with the sender; and
(d) the recipient is someone who is, or who the sender believes to be,
under 16 years of age; and
(e) the sender is at least 18 years of age.
Penalty:
Imprisonment for 15 years.
(2) A person (the sender ) commits an offence if:
(a) the sender uses a carriage service to transmit a communication to
another person (the recipient ); and
(c) the sender does this with the intention of making it easier to
procure the recipient to engage in sexual activity with another person (the
participant ); and
(d) the recipient is someone who is, or who the sender believes to be,
under 16 years of age; and
(e) the participant is someone who is, or who the sender believes to be,
at least 18 years of age.
Penalty: Imprisonment for 15 years.
(3) A person (the sender ) commits an offence if:
(a) the sender uses a carriage service to transmit a communication to
another person (the recipient ); and
(c) the sender does this with the intention of making it easier to
procure the recipient to engage in sexual activity with another person; and
(d) the recipient is someone who is, or who the sender believes to be,
under 16 years of age; and
(e) the other person referred to in paragraph (c) is someone who
is, or who the sender believes to be, under 18 years of age; and
(f) the sender intends that the sexual activity referred to in
paragraph (c) will take place in the presence of:
(i) the sender; or
(ii) another person (the participant ) who is, or who the sender
believes to be, at least 18 years of age.
(a) the sender uses a carriage service to transmit a communication to
another person (the recipient ); and
(b) the sender does this with the intention of making it easier to
procure a person (the child ) to engage in sexual activity with the sender;
and
(c) the child is someone who is, or who the sender believes to be, under
16 years of age; and
(d) the sender is at least 18 years of age.
Penalty:
Imprisonment for 15 years.
(2) A person (the sender ) commits an offence if:
(a) the sender uses a carriage service to transmit a communication to
another person (the recipient ); and
(b) the sender does this with the intention of making it easier to
procure a person (the child ) to engage in sexual activity with another person
(the participant ); and
(c) the child is someone who is, or who the sender believes to be, under
16 years of age; and
(d) the participant is someone who is, or who the sender believes to be,
at least 18 years of age.
Penalty: Imprisonment for 15 years.
(3) A person (the sender ) commits an offence if:
(a) the sender uses a carriage service to transmit a communication to
another person (the recipient ); and
(b) the sender does this with the intention of making it easier to
procure a person (the child ) to engage in sexual activity with another
person; and
(c) the child is someone who is, or who the sender believes to be, under
16 years of age; and
(d) the other person referred to in paragraph (b) is someone who
is, or who the sender believes to be, under 18 years of age; and
(e) the sender intends that the sexual activity referred to in
paragraph (b) will take place in the presence of:
(i) the sender; or
(ii) another person (the participant ) who is, or who the sender
believes to be, at least 18 years of age.
Age-related issues--application of absolute
liability
(1) For the purposes of an offence against this Subdivision, absolute
liability applies to the physical element of circumstance of the offence that:
(a) in the case of an offence against section 474.25A or
474.27AA--the child is under 16 years of age; and
(b) in the case of an offence against section 474.26, 474.27 or
474.27A--the recipient is someone who is under 16 years of age.
Note
1: For absolute liability , see
section 6.2.
Note 2: For a defence
based on belief about age, see section 474.29.
(2) For the purposes of an offence against subsection 474.25A(2),
474.26(2) or (3), 474.27(2) or (3) or 474.27AA(2) or (3), absolute liability
applies to the physical elements of circumstance of the offence that the
participant is at least 18 years of age.
Note
1: For absolute liability , see
section 6.2.
Note 2: For a defence
based on belief about age, see section 474.29.
Proof of belief about
age--evidence of representation
(3) For the purposes of sections 474.26, 474.27, 474.27AA and
474.27A, evidence that a person was represented to the defendant as being
under, of, at least or over a particular age is, in the absence of evidence to
the contrary, proof that the defendant believed the person to be under, of, at
least or over that age (as the case requires).
Determining age--admissible
evidence
(5) In determining for the purposes of this Subdivision how old a person
is or was at a particular time, a jury or court may treat any of the following
as admissible evidence:
(a) the person's appearance;
(b) medical or other scientific opinion;
(c) a document that is or appears to be an official or medical record
from a country outside Australia;
(d) a document that is or appears to be a copy of such a record.
(6) Subsection (5) does not make any other kind of evidence
inadmissible, and does not affect a prosecutor's duty to do all he or she can
to adduce the best possible evidence for determining the question.
(7) If, on a trial for an offence against a provision of this
Subdivision, evidence may be treated as admissible because of
subsection (5), the court must warn the jury that it must be satisfied
beyond reasonable doubt in determining the question.
Issues relating to
aggravated offence involving sexual activity
(7A) For the
purposes of an offence against subsection 474.25B(1):
(a) there is no fault element for the physical element described in
paragraph (a) of that subsection other than the fault elements (however
described), if any, for the underlying offence; and
(b) absolute liability applies to the physical element of circumstance
of the offence that the child has a mental impairment; and
(c) strict liability applies to the physical element of circumstance of
the offence that the defendant is in a position of trust or authority in
relation to the child, or the child is otherwise under the care, supervision
or authority of the defendant.
Note 1:
For absolute liability, see section 6.2.
Note
2: For strict liability, see
section 6.1.
Note 3: For a defence
based on belief that the child did not have a mental impairment, see
section 474.29.
Impossibility of sexual activity taking place
(8) A person may be found guilty of an offence against
section 474.26, 474.27 or 474.27AA even if it is impossible for the
sexual activity referred to in that section to take place.
Fictitious
persons
(9) For the purposes of sections 474.26, 474.27, 474.27AA and
474.27A, it does not matter that the recipient to whom the sender believes the
sender is transmitting the communication is a fictitious person represented to
the sender as a real person.
(9A) For the
purposes of an offence against section 474.27AA, it does not matter that
the child is a fictitious person represented to the sender as a real person.
Attempt not offence
(10) It is
not an offence to attempt to commit an offence against section 474.26,
474.27 or 474.27AA.
Offences involving sexual activity--belief that child at least 16
years of age
(1) It is a defence to a prosecution for an offence against
section 474.25A if the defendant proves that, at the time the sexual
activity was engaged in, he or she believed that the child was at least 16
years of age.
Note: A
defendant bears a legal burden in relation to the matter in this subsection,
see section 13.4.
Offences involving sexual activity with other
participant--belief that participant under 18 years of age
(2) It is a defence to a prosecution for an offence against
subsection 474.25A(2) if the defendant proves that, at the time the
sexual activity was engaged in, he or she believed that the participant was
under 18 years of age.
Note: A defendant bears
a legal burden in relation to the matter in this subsection, see
section 13.4.
Aggravated offence involving sexual activity--belief that
child did not have mental impairment
(3) It is a defence to a prosecution for an offence against
subsection 474.25B(1) (as that subsection applies because of
subparagraph 474.25B(1)(b)(i)) if the defendant proves that, at the time
the defendant committed the offence, he or she believed that the child did not
have a mental impairment.
Note: A defendant bears
a legal burden in relation to the matter in this subsection, see
section 13.4.
Procuring and "grooming" offences involving child
engaging in sexual activity with other participant--belief that participant
under 18 years of age
(4) It is a defence to a prosecution for an offence against
subsection 474.26(2) or (3), 474.27(2) or (3) or 474.27AA(2) or (3) if
the defendant proves that, at the time the communication was transmitted, he
or she believed that the participant was under 18 years of age.
Note: A defendant bears
a legal burden in relation to the matter in this subsection, see
section 13.4.
Offences involving transmission of communication--belief
that certain persons at least 16 years of age
(5) It is a defence to a prosecution for an offence against
section 474.26, 474.27 or 474.27A if the defendant proves that, at the
time the communication was transmitted, he or she believed that the recipient
was at least 16 years of age.
Note: A defendant bears
a legal burden in relation to the matter in this subsection, see
section 13.4.
(5A) It is a defence to a prosecution for an offence against
section 474.27AA if the defendant proves that, at the time the
communication was transmitted, the defendant believed that the child was at
least 16 years of age.
Note: A defendant bears
a legal burden in relation to the matter in this subsection, see
section 13.4.
Trier of fact may take into account whether belief
reasonable
(6) In determining whether the defendant had the belief mentioned in one
of the preceding subsections of this section, the trier of fact may take into
account whether the alleged belief was reasonable in the circumstances.
(1) In determining the sentence to be passed, or the order to be made,
in respect of a person for an offence against this Subdivision, the court must
take into account the following matters:
(a) the age and maturity of the person in relation to whom the offence
was committed;
(b) if that person was under 10 when the offence was committed--that
fact as a reason for aggravating the seriousness of the criminal behaviour to
which the offence relates;
(c) the number of people involved in the commission of the offence.
(2) However, the court need only take into account a matter mentioned in
subsection (1) so far as the matter is known to the court and, for a
matter mentioned in paragraph (1)(a) or (c), relevant.
(3) The matters mentioned in subsection (1) are in addition to any
other matters the court must take into account (for example, the matters
mentioned in section 16A of the Crimes Act 1914).
(i) uses a carriage service to access material; or
(ii) uses a carriage service to cause material to be transmitted to the
person; or
(iii) uses a carriage service to transmit material; or
(iv) uses a carriage service to make material available; or
(v) uses a carriage service to publish or otherwise distribute material;
and
(b) the material directly or indirectly counsels or incites committing
or attempting to commit suicide; and
(c) the person:
(i) intends to use the material to counsel or incite committing or
attempting to commit suicide; or
(ii) intends that the material be used by another person to counsel or
incite committing or attempting to commit suicide.
Penalty: 1,000
penalty units.
(2) A person commits an offence if:
(a) the person:
(i) uses a carriage service to access material; or
(ii) uses a carriage service to cause material to be transmitted to the
person; or
(iii) uses a carriage service to transmit material; or
(iv) uses a carriage service to make material available; or
(v) uses a carriage service to publish or otherwise distribute material;
and
(b) the material directly or indirectly:
(i) promotes a particular method of committing suicide; or
(ii) provides instruction on a particular method of committing suicide;
and
(c) the person:
(i) intends to use the material to promote that method of committing
suicide or provide instruction on that method of committing suicide; or
(ii) intends that the material be used by another person to promote that
method of committing suicide or provide instruction on that method of
committing suicide; or
(iii) intends the material to be used by another person to commit
suicide.
Penalty: 1,000 penalty units.
(3) To avoid doubt, a person does not commit an offence against
subsection (1) merely because the person uses a carriage service to:
(a) engage in public discussion or debate about euthanasia or suicide;
or
(b) advocate reform of the law relating to euthanasia or suicide;
if
the person does not:
(c) intend to use the material concerned to counsel or incite committing
or attempting to commit suicide; or
(d) intend that the material concerned be used by another person to
counsel or incite committing or attempting to commit suicide.
(4) To avoid doubt, a person does not commit an offence against
subsection (2) merely because the person uses a carriage service to:
(a) engage in public discussion or debate about euthanasia or suicide;
or
(b) advocate reform of the law relating to euthanasia or suicide;
if
the person does not:
(c) intend to use the material concerned to promote a method of
committing suicide or provide instruction on a method of committing suicide;
or
(d) intend that the material concerned be used by another person to
promote a method of committing suicide or provide instruction on a method of
committing suicide; or
(e) intend the material concerned to be used by another person to commit
suicide.
(i) counsels or incites committing or attempting to commit suicide; or
(ii) promotes a particular method of committing suicide; or
(iii) provides instruction on a particular method of committing suicide;
and
(c) the person has that possession or control, or engages in that
production, supply or obtaining, with the intention that the material be used:
(i) by that person; or
(ii) by another person;
in committing an offence against section 474.29A (using a carriage
service for suicide related material).
Penalty: 1,000 penalty units.
(2) A person may be found guilty of an offence against
subsection (1) even if committing the offence against
section 474.29A (using a carriage service for suicide related material)
is impossible.
(3) It is not an offence to attempt to commit an offence against
subsection (1).
"hosting service" has the same meaning
as in the Enhancing Online Safety Act 2015. For this purpose, disregard
subparagraphs 9C(a)(ii) and (b)(ii) of that Act.
(1) For the purposes of this Subdivision, a person engages in abhorrent
violent conduct if the person:
(a) engages in a terrorist act; or
(b) murders another person; or
(c) attempts to murder another person; or
(d) tortures another person; or
(e) rapes another person; or
(f) kidnaps another person.
Murder
(2) For the purposes of this section, a person (the first person )
murders another person if:
(a) the first person's conduct causes the death of the other person; and
(b) the conduct constitutes an offence.
Torture
(3) For the purposes of this section, a person (the first person )
tortures another person if:
(a) the first person inflicts severe physical or mental pain or
suffering upon the other person; and
(b) the other person is in the custody, or under the control, of the
first person; and
(c) the pain or suffering does not arise only from, and is not inherent
in or incidental to, lawful sanctions that are not inconsistent with the
Articles of the International Covenant on Civil and Political Rights (a copy
of the English text of which is set out in Schedule 2 to the
Australian Human Rights Commission Act 1986 ).
Rape
(4) For the purposes of this section, a person (the first person ) rapes
another person if:
(a) the first person sexually penetrates the other person without the
consent of the other person; or
(b) the first person causes the other person to sexually penetrate the
first person without the consent of the other person.
Kidnapping
(5) For the purposes of this section, a person (the first person )
kidnaps another person if:
(a) the first person takes or detains the other person without the other
person's consent; and
(b) the first person takes or detains the other person in order to:
(i) hold the other person to ransom or as a hostage; or
(ii) murder, torture or rape the other person or a third person; or
(iii) cause serious harm to the other person or a third person; and
(c) the taking or detention of the other person involves violence or a
threat of violence.
Interpretation
(6) In this section:
"sexually penetrate" means:
(a) penetrate (to any extent) the genitalia or anus of a person by any
part of the body of another person or by any object manipulated by that other
person; or
(b) penetrate (to any extent) the mouth of a person by the penis of
another person; or
(c) continue to sexually penetrate as defined in paragraph (a) or
(b).
"terrorist act" has the same meaning as in section 100.1. For
this purpose, disregard paragraphs 100.1(2)(b), (d), (e) and (f).
(7) For the purposes of this section, the genitalia or other parts of
the body of a person include surgically constructed genitalia or other parts
of the body of the person.
(b) the person is aware that the service provided by the person can be
used to access particular material that the person has reasonable grounds to
believe is abhorrent violent material that records or streams abhorrent
violent conduct that has occurred, or is occurring, in Australia; and
(c) the person does not refer details of the material to the Australian
Federal Police within a reasonable time after becoming aware of the existence
of the material.
Penalty: 800 penalty units.
(2) For the purposes of this section:
(a) it is immaterial whether the content service is provided within or
outside Australia; and
(b) it is immaterial whether the hosting service is provided within or
outside Australia.
(3) Subsection (1) does not apply if the person reasonably believes
that details of the material are already known to the Australian Federal
Police.
Note: A
defendant bears an evidential burden in relation to the matters in this
subsection: see subsection 13.3(3).
(b) the content service can be used to access material; and
(c) the material is abhorrent violent material; and
(d) the person does not ensure the expeditious removal of the material
from the content service.
(2) For the purposes of subsection (1), it is immaterial whether
the content service is provided within or outside Australia.
(3) Subsection (1) does not apply to material unless the material
is reasonably capable of being accessed within Australia.
(4) The fault element for paragraphs (1)(b) and (c) is
recklessness.
Hosting service
(5) A person commits an offence if:
(a) the person provides a hosting service; and
(b) material is hosted on the hosting service; and
(c) the material is abhorrent violent material; and
(d) the person does not expeditiously cease hosting the material.
(6) For the purposes of subsection (5), it is immaterial whether
the hosting service is provided within or outside Australia.
(7) Subsection (5) does not apply to material unless the material
is reasonably capable of being accessed within Australia.
(8) The fault element for paragraphs (5)(b) and (c) is
recklessness.
Penalty for individual
(9) An offence against subsection (1) or (5) committed by an
individual is punishable on conviction by imprisonment for a period of not
more than 3 years or a fine of not more than 10,000 penalty units, or both.
Penalty for body corporate
(10) An
offence against subsection (1) or (5) committed by a body corporate is
punishable on conviction by a fine of not more than the greater of the
following:
(a) 50,000 penalty units;
(b) 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.
(11) 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;
(14) 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.
When material is removed from a
content service
(15) For the purposes of this section, material is removed from a
content service if the material is not accessible to any of the end-users
using the service.
(1) The eSafety Commissioner may issue a written notice stating that, at
the time the notice was issued:
(a) a specified content service could be used to access specified
material; and
(b) the specified material was abhorrent violent material.
(2) The eSafety Commissioner must not issue a notice under
subsection (1) unless the eSafety Commissioner is satisfied on reasonable
grounds that, at the time the notice was issued:
(a) the specified content service could be used to access the specified
material; and
(b) the specified material was abhorrent violent material.
(3) As soon as practicable after issuing a notice under
subsection (1), the eSafety Commissioner must give a copy of the notice
to the person who provides the content service concerned.
(4) The eSafety Commissioner is not required to observe any requirements
of procedural fairness in relation to the issue of a notice under
subsection (1).
Presumptions
(5) If:
(a) a notice under subsection (1) is issued in relation to a
content service provided by a person; and
(b) in a prosecution of the person for an offence against
subsection 474.34(1), it is proven that the content service could be used
to access the material specified in the notice at the time the notice was
issued;
then, in that prosecution, it must be presumed that the person was
reckless as to whether the content service could be used to access the
specified material at the time the notice was issued, unless the person
adduces or points to evidence that suggests a reasonable possibility that the
person was not reckless as to whether the content service could be used to
access the specified material at the time the notice was issued.
(6) If a notice under subsection (1) is issued in relation to a
content service provided by a person, then, in a prosecution of the person for
an offence against subsection 474.34(1), it must be presumed that, at the
time the notice was issued, the person was reckless as to whether the material
specified in the notice was abhorrent violent material, unless the person
adduces or points to evidence that suggests a reasonable possibility that, at
the time the notice was issued, the person was not reckless as to whether the
specified material was abhorrent violent material.
Other evidentiary matters
(7) A document purporting to be a notice issued under
subsection (1) must, unless the contrary is established, be taken to be
such a notice and to have been properly issued.
(8) The eSafety Commissioner may certify that a document is a copy of a
notice issued under subsection (1).
(9) Subsections (5), (6) and (7) apply to the certified copy as if
it were the original.
Application
(10) This
section extends to matters and things outside Australia.
(1) The eSafety Commissioner may issue a written notice stating that, at
the time the notice was issued:
(a) specified material was hosted on a specified hosting service; and
(b) the specified material was abhorrent violent material.
(2) The eSafety Commissioner must not issue a notice under
subsection (1) unless the eSafety Commissioner is satisfied on reasonable
grounds that, at the time the notice was issued:
(a) the specified material was hosted on the specified hosting service;
and
(b) the specified material was abhorrent violent material.
(3) As soon as practicable after issuing a notice under
subsection (1), the eSafety Commissioner must give a copy of the notice
to the person who provides the hosting service concerned.
(4) The eSafety Commissioner is not required to observe any requirements
of procedural fairness in relation to the issue of a notice under
subsection (1).
Presumptions
(5) If:
(a) a notice under subsection (1) is issued in relation to a
hosting service provided by a person; and
(b) in a prosecution of the person for an offence against
subsection 474.34(5), it is proven that the material specified in the
notice was hosted on the hosting service at the time the notice was issued;
then, in that prosecution, it must be presumed that the person was reckless as
to whether the specified material was hosted on the hosting service at the
time the notice was issued, unless the person adduces or points to evidence
that suggests a reasonable possibility that the person was not reckless as to
whether specified material was hosted on the hosting service at the time the
notice was issued.
(6) If a notice under subsection (1) is issued in relation to a
hosting service provided by a person, then, in a prosecution of the person for
an offence against subsection 474.34(5), it must be presumed that, at the
time the notice was issued, the person was reckless as to whether the material
specified in the notice was abhorrent violent material, unless the person
adduces or points to evidence that suggests a reasonable possibility that, at
the time the notice was issued, the person was not reckless as to whether the
specified material was abhorrent violent material.
Other evidentiary matters
(7) A document purporting to be a notice issued under
subsection (1) must, unless the contrary is established, be taken to be
such a notice and to have been properly issued.
(8) The eSafety Commissioner may certify that a document is a copy of a
notice issued under subsection (1).
(9) Subsections (5), (6) and (7) apply to the certified copy as if
it were the original.
Application
(10) This
section extends to matters and things outside Australia.
(1) Subsection 474.34(1) does not apply to material that can be
accessed using a service if:
(a) the accessibility of the material is necessary for enforcing a law
of:
(i) the Commonwealth; or
(ii) a State; or
(iii) a Territory; or
(iv) a foreign country; or
(v) a part of a foreign country; or
(b) the accessibility of the material is necessary for monitoring
compliance with, or investigating a contravention of, a law of:
(i) the Commonwealth; or
(ii) a State; or
(iii) a Territory; or
(iv) a foreign country; or
(v) a part of a foreign country; or
(c) the accessibility of the material is for the purposes of proceedings
in a court or tribunal; or
(d) both:
(i) the accessibility of the material is necessary for, or of assistance
in, conducting scientific, medical, academic or historical research; and
(ii) the accessibility of the material is reasonable in the
circumstances for the purpose of conducting that scientific, medical, academic
or historical research; or
(e) the material relates to a news report, or a current affairs report,
that:
(i) is in the public interest; and
(ii) is made by a person working in a professional capacity as a
journalist; or
(f) both:
(i) the accessibility of the material is in connection with the
performance by a public official of the official's duties or functions; and
(ii) the accessibility of the material is reasonable in the
circumstances for the purpose of performing that duty or function; or
(g) both:
(i) the accessibility of the material is in connection with an
individual assisting a public official in relation to the performance of the
public official's duties or functions; and
(ii) the accessibility of the material is reasonable in the
circumstances for the purpose of the individual assisting the public official
in relation to the performance of the public official's duties or functions;
or
(h) the accessibility of the material is for the purpose of advocating
the lawful procurement of a change to any matter established by law, policy or
practice in:
(i) the Commonwealth; or
(ii) a State; or
(iii) a Territory; or
(iv) a foreign country; or
(v) a part of a foreign country;
and the accessibility of the material is reasonable in the circumstances for
that purpose; or
(i) the accessibility of the material relates to the development,
performance, exhibition or distribution, in good faith, of an artistic work.
Note: A defendant bears
an evidential burden in relation to the matters in this subsection (see
subsection 13.3(3)).
Hosting service
(2) Subsection 474.34(5) does not apply to material that is hosted
on a hosting service if:
(a) the hosting of the material is necessary for enforcing a law of:
(i) the Commonwealth; or
(ii) a State; or
(iii) a Territory; or
(iv) a foreign country; or
(v) a part of a foreign country; or
(b) the hosting of the material is necessary for monitoring compliance
with, or investigating a contravention of, a law of:
(i) the Commonwealth; or
(ii) a State; or
(iii) a Territory; or
(iv) a foreign country; or
(v) a part of a foreign country; or
(c) the hosting of the material is for the purposes of proceedings in a
court or tribunal; or
(d) both:
(i) the hosting of the material is necessary for, or of assistance in,
conducting scientific, medical, academic or historical research; and
(ii) the hosting of the material is reasonable in the circumstances for
the purpose of conducting that scientific, medical, academic or historical
research; or
(e) the material relates to a news report, or a current affairs report,
that:
(i) is in the public interest; and
(ii) is made by a person working in a professional capacity as a
journalist; or
(f) both:
(i) the hosting of the material is in connection with the performance by
a public official of the official's duties or functions; and
(ii) the hosting of the material is reasonable in the circumstances for
the purpose of performing that duty or function; or
(g) both:
(i) the hosting of the material is in connection with an individual
assisting a public official in relation to the performance of the public
official's duties or functions; and
(ii) the hosting of the material is reasonable in the circumstances for
the purpose of the individual assisting the public official in relation to the
performance of the public official's duties or functions; or
(h) the hosting of the material is for the purpose of advocating the
lawful procurement of a change to any matter established by law, policy or
practice in:
(i) the Commonwealth; or
(ii) a State; or
(iii) a Territory; or
(iv) a foreign country; or
(v) a part of a foreign country;
and the hosting of the material is reasonable in the circumstances for that
purpose; or
(i) the hosting of the material relates to the development, performance,
exhibition or distribution, in good faith, of an artistic work.
Note: A defendant bears
an evidential burden in relation to the matters in this subsection (see
subsection 13.3(3)).
Functions
(3) The references in this section to function or functions do not, by
implication, affect the meaning of the expressions duty or duties when used in
any other provision of this Code.
Application
(4) This section extends to matters and things outside Australia.
(1) This Subdivision does not apply to the extent (if any) that it would
infringe any constitutional doctrine of implied freedom of political
communication.
(1) For the purposes of this Subdivision, a person does not provide a
content service merely because the person supplies a carriage service that
enables material to be accessed.
(2) For the purposes of this Subdivision, a person does not provide a
content service merely because the person provides a billing service, or a fee
collection service, in relation to a content service.
Paragraphs 9(1)(d) and (2)(d) of the Electronic Transactions Act 1999do not
apply to a copy of a notice under subsection 474.35(1) or 474.36(1) of
this Act.
Note:
Paragraphs 9(1)(d) and (2)(d) of the Electronic Transactions Act 1999deal
with the consent of the recipient of information to the information being
given by way of electronic communication.
(a) a copy of a notice under subsection 474.35(1) is required to be
given to the provider of a content service that is a social media service
(within the meaning of the Enhancing Online Safety Act 2015); and
(b) there is an individual who is:
(i) an employee or agent of the provider; and
(ii) designated as the service's contact person for the purposes of that
Act; and
(c) the contact details of the contact person have been notified to the
eSafety Commissioner;
the copy of the notice is taken to have been given to
the provider if it is given to the contact person.
Agent
(2) If:
(a) a copy of a notice under subsection 474.35(1) or 474.36(1) is
required to be given to a body corporate incorporated outside Australia; and
(b) the body corporate does not have a registered office or a principal
office in Australia; and
(c) the body corporate has an agent in Australia;
the copy of the
notice is taken to have been given to the body corporate if it is given to the
agent.
(1) Proceedings for an offence against section 474.33 must not be
commenced without the Attorney-General's written consent if:
(a) the conduct constituting the alleged offence occurs wholly in a
foreign country; and
(b) 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 against
section 474.33 before the necessary consent has been given.
Offence
against section 474.34
(3) Proceedings for an offence against section 474.34 must not be
commenced without the Attorney-General's written consent.
(4) However, a person may be arrested for, charged with, or remanded in
custody or released on bail in connection with, an offence against
section 474.34 before the necessary consent has been given.
(1) If the operation of this Subdivision would result in an acquisition
of property (within the meaning of paragraph 51(xxxi) of the
Constitution) from a person otherwise than on just terms (within the meaning
of that paragraph), the Commonwealth is liable to pay a reasonable amount of
compensation to the person.
(2) If the Commonwealth and the person do not agree on the amount of the
compensation, the person may institute proceedings in:
(a) the Federal Court of Australia; or
(b) the Supreme Court of a State or Territory;
for the recovery from
the Commonwealth of such reasonable amount of compensation as the court
determines.
(1) After the end of the 2-year period beginning at the commencement of
this section, the Minister must cause to be conducted a review of the
operation of this Subdivision.
Report
(2) A report of the review must be given to the Minister within 12
months after the end of the 2-year period mentioned in subsection (1).
(3) The Minister must cause copies of a report under subsection (2)
to be tabled in each House of the Parliament within 15 sitting days of that
House after the Minister receives the report.
(1) A person (the offender ) commits an offence if:
(a) the offender transmits, makes available, publishes or otherwise
distributes material; and
(b) the offender does so using a carriage service; and
(c) the offender does so with the intention of inciting another person
to trespass on agricultural land; and
(d) the offender is reckless as to whether:
(i) the trespass of the other person on the agricultural land; or
(ii) any conduct engaged in by the other person while trespassing on the
agricultural land;
could cause detriment to a primary production business that is being carried
on on the agricultural land.
Penalty: Imprisonment for 12 months.
(2) Subsection (1) does not apply to material if the material
relates to a news report, or a current affairs report, that:
(a) is in the public interest; and
(b) is made by a person working in a professional capacity as a
journalist.
(2A) In a prosecution for an offence against subsection (1), the
defendant does not bear an evidential burden in relation to the matters in
subsection (2), despite subsection 13.3(3).
(3) Subsection (1) does not apply to conduct engaged in by a person
if, as a result of the operation of a law of the Commonwealth, a State or a
Territory, the person is not subject to any civil or criminal liability for
the conduct.
Note 1: The
Public Interest Disclosure Act 2013provides that an individual is not subject
to any civil or criminal liability for making a public interest disclosure.
Note 2: Section 1317AB of the
Corporations Act 2001provides that a person who makes a disclosure that
qualifies for protection under Part 9.4AAA of that Act is not subject to
any civil or criminal liability for making the disclosure.
Note
3: A defendant bears an evidential burden
in relation to the matters in this subsection (see
subsection 13.3(3)).
(4) Subsection (3) does not limit section 10.5 (lawful
authority).
(1) A person (the offender ) commits an offence if:
(a) the offender transmits, makes available, publishes or otherwise
distributes material; and
(b) the offender does so using a carriage service; and
(c) the offender does so with the intention of inciting another person
to:
(i) unlawfully damage property on agricultural land; or
(ii) unlawfully destroy property on agricultural land; or
(iii) commit theft of property on agricultural land.
Penalty:
Imprisonment for 5 years.
(2) Subsection (1) does not apply to material if the material
relates to a news report, or a current affairs report, that:
(a) is in the public interest; and
(b) is made by a person working in a professional capacity as a
journalist.
(2A) In a prosecution for an offence against subsection (1), the
defendant does not bear an evidential burden in relation to the matters in
subsection (2), despite subsection 13.3(3).
(3) Subsection (1) does not apply to conduct engaged in by a person
if, as a result of the operation of a law of the Commonwealth, a State or a
Territory, the person is not subject to any civil or criminal liability for
the conduct.
Note 1: The
Public Interest Disclosure Act 2013provides that an individual is not subject
to any civil or criminal liability for making a public interest disclosure.
Note 2: Section 1317AB of the
Corporations Act 2001provides that a person who makes a disclosure that
qualifies for protection under Part 9.4AAA of that Act is not subject to
any civil or criminal liability for making the disclosure.
Note
3: A defendant bears an evidential burden
in relation to the matters in this subsection (see
subsection 13.3(3)).
(4) Subsection (3) does not limit section 10.5 (lawful
authority).
When a person commits theft
(5) For the purposes of this section, a person commits theft of property
if:
(a) the property belongs to another person; and
(b) the person dishonestly appropriates the property with the intention
of permanently depriving the other person of the property.
(6) An expression used in subsection (5) and in Chapter 7 has
the same meaning in that subsection as it has in that Chapter.
(7) In a prosecution for an offence against this section, the
determination of dishonesty is a matter for the trier of fact.
(8) Sections 131.2 to 131.11 apply (with appropriate modifications)
in determining whether a person commits theft of property (within the meaning
of this section).
(1) This Subdivision does not apply to the extent (if any) that it would
infringe any constitutional doctrine of implied freedom of political
communication.
(1) A person is not criminally responsible for an offence against a
provision of Subdivision C, D, E, F, G or J of Division 474 in relation
to particular conduct if the person:
(a) is an employee of an NRS provider; and
(b) engages in the conduct in good faith in the course of the person's
duties as such an employee.
(2) A person is not criminally responsible for an offence against a
provision of Subdivision C, D, E, F, G or J of Division 474 in relation
to particular conduct if the person:
(a) is an emergency call person; and
(b) engages in the conduct in good faith in the course of the person's
duties as such an emergency call person.
Presumption that conduct engaged in using carriage service
(1)
If:
(a) a physical element of an offence against Subdivision C, D, E
, F or J
of Division 474 consists of a person using a carriage service to engage
in particular conduct; and
(b) the prosecution proves beyond reasonable doubt that the person
engaged in that particular conduct;
then it is presumed, unless the person
proves to the contrary, that the person used a carriage service to engage in
that conduct.
Note: A
defendant bears a legal burden in relation to the matter in this subsection,
see section 13.4.
Absolute liability applies to physical element of
offence that carriage service was used
(2)
If:
(a) a physical element of an offence against Subdivision C, D, E
, F or J
of Division 474 consists of a person using a carriage service to engage
in particular conduct; and
(b) the prosecution proves beyond reasonable doubt that the person
intended to engage in that particular conduct;
then absolute liability
applies to the physical element of the offence that a carriage service was
used to engage in that particular conduct.
(1) This Part is not intended to exclude or limit the operation of
any other law of the Commonwealth or any law of a State or Territory.
(2) Without limiting subsection (1), a provision in this Part to
the effect that a person is not criminally responsible for an offence against
a provision of this Part in relation to particular conduct does not make
the conduct lawful if it would otherwise be unlawful under the
Radiocommunications Act 1992.
(1) Section 15.1 (extended geographical jurisdiction--category A)
applies to each offence against this Part (other than Subdivision H of
Division 474).
(2) Section 14.1 (standard geographical jurisdiction) does not
apply to an offence against Subdivision H of Division 474.
(a) the display of the data by the computer or any other output of the
data from the computer; or
(b) the copying or moving of the data to any other place in the computer
or to a data storage device; or
(c) in the case of a program--the execution of the program.
"Defence
Department" means the Department of State that deals with defence and that is
administered by the Minister administering section 1 of the
Defence Act 1903.
"electronic communication" means a communication of
information in any form by means of guided or unguided electromagnetic energy.
"impairment of electronic communication to or from a computer" includes:
(a) the prevention of any such communication; or
(b) the impairment of any such communication on an electronic link or
network used by the computer;
but does not include a mere interception of
any such communication.
"modification" , in respect of data held in a
computer, means:
(a) the alteration or removal of the data; or
(b) an addition to the data.
"unauthorised access, modification or
impairment" has the meaning given in section 476.2.
(2) In this Part, a reference to:
(a) access to data held in a computer; or
(b) modification of data held in a computer; or
(c) the impairment of electronic communication to or from a computer;
is limited to such access, modification or impairment caused, whether directly
or indirectly, by the execution of a function of a computer.
(c) the impairment of electronic communication to or from a computer; or
(d) the impairment of the reliability, security or operation of any data
held on a computer disk, credit card or other device used to store data by
electronic means;
by a person is unauthorised if the person is not entitled
to cause that access, modification or impairment.
(2) Any such access, modification or impairment caused by the person is
not unauthorised merely because he or she has an ulterior purpose for causing
it.
(3) For the purposes of an offence under this Part, a person causes any
such unauthorised access, modification or impairment if the person's conduct
substantially contributes to it.
(4) For the purposes of subsection (1), if:
(a) a person causes any access, modification or impairment of a kind
mentioned in that subsection; and
(b) the person does so:
(i) under a warrant issued under the law of the Commonwealth, a State or
a Territory; or
(ii) under an emergency authorisation given to the person under
Part 3 of the Surveillance Devices Act 2004or under a law of a State or
Territory that makes provision to similar effect; or
(iii) under a tracking device authorisation given to the person under
section 39 of that Act; or
(iv) in accordance with a technical assistance request; or
(v) in compliance with a technical assistance notice; or
(vi) in compliance with a technical capability notice;
the person is
entitled to cause that access, modification or impairment.
(1) A staff member or agent of ASIS, AGO or ASD (the agency ) is not
subject to any civil or criminal liability for any computer-related act done
outside Australia if the act is done in the proper performance of a function
of the agency.
(2) A person is not subject to any civil or criminal liability for any
act done inside Australia if:
(a) the act is preparatory to, in support of, or otherwise directly
connected with, overseas activities of the agency concerned; and
(b) the act:
(i) taken together with a computer-related act, event, circumstance or
result that took place, or was intended to take place, outside Australia,
could amount to an offence; but
(ii) in the absence of that computer-related act, event, circumstance or
result, would not amount to an offence; and
(c) the act is done in the proper performance of a function of the
agency.
(2A)
Subsection (2) is not intended to permit any act in relation to premises,
persons, computers, things, or carriage services in Australia, being:
(2AA) Subsections (1) and (2)
have effect despite anything in a law of the Commonwealth or of a State or
Territory, whether passed or made before or after the commencement of this
subsection, unless the law expressly provides otherwise.
(2AB) Subsection (2AA) does
not affect the operation of subsection (2A).
(2B) The
Inspector-General of Intelligence and Security may give a certificate in
writing certifying any fact relevant to the question of whether an act was
done in the proper performance of a function of an agency.
(2C) In any
proceedings, a certificate given under subsection (2B) is prima facie
evidence of the facts certified.
(3) In this section:
"AGO" means that part of the Defence Department
known as the Australian Geospatial-Intelligence Organisation.
"ASD" means
the Australian Signals Directorate.
"ASIS" means the Australian Secret
Intelligence Service.
"civil or criminal liability" means any civil or
criminal liability (whether under this Part, under another law or otherwise).
"computer-related act, event, circumstance or result" means an act, event,
circumstance or result involving:
(a) the reliability, security or operation of a computer; or
(b) access to, or modification of, data held in a computer or on a data
storage device; or
(c) electronic communication to or from a computer; or
(d) the reliability, security or operation of any data held in or on a
computer, computer disk, credit card, or other data storage device; or
(e) possession or control of data held in a computer or on a data
storage device; or
(f) producing, supplying or obtaining data held in a computer or on a
data storage device.
"staff member" means:
(a) in relation to ASIS--the Director-General of ASIS or a member of the
staff of ASIS (whether an employee of ASIS, a consultant or contractor to
ASIS, or a person who is made available by another Commonwealth or State
authority or other person to perform services for ASIS); and
(b) in relation to ASD--the Director-General of ASD or a member of the
staff of ASD (whether an employee of ASD, a consultant or contractor to ASD,
or a person who is made available by another Commonwealth or State authority
or other person to perform services for ASD); and
(c) in relation to AGO--the Director of AGO or a member of the staff of
AGO (whether an employee of AGO, a consultant or contractor to AGO, or a
person who is made available by another Commonwealth or State authority or
other person to perform services for AGO).
Intention to commit a
serious Commonwealth, State or Territory offence
(1) A person commits an offence if:
(a) the person causes:
(i) any unauthorised access to data held in a computer; or
(ii) any unauthorised modification of data held in a computer; or
(iii) any unauthorised impairment of electronic communication to or from
a computer; and
(c) the person knows the access, modification or impairment is
unauthorised; and
(d) the person intends to commit, or facilitate the commission of, a
serious offence against a law of the Commonwealth, a State or a Territory
(whether by that person or another person) by the access, modification or
impairment.
(3) In a prosecution for an offence against subsection (1), it is
not necessary to prove that the defendant knew that the offence was:
(a) an offence against a law of the Commonwealth, a State or a
Territory; or
(b) a serious offence.
Penalty
(6) A person who commits an offence against this section is punishable,
on conviction, by a penalty not exceeding the penalty applicable to the
serious offence.
Impossibility
(7) A person may be found guilty of an offence against this section even
if committing the serious offence is impossible.
No offence of attempt
(8) It is not an offence to attempt to commit an offence against this
section.
Meaning of serious offence
(9) In this section:
"serious offence" means an offence that is
punishable by imprisonment for life or a period of 5 or more years.
(a) the person causes any unauthorised modification of data held in a
computer; and
(b) the person knows the modification is unauthorised; and
(c) the person is reckless as to whether the modification impairs or
will impair:
(i) access to that or any other data held in any computer; or
(ii) the reliability, security or operation, of any such data.
Penalty: 10 years imprisonment.
(3) A person may be guilty of an offence against this section even if
there is or will be no actual impairment to:
(a) access to data held in a computer; or
(b) the reliability, security or operation, of any such data.
(4) A conviction for an offence against this section is an alternative
verdict to a charge for an offence against section 477.3 (unauthorised
impairment of electronic communication).
(a) the person causes any unauthorised impairment of electronic
communication to or from a computer; and
(b) the person knows that the impairment is unauthorised.
Penalty: 10 years imprisonment.
(3) A conviction for an offence against this section is an alternative
verdict to a charge for an offence against section 477.2 (unauthorised
modification of data to cause impairment).
"ADI" (authorised deposit-taking institution) means
a corporation that is an ADI for the purposes of the Banking Act 1959.
"dealing" in personal financial information includes supplying or using
financial information.
"deception" means an intentional or reckless
deception, whether by words or other conduct, and whether as to fact or as to
law, and includes:
(a) a deception as to the intentions of the person using the deception
or any other person; and
(b) conduct by a person that causes a computer, a machine or an
electronic device to make a response that the person is not authorised to
cause it to do.
"dishonest" has the meaning given by section 480.2.
"obtaining" personal financial information includes possessing or making
personal financial information.
"personal financial information" means
information relating to a person that may be used (whether alone or in
conjunction with other information) to access funds, credit or other financial
benefits.
(2) For the purposes of this Part, a person is taken to obtain or deal
in personal information without the consent of the person to whom the
information relates if the consent of that person is obtained by any
deception.
(3) This Part extends to personal information relating to:
This Part applies to personal financial information only if:
(a) the funds concerned represent amounts that have been deposited with
or lent to, or are otherwise to be provided or made available by, an ADI or a
constitutional corporation; or
(b) the credit or other financial benefits concerned are provided, or
made available, by an ADI or a constitutional corporation.
(a) the person has possession or control of any thing; and
(b) the person has that possession or control with the intention that
the thing be used:
(i) by the person; or
(ii) by another person;
to commit an offence against section 480.4 (dishonestly obtaining or
dealing in personal financial information) or to facilitate the commission of
that offence.
Penalty: Imprisonment for 3 years.
(2) A person may be found guilty of an offence against
subsection (1) even if committing the offence against section 480.4
(dishonestly obtaining or dealing in personal financial information) is
impossible.
(3) It is not an offence to attempt to commit an offence against
subsection (1).
(b) does so with the intention that the thing be used:
(i) by the person; or
(ii) by another person;
in committing an offence against section 480.4 (dishonestly obtaining or
dealing in personal financial information) or to facilitate the commission of
that offence.
(i) makes, alters, destroys or conceals an accounting document; or
(ii) fails to make or alter an accounting document that the person is
under a duty, under a law of the Commonwealth, a State or Territory or at
common law, to make or alter; and
(b) the person intended the making, alteration, destruction or
concealment of the document (or the failure to make or alter the document) to
facilitate, conceal or disguise the occurrence of one or more of the
following:
(i) the person receiving a benefit that is not legitimately due to the
person;
(ii) the person giving a benefit that is not legitimately due to the
recipient, or intended recipient, of the benefit;
(iii) another person receiving a benefit that is not legitimately due to
the other person;
(iv) another person giving a benefit that is not legitimately due to the
recipient, or intended recipient, of the benefit (who may be the
first-mentioned person);
(v) loss to another person that is not legitimately incurred by the
other person; and
(c) one or more of the circumstances referred to in subsection (2)
applies.
(2) For the purposes of paragraph (1)(c) of this section or
paragraph 490.2(1)(c), the circumstances are:
(a) the person is:
(i) a constitutional corporation, or a corporation that is incorporated
in a Territory; or
(ii) an officer or employee of a constitutional corporation acting in
the performance of his or her duties or the carrying out of his or her
functions; or
(iii) a person engaged to provide services to a constitutional
corporation and acting in the course of providing those services; or
(iv) a Commonwealth public official acting in the performance of his or
her duties or the carrying out of his or her functions; or
(b) the person's act or omission referred to in paragraph (1)(a):
(i) occurs in a Territory; or
(ii) occurs outside Australia; or
(iii) concerns matters or things outside Australia; or
(iv) facilitates or conceals the commission of an offence against a law
of the Commonwealth; or
(c) the accounting document:
(i) is outside Australia; or
(ii) is in a Territory; or
(iii) is kept under or for the purposes of a law of the Commonwealth; or
(iv) is kept to record the receipt or use of Australian currency.
(3) Absolute liability applies to paragraph (1)(c).
Note: For absolute
liability, see section 6.2.
Penalty for individual
(4) An offence against this section 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 this section 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.
(i) makes, alters, destroys or conceals an accounting document; or
(ii) fails to make or alter an accounting document that the person is
under a duty, under a law of the Commonwealth, a State or Territory or at
common law, to make or alter; and
(b) the person is reckless as to whether the making, alteration,
destruction or concealment of the document (or the failure to make or alter
the document) facilitates, conceals or disguises the occurrence of one or more
of the following:
(i) the person receiving a benefit that is not legitimately due to the
person;
(ii) the person giving a benefit that is not legitimately due to the
recipient, or intended recipient, of the benefit;
(iii) another person receiving a benefit that is not legitimately due to
the other person;
(iv) another person giving a benefit that is not legitimately due to the
recipient, or intended recipient, of the benefit (who may be the
first-mentioned person);
(v) loss to another person that is not legitimately incurred by the
other person; and
(c) one or more of the circumstances referred to in
subsection 490.1(2) applies.
(2) Absolute liability applies to paragraph (1)(c).
Note: For absolute
liability, see section 6.2.
Penalty for individual
(3) An offence against this section committed by an individual is
punishable on conviction by imprisonment for not more than 5 years, a fine not
more than 5,000 penalty units, or both.
Penalty for body corporate
(4) An offence against this section committed by a body corporate is
punishable on conviction by a fine not more than the greatest of the
following:
(a) 50,000 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--1.5 times the value of that benefit;
(c) if the court cannot determine the value of that benefit--5% 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.
(1) For the purposes of this Division, 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;
The question whether 2 bodies corporate are related to each other is to be
determined for the purposes of this Division in the same way as for the
purposes of the Corporations Act 2001.
(1) Proceedings for an offence against this Division must not be
commenced without the Attorney-General's written consent if:
(a) the conduct constituting the alleged offence occurs wholly in a
foreign country; and
(b) at the time of the alleged offence, the person alleged to have
committed the offence is none of the following:
(i) an Australian citizen;
(ii) a resident of Australia;
(iii) 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 against this
Division before the necessary consent has been given.
"aggravated
burglary" means an offence against section 132.5.
"accounting document"
means:
(a) any account; or
(b) any record or document made or required for any accounting purpose;
or
(c) any register under the Corporations Act 2001, or any financial
report or financial records within the meaning of that Act.
"aggravated
robbery" means an offence against section 132.3.
"ancillary offence"
means:
(a) an offence against section 11.1, 11.4 or 11.5; or
(b) an offence against a law of the Commonwealth, to the extent to which
the offence arises out of the operation of section 11.2, 11.2A or 11.3.
"attack directed against a civilian population" means a course of conduct
involving the multiple commission of any one or more proscribed inhumane acts
against any civilian population pursuant to, or in furtherance of, a state or
organisational policy to engage in that course of conduct.
"Australia" ,
when used in a geographical sense, includes the external Territories.
"Australian aircraft" means:
(a) an aircraft registered, or required to be registered, under
regulations made under the Civil Aviation Act 1988; or
(b) an aircraft (other than a defence aircraft) that is owned by, or in
the possession or control of, a Commonwealth entity; or
(c) a defence aircraft.
"Australian Government security clearance"
means a security clearance given by the Australian Government Security Vetting
Agency or by another Commonwealth, State or Territory agency that is
authorised or approved by the Commonwealth to issue security clearances.
"cause" a person to engage in sexual intercourse or other sexual activity
has the meaning given by section 272.2.
"child" : without limiting who
is a child of a person for the purposes of this Code, someone is the child of
a person if he or she is a child of the person within the meaning of the
Family Law Act 1975.
"Commonwealth authority" means a body established by
or under a law of the Commonwealth, but does not include:
"Commonwealth contract"
means a contract, to which a Commonwealth entity is a party, under which
services are to be, or were to be, provided to a Commonwealth entity.
"Commonwealth entity" means:
(a) the Commonwealth; or
(b) a Commonwealth authority.
"Commonwealth judicial officer" means:
(a) a Justice of the High Court; or
(b) a judge or justice of a court created by the Parliament; or
(d) a registrar or other officer of the High Court; or
(e) a judicial registrar, registrar or other officer of a court created
by the Parliament; or
(f) a judge, justice, magistrate or other judicial officer of a court of
a State or Territory who acts in the exercise of federal jurisdiction; or
(g) a judicial registrar, registrar or other officer of a court of a
State or Territory who exercises powers, or performs functions, incidental to
the exercise of federal jurisdiction; or
(h) a judge, justice, magistrate or other judicial officer of a court of
a State or Territory who acts in the exercise of jurisdiction under a law in
force in a Territory (other than the Australian Capital Territory, the
Northern Territory or the Territory of Norfolk Island); or
(i) a judicial registrar, registrar or other officer of a court of a
State or Territory who exercises powers, or performs functions, incidental to
the exercise of jurisdiction under a law in force in a Territory (other than
the Australian Capital Territory, the Northern Territory or the Territory of
Norfolk Island).
"Commonwealth public official" means:
(a) the Governor-General; or
(b) a person appointed to administer the Government of the Commonwealth
under section 4 of the Constitution; or
(c) a Minister; or
(d) a Parliamentary Secretary; or
(e) a member of either House of the Parliament; or
(f) an individual who holds an appointment under section 67 of the
Constitution; or
(g) the Administrator, an Acting Administrator, or a Deputy
Administrator, of the Northern Territory; or
(i) a Commonwealth judicial officer; or
(j) an APS employee; or
(k) an individual employed by the Commonwealth otherwise than under the
Public Service Act 1999 ; or
(l) a member of the Australian Defence Force; or
(m) a member or special member of the Australian Federal Police; or
(n) an individual (other than an official of a registered industrial
organisation) who holds or performs the duties of an office established by or
under a law of the Commonwealth, other than:
(o) an officer or employee of a Commonwealth authority; or
(p) an individual who is a contracted service provider for a
Commonwealth contract; or
(q) an individual who is an officer or employee of a contracted service
provider for a Commonwealth contract and who provides services for the
purposes (whether direct or indirect) of the Commonwealth contract; or
(r) an individual (other than an official of a registered industrial
organisation) who exercises powers, or performs functions, conferred on the
person by or under a law of the Commonwealth, other than:
(vii) a provision specified in the regulations; or
(s) an individual who exercises powers, or performs functions, conferred
on the person under a law in force in the Territory of Christmas Island or the
Territory of Cocos (Keeling) Islands (whether the law is a law of the
Commonwealth or a law of the Territory concerned); or
(t) the Registrar, or a Deputy Registrar, of Aboriginal and Torres
Strait Islander Corporations.
"communication" includes any communication:
(a) whether between persons and persons, things and things or persons
and things; and
(b) whether the communication is:
(i) in the form of text; or
(ii) in the form of speech, music or other sounds; or
(iii) in the form of visual images (still or moving); or
(iv) in the form of signals; or
(v) in the form of data; or
(vi) in any other form; or
(vii) in any combination of forms.
"conduct" is defined in
subsection 4.1(2).
"confiscate" , in relation to a person's travel or
identity document, has the same meaning as in Division 271 (see
section 271.1).
"constitutional corporation" means a corporation to
which paragraph 51(xx) of the Constitution applies.
"constitutional
trade and commerce" means trade and commerce:
(a) with other countries; or
(b) among the States; or
(c) between a State and a Territory; or
(d) between 2 Territories.
"contracted service provider" , for a
Commonwealth contract, means:
(a) a person who is a party to the Commonwealth contract and who is
responsible for the provision of services to a Commonwealth entity under the
Commonwealth contract; or
(b) a subcontractor for the Commonwealth contract.
"Covenant" means
the International Covenant on Civil and Political Rights, a copy of the
English text of which is set out in Schedule 2 to the
Australian Human Rights Commission Act 1986.
"crime against humanity" means
an offence under Subdivision C of Division 268.
"crime against the
administration of the justice of the International Criminal Court" means an
offence under Subdivision J of Division 268.
"data" includes:
(a) information in any form; or
(b) any program (or part of a program).
"data held in a computer"
includes:
(a) data held in any removable data storage device for the time being
held in a computer; or
(b) data held in a data storage device on a computer network of which
the computer forms a part.
"data storage device" means a thing (for
example, a disk or file server) containing, or designed to contain, data for
use by a computer.
"deal" , in identification information, has a meaning
affected by section 370.1.
"death" means:
(a) the irreversible cessation of all function of a person's brain
(including the brain stem); or
(b) the irreversible cessation of circulation of blood in a person's
body.
"debt bondage" has the same meaning as in Division 270 (see
section 270.1A).
"defence aircraft" means an aircraft of any
part of the Australian Defence Force, and includes an aircraft that is being
commanded or piloted by a member of that Force in the course of his or her
duties as such a member.
"defence ship" means a ship of any
part of the Australian Defence Force, and includes a ship that is being
operated or commanded by a member of that Force in the course of his or her
duties as such a member.
"detaining" a person includes causing the person to
remain where he or she is.
"detriment" includes any disadvantage and is not
limited to personal injury or to loss of or damage to property.
"distinctive
emblems of the Geneva Conventions" means the emblems, identity cards, signs,
signals, insignia or uniforms to which subsection 15(1) of the
Geneva Conventions Act 1957applies.
"electronic communication" means a
communication by means of guided or unguided electromagnetic energy or both.
"electronic service" has the meaning given by subsection 474.23A(4).
"engage in conduct" is defined in subsection 4.1(2).
"engage in sexual
activity" : without limiting when a person engages in sexual activity, a
person is taken to engage in sexual activity if the person is in the presence
of another person (including by a means of communication that allows the
person to see or hear the other person) while the other person engages in
sexual activity.
"evidence" includes anything that may be used as evidence.
"evidential burden" is defined in subsection 13.3(6).
"exploitation"
has the same meaning as in Division 271 (see section 271.1A).
"federal aspect" is defined in section 390.2.
"First Geneva Convention"
means the Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field, adopted at Geneva on
12 August 1949, a copy of the English text of which (not including the
annexes) is set out in Schedule 1 to the Geneva Conventions Act 1957.
"forced labour" has the same meaning as in Division 270 (see
section 270.6).
"forced marriage" has the meaning given by
section 270.7A.
"foreign country" includes:
(a) a colony or overseas territory; and
(b) a territory outside Australia, where a foreign country is to any
extent responsible for the international relations of the territory; and
(c) a territory outside Australia that is to some extent self-governing,
but that is not recognised as an independent sovereign state by Australia.
"foreign intelligence agency" means an intelligence or security service
(however described) of a foreign country.
"Fourth Geneva Convention" means
the Geneva Convention relative to the Protection of Civilian Persons in Time
of War, adopted at Geneva on 12 August 1949, a copy of the English text
of which (not including the annexes) is set out in Schedule 4 to the
Geneva Conventions Act 1957.
"Geneva Conventions" means the First Geneva
Convention, the Second Geneva Convention, the Third Geneva Convention and the
Fourth Geneva Convention.
"genocide" means an offence under Subdivision B of
Division 268.
"Hague Declaration" means the Hague Declarations
Concerning the Prohibition of Using Bullets which Expand or Flatten Easily in
the Human Body, adopted at the Hague on 29 July 1899.
"harm" means
physical harm or harm to a person's mental health, whether temporary or
permanent. However, it does not include being subjected to any force or impact
that is within the limits of what is acceptable as incidental to social
interaction or to life in the community.
"harm to a person's mental health"
includes significant psychological harm, but does not include mere ordinary
emotional reactions such as those of only distress, grief, fear or anger.
"hors de combat" : a person is hors de combat if:
(a) the person is in the power of an adverse party; and
(b) the person:
(i) clearly expresses an intention to surrender; or
(ii) has been rendered unconscious or is otherwise incapacitated by
wounds or sickness and is therefore incapable of defending himself or herself;
and
(c) the person abstains from any hostile act and does not attempt to
escape.
"ICC Statute" means the Statute of the International Criminal Court
done at Rome on 17 July 1998, a copy of the English text of which is set
out in Schedule 1 to the International Criminal Court Act 2002.
"identification documentation" has the meaning given by section 370.1.
"identification information" has the meaning given by section 370.1.
"identity document" includes any kind of document that may be used to
establish the identity of a person in a country under the law or procedures of
that country.
"intention" has the meaning given in section 5.2.
"international armed conflict" includes a military occupation.
"International Criminal Court" means the International Criminal Court
established under the ICC Statute.
"interpreter" includes a person who
interprets signs or other things made or done by a person who cannot speak
adequately for the purpose of giving evidence in a proceeding before the
International Criminal Court.
"knowledge" has the meaning given in
section 5.3.
"law" means a law of the Commonwealth, and includes this
Code.
"legal burden" is defined in subsection 13.1(3).
"make
available" , in relation to material, includes, but is not limited to,
describing how to obtain access, or describing methods that are likely to
facilitate access, to material (for example: by setting out the name of a
website, an IP address, a URL, a password, or the name of a newsgroup).
"mental impairment" has the meaning given by subsection 7.3(8).
"mutiny" has the meaning given by subsection 83.1(2).
"negligence" has
the meaning given in section 5.5.
"offence" means an offence against a
law of the Commonwealth.
"parent" : without limiting who is a parent of a person for the purposes of
this Code, someone is the parent of a person if the person is his or her child
because of the definition of child in this Dictionary.
"person includes a
Commonwealth authority that is not a body corporate, and another" has a
corresponding meaning.
Note: This definition
supplements subsection 2C(1) of the Acts Interpretation Act 1901. That
subsection provides that person includes a body politic or corporate as well
as an individual.
"personal service" means any labour or service, including
a sexual service, provided by a person.
"physical harm" includes
unconsciousness, pain, disfigurement, infection with a disease and any
physical contact with a person that the person might reasonably object to in
the circumstances (whether or not the person was aware of it at the time).
"position of trust or authority" has the meaning given by
subsection 272.3(1).
"primary offence" means an offence against a law
of the Commonwealth, other than an ancillary offence.
"procure" a person to
engage in sexual activity includes:
(a) encourage, entice or recruit the person to engage in that activity;
or
(b) induce the person (whether by threats, promises or otherwise) to
engage in that activity.
"proscribed inhumane act" means any of the
following acts:
(a) an act that is described in paragraph 268.8(a);
(b) an act that is described in paragraph 268.9(1)(a) and is
committed as mentioned in paragraph 268.9(1)(b);
(c) an act that is described in paragraph 268.10(1)(a);
(d) an act that is described in paragraph 268.11(1)(a) and to which
paragraph 268.11(1)(b) applies;
(e) an act that is described in paragraph 268.12(1)(a) and to which
paragraph 268.12(1)(b) applies;
(f) an act that is described in paragraph 268.13(a) and to which
paragraph 268.13(b) applies;
(g) an act that is described in paragraph 268.14(1)(a) or (2)(a);
(h) an act that is described in paragraph 268.15(1)(a);
(i) an act that is described in paragraph 268.16(1)(a) and to which
paragraph 268.16(1)(b) applies;
(j) an act that is described in paragraph 268.17(1)(a) and to which
paragraph 268.17(1)(b) applies;
(k) an act that is described in paragraphs 268.18(1)(a) and (b) and to
which paragraph 268.18(1)(c) applies;
(l) an act that is described in paragraph 268.19(1)(a) and is of
the gravity mentioned in paragraph 268.19(1)(b);
(m) an act that is described in paragraph 268.20(1)(a) and is
committed as mentioned in paragraphs 268.20(1)(c), (d) and (e);
(n) an act that is described in paragraph 268.21(1)(a) and to which
paragraphs 268.21(1)(b) and (c) apply;
(o) an act that is described in paragraph 268.21(2)(c) and is
committed as mentioned in paragraph 268.21(2)(d);
(p) an act that is described in paragraph 268.22(a) and is
committed as mentioned in paragraph 268.22(b);
(q) an act that is described in paragraph 268.23(a) and to which
paragraph 268.23(b) applies.
"Protocol I to the Geneva Conventions"
means the Protocol Additional to the Geneva Conventions of 12 August
1949, and relating to the Protection of Victims of International Armed
Conflicts (Protocol I), done at Geneva on 10 June 1977, a copy of the
English text of which is set out in Schedule 5 to the
Geneva Conventions Act 1957.
"Protocol II to the Geneva Conventions" means
the Protocol Additional to the Geneva Conventions of 12 August 1949,
relating to the Protection of Victims of Non-International Armed Conflicts
done at Geneva on 10 June 1977.
"Protocol III to the Geneva
Conventions" means the Protocol Additional to the Geneva Conventions of
12 August 1949, and relating to the Adoption of an Additional Distinctive
Emblem (Protocol III), done at Geneva on 8 December 2005, a copy of the
English text of which is set out in Schedule 6 to the
Geneva Conventions Act 1957.
"Protocols to the Geneva Conventions" means
Protocol I to the Geneva Conventions, Protocol II to the Geneva Conventions
and Protocol III to the Geneva Conventions.
"public official" includes:
(a) a Commonwealth public official; and
(b) an officer or employee of the Commonwealth or of a State or
Territory; and
(c) an individual who performs work for the Commonwealth, or for a State
or Territory, under a contract; and
(d) an individual who holds or performs the duties of an office
established by a law of the Commonwealth or of a State or Territory; and
(e) an individual who is otherwise in the service of the Commonwealth or
of a State or Territory (including service as a member of a military force or
police force); and
(f) a member of the executive, judiciary or magistracy of the
Commonwealth or of a State or Territory; and
(g) a member of the legislature of the Commonwealth or of a State or
Territory; and
(h) an officer or employee of:
(i) an authority of the Commonwealth; or
(ii) an authority of a State or Territory.
"receiving" means an
offence against section 132.1.
"recklessness" has the meaning given in
section 5.4.
"resident of
Australia" means an individual who is a resident of Australia.
"robbery"
means an offence against section 132.2.
"Second Geneva Convention"
means the Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick and Shipwrecked Members of Armed Forces at Sea, adopted at
Geneva on 12 August 1949, a copy of the English text of which (not
including the annexes) is set out in Schedule 2 to the
Geneva Conventions Act 1957.
"serious harm" means harm (including the
cumulative effect of any harm):
(a) that endangers, or is likely to endanger, a person's life; or
(b) that is or is likely to be significant and longstanding.
"services provided to a Commonwealth entity" includes services that consist of
the provision of services to other persons in connection with the performance
of the Commonwealth entity's functions.
"servitude" has the same meaning as
in Division 270 (see section 270.4).
"sexual activity" means:
(a) sexual intercourse; or
(b) any other activity of a sexual or indecent nature (including an
indecent assault) that involves the human body, or bodily actions or functions
(whether or not that activity involves physical contact between people).
Note: See also the
definition of engage in sexual activity .
"sexual intercourse" has the
meaning given by section 272.4.
"sexually penetrate" is defined in
section 71.8.
"sexual service" means the use or display of the body of
the person providing the service for the sexual gratification of others.
"slavery" has the meaning given by section 270.1.
"slavery-like
offence" has the same meaning as in Division 270 (see
section 270.1A).
"special liability provision" means:
(a) a provision that provides that absolute liability applies to one or
more (but not all) of the physical elements of an offence; or
(b) a provision that provides that, in a prosecution for an offence, it
is not necessary to prove that the defendant knew a particular thing; or
(c) a provision that provides that, in a prosecution for an offence, it
is not necessary to prove that the defendant knew or believed a particular
thing.
"step-child" : without limiting who is a step-child of a person for
the purposes of this Code, someone who is a child of
a de facto partner of the person is the step-child of the
person, if he or she would be the person's step-child except that the person
is not legally married to the partner.
"step-parent" : without limiting who
is a step-parent of a person for the purposes of this Code, someone who is
a de facto partner of a parent of the person is the step-parent
of the person, if he or she would be the person's step-parent except that he
or she is not legally married to the person's parent.
"subcontractor" , for
a Commonwealth contract, means a person:
(a) who is a party to a contract (the subcontract ):
(i) with a contracted service provider for the Commonwealth contract
(within the meaning of paragraph (a) of the definition of contracted
service provider ); or
(ii) with a subcontractor for the Commonwealth contract (under a
previous application of this definition); and
(b) who is responsible under the subcontract for the provision of
services to a Commonwealth entity, or to a contracted service provider for the
Commonwealth contract, for the purposes (whether direct or indirect) of the
Commonwealth contract.
"sworn statement" means an oral statement made on
oath or affirmation or a statement in a document verified on oath or
affirmation.
"taking" a person includes causing the person to accompany
another person and causing the person to be taken.
"Third Geneva Convention" means the Geneva Convention
relative to the Protection of Prisoners of War, adopted at Geneva on
12 August 1949, a copy of the English text of which (not including the
annexes) is set out in Schedule 3 to the Geneva Conventions Act 1957.
"threat" includes a threat made by any conduct, whether express or implied and
whether conditional or unconditional.
"travel document" includes any kind of
document required, under the law of a country, to enter or leave that country.
"war crime" means an offence under Subdivision D, E, F, G or H of
Division 268.
